TITLE 2. Administration
Division 1. Administrative Personnel
Chapter 1. State Personnel Board
Subchapter 1. General Civil Service Regulations
(Originally Printed 3-22-45)
PREFATORY NOTE
Articles 1 through 25, inclusive, are promulgated under the authority of Section 18701, Government Code, unless otherwise noted.
Article 1. Definitions
For the statutory definitions, refer to Section 18520 of the Act and sections following.
History
Unless the context requires otherwise, the definitions hereinafter set forth govern the construction of these regulations.
HISTORY
1. Chapter 1 originally published 3-22-45 (Title 2).
2. Revision of chapter 1 filed 4-11-47; effective 5-11-47 (Register 7).
3. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Change without regulatory effect amending subchapter heading and section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
“Act” means the State Civil Service Act and Part 1 of Division 5 of Title 2 of the Government Code of the State of California.
“Agency” includes “department,” “board,” “office,” “authority,” “commission,” and every other governmental unit.
History
“Appointing Power” means a person or group defined by statute as having authority to make appointments to positions in the state civil service. This in no way affects the delegation of authority, as defined in Section 7 of the Government Code.
HISTORY
1. New section filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).
“Board” means the State Personnel Board of the State of California.
History
“Employee” includes every officer and employee subject to the act or these regulations.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
“Executive Officer” means the executive officer of the board.
§6.1. Use of Month or Calendar Month.
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18538.1, Government Code.
HISTORY
1. Amendment filed 11-7-69; effective thirtieth day thereafter (Register 69, No. 45). For prior history, see Register 68, No. 49.
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§6.2. Qualifying Monthly Pay Period.
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18538.1 and 19533.04, Government Code.
HISTORY
1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 69, No. 45.
2. Amendment filed 11-15-78; effective thirtieth day thereafter (Register 78, No. 45).
3. Amendment filed 10-3-80; effective thirtieth day thereafter (Register 80, No. 40).
4. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§6.3. Qualifying Monthly Pay Period for Hourly and Daily Rate Employees.
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18538.1, 19530 and 19533.04, Government Code.
HISTORY
1. New section filed 10-3-80; effective thirtieth day thereafter (Register 80, No. 40).
2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Note • History
For the purposes of the act and these regulations, an employee shall be deemed to have a break in the continuity of his or her state civil service due to a permanent separation only if:
(a) the employee permanently separates from state service as defined by Section 446 and
(b) then remains outside state service for at least eleven consecutive working days.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19996.1 and 19998.3, Government Code.
HISTORY
1. New section filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
History
“Regulations” means the regulations of the board.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§8. Good Faith Appointment Requirements and Sanctions for Violation.
Note • History
To be valid, a civil service appointment must be made and accepted in “good faith” under the civil service statutes and board regulations. For purposes of administering the civil service statutes, including Government Code Sections 19257 and 19257.5 and board Regulations, “good faith” is presumed to exist in the following circumstances:
(a) In order to make an appointment in “good faith,” an appointing power and all officers or employees to whom an appointing power delegates appointment authority must:
(1) Intend to observe the spirit and intent of the law; and
(2) Make a reasonable and serious attempt to determine how the law should be applied; and
(3) Assure that positions are properly classified; and
(4) Assure that appointees have appropriate civil service appointment eligibility; and
(5) Intend to employ the appointee in the class, tenure and location to which appointed under the conditions reflected by the appointment document; and
(6) Make a reasonable and serious attempt to provide the relevant reference materials, training, and supervision necessary to avoid any mistakes of law or fact to the persons responsible for the pertinent personnel transactions; and
(7) Act in a manner that does not improperly diminish the rights and privileges of other persons affected by the appointment, including other eligibles.
Any officer or employee who violates any of the foregoing provisions of this regulation, or any other officer or employee in a position of authority who directs any officer or employee to violate any of these provisions, shall be subject to civil or criminal sanctions as provided in Government Code Sections 19680, 19681, 19682, 19683, 19764, as well as adverse action as provided in Government Code Sections 19572, 19583.5, or 19682.
(b) In order to accept an appointment in “good faith,” an employee must:
(1) Intend to serve in the class to which the employee is being appointed under the tenure, location and other elements of the appointment as reflected by the appointment document; and
(2) Provide the appointing power with complete, factual, and truthful information necessary for a proper appointment; and
(3) Make a reasonable attempt to seek correction of any aspects of the appointment that the employee knows are illegal.
Violation of any of the foregoing provisions of this section by an employee shall be cause for adverse action.
If a lack of good faith exists on the part of either the appointing power or the employee, the executive officer may cancel the improper appointment without regard to the one-year limitation set forth in Government Code Section 19257.5 subject to the provisions of Section 266.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19257, 19257.5, 19572, 19583.5, 19680, 19681, 19682 and 19683, Government Code.
HISTORY
1. New section filed 1-21-80 as procedural and organizational; effective upon filing (Register 80, No. 4).
2. Amendment filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).
3. Change without regulatory effect amending opening paragraph, subsections (a)(7) and (b)(3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
The word “compensation” as used in Government Code Section 19257 includes salary, vacation, sick leave, health benefits, retirement benefits, salary step advancement and State service credit for determining vacation earning rates and eligibility for a salary above the minimum rate when legally appointed to the class, Industrial Disability Leave, Nonindustrial Disability Insurance benefits and red circle rates. “Compensation” also includes the continuity of service when used to determine the employee's eligibility for these compensation items.
“Compensation” as used in Government Code Section 19257 does not include tenure in a position, seniority credits, permissive reinstatement, eligibility, mandatory reinstatement rights, eligibility to take promotional examinations, career credits, permanent or probationary status and service toward completion of the probationary period; nor continuity of service when used to determine the employee's right to or eligibility for any of the foregoing.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19257, Government Code.
HISTORY
1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).
Note • History
(a) “Individual with a disability” means, with respect to an individual (1) having a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) having a record of such impairment; or (3) being regarded as having such an impairment.
(b) “Physical Impairment” means any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.
(c) “Mental impairment” means any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(d) “Major life activities” means activities that an average person can perform with little or no difficulty, such as: walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself, working, sitting, standing, lifting, or reaching, etc.
(e) “Substantially limits” means the individual with a disability is: 1) unable to perform a major life activity that the average person in the general population can perform; or 2) significantly restricted as to the condition, manner or duration under which the average person in the general population can perform that same major life activity.
NOTE
Authority cited: Sections 18701, 19231, 19241 and 19792, Government Code. Reference: Sections 19230, 19231 and 19240-44, Government Code; and Federal Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
Article 2. General Provisions
For the General Provisions of the State Civil Service Act, refer to Section 18570 of the act and sections following.
History
Each section of these regulations is a regulation of the board and may be cited as such. Thus, this section, whether appearing in the California Code of Regulations or elsewhere, may be cited as “Section 21” or “2 CCR 21.”
HISTORY
1. Change without regulatory effect amending section heading and text filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning, or intent of the provisions of any article or section hereof.
History
The provisions of these regulations, insofar as they are substantially the same as regulations of the board superseded hereby and relating to the same subject matter, shall be construed as restatements and continuations and not as new enactments. Rights, privileges, and remedies accrued under any regulations superseded by these regulations are continued in full force and effect unless abolished by some contrary provision herein.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
In order that the work of the board may be expedited, the appointing power of every state agency shall file with the board such reports as the board or the executive officer may require. Reports shall be submitted on such forms and filed at such times as may be prescribed by the board or the executive officer.
Article 3. Administration
For the general statutory provisions on this subject, refer to Section 18650 of the act and sections following.
Note • History
The time and place of each regular meeting of the board shall be fixed by the board not less than one month preceding the date of the meeting.
NOTE
Reference: Sections 18652 and 18653, Government Code.
HISTORY
1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§32. Special Meetings. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11125, Government Code.
HISTORY
1. Amendment filed 10-26-79; effective thirtieth day thereafter (Register 79, No. 43).
2. Repealer 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
Note • History
Emergency meetings of the board shall be called by the president of the board at any time and place within the State of California upon the request of not less than three members of the board.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11125.5 and 18653, Government Code
HISTORY
1. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
Note • History
(a) All matters to be presented for consideration by the board at a regular meeting shall be placed upon the board's calendar without undue delay. The calendar agenda shall be distributed to every party who has requested a copy at least ten days prior to such regular meeting.
(b) The non-hearing calendar is defined as agenda items submitted by either the board staff or the Department of Personnel Administration staff which the executive officer determines can be acted upon by the board without a hearing.
(c) Interested parties with concerns or who oppose any item on the non-hearing calendar may submit a written notice to the executive officer stating the nature of the concern or opposition, and explaining how the issue of concern is a merit employment matter within the board's scope of authority as set forth in the State Civil Service Act (Government Code Section 18500 et seq.) and Article VII, California Constitution. Such written notice must be received by the executive officer not later than close of business on the Wednesday before the board meeting at which the item is scheduled.
(d) In investigating matters outlined in subsection (c) the executive officer shall act as the board's authorized representative, and shall recommend to the board either (1) to act on the agenda item as submitted, without a hearing or (2) to hear the item, including a staff recommendation on resolution of the merit issues in dispute.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11125, 18654.5 and 18675, Government Code.
HISTORY
1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).
2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
4. Amendment of section filed 9-30-91; operative 10-30-91 (Register 91, No. 52).
5. Editorial correction adding inadvertently omitted subsection (d) (Register 95, No. 5).
§34.5. Notice of Regular Meeting Agenda.
Note • History
Whenever notice of an agenda item is required to be given of matters to be heard or considered by the board and a different method is not provided, the executive officer shall cause a notice to be posted at the office of the board at Sacramento at least ten (10) days before the date of hearing giving the nature of the matter and giving notice that all persons interested may appear, at a time and place mentioned in the notice, in support of or in opposition to the matter. Notice of agenda item shall be provided at least ten days in advance of the meeting date, to any person who requests such notice in writing. In cases of emergency the executive officer may shorten the period of notice to not less than one (1) hour.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11125, 11125.5 and 18575, Government Code.
HISTORY
1. New section filed 11-7-49 (Register 18, No. 5).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15.
3. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
§35. Continuances of Items Under Submission.
Note • History
All matters appearing on the calendar that are not disposed of by a motion to vote by the board shall be considered as items under submission and shall appear on subsequent calendar(s) as items of unfinished business until such a motion is made.
Items may be taken under submission whenever time does not permit sufficient deliberation to call for a motion to vote or when the board requires additional information prior to voting.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18653, Government Code.
HISTORY
1. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
§35.5. Reconsideration and Action.
Note • History
In any meeting of the board, a vote of three concurring members is required to make any action effective whether that action is to grant or deny an appeal, request, or other matter properly before the board. Where a matter requires such action and a motion to take such action fails for lack of three concurring votes, the matter shall not be dropped from the calendar. Upon the adoption of a motion to reconsider made by any member of the board at the same, or succeeding meeting, the matter shall be reconsidered. If a motion to reconsider is not adopted within three months, the matter shall be dropped from the calendar and the appeal or request shall be deemed denied.
A member of the board may participate in the reconsideration of a matter even though the member was not present during the original consideration if the interested parties agree or if the member has reviewed a transcript of the proceedings and the documents and other materials before the board.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18653, Government Code.
HISTORY
1. New section filed 6-8-59; effective thirtieth day thereafter (Register 59, No. 9).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
Note • History
NOTE
Reference: Section 18704, Government Code.
HISTORY
1. New section filed 11-7-49 (Register 18, No. 5).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Notice of Repeal filed 6-25-87 by OAL pursuant to Government Code Section 11343.8; operative 7-25-87 (Register 87, No. 26).
§37. Delegation Authority of the Board and Executive Officer.
Note • History
Whenever it is stated in these regulations that the “board” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the State Personnel Board specifically has reserved the same for its own, exclusive action. Whenever it is stated that the “board” or the “executive officer” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, either the State Personnel Board or the executive officer thereof may take action thereon. Whenever it is stated that the “executive officer” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the executive officer of the State Personnel Board has the exclusive power to act thereon. Any party in interest may appeal to the State Personnel Board for review of the actions and decisions of the executive officer.
Nothing herein prohibits the executive officer from redelegating to subordinates or to an appointing power he or she designates as provided by Sections 18654 and 18930.5 of the Government Code.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18654 and 18930.5, Government Code.
HISTORY
1. New section filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 11-20-87; operative 12-20-87 (Register 87, No. 48).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 3.5. Selection Standards
Note • History
Each agency and department with delegated or decentralized selection responsibilities shall develop and maintain a selection program as specified in the State Personnel Board's Merit Selection Manual: Policy and Practices, dated October 2003, and in accordance with existing laws and rules. The State Personnel Board's Merit Selection Manual: Policy and Practices, dated October 2003, is hereby incorporated by reference in its entirety.
NOTE
Authority cited: Sections 18211 and 18701, Government Code. Reference: Article 7, Sections 1 and 3, California Constitution; and Sections 18213, 18500, 18900, 18930, 18950 and 19050, Government Code.
HISTORY
1. New article 3.5 (section 50) and section filed 2-6-2003; operative 2-6-2003. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2003, No. 7).
2. Amendment of Merit Selection Manual: Policy and Practices (incorporated by reference) and amendment of section and Note filed 5-17-2004; operative 5-17-2004. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2004, No. 21).
3. Amendment of Merit Selection Manual: Policy and Practices (incorporated by reference) and amendment of section and Note filed 5-17-2004; operative 5-17-2004. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2004, No. 22).
Subchapter 1.2. Hearings and Appeals
§51. Scope of Article. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Amendment filed 11-7-49 (Register 18, No. 5).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
4. Change without regulatory effect amending article heading and section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
5. Renumbering of former section 51 to section 51.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
6. Change without regulatory effect redesignating former article 4 as new subchapter 1.2 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
Article 1. General Provisions
Note • History
The regulations in this subchapter shall apply to all Appellants, Complainants, and Respondents and all hearings and investigative reviews conducted by the Board or its designees.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former sections 52, 53 and 56 to section 51.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Registers 87, No. 48; and 86, No. 1.
2. Change without regulatory effect amending opening sentence and subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. New subarticle 1 (sections 51.1-51.3), renumbering of former section 51.1 to section 51.2 and renumbering and amendment of former section 51 to new section 51.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Change without regulatory effect redesignating former subarticle 1 as new article 1 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
5. Change without regulatory effect amending section heading and section filed 10-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 41).
Note • History
Unless the context requires otherwise, the following definitions shall apply to regulations in this article.
(a) “Administrative Law Judge” or “ALJ” means a person employed by the State Personnel Board (SPB) to conduct evidentiary hearings under this article.
(b) “Adverse action” means an action taken by an appointing power to discipline an employee and includes formal reprimand, transfers for disciplinary reasons, suspension, reduction-in-salary, demotion and dismissal.
(c) “Agency” means any agency, department, board, commission, district, or other designated entity that employs state civil service employees.
(d) “Appeal” means any written request for relief or review filed as provided in these regulations and includes “application,” “petition,” “protest,” “complaint” and “answer” pursuant to section 19575 of the Government Code.”
(e) “Appeals division” means the Appeals Division of the State Personnel Board.
(f) “Appellant” means the person or organization filing any appeal with the SPB.
(g) “Appointing authority” or “appointing power” means the individual or entity that possesses the final authority to appoint and/or dismiss a state employee.
(h) “Board” means the five-member State Personnel Board.
(i) “Brought to Hearing” means when the record is opened for the purposes of initiating the evidentiary hearing and receiving evidence.
(j) “Business days” means all days that all state agencies are open for business, excluding weekends, holidays or other designated days. For purposes of these regulations, unless otherwise indicated a business day commences at 8:00 a.m. and concludes at 5:00 p.m. The term “business days” includes the term “working days.”
(k) “Complainant” means the person or organization filing a complaint of discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability.
(l) “Constructive Medical Action” means an involuntary transfer or demotion, or a refusal to permit an employee to return to work for purported medical reasons without providing the employee those due process protections set forth in Government Code section 19253.5.
(m) “Days” means calendar days, unless otherwise indicated.
(n) “Examination appeal” means appeals concerning allegations that: an Appellant's civil service examination was not accepted by the examining agency; civil service examination statutes, regulations or policies were violated during the examination process; and/or improprieties in the appointment or promotion process.
(o) “Evidentiary hearing” means a hearing conducted before an ALJ, during which: opening and closing arguments are permitted; direct examination and cross examination of witnesses is permitted; physical and documentary evidence may be introduced and admitted; and a proposed decision is submitted by the ALJ for review by the Board.
(p) “Executive Officer” means the Executive Officer of the State Personnel Board, as designated in Article VII, section 3, subdivision (b), of the California Constitution.
(q) “Hearing Officer” means a State Personnel Board employee designated by the Board, the Executive Officer, or other appropriate authority, to conduct a hearing concerning appeals from pre-employment medical or psychological disqualification, appeals from a failure of a pre-employment drug test, and other appeals as deemed appropriate, in accordance with the provisions of section 54.1.
(r) “Informal Hearing” means a hearing conducted pursuant to Government Code sections 11445.10 through 11445.60 by a Presiding Officer.
(s) “Investigative Officer” means a State Personnel Board employee designated by the Board, the Executive Officer, or other appropriate authority, to conduct an investigative review concerning merit issue appeals, requests-to-file-charges, appeals from withhold from certification, appeals from voided appointment, examination appeals, requests from dismissed employees to take civil service examinations, and other appeals as deemed appropriate.
(t) “Investigative Review” means an investigation conducted by an Investigative Officer during which the Investigative Officer shall have the authority to conduct the investigation in accordance with the provisions of section 55.1.
(u) “Investigatory Hearing” means an evidentiary hearing conducted by the Chief ALJ's designee in accordance with the provisions of section 55.2.
(v) “Medical Action” means an action to transfer, demote, dismiss, or to apply for involuntarily disability benefits on behalf of an employee for asserted medical reasons, pursuant to the provisions of Government Code section 19253.5.
(w) “Merit issue appeal” means an appeal concerning allegations that the State Civil Service Act or State Personnel Board regulation or policy related to applications, appointments and promotions within the civil service system has been violated by an agency. Merit issue appeals include, but are not limited to: allegations of interference with promotional opportunities, disputes concerning the effective date of appointments and promotions, and the applicability of alternate salary ranges. Merit issue appeals do not include appeals of actions that are specifically provided for elsewhere in law or in board regulations.
(x) “Non-punitive action” means an action to transfer, demote, or dismiss an employee for failure to meet one or more requirements for continuing employment pursuant to the provisions of Government Code section 19585.
(y) “Office of the Chief Counsel” means the Office of the Chief Counsel for the Board.
(z) “Peremptory strike” means the disqualification without cause of an ALJ assigned to a hearing.
(aa) “Rejection during probationary period” or “rejection” means an action to remove an employee from a probationary appointment.
(bb) “Respondent” means the person or state agency from whose action or decision the appellant is seeking relief.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former sections 52, 53 and 56 to section 51.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Registers 87, No. 48; and 86, No. 1.
2. Change without regulatory effect amending opening sentence and subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Renumbering of former section 51.2 to section 52.4 and renumbering and amendment of former section 51.1 to new section 51.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Change without regulatory effect amending subsection (u) filed 10-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 41).
§51.3. Construction of Regulations.
Note • History
(a) As used in these regulations, words in the singular shall include the plural and words in the plural shall include the singular, unless the context otherwise requires.
(b) Statutory references are to the Government Code unless otherwise specified.
(c) In these regulations, whenever a time is stated within which an act is to be done, the time is computed by excluding the first day, and including the last day. If the last day is any day the board is closed for business, that day is also excluded.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Amendment of subsection (a), repealer of subsection (a)(1), subsection renumbering, amendment of newly designated subsection (a)(1) and new subsection (a)(3) filed 2-17-2009; operative 3-19-2009. Submitted to OAL for printing only pursuant to Government Code section 18211 (Register 2009, No. 8).
4. Repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§51.4. Hearings are Public. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 73 to sections 51.4 and 51.5 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
2. Renumbering of former section 51.4 to new section 58.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§51.5. Right to Representation. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 73 to sections 51.4 and 51.5 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
2. Renumbering of former section 51.5 to new section 52.9 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§51.6. When Decisions Become Final.
Note • History
Unless a proper application for rehearing is made pursuant to Government Code section 19586, every board decision shall become final 30 days after service by the board of a copy of such decision upon the parties to the proceeding in which the decision is rendered.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19586, Government Code.
HISTORY
1. Renumbering and amendment of former section 70 to section 51.6 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
§51.7. Petitioning for Rehearing.
Note • History
Either the appellant or the respondent may file a petition for a rehearing of an appeal decision under the provisions of sections 19586 and 19587 of the Government Code.
Action on petitions for rehearing shall be taken within 60 days of the service specified in section 19586 of the Government Code.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19586 and 19587, Government Code.
HISTORY
1. Renumbering and amendment of former section 69 to section 51.7 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
§51.9. Request to File Charges Against State Employees. [Renumbered]
Note • History
NOTE
Authority: Section 18701, Government Code. Reference: Section 19583.5, Government Code.
HISTORY
1. Renumbering and amendment of former section 62 to section 51.9 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
2. Renumbering of former section 51.9 to new section 52.7 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52. Appeals Assigned to the Administrative Law Judge Evidentiary/Investigatory Hearing Processes. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18671, 18675, 19570, 19756 and 19582, Government Code.
HISTORY
1. Renumbering and amendment of former section 52 to section 51.1, and renumbering and amendment of former section 67 to section 52 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.
2. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Amendment of section heading, section and Note filed 8-19-97; operative 8-19-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 34).
4. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
5. Editorial correction implementing 8-18-2010 repeal (Register 2010, No. 37).
Article 2. Filing with SPB
§52.1. Papers; Type Size.
Note • History
(a) All papers filed with SPB must be on 8 1/2 by 11 inch paper, printed or typewritten or be prepared by a photocopying or other duplication process that produce clear and permanent copies equally as legible as printing.
(b) All typewritten papers filed with SPB must be printed in type not smaller than 12 point.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 74 to section 52.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.
2. New subarticle 2 (sections 52.1-52.10), renumbering of former section 52.1 to new section 58.5 and new section 52.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
3. Change without regulatory effect redesignating former subarticle 2 as new article 2 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§52.2. Changes in Mailing Address.
Note • History
All parties shall inform the Appeals Division of any change in their mailing address at the time of the change but not later than 1 week after the change.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 66 to section 52.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
2. Renumbering of former section 52.2 to new section 58.3 and new section 52.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.3. Filing Notices of Adverse Action with SPB.
Note • History
Thirty (30) days after the effective date of this section, the Appointing Authority shall file Notices of Adverse Action with the Board utilizing the Board's on-line filing system.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 61 to section 52.3 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
2. Amendment filed 3-19-91; operative 4-18-91 (Register 91, No. 14).
3. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of subsection (a) and amendment of Note filed 6-19-2001; operative 6-19-2001 pursuant to Government Code section 18214 (Register 2001, No. 25).
5. Renumbering of former section 52.3 to section 52.6 and new section 52.3 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.4. Requirements and Method of Delivery for Filing Appeals and Complaints with the SPB.
Note • History
Appeals filed with the SPB shall be subject to the following:
(a) All appeals and complaints shall be in writing.
(b) Except as otherwise provided in these Regulations, each appeal and complaint shall be filed with the Appeals Division and shall:
(1) Identify the name, address, and telephone number of the Appellant or Complainant;
(2) If different than the Appellant or Complainant, identify the name, address, and telephone number of the person filing the appeal or complaint, including the State Bar number if the person filing the appeal or complaint is an attorney.
(3) Except as provided in Government Code section 19575, state the facts that form the basis for appeal or complaint;
(4) Identify all Respondents known to the Appellant or Complainant including, for individually-named Respondents, first and last name, job title, and business address.
(c) Unless the appeal or complaint names some other Respondent, the Appellant's or Complainant's appointing power shall be considered the only Respondent.
(d) The Appeals Division shall mail or serve a copy of the appeal or complaint to or on the Respondent(s).
(e) Time Limitations for Filing Appeals or Complaints with the SPB
Except as otherwise provided in the act or these regulations, every appeal or complaint shall:
(1) be filed with the Appeals Division within the following time limits;
(A) Appeals from disciplinary action filed pursuant to the provisions of Government Code sections 19575, shall be filed within 30 days after the effective date of the notice of adverse action;
(B) Appeals from disciplinary action filed pursuant to the provisions of Education Code section 89539, subdivision (a), or Government Code section 19590, subdivision (c), shall be within 30 days of the employee's receipt of the notice of adverse action;
(C) Appeals from rejection during probationary period filed pursuant to the provisions of Government Code section 19175 shall be filed within 15 days of the effective date of the notice of rejection during probationary period;
(D) Appeals from non-punitive transfer, demotion or termination filed pursuant to the provisions of Government Code section 19585 shall be filed within 30 days after the effective date of the notice of non-punitive action;
(E) Appeals from medical transfer, demotion or termination filed pursuant to the provisions of Government Code section 19253.5, subdivision (f), shall be filed within 15 days of service of the notice of medical action;
(F) Appeals from Career Executive Assignment termination filed pursuant to the provisions of Government Code section 19889.2 shall be filed within 30 days of the employee's receipt of the notice of termination;
(G) Complaints of whistleblower retaliation filed pursuant to the provisions of Education Code section 87164 or Government Code sections 8547.8 and 19683, shall be filed within one year from the most recent act of reprisal complained about;
(H) Requests-to-File-Charges filed pursuant to the provisions of Government Code section 19583.5 shall be filed within one year of the event or events upon which the appeal is based;
(I) Appeals from constructive medical transfer, suspension, demotion, or termination shall be filed within 30 days of the employee being notified that he or she would not be permitted to resume the duties of their position;
(J) Appeals from the following types of cases shall be filed within 30 days of the effective date of the action:
(i) Termination of appointment from the Limited Examination and Appointment Program (LEAP); and
(ii) Termination or automatic resignation from a Permanent Intermittent appointment;
(K) Appeals from pre-employment medical disqualification, pre-employment psychological disqualification, and pre-employment drug test failure, shall be filed within 30 days of the date of service of the notice of disqualification;
(L) Appeals from improprieties in the civil service examination process shall be filed as follows:
(i) Appeals from qualification appraisal interviews shall be filed within 30 days of the date that examination results are mailed to the Appellant;
(ii) Appeals from written examinations shall be filed within 30 days of the date that examination results are mailed to the Appellant.
(M) Petitions to Set Aside Resignations pursuant to Education Code section 89542 shall be filed within 30 days after the last date upon which services to the state university or college are rendered, or the date the resignation is tendered, whichever is later;
(N) Appeals from Automatic Resignation for Absence Without Leave pursuant to Education Code section 89541 shall be filed within 90 days of the effective date of such separation. If the appointing authority has notified the employee of the automatic resignation, any request for reinstatement must be filed within 15 days of the service of notice of separation;
(O) Appeals from disciplinary action, rejection during probationary period, medical transfer or termination, automatic resignation, layoff, refusal to hire from a re-employment list, or grievance involving discrimination or political affiliation, filed pursuant to the provisions of Government Code section 19800 - 19810, pertaining to Local Agencies, shall be filed in accordance with the provisions of Title 2, Division 5, Chapter 2, Article 8, Subarticle 1, section 17550.
(P) Appeals from Withhold from Certification and Voided Appointment shall be filed within 30 days of the date that the Notice of Withhold from Certification or Notice of Voided Appointment is mailed to the Appellant.
(2) In all other cases, the appeal or complaint shall be filed within 30 days after the event upon which the appeal or complaint is based.
(3) Any Appellant or complainant seeking to file an appeal or complaint beyond the time limits in this section, must file a petition with the Chief ALJ or his or her designee demonstrating good cause as to why the appeal or complaint should be accepted. Upon good cause being shown, the Chief ALJ or his or her designee may allow an appeal or complaint, except as otherwise limited by statute, to be filed within 30 days after the end of the period in which the appeal or complaint should have been filed.
(f) Methods of Delivery for Filing Appeals or Complaints with the SPB
(1) Appeals or complaints delivered by electronic mail (e-mail), will be filed on the date received by SPB.
(2) Appeals or complaints delivered by the U.S. Postal Service are filed on the date received by the SPB. An Appellant or Complainant may obtain proof of the filing of the appeal or complaint by submitting either an extra copy of the appeal or complaint or the first page only, with a self-addressed, return envelope, postage prepaid. The Appeals Division shall return the copy marked with the date of filing.
(3) Appeals or complaints hand delivered to the SPB during regular business hours will be filed on the date received.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
2. Amendment of section and Note filed 4-1-2003; operative 4-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 14).
3. Repealer of former section 52.4 and renumbering of former section 51.2 to section 52.4, including amendment of section heading and section, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.5. Requirements and Method of Delivery for Filing All Other Papers with the Appeals Division.
Note • History
(a) After an appeal or complaint has been filed with the Appeals Division for review, investigation or hearing, all papers thereafter shall be filed with the Appeals Division, except as provided for in subdivision (b).
(b) The first page of each paper filed shall include the following:
(1) The name, address, and telephone number of the person filing the paper, including the State Bar number if the person filing the paper is an attorney;
(2) A caption setting forth the title of the case, including the names of the Appellant(s) and the Respondent(s);
(3) The SPB case number, if assigned;
(4) A brief title describing the paper filed; and
(5) The date(s) of the hearing and any future prehearing or settlement conferences, if known.
(c) Methods of Delivery for Filing All Other Papers with the Appeals Division
(1) All other papers delivered by electronic mail (e-mail), will be filed on the date received by SPB.
(2) All other papers delivered by the U.S. Postal Service are filed on the date received by the SPB. An Appellant or Complainant may obtain proof of the filing of the appeal or complaint by submitting either an extra copy of the appeal or complaint or the first page only, with a self-addressed, return envelope, postage prepaid. The Appeals Division shall return the copy marked with the date of filing.
(3) Appeals or complaints hand delivered to the SPB during regular business hours will be filed on the date received.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
2. Renumbering of former section 52.5 to new section 60.2 and new section 52.5 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.6. Right to Respond to Proposed Personnel Action.
Note • History
(a) At least five working days before the effective date of a proposed adverse action, rejection during the probationary period, or non-punitive termination, demotion, or transfer under Government Code section 19585, the appointing power, as defined in Government Code section 18524, or an authorized representative of the appointing power shall give the employee written notice of the proposed action. At least 15 calendar days before the effective date of a medical termination, demotion, or transfer under Government Code section 19253.5 or an application for disability retirement filed pursuant to Government Code section 19253.5(i)(1), the appointing power or an authorized representative of the appointing power shall give the employee written notice of the proposed action. The notice shall include:
(1) The reasons for such action;
(2) A copy of the charges for adverse action;
(3) A copy of all materials upon which the action is based;
(4) Notice of the employee's right to be represented in proceedings under this section;
(5) Notice of the employee's right to respond to the person specified in subsection (b); and
(6) A statement advising the employee of the time within which to file an appeal with the SPB.”
(b) The person whom the employee is to respond to in subsection (a)(5) shall be above the organizational level of the employee's supervisor who initiated the action unless that person is the employee's appointing power in which case the appointing power may respond to the employee or designate another person to respond.
(c) The procedure specified in this section shall apply only to the final notice of proposed action.
NOTE
Authority cited: Sections 18701 and19574, Government Code. Reference: Sections 19173, 19253.5, 19574 and 19574.1, and 19585, Government Code and Skelly v. SPB (1975) 15 Cal. 3d 194.
HISTORY
1. New section filed 8-19-97; operative 8-19-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 34).
2. Renumbering of former section 52.6 to new section 55.2 and renumbering of former section 52.3 to section 52.6, including amendment of section heading and section, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.7. Request to File Charges Against State Employees.
Note • History
(a) Any request to file charges pursuant to Government Code section 19583.5, shall be filed by the requesting party with the Appeals Division of the SPB. The requesting party shall also serve the appropriate number of conforming copies on the appointing authority for each employee against whom disciplinary action is sought.
(b) Each request shall be in writing.
(c) Each request must clearly state the facts constituting the cause or causes for adverse action in such detail as is reasonably necessary to enable the accused employee to prepare a defense thereto. The accused employee has a right to provide an answer within 30 days of service of the request to file charges pursuant to Government Code section 19583.5.
(d) Each request must clearly state the legal cause(s) for discipline as set forth in Government Code section 19572.
(e) Each request shall include a sworn statement, signed under penalty of perjury, that the contents of the request are true and correct.
(f) Each request shall be limited to a maximum of 15 pages of double-spaced typed or printed text, not including exhibits. Additional pages may be allowed upon a showing of good cause. The requesting party shall submit a separate document with the request to file charges stating the reasons for good cause for the additional pages.
(g) Where it does not appear that the material facts alleged are within the personal knowledge of the requesting party, the Appeals Division may require the requesting party to present supporting affidavits from persons having actual knowledge of the facts before acting upon the request.
(h) Only after compliance with subdivisions (a) through (g) will the Appeals Division conduct an investigative review to determine whether the Board will give its consent to file charges.
(i) If the Board approves the request after an investigative review, the parties will be notified that the request has been approved and that the matter will be scheduled for an evidentiary hearing before an ALJ. The Appeals Division will notify the parties of the time and location of the hearing.
(1) The hearing shall be conducted in accordance with those regulations related to the adverse action hearing process pursuant to Sub-Article 6, beginning with section 56.1. During the hearing, the requesting party shall bear the burden of proving the allegations contained in the request by a preponderance of the evidence.
(2) No disciplinary action shall be imposed on the employee until after the completion of the hearing, and only upon a finding by the Board that disciplinary action is warranted against the employee.
(3) In those instances where the Board finds that disciplinary action is warranted against the employee, the Board shall notify the employee's appointing authority of the disciplinary action to be imposed on the employee. The appointing authority shall thereafter cause the disciplinary action mandated by the Board to be implemented against the employee within a reasonable period of time, not to exceed two weeks. The employee shall not be entitled to a right to respond pursuant to section 52.6. Within 30 days after a copy of the Board's decision is served upon the parties, either party may petition the Board for rehearing of the decision, pursuant to Government Code section 19586.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19583.5, Government Code.
HISTORY
1. Renumbering and amendment of former section 51.9 to new section 52.7 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.8. Pleadings; Notice of Defense; Withdrawal of Notice of Defense.
Note • History
(a) When a party amends a pleading, including a Notice of Adverse Action amended in accordance with the provisions of Government Code section 19575.5, the party shall serve on all other parties and promptly file with the Appeals Division a complete, new pleading incorporating the amendments. The new pleading shall be titled a “First Amended” pleading, and subsequent amended pleadings shall be titled consecutively. If the amendments are made during the hearing, the party shall use highlighting or any other effective method to identify the changes made to the pleading. The ALJ, or the Hearing Officer, may allow exceptions for minor amendments during the hearing.
(b) The SPB prefers amended to supplemental pleadings. However, if a party issues a supplemental pleading, the party shall serve on all other parties and promptly file with the Appeals Division the supplemental pleading, which shall be titled a “First Supplemental” pleading. Subsequent supplemental pleadings shall be titled consecutively.
(c) A party who withdraws a notice of defense, a request for hearing, or an asserted special defense, shall immediately notify the Appeals Division and all other parties in writing.
(d) When an Appellant or Complainant withdraws a request for hearing, the appeal or complaint will be deemed to be dismissed.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.9. Right to Representation; Notice of Representation and Withdrawal of Counsel or Other Representative.
Note • History
(a) Any party may be represented by counsel or any other person or organization of the party's choice in any hearing or investigation conducted pursuant to this article.
(b) Any counsel or other representative who has assumed representation of a party in any case submitted for hearing before the SPB shall give written notice to the Appeals Division if no presiding officer has been assigned, and written notice to all parties of his or her name, address, telephone number and fax number (if any) and the name of the represented party, within a reasonable time after assuming representation.
(c) Any counsel or other representative may withdraw as counsel or representative of record by giving written notice to the Appeals Division if no presiding officer has been assigned, and written notice to all parties of the withdrawal. The written notice shall include the last known address of the formerly represented party.
(d) Upon withdrawal by counsel or other representative:
(1) The SPB retains jurisdiction over the case;
(2) The formerly represented party bears the burden of keeping the SPB and all parties informed of a current address for purposes of service. If written notice of change of address is not given, any party may serve the formerly represented party at the party's last known address; and
(3) The formerly represented party is responsible for preparation and representation throughout the remainder of the case, unless and until such party retains new counsel or other representative.
(e) Withdrawal or change of counsel or other representative does not alone constitute grounds for continuance of any previously scheduled proceeding in the case.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 51.5 to new section 52.9 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§52.10. Service; Proof of Service.
Note • History
(a) Service of subpoenas and subpoena duces tecum shall be made by personal service, or by United States mail with postage fully prepaid, certified with return receipt requested.
(b) Service of all other documents shall be made pursuant to sections 1012, 1013, and 1013a of the Code of Civil Procedure.
NOTE
Authority cited: Sections 18211, 18214 and 18701, Government Code. Reference: Sections 415.30, 1008, 1012 and 1013, Code of Civil Procedure; Sections 89538 and 89541, Education Code; Sections 11440.20(b), 18575, 18672, 19058, 19083, 19100.5, 19173, 19243.4, 19253.5, 19574, 19585, 19590, 19803 and 19889.2, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§53. Appeals Assigned to General Merit System Appeals Process. [Repealed]
Note • History
NOTE
Authority: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 53 to sections 51.1 and 53 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.
2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Article 3. Assignment of Appeals or Complaints
§53.1. Appeals or Complaints Assigned to Informal Hearing Process.
Note • History
(a) Unless otherwise assigned, the following matters will be assigned to the informal hearing process:
(1) Appeals from psychological and medical disqualification.
(2) Appeals from voided civil service appointments.
(3) Appeals from denial to take state civil service examination or be certified to any position in state civil service, pursuant to section 211.
(4) Whistleblower retaliation complaints not consolidated with other appeals assigned to the evidentiary hearing process.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. New subarticle 3 (sections 53.1-53.4), renumbering of former section 53.1 to new section 66.1 and new section 53.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Change without regulatory effect redesignating former subarticle 3 as new article 3 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§53.2. Appeals or Complaints Assigned to Investigative Process.
Note • History
(a) Unless otherwise assigned, the following matters will be assigned to the investigative review process:
(1) Complaints of discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability, challenges to examination results, rejection of application for state civil service employment based upon minimum qualifications, certification withholds, and merit issue complaints.
(b) Unless otherwise required by law, or otherwise assigned, appeals of an adverse action where the penalty imposed is an official reprimand or other penalty equal to or less than a suspension without pay for five days or equal to or less than a one-step reduction in pay for four months will be assigned to the investigatory hearing process.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
2. Repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§53.3. Appeals or Complaints Assigned to the Evidentiary Hearing Process.
Note • History
(a) Unless otherwise required by law, or otherwise assigned, the following shall be assigned to the full evidentiary hearing process:
(1) Approved requests to file charges pursuant to Government Code section 19583.5.
(2) Appeal of an adverse action pursuant to Government Code section 19575 or 19590 where the penalty imposed is greater than a suspension without pay for five days or a one-step reduction in pay for four months.
(3) Appeal of rejection during probationary period.
(4) Any other appeal or complaint deemed appropriate by the Chief ALJ, Executive Officer, the Board, or its President.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§53.4. Reassignment of Appeals.
Note • History
Except as otherwise provided by law, the Board, the Executive Officer, or the Chief ALJ may reassign an appeal to any process.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§54. Discrimination Complaint Process. [Repealed]
Note • History
NOTE
Authority: Section 18701, Government Code. Reference: Section 19700, 19701, 19702, 19702.1, 19702.2, 19702.5, 19703, 19704 and 19705, Government Code.
HISTORY
1. Repealer and section filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 87, No. 48.
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Article 4. Informal Hearing Process
§54.1. Informal Hearing Process.
Note • History
(a) For those appeals assigned to hearing before a Hearing Officer, the Hearing Officer shall have the authority to administer oaths, subpoena and require the attendance of witnesses and the production of books or papers. The Hearing Officer shall have the sole discretion to determine whether the parties to the hearing shall have the authority to call and examine witnesses. The Hearing Officer shall have the authority to take official notice of those matters specified in Government Code section 11515, in accordance with the provisions of that section.
(b) Failure of any party to proceed at hearings presided over by a Hearing Officer shall be deemed a withdrawal of the action or appeal unless the hearing is continued for good cause.
(c) The provisions of section 59.1 through 59.4 shall apply to hearings conducted by Hearing Officers except that all motions or petitions filed with the Appeals Division pursuant to those regulations shall be directed to the attention of the Chief ALJ and not the Hearing Officer.
(d) The hearing shall be calendared for no more than 2 hours, except for Whistleblower Retaliation hearings which will be calendared for no more than 4 hours.
(e) The Hearing Officer has discretion to ask clarifying questions of the witnesses or the parties either during or at the conclusion of each party's case-in-chief and has sole discretion to extend additional time to each of the parties.
(f) The Hearing Officer is not bound by common law/statutory rules of evidence or by technical or formal rules of procedure, except as set forth herein, but shall conduct the hearing in such a manner as necessary to reach a just and proper decision. Relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
(g) Declarations/affidavits made under penalty of perjury will be admissible even though they are technically hearsay, and may be relied upon by the Hearing Officer to make a finding of fact.
(h) The Hearing Officer shall prepare a proposed decision which will be forwarded to the Board.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675 and 19570, Government Code.
HISTORY
1. New subarticle 4 (section 54.1) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former subarticle 4 as new article 4 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§54.2. Discrimination Complaint Standards for Appointing Powers. [Repealed]
Note • History
NOTE
Authority: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 547.2 to section 54.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 86, No. 28.
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§55. Hearing Officer. [Repealed]
History
HISTORY
1. Repealer filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Article 5. Investigative Process
Note • History
(a) For those appeals assigned to review by an Investigative Officer pursuant to section 53.2, the Investigative Officer shall have the authority to interview witnesses, administer oaths, subpoena and require the attendance of witnesses and the production of books or papers. The Investigating Officer shall also have the authority to take official notice of those matters specified in section 11515 of the Government Code.
(b) No hearing shall be conducted concerning those appeals assigned to investigative review. No party to the appeal shall be authorized to conduct discovery concerning those issues subject to investigative review. No party to the appeal shall be authorized to call and examine witnesses as part of the investigative review. The investigative review shall be based upon any documentary or other information deemed relevant by the Investigative Officer.
(c) The Investigative Officer is not bound by common law/statutory rules of evidence or by technical or formal rules of procedure, except as set forth herein, but shall conduct the investigatory review in such a manner as necessary to reach a just and proper decision. Relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
(d) Declarations/affidavits made under penalty of perjury will be admissible even though they are technically hearsay, and may be relied upon by the Investigative Officer to make a finding of fact.
(e) Upon conclusion of the Investigatory Review, the Executive Officer, or his or her designee shall either:
(1) Present a recommended decision to the Board, or
(2) Render a decision.
NOTE
Authority cited: 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New subarticle 5 (sections 55.1-55.2) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former subarticle 5 as new article 5 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§55.2. Investigatory Hearings.
Note • History
(a) Failure of any party to proceed at the investigatory hearing shall be deemed a withdrawal of the action or appeal, unless the investigatory hearing is continued for good cause.
(b) The investigatory hearing shall be calendared for no more than 6 hours. Each party will be allotted a total of 3 hours to be allocated at that party's discretion for presentation of its case, including examination and cross-examination of witnesses, presentation of declarations, documentary evidence, and exhibits, and presentation of arguments. While use of the time allotted is at each party's discretion, the suggested format for the hearing is as follows: 10 minutes each for opening statements, 120 minutes each to call witnesses and present declarations, documentary evidence and exhibits, 30 minutes each for cross-examination of the opposing party's witnesses, and 20 minutes each for closing arguments. The ALJ is authorized to conduct a full evidentiary hearing in an appeal defined in this regulation upon mutual agreement of the parties or, upon motion by one of the parties, if the ALJ finds it in the interest of justice to do so.
(c) The ALJ has discretion to ask clarifying questions of the witnesses or the parties either during or at the conclusion of each party's case-in-chief and has sole discretion to extend additional time to each of the parties.
(d) The ALJ is not bound by common law/statutory rules of evidence or by technical or formal rules of procedure, except as set forth herein, but shall conduct the investigatory hearing in such a manner as necessary to reach a just and proper decision. Relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
(e) Declarations/affidavits made under penalty of perjury will be admissible even though they are technically hearsay, and may be relied upon by the ALJ to make a finding of fact pursuant to section 11514 of the Government Code.
(f) The ALJ shall prepare a short-form proposed decision which would be forwarded to the Board within 30 days of the investigatory hearing. The decision will include enough information to allow the Board to exercise its constitutional authority to review disciplinary actions, such as (1) introduction; (2) factual allegations sustained and not sustained, referring to the Notice of Adverse Action; (3) legal causes, sustained and not sustained, referring to the Notice of Adverse Action and any other applicable legal authority; (4) penalty including brief references to any applicable legal authority; and (5) any finding of fact that the ALJ decides is necessary to highlight.
(g) Absent Board rejection of the proposed decision, each case should be opened and closed in no more than 180 days.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19570 and 19576, Government Code.
HISTORY
1. Renumbering of former section 52.6 to new section 55.2, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56. Whistleblower Retaliation Complaint Process. [Renumbered]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Sections 87162 and 87164, Education Code; and Sections 8547.2, 8547.8 and 19683, Government Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33). For prior history see Register 90, No. 22.
2. Amendment of section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering and amendment of former section 56 to new section 67.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Article 6. Evidentiary Hearing Process
Subarticle 1. Administrative Law Judges
Note • History
When an ALJ has been assigned to evidentiary or investigatory hearing matters, an ALJ is fully authorized and empowered to control the litigation before them and may grant or refuse extensions of time, receive evidence, hold appropriate conferences before or during hearings, rule upon all objections or motions, hear argument, and fix the time for the filing of briefs. An ALJ is fully authorized and empowered to perform any and all other acts in connection with such proceedings that may be authorized by law or these regulations, including those acts necessary to ensure due process for all parties, and has wide latitude as to all phases of the conduct of the hearing, including the manner in which the hearing will proceed.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code; Mileikowsky v Tenent Healthsystem (2005) 128 Cal.App.4th 531, 560.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section heading, section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. New subarticle 6 (chapters 1-5, sections 56.1-60.3) and chapter 1 (sections 56.1-56.4), renumbering of former section 56.1 to new section 67.2 and new section 56.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Change without regulatory effect redesignating former subarticle 6 as new article 6 and redesignating former chapter 1 as new subarticle 1 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
Note • History
(a) A party is entitled to one peremptory strike (disqualification without cause) of an ALJ assigned to a hearing. In no event shall a peremptory strike be allowed if it is made after the hearing has commenced.
(b) A peremptory strike shall be:
(1) Filed with the Appeals Division and directed to the Chief ALJ within 20 days of the date that the Appeals Division mails a letter of acknowledgement of the filing of the matter together with a list of the available ALJ's to all the parties;
(2) Filed by a party, or a party's attorney or authorized representative; and
(3) Made in writing in substantially the following form:
“I am a party to [CASE NAME AND NUMBER] and am exercising my right to a peremptory strike regarding ALJ [NAME], pursuant to section 56.2.”
(d) Nothing in this regulation shall affect or limit the provisions of a challenge for cause under section 56.3, or any other applicable provisions of law.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section heading, section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering of former section 56.2 to new section 67.3 and new section 56.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56.3. Disqualification of ALJ, Hearing Officer, or Board Member for Cause.
Note • History
(a) An ALJ or Hearing Officer shall voluntarily disqualify him or herself and withdraw from any case in which there are grounds for disqualification, including disqualification under section 11425.40 of the Government Code. The parties may waive the disqualification by a writing that recites the grounds for disqualification. A waiver is effective only when signed by all parties, accepted by the ALJ, and included in the record.
(b) In accordance with the provisions of section 11425.40 of the Government Code, any party may request the disqualification of any ALJ or Hearing Officer by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that the ALJ or Hearing Officer should be disqualified. The issue shall be determined by the ALJ or Hearing Officer.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11425.40, 11430.60 and 11512(c), Government Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section heading, repealer and new section and amendment of Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering of former section 56.3 to new section 67.4 and new section 56.3 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56.4. Ex Parte Communications.
Note • History
(a) While any proceeding is pending before the Board, an ALJ, a Hearing Officer, an Investigative Officer, or any other designated representative of the Board, there shall be no communication, direct or indirect, regarding any issue in the proceeding, to the presiding officer from any party, party representative, or interested third party, without notice and opportunity for all parties to participate in the communication.
(1) Nothing in this section precludes a communication made on the record at the hearing.
(2) For the purpose of this section, a proceeding is pending from the submission of an appeal to the Appeals Division.
(b) A communication otherwise prohibited under subdivision (a) is permissible in any of the following circumstances:
(1) The communication is required for disposition of an ex parte matter specifically authorized by statute; or
(2) The communication concerns a matter of procedure or practice.
(c) If, while the proceeding is pending, but before serving as the presiding officer, a person receives a communication of a type that would be in violation of this section if received while serving as the presiding officer, the person promptly after starting to serve, shall disclose the content of the communication on the record and give all parties an opportunity to address it in the manner provided in subdivision (d).
(d) If a presiding officer receives a communication in violation of this section,
(1) the presiding officer shall make all of the following a part of the record in the proceedings:
(A) If the communication is written, the writing and any written response of the presiding officer to the communication; or
(B) If the communication is oral, a memorandum stating the substance of the communication, any response made by the presiding officer, and the identity of each person from whom the presiding officer received the communication.
(2) The presiding officer shall notify all parties that a communication described in this section has been made a part of the record.
(3) If a party requests an opportunity to address the communication within 10 days after receipt of notice of the communication:
(A) The party shall be allowed to comment on the communication. The presiding officer shall have the discretion to permit either written or oral comment; and
(B) The presiding officer has the discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen a hearing that has been concluded.
(e) Receipt by the presiding officer, other than the Board, of a communication in violation of this article may be grounds for disqualification of the presiding officer. If the presiding officer is disqualified, the portion of the record pertaining to the ex parte communication may be sealed by protective order of the disqualified presiding officer.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11430.10, 11430.20, 11430.30, 11430.40, 11430.50 and 11430.60, Government Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section heading, repealer and new section and amendment of Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering of former section 56.4 to new section 67.5 and new section 56.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56.5. Findings of the Executive Officer. [Renumbered]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671.1, 18675, 19572, 19574, 19575, 19582, 19590 and 19683, Government Code; and Section 6129, Penal Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section heading, repealer and new section and amendment of Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering and amendment of former section 56.5 to new section 67.6 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56.6. Disciplinary Action for Proven Retaliatory Acts. [Renumbered]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 18710, 19572, 19574, 19582, 19583.5, 19590, 19592 and 19683, Government Code; and Section 6129, Penal Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering of former section 56.6 to new section 67.7 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56.7. Consolidation with Other Hearings. [Renumbered]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Sections 8547.8, 11513, 18670, 18671, 18672, 18675, 19175, 19253.5, 19575, 19582, 19585, 19590 and 19683, Government Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section and Note filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Renumbering of former section 56.7 to new section 67.8 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§56.8. Evidentiary Hearing Procedures and Representation by the Executive Officer. [Repealed]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 19572, 19574, 19575, 19590 and 19683, Government Code; and Section 6129, Penal Code.
HISTORY
1. New section filed 8-14-2002; operative 8-14-2002 pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Repealer and new section filed 3-8-2006; operative 3-8-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 10).
3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Subarticle 2. Prehearing Provisions
§57.1. Prehearing/Settlement Conferences.
Note • History
(a) After a case has been filed with the Appeals Division, the matter shall be scheduled for a prehearing/settlement conference, unless ordered otherwise.
(b) The ALJ at the prehearing/settlement conference shall not preside as the ALJ at the evidentiary hearing unless otherwise stipulated by the parties.
(c) Each Appellant and his or her representative, and each Respondent and his or her representative, shall appear in person at all prehearing/settlement conferences. Individually named Appellants and Respondents must also personally appear at all prehearing/settlement conferences.
(d) Each party or representative who attends the prehearing/settlement conference shall be fully familiar with the facts and issues in the case. Respondents or their representatives must have full settlement authority, or be able to obtain authority immediately by telephone.
(e) A request to continue a prehearing/settlement conference shall be addressed to the Chief ALJ pursuant to section 60.2.
(f) Each party shall file a written prehearing/settlement conference statement with the Appeals Division 10 calendar days prior to the hearing, that contains the following information:
(1) The identification by SPB Case Number of all appeals or complaints pending before the Appeals Division or the Board, arising out of the same transaction, occurrence, or series of transactions or occurrences.
(2) A brief summary of any stipulated facts.
(3) Identification of affirmative defenses to any claim.
(4) A current estimate of the time necessary to try the case.
(5) The identity of witnesses each party may call at the hearing, together with a brief statement of the content of each witness's expected testimony. Parties are not required to disclose any witness that will be called for rebuttal or impeachment purposes.
(6) The identity of any witness who may be called to testify who is an inmate of any correctional facility. In addition, at the discretion of the Chief ALJ, such individuals may be required to testify via closed circuit television, or by other electronic means.
(7) The name and address of each expert witness each party intends to call at the hearing, together with a brief statement of the opinion each expert is expected to give, and a copy of the current resume or curriculum vitae of each expert witness.
(8) A list of documentary exhibits each party intends to present at the hearing, and a description of any physical or demonstrative evidence. Parties are not required to disclose exhibits that will be used for rebuttal or impeachment purposes.
(9) A concise statement of any significant evidentiary issues to assist the ALJ in conducting the hearing.
(10) Failure to fully disclose all required items in the prehearing/settlement conference statement without good cause will, at the discretion of the ALJ, result in the exclusion or restriction of evidence at the hearing.
(g) All prehearing/settlement conference statements shall be served on all other parties 10 calendar days prior to the hearing, and shall be filed with the assigned ALJ at the pre hearing/ settlement conference.
(h) Each party shall bring a copy of the prehearing/settlement conference statement as well as a draft of any settlement proposal on a portable drive or in writing to the prehearing/settlement conference.
(i) Where a case cannot be settled at the prehearing/settlement conference, the ALJ may address such issues as:
(1) Discovery disputes;
(2) Preparation of stipulations;
(3) Clarification of Issues;
(4) Rulings on identity and limitation of the number of witnesses;
(5) Objections to proffers of evidence;
(6) Order of presentation of evidence and cross-examination;
(7) Rulings regarding issuance of subpoenas and protective orders; and
(8) Any other matters that promote the orderly and prompt conduct of the hearing.
(j) Failure of any party to appear and/or proceed at a prehearing/settlement conference shall be deemed a withdrawal of the appeal or the action, unless the hearing is continued for good cause pursuant to section 58.3.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 11511.5 and 11511.7, Government Code.
HISTORY
1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Change without regulatory effect amending section filed 11-26-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 48).
3. Amendment of section heading, repealer and new section and amendment of Note filed 2-28-2006; operative 2-28-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 9).
4. New chapter 2 (sections 57.1-57.2) and repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
5. Change without regulatory effect redesignating former chapter 2 as new subarticle 2 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§57.2. Consolidated Proceedings; Separate Proceedings.
Note • History
(a) When proceedings that involve a common question of law or fact are pending, the Chief ALJ or his designee on the judge's own motion, or on the motion of a party, may order a joint hearing of any or all matters at issue in the proceedings. The Chief ALJ or his designee may order all the proceedings consolidated and may make orders concerning the procedure that may tend to avoid unnecessary costs or delay.
(b) A party who brings a motion for consolidated proceedings or separate proceedings shall comply with section 60.1.
(c) Where a motion for consolidated proceedings or separate proceedings is made on the day of the hearing, the moving party must demonstrate that the issues were not discoverable at an earlier time.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section and Note filed 2-28-2006; operative 2-28-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 9).
3. Renumbering of former section 57.2 to new section 59.1 and new section 57.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§57.3. Petition to Compel Discovery. [Renumbered]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Section 915, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.
HISTORY
1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section and Note filed 2-28-2006; operative 2-28-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 9).
3. Renumbering of former section 57.3 to new section 60.3 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§57.4. Petition to Quash or for Protective Order. [Repealed]
Note • History
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Section 915, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.
HISTORY
1. New section filed 8-12-2002; operative 8-12-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 33).
2. Amendment of section and Note filed 2-28-2006; operative 2-28-2006. Exempt from the Administrative Procedure Act pursuant to section 18211 of the Government Code and submitted to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations pursuant to section 18214 of the Government Code (Register 2006, No. 9).
3. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Subarticle 3. Hearings
§58.1. Waiver of Government Code Section 18671.1.
Note • History
(a) For any appeal pending before the Appeals Division, if the Appellant does not affirmatively waive the provisions of section 18671.1 of the Government Code, then the Appeals Division has the discretion to either set the matter for hearing at any location the Board determines will be able to hold the hearing in the most expeditious manner possible, or require the hearing to be held by telephonic conference call, or video conferencing pursuant to section 58.6.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18701, 18671.1 and 18675, Government Code.
HISTORY
1. New chapter 3 (sections 58.1-58.11) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former chapter 3 as new subarticle 3 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§58.2. Requests for Priority Hearing in Appeals and Complaints from Dismissal.
Note • History
(a) For appeals and complaints involving the penalty of dismissal, where an evidentiary hearing has not commenced within 8 months of the filing of the appeal or complaint, an Appellant or Complainant may request a priority hearing with the Appeals Division. Requests for priority hearing shall be in writing, and shall be filed with the Appeals Division, with copies sent to all other parties.
(b) Upon a request for a priority hearing as provided in subdivision (a), the evidentiary hearing shall be scheduled to occur within 90 days of the request at an SPB hearing location designated by the Chief ALJ or his or her designee, and may where practicable, utilize an electronic proceeding as set forth in section 58.6, for all or part of the hearing.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§58.3. Dismissal of Appeals Not Brought to Hearing and Failure to Proceed.
Note • History
(a) Any appeal assigned to the ALJ, hearing officer, Chief ALJ's designee, or presiding officer, shall be dismissed unless it is brought to hearing within three years after such appeal was filed with the Board. “Brought to hearing” means when the record is opened for the purpose of initiating the evidentiary hearing pursuant to section 51.2(i).
(b) Failure of any party to proceed at a hearing or a prehearing/settlement conference, shall be deemed a withdrawal of the appeal or the action, unless the hearing is continued for good cause.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675(a), Government Code.
HISTORY
1. Renumbering of former section 52.2 to new section 58.3, including amendment of section heading and section, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Note • History
Every appeal hearing, including the hearing of an adverse action appeal, shall be public, unless otherwise required by law to be closed to the public.
(a) A hearing shall be open to public observation. Nothing in this subdivision limits the authority of the presiding officer to order on the record, closure of a hearing or make other protective orders to the extent necessary or proper for any of the following purposes:
(1) To satisfy the United States Constitution, the California Constitution, federal or state statute, or other law, including but not limited to laws protecting privileged, confidential, or other protected information.
(2) To ensure a fair hearing in the circumstances of the particular case.
(3) To conduct the hearing, including the manner of examining witnesses, in a way that is appropriate to protect a minor witness or a witness with a developmental disability, as defined in section 4512 of the Welfare and Institutions Code, from intimidation or other harm, taking into account the rights of all persons.
(b) To the extent a hearing is conducted by telephone, television, or other electronic means, subdivision (a) is satisfied if members of the public have an opportunity to be physically present at the place where the presiding officer is conducting the hearing.
(c) This section does not apply to a prehearing conference or settlement conference, or proceedings for alternative dispute resolution.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 51.4 to new section 58.4 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§58.5. Exclusion of Witnesses.
Note • History
Upon the motion of any party, the ALJ, hearing officer, Chief ALJ's designee, or presiding officer shall have the authority to exclude from the hearing room any witnesses not at the time under examination; but a party to the proceeding, or the party's counsel or other person representing a party, shall not be excluded. When a state agency is a party it is entitled to the presence of one other officer or employee in addition to its counsel or representative.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. Renumbering and amendment of former section 52.1 to new section 58.5 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§58.6. Electronic Proceedings.
Note • History
(a) The presiding ALJ may, upon the motion of a party or upon the presiding ALJ's own motion, conduct all or part of a hearing by telephonic conference call or video conference if each participant in the proceeding has an opportunity to participate in and hear the entire proceeding while it is taking place and to observe exhibits.
(b) If a party objects, the presiding ALJ may proceed upon a finding that no party to the proceeding will be prejudiced by all or part of the hearing being conducted by telephone or other electronic means.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Note • History
(a) Any party or participant in an evidentiary hearing may request security for the hearing. The request shall be made as soon as the need for security is known. The request shall be filed with the Appeals Division and directed to the Chief ALJ or the assigned ALJ. To ensure that appropriate safety measures are arranged, the person requesting security shall inform the Chief ALJ, or the assigned ALJ, the nature of the security risk.
(b) The Chief ALJ, or his or her designee will evaluate the request for security and make the decision whether to provide security. Costs for security are reimbursed pursuant to Government Code section 18671.2.
(c) If the request for security is made without sufficient time for appropriate security personnel to be procured, the Chief ALJ, or the assigned ALJ, has the discretion to continue the proceeding.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§58.8. Accommodation for Persons with Disabilities.
Note • History
In proceedings where an Applicant has a disability requiring accommodation either at the hearing or at any other stage of any administrative adjudication at the State Personnel Board (SPB), the Applicant shall be responsible for requesting accommodations.
(a) “Persons with disabilities” means individuals covered by California Civil Code section 51 et seq.; the Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.); or other applicable state and federal laws. This definition includes persons who have a physical or mental impairment that limits one or more of the major life activities, have a record of such impairment, or are regarded as having such an impairment.
(b) “Applicant” means any lawyer, party, witness, or other person with an interest in attending any proceeding before the SPB.
(c) “Accommodations” means actions that result in services, programs, or activities being readily accessible to and usable by persons with disabilities. Accommodations may include making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids and services, equipment devices, materials in alternative formats, readers, or certified interpreters for persons with hearing impairments; relocating services or programs to accessible facilities; or providing services at alternative sites. Although not required where other actions are effective in providing access to SPB services, programs, or activities, alteration of existing facilities by the SPB may be an accommodation.
(d) Process for Requesting Accommodations
The process for requesting accommodations is as follows:
(1) Requests for accommodations may be presented ex parte on a form provided by SPB, in another written format, or orally. Requests must be forwarded to the SPB Appeals Division to the attention of the Presiding Administrative Law Judge.
(2) Requests for accommodation must include the name of the Appeal and SPB's case number, along with a description of the accommodation sought, along with a statement of the impairment that necessitates the accommodation. The SPB, in its discretion, may require the applicant to provide additional information about the impairment.
(3) Requests for accommodation must be made as far in advance as possible, and in any event must be made no fewer that 30 days before the requested implementation date. The SPB may waive this requirement for good cause.
(4) The SPB will keep confidential all information of the Applicant concerning the request for accommodation, unless confidentiality is waived in writing by the applicant or disclosure is required by law. The Applicant's identity and confidential information will not be disclosed to the public or to persons other than those involved in the accommodation process. Confidential information includes all medical information pertaining to the Applicant, and all oral or written communication from the Applicant concerning the request for accommodation.
(5) Permitted communication under this rule must address only the accommodation requested by the applicant and must not address, in any manner, the subject matter or merits of the proceedings before SPB.
(e) Response to Accommodation Request
The SPB will respond to a request for accommodation as follows:
(1) The SPB will inform the Applicant in writing, as may be appropriate, and if applicable, in an alternative format, of the following:
(A) That the request for accommodation is granted or denied, in whole or in part, and if the request for accommodation is denied, the reason therefore; or that an alternative accommodation is granted:
(B) The nature of the accommodation to be provided, if any; and
(C) The duration of the accommodation to be provided.
(f) Denial of Accommodation Request
A request for accommodation may be denied only when the SPB determines that:
(1) The applicant has failed to satisfy the requirements of this rule;
(2) The requested accommodation would create an undue financial or administrative burden on the SPB; or
(3) The requested accommodation would fundamentally alter the nature of the service, program, or activity.
(g) Review Procedure
(1) An Applicant or any participant in the proceedings in which an accommodation request has been granted or denied may seek review of a determination made by the Presiding ALJ within 10 days of the date of the response by submitting, in writing, a request for review to the Chief Administrative Law Judge or his or her designee.
(h) Duration of Accommodations
The accommodation by the SPB must be provided for the duration indicated in the response to the request for accommodation and must remain in effect for the period specified. The SPB may provide an accommodation for an indefinite period of time for a limited period of time, or for a particular matter or appearance.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code; Section 754, Evidence Code and Judicial Rule 989.3.
HISTORY
1. New section filed 10-21-2010; operative 10-21-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 43).
Note • History
(a) As used in this section, “language assistance” means oral interpretation or written translation into English of a language other than English or of English into another language for a party or witness who cannot speak or understand English or who can do so only with difficulty.
(b) Nothing in this section limits the application or effect of section 754 of the Evidence Code to interpretation for a deaf or hearing impaired party or witness in an adjudicative proceeding.
(c) All hearings shall be conducted in English. If a party or the party's witness needs language assistance, that party or the party's witness must notify the Chief ALJ or the assigned ALJ, no later than 15 days before the hearing, that an interpreter is going to be utilized. Such notification must identify the interpreter, and provide evidence of certification.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, 11435.05, 11435.10, 11435.20 and 11435.25, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Note • History
Official notice may be taken of those matters specified in section 11515 of the Government Code by the ALJ, Chief ALJ's designee, hearing officer, or presiding officer in any hearing or investigative review, in accordance with the provisions of that Section.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675 and 11515, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Note • History
(a) The parties shall promptly notify the Appeals Division of any resolution that terminates a case assigned for hearing. The Appeals Division shall vacate all hearing dates upon receipt of a written request signed by all parties notifying the Appeals Division that the appeal or complaint, or personnel action has been withdrawn through settlement.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Subarticle 4. Discovery
§59.1. Request for Discovery; Statements; Writings; Investigative Report; Witness List.
Note • History
(a) Except as otherwise provided in subsection (a)(1), each party to an appeal or complaint which is scheduled for a hearing is entitled to serve a request for discovery on any other named party to the complaint or appeal. All requests for discovery shall be served on the responding party no later than 90 days after filing the appeal or complaint with the Board. The right to inspect documents and interview witnesses provided for under Government Code section 19574.1 is separate and distinct from a request for discovery expressed in this section and is not governed by the provisions of this section.
(1) For appeals from Notice of Adverse Action served pursuant to Government Code section 19574 or 19590, a request for discovery may only be served by the Appellant or the Appellant's representative upon the Respondent as provided for in subdivision (a). However, a Respondent may serve a request for discovery on Appellant in said appeal no later than 15 days after the Prehearing/Settlement Conference solely for the purpose of obtaining information relevant to any affirmative defense raised by Appellant in the Prehearing/Settlement Conference statement.
(b) Any party seeking discovery beyond the 90 days from the filing of an appeal or complaint with the Board may do so only upon an order issued by the Chief ALJ or his or her designee. The party seeking discovery must file a petition showing good cause why they exceeded the 90 days, and shall attach a copy of the proposed discovery request. The matter will be decided upon the moving papers by the assigned ALJ, in his or her discretion, that such additional or late requests for discovery should be permitted in the furtherance of justice. No hearing on the motion will be scheduled.
(c) A request for discovery may include the following:
(1) Each party to the appeal or complaint is entitled to request and receive from any other party to the appeal or complaint the names and home or business addresses of percipient witnesses to the event(s) in question, to the extent known to the other party and of individuals who may be called as witnesses during the course of the hearing, except to the extent that disclosure of the address is prohibited by law. The responding party may, at his or her discretion, provide either the home or business address of the witness, except to the extent that disclosure of the address is prohibited by law;
(2) Statements, as defined in Evidence Code section 225, to the extent such statements exist as of the date of the request, of witnesses proposed to be called during the hearing by the party and of other persons having personal knowledge of the act, omission, event, decision, condition, or policy which are the basis for the appeal. The responding party shall, upon a showing of good cause and subject to the discretion of the administrative law judge, subsequently amend their witness list if they intend to call additional witnesses not previously disclosed;
(3) All writings, as defined in Evidence Code section 250, that the responding party proposes to enter into evidence. The responding party shall, upon a showing of good cause and subject to the discretion of the ALJ, subsequently provide the requesting party with additional writings that it proposes to enter into evidence;
(4) Any other writing or thing that is relevant to the appeal or complaint; and
(5) Investigative reports made by or on behalf of any party pertaining to the act, omission, event, decision, condition or policy which is the basis for the appeal or complaint, including all supporting materials, pertaining to the subject matter of the proceeding, to the extent that these reports: (A) contain the names and home or business addresses of witnesses or other persons having personal knowledge of the facts, omissions or events which are the basis for the proceeding, unless disclosure of the address is prohibited by law, or (B) reflect matters perceived by the investigator in the course of his or her investigation, or (C) contain or include by attachment any statement or writing described in subsection (c)(5) (A) to (B), inclusive, or summary thereof.
(d) All parties receiving a request for discovery shall produce the information requested, or shall serve a written response on the requesting party clearly specifying which of those requested matters will not be produced and the basis for the non-production, within 30 days of receipt of the discovery request. The parties may extend the deadline by mutual agreement, by no more than 30 days.
(1) A responding party may object to any item or category demanded in a request for discovery in whole or in part. The objection must:
(A) Identify with particularity the specific document or evidence demanded to which the objection is made; and
(B) Set forth the specific ground for objection, including claims of privilege, work product, or right of privacy protection.
(C) If an objection is based on a claim of privilege, the particular privilege invoked shall be stated.
(D) If an objection is based on a claim that the information sought is protected work product, that claim shall be expressly asserted.
(2) If a responding party fails to serve a timely response to a request for discovery:
(A) The responding party waives any objection to the request for discovery, including one based on privilege or on the protection for work product.
(B) At the discretion of the assigned ALJ, a responding party may be relieved from this waiver based upon a determination that both of the following conditions are satisfied:
(i) The responding party has subsequently served a response that is in substantial compliance with the request for discovery, and
(ii) The responding party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.
(e) Failure to produce information or material responsive to a request for discovery may result in the exclusion of a witness or other evidence at the discretion of the assigned ALJ. A responding party may, at the discretion of the assigned ALJ, and upon a showing of good cause amend a response to request for discovery no later than 30 days prior to the evidentiary hearing.
NOTE
Authority cited: Sections 18701 and 18214, Government Code. Reference: Section 87164, Education Code; Sections 225 and 250, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.
HISTORY
1. New chapter 4 (sections 59.1-59.4) and renumbering and amendment of former section 57.2 to new section 59.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former chapter 4 as new subarticle 4 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
3. Change without regulatory effect amending subsection (a) filed 10-28-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 44).
Note • History
(a) On verified petition of any party, the Chief ALJ or the assigned ALJ may order the testimony of any material witness residing within or without the state be taken by deposition in the manner prescribed in Government Code section 18673.
(b) Any party who requests to submit a deposition in lieu of testimony at the hearing shall identify those portions of the deposition that are relevant to the issues of the case.
(c) At the discretion of the Chief ALJ or the assigned ALJ as set forth in section 56.1, in lieu of a deposition, witness testimony may be conducted by video conferencing.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11511, 18673 and 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Note • History
(a) Licensed members of the California State Bar in a representative capacity, may issue subpoenas and subpoenas duces tecum to compel attendance at a hearing, so long as the individual being served does not reside more than 100 miles from the location where the hearing or investigation is to be held, or more than 100 miles from the location where the witness testifies or is interviewed if testimony or a statement is taken electronically pursuant to section 58.6, whichever applies.
(1) If a witness resides more than 100 miles from the hearing location, the party intending to serve the subpoena must submit an affidavit attesting to the materiality of the witness to the Chief ALJ or his or her designee.
(b) Subpoenas and subpoenas duces tecum issued pursuant to (a)(1), or at the request of a person not licensed as a member of the State Bar, shall be issued by the Chief ALJ or his or her designee.
(c) Subpoenas and subpoenas duces tecum issued under this section shall be on a form provided by the Board, (SPB-76, Revised 12/09), attached as Appendix “A” to these regulations.
(d) A person served with a subpoena or subpoena duces tecum may object to its terms by a motion for a protective order and/or for a motion to quash. The motion shall be made within 15 days after receipt of the subpoena
(e) Witness fees are to be remitted pursuant to Government Code section 18674.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18672 through 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Amendment of subsection (c) filed 10-21-2010; operative 10-21-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 43).
§59.4. Abuse of the Discovery Process; Sanctions.
Note • History
(a) Abuse of the discovery process includes, but is not limited to, the following:
(1) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
(2) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
(3) Failing to respond or to submit to an authorized method of discovery.
(4) Making, without substantial justification, an unmeritorious objection to discovery.
(5) Making an evasive response to discovery.
(6) Disobeying an order to provide discovery.
(7) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
(8) Failure to meet and confer for an informal resolution of a discovery dispute.
(b) At the discretion of the Chief ALJ or the assigned ALJ, any party who is found to have abused the discovery process as set forth in subdivision (a) shall be subject to sanctions as ordered by the Chief ALJ or the assigned ALJ. Such sanctions may include:
(1) An order prohibiting the introduction of designated matters into evidence by the abusing party;
(2) An order establishing designated facts, claims, or defenses against the abusing party; and/or
(3) Any other order as the Chief ALJ or assigned ALJ may deem appropriate under the circumstances.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60. Definition and Purpose. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14). For prior history, see Register 90, No. 22.
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Subarticle 5. Law and Motion
§60.1. Law and Motion; Procedures; Motions.
Note • History
(a) The following motions shall be filed with the Appeals Division no later than 90 days from the date the appeal or complaint was filed with the SPB:
(1) Failure to State a Cause of Action: Will only be heard where it pertains to Discrimination, Harassment, Retaliation, and Whistleblower Retaliation Cases.
(2) Motion to Dismiss;
(3) Motion to Strike;
(4) Consolidation or severance of matters for hearing pursuant to section 57.2.
(b) The following motions shall be filed with the Appeals Division within 10 days subsequent to learning of the basis for the motion:
(1) Motions to compel deposition of an unavailable witness pursuant to section 60.3;
(2) Motion for Change of Venue.
(c) Prior to the filing and service of any law and motion matter under this section, the moving party must secure a date and time for the hearing on the motion from the Appeals Division Calendar Clerk, and this information shall be included on all copies of the motion filed with the SPB and served on all parties. The moving party shall file their motion with the Chief ALJ or his or her designee, and serve all parties no later than 30 days prior to the hearing date scheduled with the Appeals Division Calendar Clerk.
(d) Motions, Oppositions to Motions, and Replies to Oppositions must be filed with the Chief ALJ or his or her designee, and served on all parties pursuant to section 52.10.
(e) Oppositions to Motions must be filed with the Chief ALJ or his or her designee, and served on all parties no later than 15 days after service of the motion.
(f) Replies to Oppositions must be filed with the Chief ALJ or his or her designee, and served on all parties no later than 8 days after service of the Opposition.
(g) If the motion is to be heard via a telephonic conference call, the party requesting the telephonic conference call is responsible for making arrangements with a telephone service provider, such that the assigned ALJ shall be provided the opportunity to call into the conference call at the designated date and time of the hearing. Calling instructions shall be provided to the Appeals Division within 5 days prior to the hearing.
(h) Motions and Oppositions shall be limited to 15 pages. In addition, the motion may be supported by such documentation as affidavits, declarations, depositions, and matters of which official notice shall or may be taken. Replies to Oppositions shall be limited to 5 pages.
(1) Where a motion or opposition is supported by additional documentation, the motion must specifically identify the relevant portions of each piece of documentation. Failure to identify the relevant portions may, at the discretion of the Chief ALJ or his or her designee, result in the supporting documentation not being considered.
(i) Failure to comply with the requirements of subdivisions (a) through (h) may, in the discretion of the assigned ALJ, constitute sufficient ground for denial of the motion.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14). For prior histor, see Register 90, No. 22.
2. New chapter 5 (sections 60.1-60.3), repealer and new section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
3. Change without regulatory effect redesignating former chapter 5 as new subarticle 5 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§60.2. Motions for Hearing Continuances.
Note • History
(a) Motions for continuance of a hearing shall be considered only upon the moving papers. No hearing on the motion will be scheduled.
(b) Grounds for continuance
(1) Motions for continuances based upon good cause shall be considered only if filed no later than 10 days subsequent to learning of the basis for a continuance. Circumstances that may indicate good cause include:
(A) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(B) The unavailability of a party or counsel because of death, illness, or other excusable circumstances;
(C) The substitution of counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(D) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.
(2) Motions for continuances by mutual agreement of the parties shall be considered only if filed no later than 90 days prior to the hearing. The motion must be signed by all parties or their representatives.
(3) When the acts or omissions that lead to an adverse action or rejection also lead to criminal charges being filed against the Appellant, continuances shall be granted when the parties mutually concur to allow for completion of the criminal proceedings, subject to the three year limitation in section 58.3.
(c) Requirements for filing a motion for continuance
(1) The moving party must meet and confer with all other parties on the motion prior to filing the motion with the Appeals Division, directed to the Chief ALJ or his or her designee pursuant to section 52.5.
(2) The motion shall include all facts which support the request to continue the hearing, as well as the following information;
(A) The case name and SPB case number;
(B) The date, time and place, and type of hearing to be continued;
(C) The address and daytime telephone number of the moving party and all other parties;
(D) A list of all previous motions to continue the hearing and the dispositions;
(E) The positions of all nonmoving parties to the motion;
(F) Any future dates when the parties are unavailable for hearing over the next three months and any preferred future hearing dates;
(G) If Appellant is the moving party, whether Appellant waives the provisions of section 18671.1 of the Government Code; and
(H) All factual assertions must be accompanied by a declaration under penalty of perjury, that the facts are true and correct.
(d) In ruling on a motion for continuance, the ALJ shall consider all the facts and circumstances that are relevant to the determination. These may include:
(1) The proximity of the hearing date;
(2) Whether there was any previous continuance, extension of time, or delay of a hearing due to any party;
(3) The length of the continuance requested;
(4) The prejudice that parties or witnesses will suffer as a result of the continuance;
(5) The hearing calendar and the impact of granting a continuance on other pending cases;
(6) Whether counsel is engaged in another hearing;
(7) Whether all parties have stipulated to a continuance;
(8) Whether the interests of justice are best served by a continuance, by the hearing of the matter, or by imposing conditions on the continuance; and
(9) Any other fact or circumstance relevant to the fair determination of the motion.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer of former section 60.2 and renumbering of former section 52.5 to new section 60.2, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.3. Motion to Compel Discovery.
Note • History
(a) A petition or motion to compel a request to inspect documents under Government Code section 19574.1 is governed by the procedures provided in Government Code section 19574.2. Motions to compel a request for discovery issued pursuant to section 59.1 are governed by the procedures stated in this section 60.3, subdivisions (b) through (e).
(b) A party may serve and file with the Appeals Division a motion to compel discovery, naming as responding party any party who has refused or failed to provide discovery as required by section 59.1. A copy of the motion shall be served on the responding party on the same date the motion is filed with the Appeals Division. The motion shall be served upon the responding party and filed with the Appeals Division within 14 days after the responding party first evidenced his or her failure or refusal to comply with section 59.1.
(c) The matter will be decided upon the moving papers, as well as any responses and replies unless ordered otherwise.
(d) The motion shall state facts showing the responding party failed or refused to comply with section 59.1, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under that section, that a reasonable and good faith attempt to contact the responding party for an informal resolution of the issue has been made, and the grounds of the responding party's refusal.
(e) Motions, responses and replies shall be limited to 15 pages. In addition, the motion may be supported by such documentation as affidavits, declarations, depositions, and matters of which judicial notice shall or may be taken.
(1) Where a motion or opposition is supported by additional documentation, the motion must specifically identify the relevant portions of each piece of documentation. Failure to identify the relevant portions may, at the discretion of the Chief ALJ or his or her designee, result in the supporting documentation not being considered.
(2) The responding party shall have a right to file an opposition to the motion within 15 days of service of the motion. Any reply to the opposition shall be filed with the Chief ALJ or his or her designee and served on the moving party within 10 days of service of the opposition motion.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Section 915, Evidence Code; and Sections 8547.8, 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700-19706, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer of former section 60.3 and renumbering of former section 57.3 to new section 60.3, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.4. Date, Time and Place of Mediation. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.5. Attendance at Mediation. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.6. Standards of Conduct for Neutral Mediators. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.8. Termination of Mediation. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.9. Confidentiality of Communications. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§60.10. Alternate Resolution of the Complaint/Appeal. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 11420.20, Government Code.
HISTORY
1. New section filed 4-4-2002; operative 4-4-2002. Submitted to OAL for printing only pursuant to Government Code section 18214 (Register 2002, No. 14).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§61. Right to Respond to Charges Prior to Punitive Action. [Renumbered]
Note • History
NOTE
Reference: Section 19574, Government Code.
HISTORY
1. New section filed 10-16-75 as an emergency; designated effective 10-16-75 (Register 75, No. 42).
2. Amendment filed 1-15-76 as an emergency; designated effective 1-15-76. Certificate of Compliance included (Register 76, No. 3).
3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Renumbering of former section 61 to section 52.3 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
§62. Request to File Charges. [Renumbered]
Note • History
NOTE
Reference: Section 19583.5, Government Code.
HISTORY
1. New section filed 11-25-53; effective thirtieth day thereafter (Register 53, No. 21).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Renumbering and amendment of former section 62 to section 51.9 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
History
HISTORY
1. Renumbering and amendment of former section 63 to section 51.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
Article 7. Name Clearing Hearings
§63.1. Name Clearing Hearing Procedures.
Note • History
(a) In those situations where an employee's Limited Term (LT), Seasonal, or Temporary Authorization (TAU) appointment is terminated for fault, based on charges of misconduct which might stigmatize his or her reputation, or seriously impair his or her opportunity to earn a living, or which might seriously damage his or her standing or association in his community, the employee shall be entitled to file a request for a “Name Clearing” Hearing to be conducted by the appointing authority.
(b) Any Name Clearing Hearing conducted by an appointing authority should, at a minimum, conform to the following requirements:
(1) The employee should file his or her request with the appointing authority within five business days of the effective date of the notice of termination;
(2) The appointing authority should conduct the hearing and issue its decision within 21 days of the effective date of the notice of termination, unless the employee agrees to a hearing to be conducted at a later date;
(3) The employee should be entitled to be represented by a representative of his or her choosing;
(4) The appointing authority's representative should be a neutral, impartial decision-maker, who has the authority to sustain the termination, or revoke the “for fault” designation concerning the appellant's termination;
(c) Upon conclusion of the hearing, the appointing authority's representative shall determine whether the allegations contained in the notice of termination are supported. If the allegations are not supported, a decision shall be issued to reflect that the employee's termination was without fault. Such a decision will not, however, require that the appellant be reinstated to his or her position, except as otherwise required by law.
(d) The Board does not conduct Name Clearing Hearings, nor is there any right of appeal to the Board from a decision by an appointing authority, except as otherwise required by law.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18675, Government Code.
HISTORY
1. New subarticle 7 (section 63.1) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former subarticle 7 as new article 7 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§64. Time of Filing. [Renumbered]
History
HISTORY
1. New sections 64 and 65 filed 12-23-47 (Register 10, No. 8).
2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Renumbering and amendment of former section 64 to section 51.2(e) filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Article 8. Discrimination Complaint Process
§64.1. Discrimination; Harassment; Retaliation; Denial of Reasonable Accommodation.
Note • History
Any state civil service employee, or applicant for state civil service employment, who reasonably believes that he or she has been subjected to discrimination, harassment, retaliation, or denied reasonable accommodation for a known physical or mental disability in state employment, on any basis listed in section 19701 or 19702 of the Government Code, or subdivision (a) of section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, may file a complaint by complying with the provisions of Sections 64.2 through 64.6.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.
HISTORY
1. New subarticle 8 (sections 64.1-64.6) and section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former subarticle 8 as new article 8 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§64.2. Prerequisites for Filing a Discrimination Complaint with the Board.
Note • History
Any state civil service employee or applicant for state civil service employment who reasonably believes that he or she has been subjected to discrimination, harassment, retaliation, or denied reasonable accommodation for a known physical or mental disability in employment shall first file a written complaint with the appointing power's Equal Employment Opportunity Office, or other office or individual designated by the appointing power to investigate such complaints, prior to filing a discrimination complaint with the SPB.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702.1, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§64.3. Appointing Power Discrimination Complaint Process.
Note • History
(a) Each appointing power shall establish in writing its own internal discrimination complaint process through which a complainant may obtain review of, and a written response to, an allegation of discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability.
(b) Each complaint filed with the appointing power shall be in writing and shall state the facts upon which the complaint is based, and the relief requested, in sufficient detail for the appointing power to understand the nature of the complaint and to determine the individuals involved. The complained of act, omission, event, decision, condition, or policy must have occurred no more than one year prior to the date that the complaint is filed with the appointing power. This period may be extended by not more than 90 days in those cases where the complainant first obtained knowledge of the facts of the alleged discrimination more than one year from the date of its occurrence.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§64.4. Response of Appointing Power to Discrimination Complaint.
Note • History
(a)The appointing power shall provide the complainant a written decision within 90 days of the complaint being filed. If the appointing power has not completed its review and/or is unable to provide a written decision within the 90 day time period, the appointing power shall, within that same time period, inform the complainant in writing as to the reason(s) it is unable to issue its decision within the required time period.
(b) Upon the expiration of the 90 day time period stated in this section, Complainant may thereafter file a discrimination complaint with the SPB as provided in section 64.5. However, a discrimination complaint may not be filed with the SPB more than 150 days after the complainant filed his or her complaint of discrimination with the appointing power.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§64.5. Requirements for Filing Discrimination Complaint with the SPB.
Note • History
Any complaint to the SPB alleging discrimination, harassment, retaliation, or denial of reasonable accommodation for a known physical or mental disability shall be subject to the following filing requirements:
(a) The complaint shall be filed with the Appeals Division within 30 days of the date the appointing power served its decision concerning the complaint of discrimination on the Complainant. If the appointing power has failed to provide a decision to the Complainant within 90 days of the complaint being filed, the Complainant may file a complaint with the Appeals Division within 150 days of the date the Complainant filed his or her complaint of discrimination with the appointing power.
(b) The Complainant shall submit to the Appeals Division a complaint and any attachments, and enough copies for the SPB to serve each entity and person alleged to have engaged in discriminatory conduct and against whom damages and/or disciplinary action is sought.
(c) The complaint shall be in writing, and shall:
(1) identify the facts that form the basis for the complaint, including, but not limited to the specific protected classification or activity as set forth in sections 19701 or 19702 of the Government Code; all discriminatory acts experienced by the Complainant, including the date that each act occurred; the name and job title of each person who allegedly subjected Complainant to each discriminatory act; and all information that the Complainant possesses that shows that the complained of employment action(s) were the result of discriminatory conduct;
(2) identify all Respondents known to the complainant (i.e. the appointing power as well as all state employees alleged to have discriminated against the complainant), and identify the business address of each Respondent named as a party to the complaint. Unless the complainant names some other known Respondent, the Complainant's appointing power shall be considered the sole Respondent;
(3) have attached a copy of the Complainant's complaint of discrimination filed with the appointing power, together with a copy of the decision or other response of the appointing power to the complaint. If the appointing power failed to provide the Complainant with a written decision or other response to the discrimination complaint within the time period set forth in section 64.4, the Complainant shall so state in the complaint;
(4) specify the relief and/or remedies sought by the Complainant; and
(5) be limited to a maximum of 15 pages of double-spaced typed or printed text. Additional pages may be allowed upon a showing of good cause. The Complainant shall submit a separate document with the complaint stating the reasons for good cause. The 15 page limit does not apply to any documents attached to the complaint pursuant to the requirements of subdivisions (3) of this section, or any other exhibits.
(d) The above procedures do not apply in those cases where a complaint raises discrimination as an affirmative defense to any case scheduled for hearing. A party who raises discrimination solely as an affirmative defense shall not be entitled to the relief specified in section 19702 of the Government Code, unless that party has also complied with all filing requirements set forth in sections 64.2 through 64.6.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect amending subsection (c)(5) filed 3-30-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 13).
§64.6. Acceptance of Complaint; Notice.
Note • History
(a) If, after review of the complaint, the Appeals Division determines that the complaint does not meet all filing requirements, the Appeals Division shall notify the Complainant in writing of the reasons for its determination. The Complainant may file an amended complaint within 20 days of receipt of the notice of rejection of the complaint.
(b) Upon acceptance of the complaint or amended complaint, the Appeals Division shall serve the operative complaint on the named Respondents by mailing a copy of the complaint to the legal office, or other designated office, of the appointing power, and to the business address of any individually named respondent.
(c) The provisions of Article 6 of these regulations apply to discrimination complaints accepted by the Appeals Division.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18675, 19701 and 19702, Government Code.
HISTORY
1. New section filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
History
HISTORY
1. Editorial correction restoring inadvertently omitted section (Register 95, No. 5).
2. Repealer filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§66. Dismissal of Appeals Not Brought to Hearing. [Renumbered]
Note • History
NOTE
Reference: Section 18675, Government Code.
HISTORY
1. New section filed 5-17-68; effective thirtieth day thereafter (Register 68, No. 18).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Renumbering and amendment of former section 66 to section 52.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Article 9. Merit Issue Complaints
§66.1. Merit Issue Complaints.
Note • History
(a) Merit issue complaints are complaints that the State Civil Service Act or Board regulation or policy has been violated by a state agency. These complaints include but are not limited to, interference with promotional opportunities, interference with a person's access to any SPB appeals process, and the designation of managerial positions pursuant to Government Code section 3513. Merit issue complaints do not include appeals of actions that are specifically provided for elsewhere in law or in Board regulations. Each state agency shall establish and publicize to its employees its process for addressing merit issue complaints. That process shall include provisions for informing employees of their right to appeal the state agency's decision on the merit issue complaint to the Appeals Division. Failure of a state agency to respond to a merit issue complaint within 90 days of receipt of the complaint shall be deemed a denial of the complaint's allegations and shall release the appellant to file an appeal directly with the Appeals Division. An appeal of a merit issue complaint shall be filed with the Appeals Division within 30 days of the state agency's denial of the complaint.
(b) Merit Issue Complaints are assigned to investigative review by an Investigative Officer pursuant to section 53.2.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 12940, 18675, 18952, 19701, 19702, 19230 and 19231, Government Code.
HISTORY
1. New subarticle 9 (section 66.1) and renumbering and amendment of former section 53.1 to new section 66.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former subarticle 9 as new article 9 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§67. Reference to Hearing Officer. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: 18671, 18675 and 19582, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 60, No. 24.
2. Amendment filed 11-26-85; effective thirtieth day thereafter (Register 85, No. 48).
3. Renumbering and amendment of former section 67 to section 52 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Article 10. Whistleblower Retaliation Complaint Process
§67.1. Whistleblower Retaliation Complaints.
Note • History
Any state employee or applicant for state employment, or any employee or applicant for employment with a California Community College, who believes that he or she has been retaliated against in employment for having reported improper governmental activity, as that phrase is defined in Government Code section 8547.2(b), or Education Code section 87162(c), or for having refused to obey an illegal order or directive, as defined in Government Code section 8547.2(e), or Education Code section 87162(b), may file a complaint and/or appeal with the State Personnel Board in accordance with the provisions set forth in sections 67.2 through 67.8. For purposes of complaints filed by community college employees or applicants for community college employment, the local community college district shall be deemed the “appointing power.”
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 87162 and 87164, Education Code; and Sections 8547.2, 8547.8 and 19683, Government Code.
HISTORY
1. New subarticle 10 (sections 67.1-67.8) and renumbering of former section 56 to new section 67.1, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former subarticle 10 as new article 10 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
§67.2. Requirements for Filing Whistleblower Retaliation Complaint with the State Personnel Board.
Note • History
An individual desiring to file a complaint of retaliation with the SPB must adhere to the following requirements:
(a) The complaint shall be filed with and received by the Appeals Division within one year of the most recent alleged act of reprisal. The complaining party shall submit an original complaint and copy of all attachments, and enough copies of the complaint and attachments for the Appeals Division to serve each entity and person alleged to have engaged in retaliatory conduct and against whom damages and/or disciplinary action is sought.
(b) All complaints shall be in writing and shall identify and include the following:
(1) Clearly identify the protected activity that the Complainant engaged in, the date(s) the Complainant reported the improper governmental activity, and the person(s) to whom the Complainant reported the improper governmental activity;
(2) Clearly identify the specific act(s) of reprisal or retaliation alleged to have occurred, and the entity and/or person(s) responsible for the reprisal or retaliation;
(3) A sworn statement, under penalty of perjury, that the contents of the complaint are true and correct;
(4) The name and business address of each individual and entity alleged to have committed reprisal or retaliatory acts;
(5) Specify what relief and/or damages Complainant is seeking against anyRespondent(s) as a result of the alleged reprisal or retaliation, and include an extra copy of the complaint and all accompanying documents for the SPB to serve on each of the Respondents; and
(6) Whether the Complainant has filed a complaint of retaliation with the Office of the Inspector General pursuant to Penal Code section 6129, and if so, the date the complaint was filed.
(c) If adverse action is sought against any individually named Respondent, pursuant to the provisions of Government Code section 19574, the complaint must clearly state the facts constituting the cause or causes for adverse action in such detail as is reasonably necessary to enable the accused employee to prepare a defense thereto.
(d) Each complaint shall be limited to a maximum of 15 pages of double-spaced typed or printed text, not including exhibits. Additional pages may be allowed upon a showing of good cause. The Complainant shall submit a separate document with the complaint stating the reasons for good cause.
(e) The above procedures do not apply in those cases where an Appellant raises retaliation as an affirmative defense when appealing a notice of adverse action, pursuant to Government Code sections 19575 or 19590, when appealing a notice of rejection during probation, pursuant to Government Code section 19175, when appealing a notice of medical action, pursuant to Government Code section 19253.5, when appealing a notice of non-punitive action, pursuant to Government Code Section 19585, or when appealing a notice of career executive assignment termination pursuant to Government Code section 19889.2. Neither the remedies nor the relief available to a complaining party pursuant to the provisions of Government Code sections 8547.8 or 19683, shall, however, be available to a party who raises whistleblower retaliation as either an affirmative defense or as a separate cause of action in any other SPB hearing, unless that party has first complied with all filing requirements set forth in this section.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.3, 8547.8, 18670, 18671, 18675, 19175, 19253.5, 19572, 19583.5, 19585, 19683 and 19889.2; and Section 6129, Penal Code.
HISTORY
1. Renumbering of former section 56.1 to new section 67.2, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§67.3. Acceptance of Whistleblower Complaint.
Note • History
(a) Within 10 business days of receipt of the complaint, the Appeals Division shall determine whether it has jurisdiction over the complaint and whether the Complainant meets the filing requirements set forth in section 67.2. The Appeals Division shall also determine whether the complainant has complied with all other requirements for filing a retaliation complaint, as set forth in Government Code sections 8547-8547.12 and 19683 and/or Education Code sections 87160-87164.
(b) If the Appeals Division determines that the complaint does not meet all filing requirements, it shall notify the complaining party in writing that the complaint has not been accepted and the reason(s) for that determination. The complaining party may thereafter be permitted to file an amended complaint within 10 business days of service of the notice of non-acceptance of the complaint.
(c) Unless time is extended by the complaining party in writing, the Executive Officer shall, within 10 business days of receipt of the complaint or amended complaint, notify the complaining party of a decision to either:
(1) dismiss the complaint for failure to meet jurisdictional or filing requirements; or
(2) refer the case for investigation in accordance with the provisions of section 67.4; or
(3) schedule the case for an informal hearing before a hearing officer in accordance with the provisions of section 67.5.
(d) Except for those complaints amended pursuant to subsection (b), any amendment for a whistleblower retaliation complaint may only be accepted upon a showing of good cause.
(e) In accordance with the provisions of Penal Code section 6129, the SPB shall be entitled to defer review of a complaint filed by an employee of the Department of Corrections and Rehabilitation in those cases where the employee has filed a similar complaint with the Office of the Inspector General.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 87160-87164, Education Code; Sections 8547-8547.2, 8547.8, 18670, 18671, 18675, 19572, 19574, 19575, 19683 and 19590, Government Code; and Section 6129, Penal Code.
HISTORY
1. Renumbering of former section 56.2 to new section 67.3, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect amending subsection (c)(3) filed 1-6-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 1).
§67.4. Cases Referred to Investigation.
Note • History
(a) If the Executive Officer assigns a complaint for investigation, the Executive Officer or the assigned investigator(s) shall conduct the investigation in the manner and to the degree they deem appropriate, and shall have full authority to question witnesses, inspect documents, and visit state facilities in furtherance of their investigations. All state agencies and employees shall cooperate fully with the investigators, or be subject to disciplinary action for impeding the investigation. The investigators, pursuant to the provisions of Government Code section 18671, shall have authority to administer oaths, subpoena and require the attendance of witnesses and the production of books or papers, and cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil cases in the superior court of this state under Article 3 (commencing with section 2016) of Chapter 3 of Title 4 of Part 4 of the Code of Civil Procedure, in order to ensure a fair and expeditious investigation.
(b) The Executive Officer shall issue findings regarding the allegations contained in the complaint and a recommended remedy, if any, based on the investigation, in accordance with the provisions of section 67.6.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 19582, 19583.5 and 19683, Government Code; Section 6129, Penal Code, and Section 2016 et seq., Civil Procedure Code.
HISTORY
1. Renumbering of former section 56.3 to new section 67.4, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§67.5. Cases Referred to Informal Hearing.
Note • History
(a) For those complaints assigned to an informal hearing before a Hearing Officer the Appeals Division shall serve notice of the informal hearing on all parties to the complaint a minimum of 30 days prior to the scheduled hearing date. Service on each respondent shall be made at the respondent's business address. The notice shall:
(1) include a complete copy of the complaint with all attachments, and a copy of the statutes and rules governing the informal hearing; and
(2) require each named respondent to serve on the Complainant and file with the Appeals Division, at least 10 days prior to the informal hearing, a written response to the complaint, signed under penalty of perjury, specifically addressing the allegations contained in the complaint.
(b) The informal hearing shall be conducted in conformance with those procedures set forth in Government Code section 11445.10 et seq., and may in the discretion of the Hearing Officer, include such supplemental proceedings as ordered by the Hearing Officer, and as permitted by section 11445.10 et seq., of the Government Code, to ensure that the case is heard in a fair and expeditious manner. The Hearing Officer shall have full authority to question witnesses, inspect documents, visit state facilities in furtherance of the hearing, and otherwise conduct the hearing in the manner and to the degree he or she deems appropriate. The informal hearing and any supplemental proceedings shall be recorded by the Hearing Officer. All parties shall, upon request and payment of applicable reproduction costs, be provided with a transcript or a copy of the recording of the informal hearing.
(c) Following the informal hearing and any supplemental proceedings, the Hearing Officer shall issue findings for consideration by the Executive Officer regarding the allegations contained in the complaint, together with all recommended relief, if any, proposed to remedy any retaliatory conduct.
(d) The Executive Officer shall have the discretion to adopt the Hearing Officer's findings and recommended remedies in their entirety; modify the Hearing Officer's findings and recommended remedies; or reject the Hearing Officer's findings and recommended remedies, and:
(1) issue independent findings after reviewing the complete record; or
(2) remand the case back to the Hearing Officer, or refer the matter to an ALJ for further proceedings.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 11445.10 et seq., 11513, 18670, 18671, 18672, 18675, 19572, 19574, 19575, 19582, 19590, 19592 and 19683, Government Code; and Section 6129, Penal Code.
HISTORY
1. Renumbering of former section 56.4 to new section 67.5, including amendment of section heading, section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§67.6. Findings of the Executive Officer.
Note • History
(a) The Executive Officer shall issue a Notice of Findings within 60 business days of the date the Executive Officer accepts the complaint pursuant to section 67.3, unless the complaining party agrees, in writing, to extend the period for issuing the findings, or unless the time period is otherwise tolled.
(b) In those cases where the Executive Officer concludes that the allegations of retaliation were not proven by a preponderance of the evidence, the Executive Officer shall issue a Notice of Findings dismissing the complaint and that decision shall be deemed the final decision of the Board. The Notice of Findings shall notify the Complainant that his or her administrative remedies have been exhausted and that the Complainant may pursue whatever judicial remedies are available to him or her.
(c) In those cases where the Executive Officer concludes that the Complainant proved one or more of the allegations of retaliation by a preponderance of the evidence, the Notice of Findings shall identify the allegations deemed substantiated, and the named Respondents deemed to have engaged in retaliatory acts. If the Notice of Findings concludes that any individual manager, supervisor, or other employee engaged in improper retaliatory acts, the Notice of Findings shall identify the legal causes for discipline under section 19572 of the Government Code.
(d) The Notice of Findings shall inform any Respondent found to have engaged in retaliatory acts of his or her right to request a hearing regarding the Notice of Findings. Any such request shall be filed with the Executive Officer, and served on all other parties within 30 days of the issuance of the Notice of Findings. Upon receipt of a timely request for hearing, the Board shall, at its discretion, schedule a hearing before the Board, or an evidentiary hearing before an ALJ, regarding the findings of the Executive Officer. The hearing shall be conducted in accordance with Article 6, beginning with section 56.1. If a timely request for hearing is not filed with the SPB, the Board may order any appropriate relief, including, but not limited to, reinstatement, back pay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the state employee or applicant for state employment who was the subject of the alleged acts of misconduct prohibited by section 8547.3 of the Government Code.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671.1, 18675, 19572, 19574, 19575, 19582, 19590 and 19683, Government Code; and Section 6129, Penal Code.
HISTORY
1. Renumbering of former section 56.5 to new section 67.6, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§67.7. Disciplinary Action for Proven Retaliatory Acts.
Note • History
(a) In those cases where the Board issues a final decision that finds that a manager, supervisor, or other state civil service employee has engaged in improper retaliatory acts, the Board shall order the appointing authority to place a copy of the Board's decision in that individual's Official Personnel File within 30 days of the issuance of the Board's order and to also, within that same time period, notify the Office of the State Controller of the disciplinary action taken against the individual. The appointing authority shall also, within 40 days of the issuance of the Board's order, notify the Board that it has complied with the provisions of this subdivision.
(1) In accordance with the provisions of Penal Code section 6129, subdivision (c)(3), any employee of the Department of Corrections and Rehabilitation found to have engaged in retaliatory acts shall be disciplined by, at a minimum, a suspension without pay for 30 days, unless the Board determines that a lesser penalty is warranted. In those instances where the Board determines that a lesser penalty is warranted, the decision shall specify the reasons for that determination.
(b) In those cases where the Board issues a final decision that finds that any community college administrator, supervisor, or public school employer, has engaged in improper retaliatory acts, the Board shall order the appointing authority to place a copy of the Board's decision in that individual's Official Personnel File within 30 days of the issuance of the Board's order and also, within 40 days of the issuance of the Board's order, notify the Board that it has complied with the provisions of this subdivision.
(c) Any decision, as described in subdivision (a) or (b), shall be deemed a final decision of the Board and the individual against whom the disciplinary action was taken shall not have any further right of appeal to the Board concerning that action, with the exception of a Petition for Rehearing.
(d) For purposes of this Section, the Board's decision is deemed to be final after:
(1) 30 days has elapsed from the date the Executive Officer issued his or her Notice of Findings dismissing the complaint; or
(2) a request for hearing pursuant to section 67.7(c) has not been timely filed with the Board; or
(3) 30 days has elapsed from the date that the Board has issued a decision adopting or modifying the proposed decision submitted by an administrative law judge after an evidentiary hearing and a Petition for Rehearing concerning that decision has not been filed with the Board; or
(4) a decision has been issued by the Board after a hearing before that body and no Petition for Rehearing concerning that decision has been filed with the Board.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 87164, Education Code; Sections 8547.8, 18670, 18671, 18675, 18710, 19572, 19574, 19582, 19583.5, 19590, 19592 and 19683, Government Code; and Section 6129, Penal Code.
HISTORY
1. Renumbering of former section 56.6 to new section 67.7, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
§67.8. Consolidation with Other Hearings.
Note • History
(a) The Executive Officer or the assigned ALJ shall possess the requisite discretion to direct that separate, reasonably related cases be consolidated into a single hearing. Whenever two or more cases are consolidated, the assigned administrative law judge shall permit the parties a reasonable opportunity to conduct discovery prior to the first scheduled hearing date, if the discovery provisions set forth in sections 59.1 through 59.4 are negatively impacted by the consolidation.
(b) In those cases where one or more individually named Respondents have been joined in the consolidated hearing, the administrative law judge may, in his or her discretion, make such orders as may appear just in order to prevent any named Respondent from being embarrassed, delayed, or put to undue expense, and may order separate hearings or make such other order as the interests of justice may require.
(c) In those cases where an appeal from adverse action, rejection during probationary period, medical action, or non-punitive action is consolidated with a whistleblower retaliation complaint, and the whistleblower retaliation complaint identifies specifically named individuals against whom damages or adverse action is sought pursuant to the provisions of section 67.2(c), each individually named Respondent shall have the right to participate in the consolidated hearing in such a manner as to reasonably defend him or herself against the allegations contained in the whistleblower retaliation complaint. These rights shall include, but not be limited to:
(1) to be represented by a representative of his or her own choosing during the consolidated hearing;
(2) to present a defense on his or her own behalf concerning the allegations and issues raised in the whistleblower retaliation complaint, separate and apart from any defense presented by the appointing power or any other named Respondent;
(3) to conduct pre-hearing discovery concerning allegations and issues raised in the whistleblower retaliation complaint;
(4) to examine and cross examine witnesses concerning allegations and issues raised in the whistleblower retaliation complaint;
(5) to introduce and challenge the introduction of evidence concerning allegations and issues raised in the whistleblower retaliation complaint; and
(6) to present oral and/or written argument to the decision-maker concerning allegations and issues raised in the whistleblower retaliation complaint.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 8547.8, 11513, 18670, 18671, 18672, 18675, 19175, 19253.5, 19575, 19582, 19585, 19590 and 19683, Government Code.
HISTORY
1. Renumbering of former section 56.7 to new section 67.8, including amendment of section and Note, filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
Appendix A
Embedded Graphic 02.0001
Embedded Graphic 02.0002
HISTORY
1. New Appendix B filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
. 2. Redesignation and amendment of former Appendix B as Appendix A filed 10-21-2010; operative 10-21-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 43).
3. Change without regulatory effect amending Appendix A filed 11-30-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 49).
4. Change without regulatory effect amending antepenultimate line of Form SPB-76 filed 1-12-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 2).
5. Change without regulatory effect amending sections 2.e. and 2.f. of Form SPB-76 within Appendix A filed 4-6-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 14).
§68. Hearing and Decision. [Repealed]
Note • History
NOTE
Reference: Sections 18675 and 19582, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 53, No. 16.
2. Repealer filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Note • History
NOTE
Authority: Section 18701, Government Code. Reference: Sections 19700, 19701, 19702, 19702.1, 19702.2, 19702.5, 19703, 19704 and 19705, Government Code.
HISTORY
1. New article 25 (sections 547, 547.1 and 547.2) filed 3-22-76; effective thirtieth day thereafter (Register 76, No. 13).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Renumbering and amendment of former section 69 to section 51.7 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
§70. Decision Becomes Final When. [Renumbered]
History
HISTORY
1. Amendment filed 6-28-48 (Register 13, No. 3).
2. Renumbering and amendment of former section 70 to section 51.6 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
§73. Public Hearing; Counsel. [Renumbered]
History
HISTORY
1. Renumbering and amendment of former section 73 to sections 51.4 and 51.5 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Register 85, No. 48.
§74. Exclusion of Witnesses. [Renumbered]
History
HISTORY
1. New section filed 11-13-48 (Register 11, No. 2)
2. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Renumbering and amendment of former section 74 to section 52.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Subchapter 1.3. Examination and Appointments
HISTORY
1. Change without regulatory effect adding new subchapter 1.3 filed 1-26-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 4).
Article 1. [Reserved]
Article 2. [Reserved]
Article 3. [Reserved]
Article 4. [Reserved]
Article 5. Compensation [Repealed]
HISTORY
1. Repealer of Article 5 (Sections 90, 91, 91.1, 91.5, 92-95, 98, 98.1-98.7, 98.9, 101, 102, 102.5-102.7, 103, 106, 108, 111 and 112) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 5, including Sections 96, 97, 100, 104, 107, 109 and 110, see Register 77, No. 15.
Article 6. Overtime [Repealed]
HISTORY
1. Repealer of Article 6 (Sections 130, 130.5, 131-137, 137.5, 139 and 139.1) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 6, including Section 138, see Registers 79, No. 42 and 77, No. 15.
Article 7. Employment Lists
For the general statutory provisions on this subject, refer to Section 18900 of the act and sections following.
§151. Eligibility After Appointment.
History
When an eligible receives a limited term appointment, that eligible's name shall be continued on the employment list for permanent certification. When an eligible receives a permanent appointment, that eligible's name shall be removed from the employment list.
HISTORY
1. Amendment of section filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§151.3. Restoration of Name for Limited-Term Certification.
Note • History
Upon the recommendation of an appointing power and with the approval of the executive officer, the name of an employee who has served satisfactorily under limited-term appointment and who resigns may be restored to the employment list for further limited-term certification.
NOTE
Reference: Section 19083, Government Code.
HISTORY
1. New section filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§151.5. Limited Term Eligible Lists.
Note • History
When the needs of the service require, the executive officer may hold examinations and establish eligible lists therefrom for use exclusively in making limited term appointments. No person shall be given a permanent appointment nor gain permanent status by appointment from such a limited term eligible list.
NOTE
Reference: Section 19083, Government Code.
HISTORY
1. New section filed 10-10-50 as an emergency; effective upon filing (Register 22, No. 1).
2. Amendment filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§152. Preferred Limited Term List.
A preferred limited term list may be established for any class, containing the names of limited term employees who have served satisfactorily in positions recurring seasonally in a given state agency and who have been recommended by the appointing power for inclusion on such list. Such preferred limited term list shall be established to correspond to the same geographical, organizational, or functional subdivisions of state agencies as may be observed in establishing the departmental reemployment lists for the same class. Names shall be included on the preferred limited term list in the relative order of the original examination ratings of the eligibles. In filling limited term vacancies in a given state agency, the preferred limited term list for that agency shall be given preference over the eligible list but not over any other employment list. The name of any eligible included on the preferred limited term list may be continued on such list after the abolishment of the eligible list from which the eligible was originally certified; but under no circumstances and at no time shall any person be certified from the preferred limited term list to a permanent position or be permitted to acquire permanent status as a result of certification and appointment from any such list.
Note • History
If a person's name is placed on inactive status at that person's request, it may, upon that person's written request and in the discretion of the executive officer, be restored to active status on the list. If a person's name is placed on inactive status without that person's request, it will be restored to active status only if the board or the executive officer finds that there is good cause therefor. In any case, the person's name may be restored to active status only if the employment list on which the person has inactive status is still in existence; and the name shall be restored to active status according to the person's earned rating in the examination or combined score for efficiency and seniority, when restored to a reemployment list in a class designated as professional, scientific, administrative, management or executive, as the case may be.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18900, Government Code.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).
§154. Transfer of Promotional List Eligibility.
Note • History
Employees with promotional list eligibility who move from one agency or subdivision to another agency or subdivision without a break in service may transfer such promotional list eligibility to the appropriate promotional list of the new agency or subdivision is such list was established as a result of an examination for the same subject matter and with the same education and experience admittance requirements.
An employee who reenters State service in a new agency or subdivision within 6 months after a resignation and who, had he/she returned to the former agency or subdivision, would have been eligible for certification from a promotional list under (the) provisions of Section 240, may apply to have eligibility transferred to the appropriate list or lists of the new agency or subdivision under the provisions of this rule.
Eligibility shall be transferred upon receipt of the written request of the employee with the concurrence of the employee's new appointing power and the employee's name shall then be placed on the appropriate promotional list or lists in accordance with the score received in the examination.
When the movement of an employee is the result of the transfer of a function or the administration of a law from one State agency to another State agency, the above restrictions are not applicable.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18950, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 61, No. 26.
2. Amendment filed 4-3-79; effective thirtieth day thereafter (Register 79, No. 14).
3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 8. Examinations
For the general statutory provisions on this subject, refer to Section 18930 of the act and sections following.
Note • History
Examinations shall be held at such times and places as the executive officer may determine. The executive officer shall direct the preparation of every examination and the publication of an announcement thereof. The announcement shall specify the basis of competition to be permitted in the examination. An examination may be given on a promotional-only basis, a combined open and promotional basis, an open-only basis, or an open, nonpromotional basis. Each announcement shall state the title, salary range, and where appropriate, the duties of the class; the method of evaluating the education, experience, and personal qualifications of the competitors; such information as is required by the act and these rules; and such additional information as the executive officer may deem proper. An examination may be canceled by the executive officer at any time prior to the establishment of the employment list.
NOTE
Reference: Section 18950, Government Code.
HISTORY
1. Amendment filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45). For prior history, see Register 70, No. 47.
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§171.1. Amount of Time Required to Meet Minimum Qualifications.
Note • History
Unless otherwise provided in the class specification adopted by the board, when determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications prescribed for the class, the following shall apply:
(a) The calendar time required shall have been in a full-time job or work assignment. A full-time job or work assignment is the maximum number of hours an individual can spend on a job without a requirement that he/she be given overtime compensation or, where overtime is not applicable, the number of hours required for an individual to receive full-time pay for the applicable work period.
(b) An applicant must have the required calendar time unless the applicant worked two different jobs concurrently. the time spent on two different qualifying jobs worked concurrently shall be added together to determine the total amount of qualifying experience.
(c) Hours worked on the same job in excess of full-time (i.e., overtime hours) shall not be credited as additional time.
(d) Less than full-time experience shall be credited based upon the percentage of full-time worked while employed less than full-time [e.g., half-time (50%) employment for six months equals three months of full-time experience].
NOTE
Authority cited: Government Code Section 18701. Reference: Government Code Section 18931.
HISTORY
1. New section filed 7-3-90; operative 8-2-90 (Register 90, No. 35).
Note • History
All candidates for, appointees to, and employees in the state civil service shall possess the general qualifications of integrity, honesty, sobriety, dependability, industry, thoroughness, accuracy, good judgment, initiative, resourcefulness, courtesy, ability to work cooperatively with others, willingness and ability to assume the responsibilities and to conform to the conditions of work characteristic of the employment, and a state of health, consistent with the ability to perform the assigned duties of the class. Where the position requires the driving of an automobile, the employee must have a valid state driver's license, a good driving record and is expected to drive the car safely. The foregoing general qualifications shall be deemed to be a part of the personal characteristics of the minimum qualifications of each class specification and need not be spe-- cifically set forth therein. The board may prescribe alternative or additional qualifications for individual classes and such shall be made a part of the class specifications.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18931 and 18935, Government Code.
HISTORY
1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 72, No. 39.
2. Amendment filed 11-20-87; operative 12-20-87 (Register 87, No. 48).
§172.1. Waiver of Additional Special Personal Characteristics.
Note • History
An alternative or additional special personal characteristic stated in the specification for an individual class may, upon the recommendation of the State Medical Officer, be waived for a “subject to proper placement” eligible for a specific position within the class wherein such waiver would not affect the satisfactory performance of the duties assigned to the specific position. Incumbents with “subject to proper placement” status may not transfer to another position within the class without a reevaluation of the incumbent's medical capabilities in relation to the new position. (Persons who are “subject to proper placement” have completed the medical examination; however, they have certain medical conditions that may hazardously conflict with the job duties or the performance required of most, but not all, positions within the classification.)
NOTE
Reference: Sections 18930 and 19253.5, Government Code.
HISTORY
1. New section filed 4-14-77; effective thirtieth day thereafter (Register 77, No. 16).
§172.2. Citizenship. [Repealed]
History
HISTORY
1. New section filed 12-24-57; effective thirtieth day thereafter (Register 58, No. 1).
2. Amendment filed 11-22-68 as an emergency; effective upon filing. Certificate of Compliance included (Register 68, No. 44).
3. Repealer filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).
§172.3. Medical Examinations During Employment.
Note • History
In accordance with Government Code Section 19253.5, the appointing power may require an employee to submit to a medical examination.
NOTE
Reference: Section 19253.5, Government Code.
HISTORY
1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 67, No. 37.
§172.4. Definition of Psychological Screening.
Note • History
Psychological screening is the mandatory pre-employment assessment of the psychological fitness of candidates for appointment as peace officers including peace officers in either a youth or adult correctional facility.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Sections 1031(f) and 18931, Government Code; and Section 13601(a), Penal Code.
HISTORY
1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).
2. Amendment of section and Note filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
§172.5. Definition of Qualified Professional.
Note • History
A qualified professional shall meet the criteria set forth in Government Code Section 1031, subdivision (f).
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 1031(f), Government Code; and Section 13601(a), Penal Code.
HISTORY
1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10). For history of former section 172.5, see Register 72, No. 28.
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Amendment of section and Note filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
§172.6. Responsibility for Psychological Screening.
Note • History
The Board shall psychologically screen candidates for peace officer classifications, unless the Board delegates to an appointing power the authority to conduct psychological screenings in accordance with this regulation. No appointing power shall conduct any psychological screenings without prior Board authorization, except as otherwise authorized by law. Any request for authorization must be submitted in writing to the Board. An appointing power authorized by the Board to conduct psychological screening shall do so in accordance with the procedures defined in Sections 172.7, 172.8, 172.9, 172.10, and 172.11.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18500, Government Code.
HISTORY
1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).
2. Amendment of section heading, section and Note filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
3. Amendment filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
§172.7. Standards and Procedures for Psychological Screening.
Note • History
The standards and procedures for conducting psychological screening shall be as follows:
(a) Minimum Psychological Standards. In order to be certified as a peace officer, a candidate must be found to be free from any job relevant psychological, emotional or mental traits, characteristics, or conditions that might adversely affect the performance of the duties and powers of a peace officer.
(b) Psychological Tests. Each candidate shall take a minimum of two written psychological tests (inventories) consistent with the requirements of the Commission on Peace Officer Standards and Training (POST).
(c) Evaluation Interview. Each candidate shall have a face-to-face evaluation interview conducted by a qualified professional as defined in Section 172.5 and selected by the Board's Chief Psychologist. With respect to each candidate, the interviewing qualified professional shall have prior access to all psychological screening tests and questionnaire data, summaries of available prior screening reports, summaries of available prior mental health evaluation/treatment records and salient medical records, and a summary of the appointing power's background investigation report.
(d) Report of Findings. The interviewing qualified professional shall submit to the Board's Chief Psychologist a recommendation as to whether the candidate meets the minimum psychological standards for appointment as a peace officer, together with a detailed report of findings and opinions that explain and support the recommended decision.
(e) Screening Determination. The Board's Chief Psychologist shall determine whether candidates should be certified as meeting the psychological standards for appointment as peace officers, subject to the right of appeal to the Board. In determining whether a candidate meets the psychological standards for appointment as a peace officer, the Board's Chief Psychologist shall consider the qualified professional's report of findings, written psychological test data, and substantiating behavioral evidence derived from one or more of the following sources: prior evaluation and/or treatment records; background investigation or other information collected by the appointing power or the Board; the candidate's self-report of personal history; and behavior manifested in the evaluation interview.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Sections 1031(f)-(g) and 18931, Government Code; and Sections 13503, 13506, 13510, 13510.5 and 13601(a), Penal Code.
HISTORY
1. New section filed 2-28-88; operative 3-23-88 (Register 88, No. 10).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Repealer of former section 172.7 and renumbering of former section 172.8 to section 172.7, including amendment of section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
4. Amendment filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
§172.8. Psychological Screening Withhold from Certification.
Note • History
The Board shall withhold or withdraw from certification, prior to appointment, any candidate who does not meet the minimum psychological standards as defined in Section 172.7(a).
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18935, Government Code.
HISTORY
1. New section filed 2-28-88; operative 3-23-88 (Register 88, No. 10).
2. Change without regulatory effect amending subsections (1) and (3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Renumbering of former section 172.8 to section 172.7 and renumbering of former section 172.9 to section 172.8, including amendment of section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
4. Amendment filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
Note • History
Candidates disqualified in the psychological screening process may dispute the decision utilizing the following Dispute Resolution Process.
(a) Prior to a final determination by the Board to withhold a candidate from certification based upon the Chief Psychologist's decision to accept the Report of Findings disqualifying the candidate from consideration, the Psychological Screening Program shall mail to the candidate:
(1) A letter of disqualification with instructions for disputing the decision, including information relative to obtaining an evaluation from one outside qualified professional; and
(2) A release form to be signed by:
(A) The candidate authorizing the Board to release the candidate's psychological screening records to the candidate's outside qualified professional; and
(B) The outside qualified professional certifying that licensure requirements are met pursuant to section 172.5.
(3) Failure to return the authorization signed by the candidate within 10 working days prior to the conclusion of the 90 day time frame in subdivision (b) shall result in the closing of the Dispute Resolution Process and a final determination that the candidate will be withheld from certification in meeting the minimum psychological standards for appointment as a peace officer.
(b) Within 90 calendar days of the date of disqualification, the outside qualified professional shall submit a signed written report stating an opinion as to whether the candidate meets the minimum psychological standards for appointment as a peace officer as provided in section 172.7, together with the documentation of findings that explain and support that opinion.
(c) The candidate's dispute shall be closed if the outside qualified professional fails to submit a report within the 90 day timeframe, or where the outside qualified professional submits a negative report not recommending that the candidate meets the minimum psychological standards for appointment as a peace officer.
(d) The 90 day period for the outside qualified professional to submit a report may be extended based upon a showing of good cause.
(e) Upon timely receipt of a positive report from the outside qualified professional recommending that the candidate meets the minimum psychological standards for appointment as a peace officer, the candidate's dispute shall be scheduled for review by the Chief Psychologist who will render one of the following decisions:
(1) Where the Chief Psychologist reverses the disqualification following the review, the candidate will be certified as meeting the minimum psychological standards for appointment as a peace officer, and the dispute will be closed; or
(2) Where the Chief Psychologist does not reverse the disqualification following the review, the decision of the Chief Psychologist as the Board's designee, to withhold certification of the candidate remains final unless and until an appeal is filed by the candidate pursuant to section 172.10.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18670, Government Code.
HISTORY
1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).
2. Renumbering of former section 172.9 to section 172.8 and renumbering of former section 172.10 to section 172.9, including amendment of section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
3. Amendment of section heading and repealer and new section filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
§172.10. Appeal of Psychological Screening Withhold.
Note • History
Candidates who have obtained a positive report from an outside qualified professional, but who are withheld from certification by the Board's designee, may file a written appeal with the Appeals Division. Any such appeal shall be filed within 30 days after the candidate is notified that he or she has been withheld from certification.
(a) Upon timely receipt of the appeal, an informal hearing shall be scheduled as provided in section 54.1.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18670, Government Code.
HISTORY
1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Renumbering of former section 172.10 to section 172.9 and renumbering of former section 172.11 to section 172.10, including amendment of section heading, section and Note, filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
4. Renumbering of former section 172.10 to section 172.11 and new section 172.10 filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
§172.11. Retention of Psychological Screening Records.
Note • History
The Board shall retain all psychological screening testing materials, written reports and related records for a minimum of five years. These records shall be the exclusive property of the Board. Confidentiality of these materials and related information shall be maintained consistent with laws governing the collection, maintenance, and release of medical and psychological information, including but not limited to the Information Practices Act of 1977 (Title 1.8 of Division Third, Part 4 of the Civil Code, commencing with Section 1798) and the Confidentiality of Medical Information Act (Part 2.6 of Division First of the Civil Code, commencing with Section 56).
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 18931, Government Code.
HISTORY
1. New section filed 2-22-88; operative 3-23-88 (Register 88, No. 10).
2. Renumbering of former section 172.11 to section 172.10 filed 4-19-2005; operative 4-19-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 16).
3. Renumbering of former section 172.11 to section 172.12 and renumbering of former section 172.10 to section 172.11, including amendment of section, filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
§172.12. Retention of Psychological Screening Testing Materials. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18931, Government Code.
HISTORY
1. Renumbering of former section 172.11 (repealed) to section 172.12 filed 1-12-2011; operative 2-11-2011 (Register 2011, No. 2).
Note • History
There shall be no examination fee except that an applicant may be required to furnish certain medical examination information without expense to the state.
NOTE
Reference: Sections 18931 and 19261, Government Code.
HISTORY
1. Amendment filed 11-7-69; effective thirtieth day thereafter (Register 69, No. 45).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Note • History
All applications must be filed at the place, within the time, in the manner, and on the form specified in the examination announcement. A separate application shall be filed for each examination unless otherwise specified in the examination announcement. All applications shall remain on file for at least two years and thereafter until ordered destroyed by the executive officer. Under no circumstances will applications for examinations in progress or examinations be returned to applicants. The names of applicants shall not be made public.
Filing an application “within the time” shall mean postmarked by the postal service or date stamped at one of the State Personnel Board offices (or the appropriate office of the agency administering the examination) by the date specified.
An application not postmarked or date stamped by the specified date shall be accepted under one of the following conditions:
(a) The application was delayed due to a verified error on the part of the staff of the State Personnel Board or other agency conducting the examination or through a documented administrative error by postal authorities.
(b) An application for an examination is submitted in error to the wrong State agency and was either postmarked by the postal service or date stamped by the agency to which addressed on or before the date specified.
(c) The employing agency verifies examination announcement distribution problems which prevented timely notification to an employee of a promotional examination. Posting in a centralized location of each branch, district, institution, region or office of the department shall constitute notification of an employee. The examination must be one in which the department would typically have competitors and receive announcements for internal distribution.
(d) The employing agency verifies that the applicant failed to receive timely notice of a promotional examination because the employee was away from his/her normal place of work during the entire examination publicity period due to work assignment, vacation, sick leave, or leave of absence. The examination must be one the employee would typically be expected to compete in.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18934, Government Code; Section 1602.31, Title 29, Chapter XIV, Code of Federal Regulations.
HISTORY
1. Amendment filed 9-15-53; effective thirtieth day thereafter (Register 53, No. 16).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 5-6-81; effective thirtieth day thereafter (Register 81, No. 19).
4. Amendment filed 7-3-86; effective thirtieth day thereafter (Register 86, No. 27).
§174.6. Compilation of Ethnic, Sex and Disability Information.
Note • History
The executive officer may gather and maintain information regarding the success or failure of applicants by ethnic group, disability, and sex in State civil service examinations. Such information may be voluntarily provided by the applicant on a detachable section of the application.
NOTE
Authority cited: Section 18930, Government Code. Reference: Section 19705, Government Code.
HISTORY
1. New section filed 7-16-75; effective thirtieth day thereafter (Register 75, No. 29).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).
§174.7. Use of Ethnic, Sex and Disability Information.
Note • History
(a) Ethnic, sex and disability information shall not be used in a discriminatory manner in the selection process.
(b) Such information shall only be used for one or more of the following purposes:
(1) research and statistical analysis to assess the fairness of the selection process in regard to ethnicity, sex, and the disabled; or
(2) to provide a basis for corrective action when adverse effect is present, and
(3) to evaluate the State's affirmative action programs.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19702.1 and 19792, Government Code.
HISTORY
1. New section filed 7-16-75; effective thirtieth day thereafter (Register 75, No. 29).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 8-29-79; effective thirtieth day thereafter (Register 79, No. 35).
4. Amendment filed 1-19-89; operative 2-18-89 (Register 89, No. 4).
5. Change without regulatory effect of subsection (b) pursuant to section 100, Title 1, California Code of Regulations filed 5-16-90 (Register 90, No. 22).
§174.8. Confidentiality of Ethnic, Sex and Disability Information.
Note • History
The executive officer shall implement procedures to insure that ethnic and sex information shall be accessible only to authorized persons. Ethnic and disability information on an individual applicant shall not be available to any member of an oral interview panel, performance testing panel, or the appointing power or the appointing power's representative prior to the offer of an appointment.
NOTE
Authority cited: Section 18930, Government Code. Reference: Section 19705, Government Code.
HISTORY
1. New section filed 7-16-75; effective thirtieth day thereafter (Register 75, No. 29).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).
§175. Authorization to Take Examination.
Each applicant shall be notified of the approval or disapproval of his application. The applicant's authorization to take the examination shall be in such form as may be prescribed by the executive officer.
§176. Questions Approved and Sealed.
Note • History
All examination questions shall be approved by the executive officer in advance of the examination. In transmitting material containing examination questions, each package thereof shall be securely sealed to be opened by the authorized agent of the executive officer prior to the examination. The correctness of the contents are to be verified and any discrepancies reported immediately. Security procedures prescribed by the executive officer are to be followed.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19680 and 19681, Government Code.
HISTORY
1. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).
All necessary explanations will be made to the whole group taking the written examination and no question will be explained to any individual competitor. Examiners shall not make any comment that may assist any competitor to answer any question.
Communication between competitors during examination is strictly forbidden; and competitors are forbidden to receive any unauthorized assistance in the examination. Before the commencement of an examination, competitors will be required to hand to the examiner any unauthorized printed or written matter in their possession that might serve to aid them in the examination. Evidence of copying or collusion may result in the cancellation of his examination and the debarment of the competitor from future state civil service examinations of any kind. Copies of the questions in the examination may not be made or taken from the examination room.
Note • History
Written examinations shall be so managed that the identity of any applicant shall be concealed from persons responsible for determining a passing score until all the examination papers shall have been marked, except in examinations in which the papers are scored objectively and both the key answers and the passing score have been predetermined.
NOTE
Authority cited: Sections 18930 and 19704, Government Code.
HISTORY
1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).
2. Amendment filed 7-2-74; effective thirtieth day thereafter (Register 74, No. 27).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Note • History
Any competitor in any written examination who places any identifying mark upon an examination paper, other than as instructed by the examination proctor, may be deprived of all benefits under such examination.
NOTE
Reference: Sections 18930 and 19704, Government Code.
HISTORY
1. Amendment filed 7-2-74; effective thirtieth day thereafter (Register 74, No. 27).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§185. Rating of Written Examinations.
History
All examination papers shall be marked and graded under the direction of the executive officer and in accordance with the examination announcement. When, in the course of grading a competitor's papers, it becomes apparent that competitor would receive a general average percentage less than the minimum percentage for eligibility fixed by the executive officer or that competitor would receive less than the minimum percentage required on a given portion of the examination then the competitor shall be considered as having been disqualified and the marking of that competitor's papers need not be completed.
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Revision filed 4-11-47 (Register 7).
3. Amendment filed 12-23-47 (Register 10, No. 8).
4. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§186. Inspection of Examination Papers.
History
Examination papers shall be open to inspection only as provided by these regulations.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
Except as otherwise provided herein, upon written request filed in the office of the board within 60 days after notice of the result of their examinations have been mailed to them, competitors may compare their answer sheets with a scoring key at such location as may be designated by the executive officer for the purpose of determining whether their answers have been accurately scored. Such inspection shall be under supervision of a member of the staff or other authorized representative of the board. Answer sheets for copyrighted or standardized examinations may be excluded by the executive officer from such inspection.
NOTE
Reference: Section 18934, Government Code.
HISTORY
1. Amendment filed 9-15-53; effective thirtieth day thereafter (Register 53, No. 16).
2. Amendment filed 10-28-58; effective thirtieth day thereafter (Register 58, No. 20).
3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Note • History
A competitor's examination papers shall be open to inspection only by: the competitor; the competitor's attorney upon written authorization of the competitor; or, with approval of the executive officer, the appointing power to whom the eligible has been certified.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18934, Government Code.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).
History
Copying questions or answers contained in written examination papers, making erasures or alterations in the markings on the papers, or any mutilation thereof by any person is forbidden. Evidence that a competitor or the competitor's attorney has copied from, altered, or mutilated an examination paper may result in the competitor's debarment from competition in future examinations or the cancellation of the competitor's eligibility for employment in the state civil service, or both.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§190. Appeal from Written Examination.
History
During regular office hours in the seven calendar days beginning on the first working day after a written examination has been held and at any of the offices of the board or such other places as may be designated by the executive officer, any competitor may inspect a keyed copy of the questions in the competitor's examination for the express purpose of requesting review of such items as the competitor may believe are incorrectly or improperly keyed. Keyed copies of copyrighted or standardized examinations will not be available for review. The executive officer may also, for examinations given to fill urgent and immediate vacancies in the state service, provide that there will be no key inspection privileges. Notice of the suspension of this privilege shall be made a part of the written examination instructions given to each competitor at the time of the written examination. The competitor may, during the period of inspection provided above, file with the executive officer a written appeal from any part of the test, citing the item or items against which the appeal is directed and stating the reason for such appeal. The examination shall not be scored until all the disputed items have been reviewed and appropriate adjustment, if any, made by correction in the scoring key or elimination of the disputed items. In no event is the executive officer required to furnish keyed copies of questions of an essay or problem type when in executive officer's judgment such questions are not subject to scoring by an absolute standard.
In addition to the appeal hereinabove provided, a written appeal may be made from the result of the written examination on the grounds of fraud or clerical error in scoring the papers. Such appeal must be filed with the board within 60 days after notice of the result of the competitor's examination has been mailed to the competitor filing the appeal.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 10, No. 8.
History
In any examination, the appraisal of education and experience of the competitors may be made by formula applied to the information and data given on their official applications. Such appraisal may be made without interview and without evaluating the personal qualifications of the competitors.
HISTORY
1. Amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).
History
In any examination the education, experience, and personal qualifications of competitors may be rated after a qualifications appraisal interview and such investigations as may be necessary.
The interview shall be conducted and the ratings made either by a qualifications appraisal panel of two or more members or by a single representative of the State Personnel Board. The representative of the State Personnel Board, either when acting alone or as a member of a panel, may be other than a staff member of the State Personnel Board. The executive officer shall determine the number of interviewers required to conduct each qualifications appraisal interview and shall select and appoint such interviewers.
HISTORY
1. Repealer of former Section 194 filed 4-15-58; effective thirtieth day thereafter. For history of former Section 194, see Register 56, No. 12. Former Section 195 renumbered 194 and amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).
2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).
History
Qualifications appraisal interviews for an examination shall be conducted by the same interviewer or qualifications appraisal panel, except that if the executive officer finds that the needs of the state service require or it is necessary in order to fill urgent and immediate vacancies in the state service the executive officer may appoint more than one interviewer or qualifications appraisal panel to conduct interviews simultaneously or in different locations. If one or more of the members of the qualifications appraisal panel is not present during all or part of the proceedings the panel may nevertheless proceed. The executive officer or chairperson may fill any vacancy by appointment of a qualified person.
HISTORY
1. New section filed 4-15-58; effective thirtieth day thereafter. Former section renumbered 194 (Register 58, No. 7).
2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).
3. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
History
Each qualifications appraisal panel shall include a representative of the State Personnel Board who shall be the chairman and, except when the executive officer finds that the State's interest will not benefit therefrom:
(a) One or more persons within the state service, preferably from the agency or agencies for which the employment list is being established, who are familiar with the job requirements of the class for which the examination is being held; and
(b) One or more citizens not in the state service.
HISTORY
1. Amendment filed 12-23-47; effective thirtieth day thereafter (Register 10, No. 8).
2. Amendment filed 9-11-50; effective thirtieth day thereafter (Register 21, No. 6).
3. Repealer and new section filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).
4. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).
History
No member of the State Personnel Board may serve as a member of any qualifications appraisal panel unless that board member is the appointing power or a member of the governing body of the agency for the use of which the resulting employment list is to be established, and then only upon previous approval by the State Personnel Board.
HISTORY
1. Amendment filed 12-23-47; effective thirtieth day thereafter (Register 10, No. 8).
2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).
3. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§197.5. Disqualification of Interviewer, Rater or Administrator Related to Competitor.
Note • History
When, in the course of an examination:
(a) A competitor appears before an oral examination panel, and that competitor is related by blood, or by adoption, or is or was related by marriage or is or was a cohabitant with any interviewer, it shall be the duty of the interviewer to disqualify him/herself from the interview with that particular competitor and shall not be present during the interview, or during any discussion about, or rating of, the competitor. The absence of the interviewer shall be recorded on the rating sheet of the competitor. The interview may proceed with a single interviewer. If the chairperson is disqualified from interviewing a particular competitor the chairperson shall designate a remaining panel member as the State Personnel Board representative for the interview, discussion, and rating of that competitor if the designated chairperson is a board certified chairperson.
(b) Anyone directly involved in the development or administration of any phase of an examination and a competitor are related by blood, or by adoption, or are, or were related by marriage or are or were cohabitants:
(1) The rater shall disqualify him/herself from rating the applicant, or
(2) shall not participate in any phase of the administration of that particular examination.
(c) For purposes of this rule a cohabitant is a person who shares a residence with another person.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code.
HISTORY
1. New section filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).
2. Amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Amendment file 3-9-87; effective thirtieth day thereafter (Register 87, No. 11).
History
Ratings of education, experience, and personal qualifications shall be made on a competitive basis in that each competitor shall be rated thereon in relation to the minimum qualifications for the class in question and in relation to the comparable qualifications of other competitors. The term “personal qualifications” includes all such personality traits and personal, moral, and physical characteristics as are necessarily comprehended by the minimum qualifications established for the class. When rating competitor's education and experience, interviewers shall consider the quality, length, and pertinence of such education and experience, and the degree to which competitor's total education and work histories represent suitable preparation for the work of the class.
HISTORY
1. Amendment filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).
§199. Minimum Qualifying Ratings.
Note • History
In qualifications appraisal interviews, ratings accorded competitors shall all be expressed in percentages, with 70 percent being the minimum qualifying rating, or shall all be expressed as qualified or eliminated without the assignment of percentage ratings. For each examination the executive officer shall determine whether percentage ratings or ratings of qualified or eliminated shall be used. Ratings shall be made independently by each interviewer either before or after discussion with other interviewers if there is a panel interviewing the candidate. Ratings shall be made on forms prescribed by the executive officer, which shall be signed by the interviewer.
A competitor shall be eliminated only if a majority of the members of the qualifications appraisal panel assign the competitor ratings below 70 percent or ratings of “eliminated.”
When the ratings are expressed in percentages, the ratings of the several members of a qualifications appraisal panel shall be averaged to determine each competitor's final rating on education, experience, and personal qualifications, except that, if the average rating is below 70 percent but there is not a majority of the members who assign ratings below 70 percent, the competitor shall be given a rating of 70 percent, and except that, if a majority of the members assign a rating below 70 percent, the competitor shall be eliminated regardless of the fact that competitor's average rating may be 70 percent or more.
NOTE
Reference: Sections 18930 and 18936, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 64, No. 15.
Note • History
When the only reason for the elimination of a competitor by an oral interview panel is the competitor's failure to possess the minimum education or experience qualifications established for the class or possession of required licenses or certificates, the panel shall, in addition to the procedure described in Section 199, make an alternate rating as though the candidate possessed such qualifications, which rating shall be not less than 70 percent. If the competitor appeals the elimination and the board grants that appeal, the competitor's rating shall be the alternate rating. The alternate rating assigned under the provisions of this section is confidential and may not be revealed to the competitor or the board until the board grants an appeal and orders that the alternate rating be used.
NOTE
Authority cited: Section 18930, Government Code. Reference: Section 18930, Government Code.
HISTORY
1. New section filed 11-21-61; effective thirtieth day thereafter (Register 61, No. 23).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§200. Reports on Promotional Competitors.
History
In any promotional examination, the executive officer may establish procedures for furnishing qualifications appraisal interviewers with reports concerning the performance of competitors.
HISTORY
1. Repealer and new section filed 4-15-58; effective thirtieth day thereafter (Register 58, No. 7).
2. Amendment filed 2-9-60; effective thirtieth day thereafter (Register 60, No. 4).
3. Amendment filed 4-26-60; effective thirtieth day thereafter (Register 60, No. 10).
Note • History
In any examination, the executive officer may make special inquiry into the past records of competitors and shall disqualify any whose records or reputations shall in the executive officer's judgment warrant such action.
NOTE
Reference: Sections 18930 and 18935, Government Code.
HISTORY
1. Amendment filed 11-23-59; effective thirtieth day thereafter (Register 59, No. 20).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§202. Appeal from Qualifications Appraisal Panel.
Note • History
(a) In examinations with two or more weighted portions, within 30 days after the notice of the result of the examination has been mailed, a competitor disqualified by a qualifications appraisal panel may appeal to the State Personnel Board to review that competitor's rating on the grounds that it was the result of failure to follow prescribed rating standards or procedures, or of erroneous interpretation or application of the minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The appeal shall be in writing and shall state the facts, information, or circumstances upon which the appeal is based.
(b) In considering an appeal filed under subsection (a), the board shall:
(1) Sustain the rating; or,
(2) Grant the appeal and give a rating of 70 percent on education, experience, and personal qualifications; or,
(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the interview ratings given by that panel, arrange for reexamination of the appellant and other affected competitors by a different panel, and withhold part or all of the eligible list from certification until the reexamination is completed; or,
(4) Where it finds the existence of extraordinary circumstances in the conduct of the interview that it determines warrants referral of the request for review of the rating either to the original or to a new qualifications appraisal panel, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the qualifications appraisal panel either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the Board may sustain the original rating or it may give the competitor a rating of 70 percent or the revised rating recommended by the qualifications appraisal panel.
(c) In examinations where the qualifications appraisal panel is the only weighted portion, within 30 days after the notice of the result of the examination has been mailed, a competitor who received a rating below the rating required for placement on the list may appeal to the State Personnel Board to review that rating on the grounds that it was the result of failure to follow prescribed rating standards or procedures, or of erroneous interpretation or application of the minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The appeal shall be in writing and shall state the facts, information, or circumstances upon which the appeal is based.
(d) In considering an appeal filed under subsection (c), the board shall:
(1) Sustain the rating; or,
(2) Grant the appeal and give a rating equal to that of the lowest eligible on the list; or,
(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the interview ratings given by that panel, arrange for reexamination of the appellant and other affected competitors by a different panel, and withhold part or all of the eligible list from certification until the reexamination is completed; or,
(4) Where it finds the existence of extraordinary circumstances in the conduct of the interview that it determines warrant referral of the request for review of the rating either to the original or to a new qualifications appraisal panel, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the qualifications appraisal panel either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the board may sustain the original rating or it may give the competitor a rating equal to that of the lowest eligible on the list or the revised rating recommended by the qualifications appraisal panel.
NOTE
Reference: Section 18930, Government Code.
HISTORY
1. Amendment filed 11-16-70; effective thirtieth day thereafter (Register 70, No. 47). For prior history, see Register 65, No. 24.
2. Amendment filed 4-28-76; effective thirtieth day thereafter (Register 76, No. 18).
3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Change without regulatory affect amending subsections (b), (d) and (d)(4) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§203. Employee Development Appraisal.
History
In promotional examinations, the development and fitness of a competitor for performance of the duties of the promotional class may be rated through a process known as Employee Development Appraisal. Whenever this process is used, appraisal reports on each competitor shall be made by persons who know the competitor's work and development. A review committee shall be appointed by the executive officer. The review committee shall review all appraisal reports to insure uniform application of standards and completeness and accuracy of information. The review committee shall, after its review, determine a single rating for each competitor and transmit this rating to the executive officer. The executive officer shall establish all procedures and standards necessary to carry out the purpose of this rule.
HISTORY
1. New Sections 203 through 203.6 filed 5-14-57; effective thirtieth day thereafter (Register 57, No. 8).
2. Amendment filed 5-11-59; effective thirtieth day thereafter (Register 59, No. 8).
3. Amendment filed 12-26-74; effective thirtieth day thereafter (Register 74, No. 52).
4. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§203.1. Announcement to Employees.
History
In filing a request to the executive officer, for the use of employee development appraisal in a departmental or subdivisional promotional examination, an appointing authority shall indicate that an announcement of intent has been made to the employees.
HISTORY
1. Amendment filed 6-19-59; effective thirtieth day thereafter (Register 59, No. 10).
2. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
History
Employee development appraisal shall be made on a competitive basis in that each competitor shall be rated on the probability of satisfactory performance in the promotional class and in relation to the probability of satisfactory performance by the other competitors.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§203.3. Minimum Qualifying Rating.
Ratings shall be expressed in percentages with 70 percent being the minimum qualifying rating.
§203.4. Classes to Which Applicable.
Employee development appraisal shall not be used in examinations for promotion to classes with a maximum salary of less than $530 a month.
§203.5. Appeal from Employee Development Appraisal Rating.
Note • History
(a) In examinations with two or more weighted portions, within 30 days after the notice of the result of the examination has been mailed, a competitor whose employee development appraisal rating was not qualifying may request a revision of that rating on the grounds that it was the result of failure to follow the prescribed rating standards or procedures, or of erroneous interpretation or application of minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The request shall be in writing and shall state the facts, information, or circumstances upon which the request is based.
(b) In considering an appeal filed under subsection (a), the Board shall:
(1) Sustain the rating; or,
(2) Grant the appeal and give a rating of 70 percent; or,
(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the ratings given, arrange for reexamination of the appellant and other affected competitors, and withhold part or all of the eligible list from certification until the reexamination is completed; or,
(4) Where it finds the existence of extraordinary circumstances in the conduct of the employee development appraisal process that it determines warrant referral of the request for review of the rating either to the original or to a new employee development appraisal rating committee, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the rating committee either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the Board may sustain the original rating or it may give the competitor a rating of 70% or the revised rating recommended by the employee development appraisal rating committee.
(c) In examinations where the employee development appraisal rating is the only weighted portion of an examination, within 30 days after the notice of the result of the examination has been mailed, a competitor whose employee development appraisal rating was below that of the lowest eligible on the list may request a revision of that rating on the grounds that it was the result of failure to follow the prescribed rating standards or procedures, or of erroneous interpretation or application of minimum qualifications prescribed for the class, or that it was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, or of other improper acts or circumstances. The request shall be in writing and shall state the facts, information, or circumstances upon which the request is based.
(d) In considering an appeal filed under subsection (c), the Board shall:
(1) Sustain the rating; or,
(2) Grant the appeal and give a rating equal to that of the lowest eligible on the list; or,
(3) If it determines that the rating was the result of fraud, or of discrimination within the meaning of Sections 19702 or 19703 of the Government Code, give the competitor such passing rating as it may decide, or cancel part or all of the ratings given, arrange for reexamination of the appellant and other affected competitors, and withhold part or all of the eligible list from certification until the reexamination is completed; or,
(4) Where it finds the existence of extraordinary circumstances in the conduct of the employee development appraisal process that it determines warrant referral of the request for review of the rating either to the original or to a new employee development appraisal rating committee, it may make this referral with such instructions as it deems appropriate for reconsideration of the competitor's rating. On completion of such reconsideration, the rating committee either shall recommend that the rating be sustained or shall recommend a revised rating for the competitor. Following such recommendation, the Board may sustain the original rating or it may give the competitor a rating equal to that of the lowest eligible on the list or the revised rating recommended by the employee development appraisal rating committee.
NOTE
Reference Section 18930, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 76, No. 18.
History
HISTORY
1. Repealer filed 5-11-59; effective thirtieth day thereafter (Register 59, No. 8).
§203.7. Composition of Employee Development Appraisal Review Committee.
Note • History
Each employee development appraisal review committee shall include a representative of the State Personnel Board who is the chairperson and two or more additional persons from within state service. These committee members will be from the agency or agencies for which the employment list is being established and will be familiar with the job requirements of the class for which the examination is being held. If, however, the executive officer determines that the interests of the state would be better served in an individual examination by having only one state service representative or by adding an additional committee member from outside state service, the executive officer may modify the composition of the committee accordingly.
NOTE
Reference Section 18930, Government Code.
HISTORY
1. New section filed 12-26-74; effective thirtieth day thereafter (Register 74, No. 52).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§205. Computing Examination Score.
Note • History
All percentage ratings derived from the various parts of an examination shall be rounded to the second decimal place and considered accurate to that degree for the purpose of computing examination scores. Wherever minimum ratings are specified in these rules, they shall be considered binding to the second decimal place; that is, “70 percent” shall imply 70.00 percent, and “85 percent” shall imply 85.00 percent.
The weights assigned to the various parts of an examination represent the relative value of each part in the whole examination. The method of obtaining the average percentage of the examination is as follows: Multiply the rating obtained in each part by the relative weight of that part, add the products, and divide the sum of the products by the sum of the relative weights. The quotient thus obtained will be the average percentage for the examination. For the purpose of establishing employment lists, this average percentage shall be: (1) rounded to the second decimal place for examinations in which certification from the resulting employment list will be on the basis of the three highest names under Government Code Section 19057; or (2) rounded to the nearest whole number for examinations in which certification from the resulting employment list will be on the basis of the three highest ranks under Government Code Sections 19057.1, 19057.2 and 19057.3.
In an examination for a class in which certification of eligibles is on the basis of the three highest ranks, the ranking of eligibles on the resulting employment list shall be on the basis of scores rounded to the nearest whole percentage number. Upon request of an appointing power, the executive officer shall also provide an informational listing of the competitors' average percentage scores rounded to the second decimal place.
NOTE
Reference: Sections 18936, 19057, 19057.l, 19057.2 and 19057.3, Government Code.
HISTORY
1. Amendment filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45). For prior history, see Register 58, No. 20.
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§206. Minimum Rating Required.
Note • History
Competitors shall be required to attain a score of not less than 70 percent in each part of the examination and a general average score of not less than 70 percent in order to qualify in an examination; except that, in a promotional examination, it is within the discretion of the executive officer to require a higher general minimum average, which minimum shall in no case exceed 85 percent. In written tests, the 70 percent used to represent the minimum score need not be the arithmetic 70 percent of the total possible score but may be an adjusted score based on a consideration of the difficulty of the test, the quality of the competition, and the needs of the service. Any such adjusted score shall be established before the identification of the competitors' examination papers.
NOTE
Reference: Sections 18936 and 18937, Government Code.
HISTORY
1. New NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§207. Qualifying for Lower Class.
Note • History
When an examination is held for any given class and if there is also being held an examination for a lower class in the same series, it shall be within the discretion of the executive officer to pass a competitor for a place on the eligible list for the lower class if the competitor attains a passing score for the examination for the lower class but does not receive a passing score in the examination for the higher class in which he/she is competing.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Amendment filed 3-9-87; effective thirtieth day thereafter (Register 87, No. 11).
§208. Medical or Physical Requirements.
History
HISTORY
1. Repealer filed 12-23-47 (Register 10, No. 8).
§209. Notice of Examination Result.
Note • History
As soon as the scoring of an examination has been completed and the eligible list established, each competitor shall be notified in writing of the results of this examination. If the competitor is successful, this notice shall include the competitor's general average percentage and relative position upon the resulting employment list except when lists are merged under a program of continuous testing.
NOTE
Reference: Sections 18575 and 18939, Government Code.
HISTORY
1. Amendment filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§210. Establishing List in Case of Tie.
Note • History
In an examination in which certification from the resulting employment list is on the basis of the three highest names, two or more competitors receiving the same percentage rating shall be placed on the list according to their respective percentage ratings attained in the chief essential of the examination; except that, if one of such competitors is a veteran, that competitor shall be given the preference if the examination is one in which veterans preference is granted. If the tie continues it shall be broken by lot.
NOTE
Reference: Sections 18973, 19057 and 19057.1, Government Code.
HISTORY
1. Amendment filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Note • History
If an employee is dismissed from state employment by adverse action or as a result of disciplinary proceedings, that dismissed employee shall not thereafter be permitted to take any state civil service examination or be certified from an eligible list to any position in the state service without the prior consent of the Executive Officer.
Dismissed employees' requests to participate in state civil service examinations shall be subject to the following:
(a) Requests must be filed with the Board at least five (5) working days prior to the final filing date of the examination(s) for which the dismissed employee wishes to apply.
(b) All requests shall be in writing and accompanied by a completed state examination application.
(c) Requests shall clearly identify the facts, circumstances, and reasons that support the dismissed employee's request to take the examination(s). The request, at a minimum, shall include the date of the dismissal, the reasons for the dismissal, and the reasons why the dismissed employee believes that he or she should be permitted to take the examination(s). The dismissed employee may also submit substantiation of corrected behavior, letters of recommendation, employment evaluations, and other materials and/or declarations to support the request.
(d) Requests will be reviewed on a case-by-case basis, taking into consideration the following factors:
1. The type of examination/classification for which the dismissed employee wishes to apply.
2. The circumstances/causes surrounding the dismissal and any restrictions that impact the request.
3. Any pattern of successful employment after the dismissal.
4. Confirmation/assurance of corrected and/or sustained improved behavior.
5. Acceptance of responsibility for past wrongful actions.
6. Demonstration of readiness to re-enter state service.
7. Information, in writing, from the dismissing department responding to the dismissed employee's request to participate in the examination(s).
8. Any other factor deemed relevant to the request, including those factors set forth in Government Code Section 18935.
No later than 30 days after receipt of the request, the Executive Officer shall determine whether to grant the dismissed employee permission to participate in the examination(s). If the Executive Officer determines that additional time is necessary in order to obtain relevant information he or she may extend the time for determination and notify the dismissed employee of the extension and the reasons therefor. If the Executive Officer determines that the information submitted by the dismissed employee so warrants, the Executive Officer may grant the dismissed employee a blanket waiver to apply for any examination for which the dismissed employee meets the minimum qualifications. The Executive Officer shall set forth his or her decision in writing. A dismissed employee may appeal to the Board from the Executive Officer's decision within 30 days after receipt of that decision.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Sections 18935 and 18941, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 76, No. 25.
2. Change without regulatory effect amending section filed 11-26-90 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 2).
3. Amendment of section and Note filed 2-24-2005; operative 2-24-2005. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2005, No. 8).
§211.1. Limitations on Administrative Hearing or Medical Interpreter Certification for Non-Citizens.
Note • History
(a) All eligibility requirements contained herein shall be applied without regard to the race, creed, color, gender, religion, disability or national origin of the individual applying for the public benefit.
(b) Pursuant to Section 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, (Pub. L. No. 104-193 (PRWORA)), (8 U.S.C. §1621), and notwithstanding any other provision of this division, aliens who are not qualified aliens, nonimmigrant aliens under the Immigration and Nationality Act (INA) (8 U.S.C. §1101 et seq.), or aliens paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. §1182(d)(5)), for less than one year, are not eligible to receive Administrative Hearing or Medical Interpreter Certification as set forth in Government Code Section 11435.30 and 11435.35.
(c) A qualified alien is an alien who, at the time he or she applies for or renews certification, is, under Section 431(b) of the PWRORA (8 U.S.C. §1641(b)), any of the following:
(1) An alien lawfully admitted for permanent residence under the INA (8 U.S.C. §1101 et seq.).
(2) An alien who is granted asylum under Section 208 if the INA (8 U.S.C. §1158).
(3) A refugee who is admitted to the United States under Section 207 of the INA (8 U.S.C. §1157).
(4) An alien who is paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. §1182(d)(5)) for a period of at least one year.
(5) An alien whose deportation is being withheld under Section 243(h) of the INA (8 U.S.C. §1253(h)).
(6) An alien who is granted conditional entry pursuant to Section 203(a)(7) of the INA as in effect prior to April 1, 1980.
(7) An alien who, under Section 431(c)(1) of the PRWORA (8 U.S.C. §1641(c)(1)), meets all of the conditions of subparagraphs (A), (B), (C), and (D) below:
(A) The alien has been battered or subjected to extreme cruelty in the United States by a spouse or a parent, or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent of the alien consented to, or acquiesced in, such battery or cruelty.
(B) In the opinion of the Attorney General of the United States, which opinion is not subject to review of any court, there is a substantial connection between such battery or cruelty and the need for the benefits to be provided.
(C) The alien has been approved or has a petition pending which sets forth a prima facie case for:
(i) status as a spouse or child of a United States citizen pursuant to clause (ii), (iii), or (iv) of Section 204(a)(1)(A) of the INA (8 U.S.C. §1154(a)(1)(A)(ii), (iii) or (iv)),
(ii) classification pursuant to clause (ii) or (iii) of Section 204(a)(1)(B) of the INA (8 U.S.C. §1154(a)(1)(B)(ii) or (iii),
(iii) suspension of deportation and adjustment of status pursuant to Section 244(a)(3) of the INA (8 U.S.C. §1254(a)(3)), or
(iv) status as a spouse or child of a United States citizen pursuant to clause (i) of Section 204(a)(1)(A) of the INA (8 U.S.C. §1154(a)(1)(A)) or classification pursuant to clause (i) of Section 204(a)(1)(B) of the INA (8 U.S.C. §1154(a)(1)(B)).
(D) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.
(8) An alien who, under Section 431(c)(2) of the PRWORA (8 U.S.C. §1641(c)(2)), meets all of the conditions of subparagraphs (A), (B), (C), (D) and (E) below:
(A) The alien has a child who has been battered or subjected to extreme cruelty in the United States by a spouse or a parent of the alien (without the active participation of the alien in the battery or cruelty), or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent consented or acquiesced to such battery or cruelty.
(B) The alien did not actively participate in such battery or cruelty.
(C) In the opinion of the Attorney General of the United States, which opinion is not subject to review of any court, there is a substantial connection between such battery or cruelty and the need for the benefits to be provided.
(D) The alien meets the requirements of subsection (b)(7)(c) above.
(E) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individuals subjected to the battery or cruelty.
(d) For purposes of this section, “nonimmigrant” is defined the same as in Section 101(a)(15) of the INA (8 U.S.C. §1101(a)(15)).
(e) For purposes of establishing eligibility for the Administrative Hearing or Medical Interpreter Certification, prior to examination all of the following must be met:
(1) The applicant must declare himself or herself to be a citizen of the United States or a qualified alien under subsection (c), a nonimmigrant alien under subsection (d), or an alien paroled into the United States for less than one year under Section 212(d)(5) of the INA (8 U.S.C. §1182(d)(5)). The alien shall declare that status through use of the “Statement of Citizenship, Alienage, and Immigration Status for State Public Benefits,” SPB Form 15.
(2) The applicant must present documents of a type acceptable to the Immigration and Naturalization Service (INS) which serve as reasonable evidence of the applicant's declared status. A fee receipt from the INS for replacement of a lost, stolen, or unreadable INS document is reasonable evidence of the alien's declared status.
(3) The applicant must complete and sign SPB Form 15.
(f)(1) Pursuant to Section 434 of the PRWORA (8 U.S.C. §1644), information regarding any applicant presenting the following documentation as reasonable evidence of the applicant's declared status under subsection (e)(2) shall be reported to the Immigration and Naturalization Service:
(A) The document presented indicates immigration status but does not include an alien registration or alien admission number.
(B) The document is suspected to be counterfeit or to have been altered.
(C) The document includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series.
(D) The document is one of the following: an INS Form I-181b notification letter issued in connection with an INS Form I-181 Memorandum of Creation of Record of Permanent Residence, an Arrival-Departure Record (INS Form I-94) or a foreign passport stamped “PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE” that INS issued more than one year before the date of application for the Administrative Hearing or Medical Interpreter Certification.
(2) Pursuant to Section 434 of the PRWORA (8 U.S.C. §1644), where the Cooperative Personnel Services, working on behalf of the State Personnel Board, reasonably believes that an alien is unlawfully in the State based on the failure of the alien to provide reasonable evidence of the alien's declared status, after an opportunity to do so, said alien shall be reported to the Immigration and Naturalization Service.
(g) Eligibility for Administrative Hearing or Medical Interpreter Certification is established where subsections (e)(1)-(3) are satisfied. Any alien who provides documentation specified under subsection (f)(1) shall be eligible for Administrative Hearing or Medical Interpreter Certification until and unless the Cooperative Personnel Services, working on behalf of the State Personnel Board, receives written confirmation from the Immigration and Naturalization Service that the alien is not eligible for Administrative Hearing or Medical Interpreter Certification.
(h) Any applicant who is denied eligibility to take the examination for Administrative Hearing or Medical Interpreter Certification under this Section is entitled to file an appeal with the State Personnel Board within 30 days after service of the denial notice on the candidate. The appeal must be in writing and must contain arguments and materials that support the applicant's appeal. The State Personnel Board may chose either an investigatory or evidentiary hearing to resolve the appeal. The State Personnel Board shall make the final decision on the appeal.
NOTE
Authority cited: Section 18701, Government Code. Reference: 8 U.S.C. §§1621, 1641 and 1642; Sections 11435.05 and 11435.35, Government Code; and Section 51.2 , CCR.
HISTORY
1. New section filed 9-29-97; operative 9-29-97. Submitted to OAL for printing only (Register 97, No. 40).
§212. Use of Out-of-Class Experience in Meeting Minimum Qualifications for an Examination.
Note • History
(a) Definition--Out-of-class experience is that work experience gained by the performance of duties outside the class concept of the employee's class of appointment.
Nothing in this part shall be deemed to condone or encourage the assignment by management or the performance of out-of-class work by an employee not authorized by law.
(b) Verification of out-of-class experience. An employee shall be eligible to receive credit for out-of-class experience in meeting the minimum qualifications for a civil service examination:
(1) When all of the following criteria are met:
(A) The employee shall submit a written request that the appointing authority, or his/her designee, certify that the employee accepted and performed duties assigned by the appointing authority that were not consistent with the employee's class of appointment. Requests shall not be made prior to performing out-of-class duties a minimum of 30 consecutive calendar days, nor later than one year after the ending date of the out-of-class duties.
(B) The appointing authority or his/her designee under whom the claimed out-of-class experience was gained shall document by a written statement the employee's request for certification of out-of-class experience. The department's statement shall include a description of the type and level of duties performed; a conclusion regarding whether the duties are or are not consistent with the employee's class of appointment and, if not consistent, an identification of the class to which such duties are appropriate; the beginning and ending dates of the out-of-class experience; the title of the examination for which the employee is applying, if applicable; and any further information required by the executive officer.
(C) The applicant shall attach a copy of the verification statement to the application form for any examination for which he/she is applying.
(D) The out-of-class experience shall not be used to progress from the trainee to the journey level in a class series or deep class at a rate faster than that permitted for persons appointed to such classes. If the employee's class of appointment has a transfer relationship, as defined by Section 433, to the class series or deep class in which out-of-class was gained and verified, and the out-of-class experience gained was at the trainee through journey level, the experience shall be credited for examination purposes on a cumulative basis starting at the level to which the employee could have transferred.
Where a promotional relationship, as defined in section (b) of Section 431, exists between the employee's class of appointment and the class series or deep class in which out-of-class experience is claimed and verified, the experience will be credited on a cumulative basis starting at the entry level of the class series or deep class.
For the purposes of this regulation:
A “class series” is any vertically related group of two or more classes in the same occupational specialty or program area but different in level of responsibility, which constitutes a primary promotional pattern for a specifically identifiable group of employees; and
A “deep class” is a class which has more than one salary range and where, by Board resolution, a salary range other than the lowest range of the class may be used for determining employee status.
(E) The out-of-class duties were performed for a minimum time period generally required to assume the full range of responsibilities of the class being claimed by the employee. Under this requirement, the minimum verifiable length of out-of-class experience is 30 consecutive calendar days.
(2) When an out-of-class verification for reimbursement obtained by the employee under Government Code Section 19818.16 indicates that the out-of-class experience is being verified also for the purpose of meeting the minimum qualifications for civil service examinations.
(c) Once out-of-class experience is credited under this section, such experience may be used for any other examination with a final filing date on or after the effective date of this section, without the need for reverification.
(d) All verification statements will remain on file with the department for audit purposes for a period not less than five years or until ordered destroyed by the executive officer.
(e) The employee may appeal to the board from the appointing authority's denial of a request for use of out-of-class experience for meeting minimum qualifications in an examination pursuant to Section 51.2.
NOTE
Authority cited: Sections 18701 and 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 5-14-86; effective thirtieth day thereafter (Register 86, No. 20.)
2. Change without regulatory effect of subsection (b)(4) filed 12-21-88 (Register 89, No. 1).
3. Change without regulatory effect amending subsections (b)(2), (b)(4), (c) and (e) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of subsection (b), including newly designated subsection (b)(1), renumbering of former subsections (b)(1)-(5) to (b)(1)(A)-(E), new subsection (b)(2), and amendment of subsections (b)(1)(A)-(B) and (d) filed 2-5-96; operative 3-6-96 (Register 96, No. 6).
§213. Preemployment Testing for Drug Usage.
Note • History
An appointing power may conduct drug testing of applicants for a class only when:
(a) The appointing power has documented the sensitivity of the class and the consequences of drug-related behavior by showing that:
(1) The duties involve a greater than normal level of trust for, responsibility for or impact on the health and safety of others, and
(2) errors in judgment, inattentiveness, or diminished coordination, dexterity or composure while performing the duties could clearly result in mistakes that would endanger the health and safety of others; and
(3) employees in these positions work with such independence that it cannot be safely assumed that mistakes such as those described in (2) could be prevented by a supervisor or another employee.
(b) The board concludes after a public hearing that the appointing power has adequately documented the sensitivity of the class and the consequences of drug-related behavior and that drug testing is, therefore, job related for the class; and
(c) As a result of (a) and (b) above, the board approves the inclusion of a requirement of drug testing in the minimum qualifications for the class.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18930, 18931 and 18935, Government Code.
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
2. Change without regulatory effect amending subsection (a)(3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§213.1. Notice of Drug Testing in Examination Announcements.
Note • History
Any examination that includes drug testing as provided by Section 213 shall specify in the examination announcement the type of specimen to be collected and the consequences of failing the drug test.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18930, 18933 and 18950, Government Code.
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§213.2. Drug Testing of Current Employees and Individuals Reinstating.
Note • History
An applicant or transferee to a class for which drug testing is required pursuant to Section 213 who is a current employee or a former permanent or probationary employee with a break in service as defined in Section 6.4 shall be subject to drug testing pursuant to Section 213, except that if such employee has a current appointment to a class for which drug testing is required pursuant to Section 213, he or she shall not be tested. A current or former employee subject to testing under this section is deemed to be an applicant for purposes of Sections 213.4, 213.5, and 213.6.
NOTE
Authority cited: Sections 18071, 19050.4 and 19140, Government Code. Reference: Sections 18930 and 19996.1, Government Code.
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§213.3. Laboratories Authorized to Conduct Drug Testing.
Note • History
Drug test samples shall only be analyzed by:
(a) A Commercial laboratory meeting standards that are the same as those used by the Department of Health and Human Services (DHHS)/National Institute on Drug Abuse (NIDA) to certify laboratories engaged in urine drug testing for Federal agencies (Mandatory Guidelines for Federal Workplace Drug Testing Program, Federal Register, Vol. 53, No. 69); or those standards used by the College of American Pathologists (CAP) to accredit laboratories for forensic urine drug testing (Standards for Accreditation, Forensic Urine Drug Testing Laboratories, College of American Pathologists); and
(1) is capable of same site initial screening and confirmatory tests,
(2) utilizes FDA-approved immunoassay tests, and
(3) participates in a laboratory proficiency testing program; and
(b) A laboratory which is not a component organization of a State department.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code.
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
§213.4. Required Components for Drug Testing.
Note • History
Any drug testing or retesting procedure conducted pursuant to Sections 213 or 213.2 must be approved by the executive officer and shall include all of the following:
(a) The drug screening methodology to be used, which shall be a type of immunoassay, except that another method may be used if a department can demonstrate that it is equally reliable as immunoassay;
(b) The drugs to be tested which shall include at least the following drugs of abuse:
(1) Amphetamines and Methamphetamines
(2) Cocaine
(3) Marijuana/Cannabinoids (THC)
(4) Opiates (narcotics)
(5) Phencyclidine (PCP)
(c) Cutoff levels for screening tests that will identify positive samples while minimizing false positive test results;
(d) An authorization to test form which shall include at least the following:
(1) A list of the specific drugs to be tested for, and a description of the consequences of failing the drug test as specified in Section 213.5;
(2) A signature block, to be signed by the applicant before the drug test begins, authorizing the test to proceed and authorizing the necessary disclosure of medical information pursuant to Section 213.4.
(3) A statement that applicants who decline to sign the form or decline to be tested will be disqualified from the examination.
(e) (1) A requirement that the applicant disclose on a form, separate from the authorization to test form, all drugs and other medications taken, whether prescribed or not, within the 14 days prior to testing. This information shall be examined only by the appointing power and only if the applicant has a positive confirmatory drug test, except that for purposes of administering Section 213.6, this information may be examined by the board and staff authorized to investigate and/or hear appeals.
(2) A requirement that the appointing power utilize a Medical Review Officer, who shall be a licensed physician with knowledge of substance abuse, to review and interpret positive results of confirmatory tests and the information submitted by the applicant pursuant to Section 213.4(e)(1), determine whether the result may have been caused for any medically acceptable reason, such as prescribed or over the counter medications, and report to the appointing power his/her opinion as to the cause of the positive drug test. In the process of making this decision, the Medical Review Officer may request the applicant to provide additional information regarding all drugs and other medications taken.
(f) Specimen chain of custody provisions which shall include at least the following:
(1) A procedure to assure that a valid specimen is acquired, the donor is properly identified, and that no tampering or mishandling of the specimen occurs from initial collection to final disposition.
(2) A written log in which is recorded the name, signature, time of receipt, and time of release of each person handling, testing or storing each specimen, or reporting test results.
(3) Collection of specimen samples in a clinical setting such as a laboratory collection station, doctor's office, hospital or clinic, or in another setting approved by the executive officer on the basis that it provides an equally secure and professional collection process.
(g) Procedure for confirmation of positive screening test results utilizing gas chromatography/mass spectrometry (GC/MS);
(h) Notices to the applicant which shall be written and based n the following:
(1) If the screening test result is negative, the test is concluded and the applicant has passed the drug test.
(2) If the necessary confirmatory test result is negative, the test is concluded and the applicant has passed the drug test.
(3) If both the screening test and the confirmatory test results are positive and the Medical Review Officer's opinion is that the positive test results are not because of prescribed or over the counter medication or for any other medically acceptable reasons, the applicant has failed the drug test.
(i) Specimen retention and retesting procedure which shall include at least the following:
(1) Retention of all confirmed positive specimens and related records by the testing laboratory in secure frozen storage for at least one year following the test or until all appeals or litigation are concluded, whichever is longer.
(2) Provisions for retesting of confirmed positive specimens by any laboratory authorized to conduct drug testing pursuant to Section 213.3, at the request of an applicant and at the applicant's expense, provided that the request is received within 30 days of notifying the applicant of his/her disqualification. Retesting shall correspond exactly with the initial testing methods and procedures.
(j) Provisions for maintaining the confidentiality of test results, which shall include at least the following:
(1) The results of any test conducted pursuant to Sections 213, 213.2 or 213.4(i)(2) shall be given only to the applicant who was tested, the appointing power or the executive officer, and cannot be revealed to any other party without the written authorization of the applicant except that for the purposes of administering (A) Section 213.5, the executive officer shall reveal a failed drug test to other State appointing powers who administer an examination for which drug testing is required and for which the individual is an applicant; or (B) Section 213.6, the executive officer may reveal a failed drug test and other relevant information to the board and staff authorized to investigate and/or hear appeals.
(2) The results of any test conducted pursuant to Section 213.2 shall not be used in any adverse action proceedings.
(3) The information disclosed by the applicant pursuant to Section 213.4(e)(1) shall be examined only the appointing power and only if the applicant has a positive confirmatory drug test, except that for purposes of administering Section 213.6, this information may be examined by the board and staff authorized to investigate and/or hear appeals.
(4) Drug test results which are positive shall be purged from all records one year from the date the drug test specimen is given except as follows:
(A) The retention period for drug test results which are positive for a drug as specified in Section 213.5(b) shall be ten years from the date the drug test specimen is given;
(B) If a disqualification from an examination as the result of a positive test is appealed or litigated, the drug test results shall be retained until the appeal or litigation is resolved.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18930, Government Code; and Section 56.20(c), Civil Code.
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
2. Change without regulatory effect amending opening sentence, subsections (d)(1)-(2), (e)(1)-(2), (i)(2)-(j)(3) and (j)(4)(A) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§213.5. Consequences of Drug Use.
Note • History
(a) Applicants who fail the drug test pursuant to Section 213.4 (h), will be disqualified from the examination in which they are competing and, except as provided by Section 213.5(e), shall not be eligible to take any State civil service examination for a class for which drug testing is required until one year has elapsed from the date the drug test specimen is given.
(b) Except as provided by Section 213.5(e), applicants who fail the drug test because of a drug for which possession would constitute a felony offense under the Uniform Controlled Substances Act (Health and Safety Code, division 10, beginning at 11000) shall not be eligible to take any State civil service examination for a peace officer class until ten years have elapsed from the date the drug test specimen is given.
(c) Any applicant for a State civil service examination for a peace officer class who discloses, or whose background investigation reveals, use of a drug for which possession would constitute a felony offense under the Uniform Controlled Substances Act (Health and Safety Code, division 10, beginning at 11000) subsequent to his or her eighteenth birthday and prior to his or her twenty-third birthday, shall be disqualified from the examination in which he or she is competing until 5 years have elapsed from the date of the disclosed or revealed use of the drug; and shall not be eligible to take any State civil service examination for a peace officer class until 5 years have elapsed from the date of the disclosed or revealed use. If any such disclosed or revealed use occurred on or after the applicant's twenty-third birthday, he or she shall be disqualified from the examination in which he or she is competing until 10 years have elapsed from the date of the disclosed or revealed use of the drug; and shall not be eligible to take any State civil service examination for a peace officer class until 10 years have elapsed from the date of the disclosed or revealed use. The disqualification period shall begin on the date that the drug was used, and not on the date that the drug use was disclosed or revealed.
(d) Any applicant for a State civil service examination for a peace officer class who is disqualified from the current examination for one of the causes specified in (c) may, upon petition and with the consent of the executive officer, be permitted to compete in the current examination and, if successful, remain on the eligible list. In acting on the request, the executive officer shall consider evidence submitted by the person of rehabilitation from drug abuse and/or extenuating circumstances regarding the drug use.
(e) Any applicant who is disqualified from taking any subsequent examination as specified in this section may, upon petition and with the consent of the executive officer, be permitted to take the specified examination. In acting on the petition, the executive officer shall consider evidence submitted by the person of rehabilitation from drug abuse and/or extenuating circumstances regarding the drug use.
Persons denied permission to take a subsequent examination within the specified one-, five-, and ten-year periods may appeal in writing to the board within 30 days of notification.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 1031, 18930 and 18935, Government Code; Sections 11000, 11007, 11054-58, 11350, 11356 and 11377 (California Uniform Controlled Substances Act), Health and Safety Code; and Federal Public Health and Welfare Code, Title 42, Chapter 126, Section 12114(b) (Americans with Disabilities Act of 1990).
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
2. Amendment of subsections (b) and (c) filed 3-22-90; operative 4-21-90 (Register 90, No. 15).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of subsections (a), (b), (e) and Note and new subsection (d) and relettering filed 1-4-93; operative 2-3-93 (Register 93, No. 2).
5. Amendment of section heading, subsections (c)-(e) and Note filed 12-15-99; operative 12-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
§213.6. Appeal of a Disqualification Resulting from a Failed Drug Test or Background Investigation Report.
Note • History
(a) This section pertains to and outlines administrative appeal rights only. An applicant appealing under this section shall follow the procedures in Sections 51 through 54.2.
(b) An applicant disqualified as the result of failing the drug test may only appeal the disqualification on the grounds that the drug was obtained legally, or there has been a violation of test protocol or chain of custody procedures, or other irregularity that invalidates the test result. A disqualified applicant may have his/her drug test specimen retested at his/her own expense as provided in Section 213.4(i)(2) and include the results of the retesting in his/her appeal.
(c) An applicant disqualified or withheld from certification as a result of disclosure of drug use or whose background investigation reveals use of a drug pursuant to Section 213.5(c) may appeal the disqualification or the withholding from certification on any grounds allowable by law.
(d) an applicant who prevails upon appeal under this section will be restored to eligibility in the examination from which disqualified or restored to the eligible list from which withheld.
NOTE
Authority cited: Section 18701, Government Code. Reference: sections 18654, 18670, 18671, 19675 and 18930, Government Code.
HISTORY
1. New section filed 5-1-89; operative 5-31-89 (Register 89, No. 18).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§215.00. Demonstration Project: Examination for Managerial Classifications. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19600 and 19607, Government Code.
HISTORY
1. New article 8 and section filed 9-12-95; operative 10-12-95 (Register 95, No. 37).
2. Renumbering of former section 215.00 to new section 549.50 filed 9-17-97; operative 9-17-97. Submitted to OAL for printing only pursuant to Government Code sections 18210, 18211 and 18213 (Register 97, No. 38).
§216. Demonstration Project; Health and Welfare Agency Data Center Examinations and Appointments. [Renumbered]
Note • History
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. New section filed 3-8-96; operative 3-8-96. Submitted to OAL for printing only (Register 96, No. 10).
2. Renumbering of former section 216 to new section 549.30 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
§216.1. Health and Welfare Agency Data Center Demonstration Project Competitive Evaluations. [Renumbered]
Note • History
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. New section filed 3-8-96; operative 3-8-96. Submitted to OAL for printing only (Register 96, No. 10).
2. Renumbering of former section 216.1 to new section 549.31 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
§216.2. Health and Welfare Agency Data Center Demonstration Project Notices of Examination Results. [Renumbered]
Note • History
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. New section filed 3-8-96; operative 3-8-96. Submitted to OAL for printing only (Register 96, No. 10).
2. Renumbering of former section 216.2 to new section 549.32 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
Article 9. Promotion
For the general statutory provisions on this subject, refer to Section 18950 of the act and sections following.
History
Promotional examinations are governed by the sections of this article and such sections in Article 8 as are applicable.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
Whenever the executive officer determines that the needs of the service require, the executive officer may announce and hold promotional examinations for purposes of establishing subdivisional, departmental, multidepartmental, and servicewide promotional lists, or any combination of them.
NOTE
Reference: Section 18533, Government Code.
HISTORY
1. Amendment filed 7-13-64; effective thirtieth day thereafter (Register 64, No. 15). For prior history, see Register 13, No. 11.
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
History
Promotional examinations shall be limited to employees who are designated under these sections as eligible to participate.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§234. Promotional Examination Eligibility.
Note • History
(a) Except as otherwise provided by law or these regulations, or order of the executive officer, a current employee in an agency or subdivision designated as appropriate by the executive officer may compete in the promotional examination if the employee meets one of the following criteria:
(1) Has a permanent appointment.
(2) Has had a permanent appointment with no subsequent break in service by resignation, non-disability retirement or removal for cause.
(3) Is on temporary assignment or loan under Section 426 and has permanent civil service status in another agency.
(b) Not withstanding any other provision of law or rule, persons employed for two or more consecutive years by the Legislature who meet the provisions of Government Code Section 18990 or in nonelected exempt positions in the executive branch of government who meet the provisions of Government Code section 18992 may also compete in promotional examinations.
(c) Not withstanding any other provision of law, persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991, may compete in career executive assignment examinations.
(d) Only persons with current permanent civil service status or who previously had permanent status in the state civil service; or persons who meet the provisions of Government Code sections 18990, 18991, or 18992 may compete in career executive assignment examinations.
(e) Those individuals who resign while competing in a promotional examination and who reenter state service within six months with a permanent appointment may, with concurrence of the appointing power, resume competition in the examination in progress when it is possible to do so without requiring the rescheduling of an already completed part of the examination.
(f) This section will remain in effect until January 1, 2013, unless statutes are enacted before January 1, 2013, extending the sunset date of January 1, 2013, in Government Code sections 18546, 18990, 18992, and 19889.3.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18950, 18990, 18991 and 18992, Government Code.
HISTORY
1. Amendment filed 7-3-73; effective thirtieth day thereafter (Register 73, No. 27). For prior history, see Register 60, No. 20.
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).
4. Change without regulatory effect amending subsections (a), (a)(3) and (d) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
5. Amendment of subsection (b), new subsection (c), subsection relettering, amendment of newly designated subsection (d), new subsection (f) and amendment of Note filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).
If Government Code sections 18546, 18990, 18992, and 19889.3
sunset on January 1, 2013, this section shall read:
§234. Promotional Examination Eligibility. [Provisionally effective January 1, 2013]
Note • History
(a) Except as otherwise provided by law or these regulations, or order of the executive officer, a current employee in an agency or subdivision designated as appropriate by the executive officer may compete in the promotional examination if the employee meets one of the following criteria:
(1) Has a permanent appointment.
(2) Has had a permanent appointment with no subsequent break in service by resignation, non-disability retirement, or removal for cause.
(3) Is on temporary assignment or loan under Section 426 and has permanent civil service status in another agency.
(b) Persons employed by the legislature who meet the provisions of Government Code section 18990 or in nonelected exempt positions in the executive branch of government who meet the provisions of Government Code section 18992 may also compete in promotional examinations.
(c) Not withstanding any other provision of law, persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991, may compete in career executive assignment examinations.
(d) Only persons with current permanent civil service status or persons who meet the provisions of Government Code sections 18990, 18991, and 18992 may compete in career executive assignment examinations.
(e) Those individuals who resign while competing in a promotional examination and who reenter state service within six months with a permanent appointment may, with concurrence of the appointing power, resume competition in the examination in progress when it is possible to do so without requiring the rescheduling of an already completed part of the examination.
(f) This section shall become operative on January 1, 2013.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18950, 18990, 18991 and 18992, Government Code.
HISTORY
1. Amendment filed 7-3-73; effective thirtieth day thereafter (Register 73, No. 27). For prior history, see Register 60, No. 20.
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).
4. Change without regulatory effect amending subsections (a), (a)(3) and (d) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
5. Provisional version of section contingent upon sunset of Government Code sections 18546, 18990, 18992 and 19889.3 filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).
§235. Eligibility of Employees Who Have Moved to Another Agency.
Note • History
An employee who has moved from one agency or subdivision to another agency or subdivision without a break in service may participate, if otherwise eligible, in the promotional examination for the agency or subdivision from which that employee moved while employed (a) under probationary status, limited-term appointment, or temporary authorization until that employee first attains permanent status in the new agency or subdivision of (b) under an exempt appointment until that employee no longer has a right to return to civil service status under Government Code Section 19141 or (c) under a training assignment conforming to the provisions of Government Code Section 19050.8 or (d) under a Career Executive Assignment.
If a promotional examination is being held for an agency or subdivision to establish an employment list for an administrative, professional or technical class, an employee of another agency or subdivision who is otherwise eligible may participate if that employee had promotional eligibility in the designated agency or subdivision at any time within three years of the date of examination and has had no subsequent break in state service by resignation, nondisability retirement or removal for cause.
The executive officer in keeping with the needs of the service may permit other employees who are otherwise eligible under these regulations to participate in a promotional examination being held for an agency or subdivision in which the employees previously had permanent or probationary status.
NOTE
Reference: Section 18950, Government Code.
HISTORY
1. Amendment filed 11-20-70; effective thirtieth day thereafter (Register 70, No. 47). For prior history, see Register 62, No. 3.
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§235.2. Eligibility--Other Persons.
Note • History
A person who is on a leave of absence or whose name appears on a reemployment list may participate in a promotional examination if immediately preceding leave of absence or layoff that person had appropriate civil service status for the examination as required by these regulations.
NOTE
Reference Section 18950, Government Code.
HISTORY
1. New section filed 11-25-53; effective thirtieth day thereafter (Register 53, No. 21).
2. Amendment filed 11-23-59; effective thirtieth day thereafter (Register 59, No. 20).
3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§236. Probationers. [Repealed]
History
HISTORY
1. Amendment filed 10-11-55; effective thirtieth day thereafter (Register 55, No. 15).
2. Repealer filed 3-9-59; effective thirtieth day thereafter (Register 59, No. 5).
Note • History
No employee may participate in a promotional examination unless that employee has the minimum education and experience qualifications and any license, certificate, or other evidence of fitness prescribed for the class for which the examination is given.
NOTE
Reference: Sections 18931 and 18933, Government Code.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§238. Performance Report. [Repealed]
History
HISTORY
1. Repealer filed 12-8-60; effective thirtieth day thereafter. Amendment deferring effective date to 4-1-61 filed 12-16-60 as an emergency (Register 60, No. 24). For prior history see Register 26, No. 1.
§239. Competing Promotionally in Open Examinations.
Whenever an open examination is held, the executive officer may permit qualified employees in specified state agencies or subdivisions thereof to compete in the examination on a promotional basis.
§240. Effect of Resignation on Promotional List Eligibility.
Note • History
An employee who resigns from State service shall relinquish any promotional list eligibility. If the employee's name appears on any promotional eligible list, it shall be thereafter withheld from certification.
If, within 6 months, the employee reenters State service with a permanent appointment, the employee shall upon application again be eligible for certification, from such list or lists as apply to the employee's new status.
Nothing in this shall preclude an employee who within 6 months reenters State service with a permanent appointment under a new hiring authority from making application for transfer of eligibility under Section 154 to the appropriate promotional list or lists, if any, of the new hiring authority.
If an employee who is competing in a promotional examination resigns on or before the date the eligible list is established, that employee shall not attain any promotional eligibility from such examination unless within 6 months the employee reenters State service with a permanent appointment and is permitted to resume competition in the examination according to the provisions of Section 234.
Notwithstanding the above provisions, persons who have resigned for reasons of disability retirement shall retain their eligibility for promotion and be certifiable for the duration of the eligible list life, subject to medical approval.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18950, Government Code.
HISTORY
1. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 74, No. 27.
2. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).
3. Amendment filed 2-6-87; effective thirtieth day thereafter (Register 87, No. 6).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§241. Limitation of Promotional Lists.
Note • History
(a) When an examination is to result in a promotional list the number of names to be placed on that list shall not be limited unless the announcement of the examination states:
(1) The number of names to be placed on the list originally.
(2) The length of time the list will remain in effect, unless it is exhausted sooner.
(3) The required general average score shall be 70%.
The executive officer shall increase the number of names placed on an eligible list beyond the number originally stated on the examination announcement as necessary to prevent the occurrence of inequity as the result of tied scores, and in order to permit placing on the list the name of any person who, as a result of deferred examination, correction of clerical error, or granting of appeal, attains a score at least equal to the score of a person included on the original list. The executive officer may extend the life of the list beyond the announced expiration date or the board, after a public hearing, may order the list abolished prior to that date.
(b) The executive officer may augment the names originally placed on an eligible list by one or more blocks of 10 candidates each, or all names if fewer than 10 remain, when:
(1) The original number of names will not meet the state's needs during the life of the list, and
(2) Qualified candidates can be obtained from those persons successful on the original examination but not on the original list, and
(3) Retesting is impractical for such reasons as inadequate number of new candidates, and insufficient time has elapsed for unsuccessful candidates to have improved their qualifications.
NOTE
Reference: Sections 18937 and 18950, Government Code.
HISTORY
1. Amendment filed 12-6-65; effective thirtieth day thereafter (Register 65, No. 24).
2. Amendment filed 9-7-71; effective thirtieth day thereafter (Register 71, No. 37).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§242. Certification to Limited Term Positions. [Repealed]
History
HISTORY
1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
Article 10. Appointments
For the general statutory provisions on this subject, refer to Section 19050 of the Act and sections following.
§250. Requirement That Selection Be Based on Merit and Fitness.
Note • History
(a) Appointments to positions in the State civil service made from eligible lists in a manner consistent with provisions of Sections 254, 254.1, and 254.2 as related to the certification of eligibles, by way of transfer, as defined in Government Code Section 18525.3, or by way of reinstatement, as defined in Government Code Section 19140, shall be made on the basis of merit and fitness, defined exclusively as the consideration of each individual's job-related qualifications for a position, including his/her knowledge, skills, abilities, experience, education, training, physical and mental fitness, and any other personal characteristics relative to job requirements, as determined by candidate performance in selection procedures, including, but not limited to, hiring interviews, reference checks, background checks, and/or any other procedures, which assess job-related qualifications and are designed and administered to select those individuals who best meet the selection need.
(b) Eligible lists shall be created on the basis of merit and fitness, and, as such, shall result from: recruitment strategies designed to be as broad and inclusive as necessary to best meet the selection need; and candidate performance in selection procedures that assess job-related qualifications, are competitive in nature, are designed and administered to fairly and objectively identify those candidates who meet the selection need, and result in the ranking of candidates based on their job-related qualifications.
(c) Permanent status in permanent appointments to the civil service is achieved after completion of the required probationary period, the final phase of the selection process. Assessment of employee performance during the probationary period shall be made on the basis of merit and fitness, with regard to the individual's qualifications, including his/her knowledge, skills, abilities, experience, education, training, physical and mental fitness, and any other personal characteristics relative to job requirements, and his/her job-related performance.
(d) All phases of the selection process, including recruitment and examining, eligible list creation, appointment, and completion of the civil service probationary period, shall provide for the fair and equitable treatment of applicants and employees on an equal opportunity basis without regard to political affiliation, race, color, ancestry, national origin, sex, sexual orientation, religion, disability, medical condition, age, or marital status.
(e) Nothing herein shall be construed to relieve appointing powers from the obligation to reasonably accommodate individuals with disabilities as required under the Americans with Disabilities Act, the Fair Employment and Housing Act, and the Civil Service Act.
(f) Nothing herein shall be construed so as to contravene the intent and purpose of Article VII, Section 6, of the California Constitution, which provides for the granting of preferences in state civil service to veterans and their surviving spouses.
(g) Intra-departmental job assignment transfers within the same job classification, such as assignments to different work shifts or work locations, or time base changes pursuant to Section 277 do not constitute appointments for purposes of this regulation.
NOTE
Authority cited: Sections 18211 and 18701, Government Code. Reference: Article VII, Sections 1 and 6, California Constitution; Sections 18213, 18500, 18525.3, 18900, 18930, 18950, 18951, 18971-18979, 19050, 19052, 19140, 19171, 19173 and 19702.2, Government Code.
HISTORY
1. New section filed 5-17-2004; operative 5-17-2004. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2004, No. 21).
§250.1. Skills-Based Certification.
Note • History
(a) Notwithstanding Section 250(a) and (b) as they pertain to eligible lists, appointments to positions in the State civil service for information technology classifications may utilize skills-based certification, as defined by Government Code section 18900.6(a). All such appointments shall be made on the basis of merit and fitness pursuant to all other provisions of Section 250.
(b) Examinations may be administered on an open basis, promotional basis, or open non-promotional basis.
(c) Selection procedures shall be competitive in nature, and designed and administered to fairly and objectively identify those candidates who meet the selection need for the position, and result in the certified ranking of candidates based on their job-related qualifications.
(d) Individuals who are successful in examinations for these classes shall be assigned a score relative to their job-related qualifications and placed in a pool for the respective class and skills set(s) tested for. For purposes of scoring, raw scores will be assigned.
(e) Whenever a vacancy is to be filled, the appointing power shall prepare a detailed statement of the duties and requirements of the position, which shall be maintained by the appointing power for audit purposes by the SPB. Such statement of duties and requirements of the position shall constitute the justification for creating a skills-based certification list for the position.
(f) Traditional eligible lists will not be created as a result of testing. Skills-based certification lists shall be created on a position-by-position basis, and shall replace the traditional eligible lists. A skills-based certification list shall be created by weighting the final score(s) of eligible competitors attained in the core examination, if applicable, and functional skills set(s). No more than four (4) skills sets, equaling a combined total of 100%, may be used when creating a certification list. A core examination component, if utilized in the testing process, may be used for purposes of creating a skills-based certification list. Its weighting shall be determined by a job analysis. Eligibles will be ranked on the certification list according to their test scores and the percentage weightings utilized to create the certification list.
For example, a skills-based certification list created utilizing two functional skills-sets, each weighted 50%, would yield a list of only those eligibles who successfully passed the test for each of the skills-sets and ranked in descending order based on their respective weight and functional skill set test scores.
(g) If it is found that the statement of duties and requirements of the position is inconsistent with the skills-sets utilized to create the certification list, the appointment shall be deemed illegal and voided.
(h) Hiring departments shall utilize a job-related structured interview process for purposes of conducting hiring interviews, and shall verify minimum qualifications and perform reference checks for all prospective hires. In order to ensure that the hiring process is fair and competitive, the hiring interviews shall use a job-related structured interview process that shall conform to the following minimum standards: (1) relevant criteria shall be developed for determining which candidates shall be selected to interview; (2) a series of job-related questions shall be developed to assess the fitness and qualifications of each candidate to perform the duties of the position in question; (3) valid criteria shall be developed for scoring the candidates' responses to the interview questions; and (4) each candidate shall be required to respond to the same interview questions. The appointing authority shall also develop a summary of the hiring process which shall include a discussion of the job-relatedness and structure of the interview process.
NOTE
Authority cited: Sections 18211, 18701 and 18900.6, Government Code. Reference: Section 18900.6, Government Code.
HISTORY
1. New section filed 6-1-2009; operative 7-1-2009. Submitted to OAL for filing and printing only pursuant to Government Code sections 18211 and 18213 (Register 2009, No. 23).
§251. Request for Certification.
Note • History
Whenever a vacancy is to be filled under Section 19052 of the act, the appointing power shall make written request for certification unless otherwise prescribed by the executive officer. Such request shall contain the statements required by the act and shall include a statement of the salary, tenure, and location of the position. Certification shall be made by the executive officer.
NOTE
Reference: Section 19052, Government Code.
HISTORY
1. Amendment filed 2-10-59; effective thirtieth day thereafter (Register 59, No. 3).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Whenever a new position is created, the appointing power shall notify the executive officer of the proposed new position and, at the same time, furnish a detailed statement of the duties and requirements of the proposed position.
§253. Certification to 60-Day Position.
History
Where the employment is for a period of 60 days or less, only the names of those eligibles who live in the vicinity of the employment need be certified.
HISTORY
1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
§254. Appointment Following Certification.
Note • History
For a class in which the certification of eligibles is under Government Code section 19057.1 and 19057.3, the appointing power shall fill a vacancy in a class by selection from the highest three eligibles certified who are willing to accept employment under the conditions of employment specified. If the appointing power has at the same time more than one vacancy in the same class, the first and every succeeding vacancy shall be filled in like manner by selection in turn from the highest three remaining names. For a class in which the certification of eligibles is under Government Code sections 19057.1, 19057.2 and 19057.3, the appointing power shall fill a vacancy in a class by selection from the eligibles in the three highest ranks certified who are willing to accept employment under the conditions of employment specified. If the appointing power has at the same time more than one vacancy in the same class, the first and every succeeding vacancy shall be filled in like manner by selection in turn from the eligibles in the highest three remaining ranks. The provisions of this rule do not apply if the certification is from a reemployment list under Government Code Section 19056.
NOTE
Reference: Sections 19056, 19057, 19057.1, 19057.2 and 19057.3, Government Code.
HISTORY
1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
2. Amendment filed 11-7-69; effective thirtieth day thereafter (Register 69, No. 45).
3. Amendment filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).
4. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
5. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§254.1. Designation of Classes as Professional, Scientific, Administrative, Management or Executive.
Note • History
For the purpose of administering Section 19057.1 of the Government Code, the executive officer shall designate those classes of positions which are considered to be professional, scientific, administrative, management, or executive and meet the definition in subsections (a) or (b) below.
(a) The work performed either involves supervision of employees as a primary duty; or,
(b) The work is predominantly intellectual and varied in character and requires the consistent exercise of discretion and judgment.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19057.1 and 19997.3, Government Code.
HISTORY
1. New section filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).
2. Amendment filed 11-8-72; effective thirtieth day thereafter (Register 72, No. 46).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
5. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
6. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§254.2. Three Rank Certification.
Note • History
The number of names certified to an appointing power to fill vacancies as provided by Government Code Sections 19057.1, 19057.2 and 19057.3 shall, at the option of the appointing power, be one of the following:
(1) All eligibles in the highest three ranks; or
(2) Any specific eligible(s), identified by the appointing power, who is in one of the highest three ranks.
NOTE
Authority cited: Sections 18701, 19057.1, 19057.2 and 19057.3, Government Code. Reference: Sections 19057.1, 19057.2 and 19057.3, Government Code.
HISTORY
1. New section filed 1-19-89; operative 2-18-89 (Register 89, No. 4).
2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations filed 5-16-90 (Register 90, No. 22).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§255. Certification in Case of Waiver. [Repealed]
History
HISTORY
1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
§256. Certification to Laborers' Positions. [Repealed]
History
HISTORY
1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
§257. Cancellation of Request for Certification. [Repealed]
History
HISTORY
1. Repealer filed 2-10-59; effective thirtieth day thereafter (Register 59, No. 3).
§258. Reply to Inquiry Following Certification.
Note • History
It shall be the duty of every eligible to respond within a reasonable time to an inquiry to ascertain his interest in appointment to a position. An eligible does not need to respond when he or she is not interested in the position. The following standards shall constitute reasonable response time frames:
(1) Telephone: two business days' response time following the initial contact;
(2) Mail: six business days after the date the notice is sent;
(3) E-mail: six business days after the date the notice is sent.
If the eligible is unavailable for employment within 30 calendar days following the date of the job offer, the appointing power may consider this a waiver of appointment.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050, Government Code.
HISTORY
1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 7-13-79; effective thirtieth day thereafter (Register 79, No. 28).
4. Amendment filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).
§259. Failure to Respond to Telegram. [Repealed]
History
HISTORY
1. Repealer filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26). For prior history see Register 10, No. 8.
Note • History
When the board, executive officer, or a state agency transmits to an eligible any communication concerning availability for any type of employment requiring an answer, if the eligible's response is not received within the time provided by Section 258, the eligible may not be considered for that vacancy and, in the case of certification, is a waiver of contact.
NOTE
Authority cited: Section 18930, Government Code. Reference: Section 18935, Government Code.
HISTORY
1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26).
2. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 10-9-85; effective thirtieth day thereafter (Register 85, No. 42).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
5. Amendment filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).
§260.1. Decline a Job Offer or Failure to Appear for Work or Job Interview.
Note • History
In the case of certification, if the eligible declines a job offer, it is considered a waiver of appointment. If the eligible fails to appear for a job interview or work, the eligible's name will be placed on inactive status of the eligible list, and it is considered a waiver of appointment.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18935, Government Code.
HISTORY
1. New section filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).
§261. Waiver of Certification.
Note • History
The executive officer may ascertain from each eligible the salary, tenure, location, and other pertinent conditions of employment under which the eligible will accept appointment. Such statement of acceptable conditions of employment shall constitute an automatic waiver of certification to positions having other conditions of employment. The conditions of employment acceptable to an eligible may at any time be changed at that eligible's written request; but, in such event, that eligible shall not be entitled to consideration for appointment to any position for which certification has already been forwarded to the appointing power.
NOTE
Reference: Section 19057, Government Code.
HISTORY
1. Amendment filed 2-10-59; effective thirtieth day thereafter (Register 59, No. 3).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Note • History
If after being contacted to ascertain interest in a position an eligible is not interested, the eligible will not be considered for the vacancy, and, in the case of certification, the eligible is deemed to have waived contact for that certified list. An eligible is considered not interested when any of the following occur:
(1) Eligible fails to respond to a contact, or fails to respond in accordance with rule 258;
(2) Eligible responds to a contact as not interested;
(3) Eligible is either unavailable or declines to interview for a position;
(4) Eligible withdraws interest in a position at any time during the recruitment process to fill the vacancy.
Eligibles certified from any open list may decline an unlimited number of employment inquiries and hiring interview offers without penalty of being charged a waiver of appointment.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18935, Government Code.
HISTORY
1. New section filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).
Note • History
After three waivers of appointment to positions in any given class where the eligible's record was placed on a certification list in accordance with all applicable certification rules, that eligible's record shall not be certified for future vacancies.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18935, Government Code.
HISTORY
1. Amendment filed 12-24-64; effective thirtieth day thereafter (Register 64, No. 26). For prior history, see Register 10, No. 8.
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 3-9-87; effective thirtieth day thereafter (Register 87, No. 11).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
5. Editorial correction of Authority cite (Register 95, No. 5).
6. Amendment filed 1-31-2012; operative 3-1-2012. Exempt from the Administrative Procedure Act pursuant to Government Code section 18211. Submitted to the Office of Administrative Law for filing and printing only pursuant to Government Code section 18214 (Register 2012, No. 5).
§263. Appointment Substantiation.
Note • History
The appointing power shall (1) immediately report each appointment to the executive officer, and (2) maintain an official employee file including the executed loyalty oath in the manner prescribed by the executive officer.
NOTE
Reference: Sections 3105 and 18153, Government Code.
HISTORY
1. Amendment filed 9-12-67; designated effective 11-8-67 (Register 67, No. 37).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§264. Certification from Comparable List.
Note • History
If fewer than three names of persons willing to accept appointment are on the open eligible list for the class to which a position belongs and no other employment list for such class is available the executive officer may authorize certification of additional names from an employment list or lists for an appropriate class of substantially the same or a higher level.
NOTE
Reference: Section 19055, Government Code.
HISTORY
1. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 61, No. 5.
§265. Temporary Authorization.
Note • History
If fewer than three names of persons willing to accept appointment are on the open eligible list for the class to which a position belongs and no other employment list for such class is available the executive officer may authorize the appointing authority to make a temporary appointment.
NOTE
Reference: Sections 19057 and 19058, Government Code.
HISTORY
1. New section filed 3-7-61; effective thirtieth day thereafter (Register 60, No. 5).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§266. Correction of Appointments.
Note • History
When the executive officer determines that an appointment is unlawful, the executive officer shall determine the good faith of the appointing power and the employee under Section 8 and shall take corrective action up to and including voiding the appointment, provided that:
(a) No corrective action shall be taken on any appointment which has been in effect for one year or longer if both the appointing power and the employee acted in good faith; and
(b) No corrective action shall be taken on any appointment which has been in effect for five years or longer unless:
(1) the employee acted in other than good faith; or
(2) the executive officer determines that the rights of another employee are significantly endangered by the retention of the appointment in question.
When an unlawful appointment is terminated or corrected, the employee who acted in good faith shall retain only the compensation as defined in Section 9. In all cases, compensation shall be corrected on a prospective basis.
The employee who acted in other than good faith shall reimburse all compensation resulting from the appointment. The board in reviewing cases on appeal may, based upon the evidence, provide for less than full reimbursement of compensation.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19257 and 19257.5, Government Code.
HISTORY
1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).
2. Change without regulatory effect amending opening paragraph and subsection (b)(2) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
When the appointment of an employee who acted in good faith is being terminated pursuant to Section 266, the employee shall be afforded:
(1) deferred competition in examinations in which, in the judgment of the executive officer, the employee would be likely to have competed if he or she had not accepted the terminated appointment, provided that the examination is in progress or that the eligible list which resulted from the last examination for the class is still existing and valid; and
(2) placement back on the eligible list from which the employee was unlawfully appointed, provided that the eligible list still exists and is valid.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19257.5, Government Code.
HISTORY
1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).
2. Change without regulatory effect amending opening sentence filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
At least fifteen days prior to the date the board plans to take corrective action on an unlawful appointment, the executive officer shall notify the employee and the employee's appointing power of the proposed action. This notice shall state the reason(s) for the proposed action and notify the employee and the appointing power of their right to respond to the notice within the fifteen days either verbally or in writing.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18670, Government Code.
HISTORY
1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).
2. Renumbering of former section 60 to section 266.2 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
Note • History
When corrective action is taken on an unlawful appointment, the employee and the appointing power may file a written appeal with the board within 30 calendar days after the date of notification of the board's final decision to take the corrective action upon which the appeal is based.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18670, Government Code.
HISTORY
1. New section filed 1-18-82; effective thirtieth day thereafter (Register 82, No. 4).
2. Renumbering of former section 60.1 to section 266.3 filed 4-26-90; operative 5-26-90 (Register 90, No. 22).
§275. Transferring into State Civil Service.
Note • History
When it is necessary for the State of California to assume work previously performed by a county, city, federal department or agency or public district, the board by resolution shall permit the employees who previously performed the work to qualify in state service in their positions upon allocation of their positions to an appropriate class in the state classification plan and in accordance with standards and procedures established by the executive officer.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050.2, Government Code.
HISTORY
1. New section filed 10-18-79; effective thirtieth day thereafter (Register 79, No. 42). For prior history, see Registers 78, No. 44; 74, No. 36; 74, No. 18; 73, No. 51; 72, No. 42; 72, No. 32; 72, No. 28; 70, No. 42; 70, No. 27; and 70, No. 23.
2. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§276.2. Transferring into State Civil Service. [Repealed]
Note • History
NOTE
Reference: Section 18709, Government Code.
HISTORY
1. New section filed 4-14-77; effective thirtieth day thereafter (Register 77, No. 16).
2. Repealer filed 10-18-79; effective thirtieth day thereafter (Register 79, No. 42).
Note • History
The following provisions specify when employees are eligible for various time base changes without an appointment from an employment list. They are not to be construed, by themselves, as entitling employees to such changes or as enabling appointing powers to make such changes without the employee's consent. These provisions do not extend or modify an employee's eligibility to reinstate to a position in a different class:
(a) Increases in time base of part-time or intermittent employees to full time or movement of intermittent employees to part time are permitted when:
(1) The employee has previously held a permanent or probationary status appointment at or above the desired time base in the classification to which the appointment is to be made or in the classification that is substantially at or above the salary level of that classification; or,
(2) The appointing power can clearly demonstrate that the employee has previously been eligible for an appointment from an employment list to the position and time base in question; or,
(3) For at least two years the employee has held any combination of permanent or probationary appointments to the types of classes specified in subsection (1) and has worked at least 1920 hours in such appointments.
(b) Time base changes other than those specified in Part (a) of this rule are permitted at the discretion of the appointing power.
NOTE
Authority cited: Section 19062.5, Government Code. Reference: Sections 18550, 18551, 18552 and 19065 renumbered 19062.5, Government Code.
HISTORY
1. New section filed 5-9-84; effective thirtieth day thereafter (Register 84, No. 19).
2. Change without regulatory effect amending subsection (b) and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§279.1. Definition of a Personal Services Contract. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19130, Government Code.
HISTORY
1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).
2. Change without regulatory effect renumbering former section 279.1 to section 547.59 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
§279.2. Undercut of State's Wage in Cost-Savings Based Contracts. [Renumbered]
Note • History
NOTE
Authority cited: section 18701, Government Code. Reference: Section 19130(a)(2).
HISTORY
1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).
2. Change without regulatory effect amending opening paragraph and subsections (b)-(c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Change without regulatory effect renumbering former section 279.2 to section 547.69 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
§279.3. Affirmative Action Impact. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11135-11139.5, 19130(a)(4), 19130(a)(8), 19790, 19791, 19793 and 19797, Government Code; and Section 1431, Labor Code.
HISTORY
1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).
2. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Change without regulatory effect renumbering former section 279.3 to section 547.70 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
§279.4. Amount of Savings. [Renumbered]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19130(a)(5) and 19130(a)(6), Government Code.
HISTORY
1. New section filed 4-17-89; operative 5-17-89 (Register 89, No. 21).
2. Change without regulatory effect renumbering former section 279.4 to section 547.71 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
Article 11. Limited Term Appointments
§281. Acquisition of Permanent Status.
Note • History
No time served in a limited-term appointment may count toward acquiring permanent status in any position.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19080.3 and 19083, Government Code.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Amendment filed 6-10-83; effective thirtieth day thereafter (Register 83, No. 24).
Note • History
A limited-term employee may be separated at any time prior to the expiration of the term for which appointed by advising the employee either orally or in writing of the separation; provided, however, a limited-term employee may not be separated except for cause, if emergency or temporary employees in limited-term positions remain employed in the same class and the same layoff subdivision. If separated for cause, the appointing power shall give the employee, on or before the date of separation, written notice setting forth the reasons therefor. Within 30 days after the effective date of separation for cause, a copy of the notice shall be sent with the report of separation to the executive officer. The employee has no appeal from the action of the appointing power in terminating the limited-term employment except on the grounds that temporary or emergency employees remain employed in violation of this section.
The executive officer shall not again certify for limited-term employment in the same class the name of a person who has been separated for cause unless, after investigation, it is determined by the executive officer that the reason for separation should not bar the person from such further employment.
Cause as used in this rule shall include failure to demonstrate merit, efficiency, fitness, and moral responsibility.
NOTE
Reference: Section 19082, Government Code.
HISTORY
1. New section filed 1-13-48 (Register 11, No. 2).
2. Amendment filed 12-8-53; effective thirtieth day thereafter (Register 53, No. 22).
3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Change without regulatory effect amending opening paragraph filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 12. Emergency Appointments
For the general statutory provisions on this subject, refer to Section 19120 of the act and sections following.
Note • History
The frequency, length, and circumstances of all emergency appointments made pursuant to Government Code Section 19888.1 shall be subject to the provisions of this article. The authority to make such appointments shall be limited to that provided by Sections 302.1, 302.2 and 302.3.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
When emergency appointments are made under Government Code Section 19888.1, the appointing power shall establish and retain records consisting of the name of the appointee, the duties of the position, the reason for the appointment and such further data as may be required by the executive officer for the purpose of ensuring compliance with the provisions of this article.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. Amendment filed 11-19-57; effective thirtieth day thereafter (Register 57, No. 20).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
§302. Review of Emergency Appointment. [Repealed]
Note • History
NOTE
Reference: Section 19120, Government Code.
HISTORY
1. New section filed 11-19-57; effective thirtieth day thereafter (Register 57, No. 20).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Repealer filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
Note • History
The appointing power, to prevent the stoppage of public business in the case of fire, flood or other extreme emergency, may make emergency appointments subject to the provisions of Government Code Section 19888.1 and Sections 301, 303 and 304.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§302.2. Appointments for Short-Duration Work.
Note • History
Subject to review by the executive officer, the appointing power may employ persons under emergency appointments for up to 30 working days for specifically identified work which:
(a) Because of its unusual urgency, nature, volume, location, duration or other special characteristics, is distinct from the range of work normally performed by the appointing power's regular staff; and
(b) Is not expected to be performed within the appointing agency for more than 30 working days within any 12-month period.
If the appointing power or the executive officer determines that the type of work performed by employees appointed under this section will last for more than 30 working days within any 12-month period, any new or extended emergency appointments to perform such work shall be subject to the provisions of Section 302.3.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
2. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
The executive officer may authorize appointing powers to make emergency appointments on an acting basis to established positions for 20 to 60 working days when he/she determines that:
(a) Such appointments are needed to meet a specifically identified and reasonable operating need; and
(b) The identified need could not have been feasibly met through use of other civil service or administrative alternatives; and
(c) When a state employee is to be appointed, that such employee cannot effectively meet the identified need without a substantial change in duties that would clearly result in the employee working outside the scope of his/her current classification. Reassignments that do not substantially change the overall nature of an employee's work assignment shall not be a basis for an emergency appointment under this section.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
2. Change without regulatory effect amending subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
No person may serve under an emergency appointment for more than 60 working days in any 12 consecutive calendar months. Service under Section 302.1 may be exempted from this limit by the executive officer.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. New section filed 11-19-57; effective thirtieth day thereafter (Register 57, No. 20).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
4. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§304. Reinstatement After Emergency Appointment.
Note • History
Permanent or probationary employees who vacate positions to accept emergency appointments shall have a mandatory right of return to their former position upon the conclusion of the emergency appointment if:
(a) The emergency appointment is under the same appointing power as the position the employee is vacating; or
(b) The employee is granted paid or unpaid leave to accept the emergency appointment.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19888.1, Government Code.
HISTORY
1. New section filed 7-7-82; effective thirtieth day thereafter (Register 82, No. 28).
Article 13. Reinstatement [Repealed]
For the general statutory provisions on this subject, refer to Section 19140 of the act and sections following.
§311. After Resignation. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code, Reference: Sections 19140-19144, Government Code.
HISTORY
1. Repealer filed 11-20-87; operative 12-20-87 (Register 87, No. 48).
§313. Demoted Employee. [Repealed]
History
HISTORY
1. Amendment filed -15-53; effective thirtieth day thereafter (Register 53, No. 16).
2. Amendment filed 7-10-56; effective thirtieth day thereafter (Register 56, No. 13).
3. Repealer filed 1-8-70 as an emergency; effective upon filing. Certificate of Compliance included (Register 70, No. 2).
Article 14. Probationary Period
For the general statutory provisions on this subject, refer to Section 19170 of the act and sections following.
§321. Extension of Probationary Periods.
Note • History
(a) In the event a probationer has not, during a prescribed calendar length of the probationary period, worked the hours set forth below, probation will automatically be extended until the probationer has worked the required number of hours.
(1) 840 if serving a six months' probationary period; or
(2) 1260 if serving a nine months' probationary period; or
(3) 1680 if serving a one year probationary period.
Vacation, sick leave, military leave or other leave of absence, compensating time off, suspension or other separations, including separations subsequently voided or otherwise set aside, shall not be considered working time.
The board shall be notified of an extension under this section.
(b) If a probationer has had a continuous period of absence of 60 or more working days and upon return from such absence the appointing power determines that the remaining portion of the probationary period is insufficient to evaluate that probationer's current performance the appointing power may extend the probationary period with the approval of the executive officer. The length of such extension shall be determined by the length of the completed portion of the probationary period at the beginning of the probationer's absence as follows:
(1) If up to one-third of the minimum number of hours required for the probationary period was worked, the remainder of the probationary period plus the extension shall not exceed the minimum number of hours required for the original probationary period.
(2) If over one-third but not more than two-thirds of the minimum number of hours required for completion of the probationary period was worked, the remainder of the probationary period plus the extension shall not exceed two-thirds of the minimum number of hours required to complete the original probationary period.
(3) If over two-thirds of the minimum number of hours required to complete the probationary period was worked, the remainder of the probationary period plus the extension shall not exceed one-third of the minimum number of hours required to complete the original probationary period.
(c) The probationary period may be extended for a maximum of five working days in order to comply with notice requirements as set forth in Section 52.6 for rejection during probation.
(d) Pursuant to Government Code Section 19170, an appointing power and an employee, who alleges that he/she has a disability as defined in Government Code Section 12926, may submit a written agreement for approval by the board, that would extend the employee's probationary period within his/her existing classification for up to six months to provide a reasonable accommodation to the employee as follows:
(1) The agreement shall describe the period of the extension, beginning and ending dates, and how the extended probationary period will allow the employee to demonstrate, before the extended probationary period ends, the ability to satisfactorily perform the essential functions of the position with the reasonable accommodation. The written agreement must be received by the board for review prior to the end of the employee's probationary period.
(2) If the employee's probationary period will end during the board's review, the board will automatically extend the probationary period until a determination is made to approve or disapprove the agreement. This period of time is inclusive of the extension time requested by the department. If the board does not approve the agreement, the board will extend the employee's probationary period by an additional ten working days from the date of service of the board's determination, to allow the appointing power sufficient time to proceed with a rejection during probation. This ten working day extension is in addition to that provided under subsection (c) above.
(e) Prior to the completion of the probationary period, the appointing power shall notify the employee in writing that the probationary period is being extended under this rule and of the length of the extension. Employees whose probationary periods are extended under this rule must also, over the entire course of their original and extended probationary periods, meet the minimum service requirements specified in subsection (a) above. The State Personnel Board shall notify the employee and the appointing power in writing of its decision to approve or disapprove any agreement reached pursuant to subsection (d) above.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19170 and 19173, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 70, No. 2.
2. Amendment filed 7-28-83; effective thirtieth day thereafter (Register 83, No. 31).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of subsection (c) and new subsections (d)-(e) filed 3-24-2003; operative 3-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 13).
5. Change without regulatory effect amending subsection (c) filed 4-11-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 15).
§321.5. Probationary Period of Reappointed, Reinstated, Demoted or Transferred Employees. [Repealed]
History
HISTORY
1. New section filed 11-7-49 (Register 18, No. 5).
2. Amendment filed 9-15-53; effective thirtieth day thereafter (Register 53, No. 16).
3. Amendment filed 10-11-61; effective thirtieth day thereafter (Register 61, No. 20).
4. Repealer filed 1-8-70 as an emergency; effective upon filing. Certificate of Compliance included (Register 70, No. 2).
§322. Probationary Period Requirements.
Note • History
Probationary period requirements for permanent appointments from an employment list; or by reinstatement, or by transfer, or by demotion are:
(a) A new probationary period shall be required when an employee enters or is promoted in the state civil service by permanent appointment from an employment list; upon reinstatement after a break in continuity of service resulting from a permanent separation; or by reinstatement or appointment from a reemployment list, pursuant to Section 548.152 or 548.153, to a classification with a promotional relationship to the classification of the employee's former position.
(b) An employee who has not attained permanent status when accepting another appointment shall serve the remainder of that probationary period unless required to serve a new probationary period.
(c) A new probationary period shall be required unless waived by the appointing power when an employee is being appointed:
(1) Without a break in service in the same class in which the employee has completed the probationary period but under a different appointing power.
(2) Without a break in service to a class with substantially the same or lower level of duties and responsibilities and salary range as a class in which the employee has completed the probationary period.
(3) From a general reemployment list to the same class in which the employee has completed the probationary period but under a different appointing power.
(4) By reinstatement or appointment from a reemployment list, pursuant to Section 548.152 or 548.153, to a classification to which the employee could have transferred from his or her former position.
(d) A new probationary period shall not be required when an employee is being appointed:
(1) From any reemployment list under the same appointing power, except as otherwise provided in this section;
(2) By reinstatement with a right of return, except as otherwise provided in this section;
(3) Without a break in service under the same appointing power and to the same class in which the employee had completed the probationary period; or
(4) By demotion under Government Code Section 19997.8.
“Without a break in service” as used in this section is continuous service as defined in Section 6.4.
NOTE
Authority cited: Section 19170, Government Code. Reference: Sections 18527 and 19171, Government Code.
HISTORY
1. Amendment filed 1-8-70 as an emergency; effective upon filing. Certificate of Compliance included (Register 70, No. 2). For prior history, see Register 61, No. 5.
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 5-29-84; effective thirtieth day thereafter (Register 84, No. 22).
4. Change without regulatory effect of subsection (d)(4) (Register 87, No. 14).
5. Change without regulatory effect amending subsections (a)(4), (c)(4) and (d)(4) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§323. Performance Appraisal of Probationers.
Note • History
NOTE
Authority cited: Section 19170, Government Code. Reference: Section 19302, Government Code.
HISTORY
1. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 60, No. 24.
2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§324. Duty to Reject Probationer.
History
If the conduct, capacity, moral responsibility, or integrity of the probationer is found to be unsatisfactory, it shall be the duty of the appointing power to reject that probationer from the position.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§325. Duty to Report Delinquencies.
If, during the probationary period of any state employee, there is presented to the executive officer convincing evidence that the moral conduct, character, or integrity of the employee is unsatisfactory, the executive officer shall present such evidence to the appointing power.
§326. Restoration to Eligible List.
History
If after investigation the board or the executive officer determines that the probationer's name should be restored to the eligible list under Section 19175(b) of the act, the name shall be restored to the eligible list from which the probationer was certified if such list is still in existence. If the probationer's name is restored to the eligible list, it shall be placed thereon in accordance with the probationer's score in the examination from which such list resulted.
HISTORY
1. Amendment filed 11-7-49 (Register 18, No. 5).
2. Repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
§327. Cancellation or Withdrawal of Notice of Rejection.
Note • History
The appointing power may cancel or withdraw a notice of rejection of a probationer in the following manner and not otherwise: (a) by filing with the board on or prior to the thirtieth calendar day after the effective date of rejection, a written notice of cancellation or withdrawal setting forth the reasons therefor, and (b) by obtaining the concurrence of the executive officer to such cancellation or withdrawal prior to such filing.
An employee whose probationary rejection is canceled or withdrawn shall, for such time as the executive officer determines is necessary to prevent injustice to the employee, be entitled to payment of salary less legal offsets, if any, and to credit for seniority, sick leave, vacation, and merit salary adjustment.
A cancellation or withdrawal of rejection shall be without prejudice to further rejection, punitive action, or disciplinary proceedings for the same or other reasons.
NOTE
Reference: Section 19175.5, Government Code.
HISTORY
1. Originally published 3-22-45 as 123 (Title 2).
2. Revision filed 4-11-47 (Register 7).
3. Amendment filed 12-20-49 (Register 18, No. 9).
4. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Article 15. Performance Reports [Repealed]
HISTORY
1. Repealer of article 15 (sections 340-346) filed 8-28-85; operative 9-27-85 (Register 85, No. 35). For prior history, see Register 60, No. 24.
Article 16. Absences [Repealed]
HISTORY
1. Repealer of Article 16 (Sections 360, 361, 364, 365, 367-374) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 16, including Sections 362, 363 and 366, see Registers 78, No. 45 and 77, No. 15.
Article 17. Vacations [Repealed]
HISTORY
1. Repealer of Article 17 (Sections 381-387) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history, see Register 77, No. 15.
Article 18. Sick Leave [Repealed]
HISTORY
1. Repealer of Article 18 (Sections 401-404, 406, 407 and 409) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 18, including Sections 405 and 408, see Registers 77, No. 34 and 77, No. 15.
Article 18.5. Industrial Disability Leave
For the general statutory provisions on this subject, refer to Sections 19815.4(d) through 19877.
§417.3. Medical Officer's Responsibilities.
History
Where there is disagreement concerning the medical suitability of placement of the disabled employee who has completed the vocational rehabilitation program, the State Personnel Board Medical Officer shall determine the appropriateness of the placement based upon the medical evidence submitted.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Repealer of Sections 410, 410.1, 410.2, 411-417, 417.1, 417.2 and 418 filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20). For prior history, see Registers 84, No. 15; 77, Nos. 34 and 15; 76, Nos. 42 and 9; 75, Nos. 44 and 24; and 74, No. 52.
Article 18.6. Nonindustrial Disability Insurance [Repealed]
For general statutory provisions on the subject, refer to Government Code Sections 18135-18142.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18135 and 18135.5, Government Code.
HISTORY
1. New Article 18.6 (Sections 419, 419.1, 420, 421, 422, and 423) filed 9-24-76 as an emergency; designated effective 10-1-76 (Register 76, No. 39).
2. Certificate of Compliance filed 1-25-77 (Register 77, No. 5).
3. Amendment and repealer of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Amendment filed 11-3-78; effective thirtieth day thereafter (Register 78, No. 44).
5. Amendment filed 12-7-78; effective thirtieth day thereafter (Register 78, No. 49).
6. Amendment filed 1-9-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 2).
7. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
8. Repealer of Article 18.6 (Sections 419-423) filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
Article 19. Transfer
For the general statutory provisions on this subject, refer to Sections 19050.2 - 19050.9 of the act.
Note • History
A transfer of an employee from a position under one appointing power to a position under another appointing power may be made, if the transfer is to a position in the same class or in another class with substantially the same salary range and designated as appropriate by the executive officer. The effective date of such transfer shall be no later than 30 calendar days after receipt of a written request from the agency requesting the employee's service to the appointing power by whom the employee is employed, unless an earlier or later date of transfer is agreeable to both appointing powers. No other type of transaction which has the same general effect as a transfer, such as reinstatement following resignation, shall be used to circumvent the above provisions.
NOTE
Reference: Section 19050.4, Government Code.
HISTORY
1. Amendment filed 3-26-68; effective thirtieth day thereafter (Register 68, No. 13).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
§426. Temporary Assignments or Loans.
Note • History
Temporary assignments or loans of employees in accordance with Section 19050.8 of the Government Code may be made with the approval of the executive officer, provided that such assignments shall be documented by a written statement containing the following information:
(a) The duration and duties of the assignment.
(b) Certification that a layoff by reason of such assignment or loan will not become necessary in the appointing agency.
(c) If the assignment is for training and development purposes, a description of the training to be accomplished.
(d) If the temporary assignment is for compelling management need purposes, a description of the management need and the staff expertise required; justification that the agency's needs cannot be met through the existing organizational structure; certification that the employee possesses the required expertise; and certification that the employee has voluntarily consented to the assignment.
(e) If the temporary assignment is to facilitate the return of an injured employee to work, justification of the need of such an assignment and medical verification of the employee's condition.
Any participating agency or employee may terminate the assignment at any time for any reason or the executive officer may terminate it if it is being carried on contrary to or in a manner inconsistent with the Government Code or these regulations. An employee participating in such an arrangement shall be considered for all purposes of the Government Code and regulations as an employee of the agency from which loaned or assigned except that the employee's salary may be paid in any proper manner agreed upon by the participating agencies.
The board shall be notified upon termination of any temporary assignment.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 11-7-49 (Register 18, No. 5).
2. Amendment filed 11-16-70; effective thirtieth day thereafter (Register 70, No. 47).
3. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).
5. Change without regulatory effect of first paragraph filed 12-21-88 (Register 89, No. 1).
6. Change without regulatory effect amending subsection (e) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§427. Interjurisdictional Employee Exchange.
Note • History
A state appointing power may with the concurrence of an employee assign or loan the employee to another jurisdiction, or may receive an employee from another jurisdiction, in accordance with Government Code Section 19050.8, except as otherwise provided by law, provided that the following conditions are met:
(a) The state appointing power determines that the assignment or loan is of benefit to the state and is for either training purposes or for compelling management need purposes as specified in Section 442.
(b) The other jurisdiction is governmental in character. It may be federal, state, or local, including other countries, public colleges and universities, and other instrumentalities, and may be in or outside of California.
(c) No layoff of state personnel is necessary.
(d) Both appointing authorities approve a written document containing, as a minimum, a statement that the assignment or loan is subject to this rule, the period and duties and conditions of the assignment or loan, the training or compelling management need to be accomplished, and provision for either continuing or substituting alternatives for all rights and benefits to which the employee of the agency or jurisdiction is otherwise entitled.
(e) Any necessary authorizations for funds or travel are obtained from the Departments of Finance, General Services, or other appropriate authority.
Employees from other jurisdictions gain no status in the California state service through such temporary assignments or loans.
For the purposes of administering the state civil service laws and regulations, a state employee participating in such an arrangement shall be considered an employee of the state agency from which loaned or assigned, except the employee's work and activities shall be subject to the direction of the jurisdiction to which loaned or assigned.
Either appointing authority or the employee may terminate the assignment at any time for any reason or the executive officer may terminate it if it is being carried on contrary to or in a manner inconsistent with the Government Code or these regulations. The employee's salary and benefits may be paid in any proper manner agreed upon by the appointing authorities of the participating agency and jurisdiction.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 11-6-70 as an emergency; designated effective 11-23-70. Certificate of Compliance included (Register 70, No. 45).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).
4. Change without regulatory effect of first paragraph filed 12-21-88 (Register 89, No. 1).
5. Change without regulatory effect amending subsections (a) and (e) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
Classes meeting the criteria established by this article shall be considered to involve substantially the same level of duties, responsibility and salary for the purposes of Government Code Section 19050.4; provided that the board or the executive officer may prohibit transfer between such classes based on a specific finding that they are in a promotional relationship.
The board or executive officer may also prohibit transfers from classes that have been specifically established for limited duration positions.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.
HISTORY
1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).
2. Change without regulatory effect filed 12-21-88 (Register 89, No. 1).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§431. Salary and Class Level Comparisons.
Note • History
(a) The following definitions shall apply to salary and class level comparisons made under this chapter:
(1) “Substantially the same salary range or salary level” means the maximum rate of the salary range of one class is less than two steps higher than or is the same as the maximum rate of the salary range of another class.
(2) “Promotional salary relationship, range or level” means the maximum rate of the salary range of one class is at least two steps higher than the maximum rate of the salary range of another class.
(3) “Salary range” means the range of rates between, and including, the minimum and maximum rate currently authorized for the class.
(4) “Rate,” for employees compensated on a monthly basis, means any one of the full dollar amounts found within the salary ranges established by the Department of Personnel Administration and, for employees compensated on a daily or hourly basis, means any one of the dollar and cents amounts found within the salary range.
(5) Unless otherwise provided by resolution of the board, “step,” for employees compensated on a monthly basis, means a five percent differential above or below a salary rate, rounded to the nearest dollar and, for employees compensated on a daily or hourly basis, means a five percent differential above or below a rate rounded to the nearest dollar and cents amount.
(A) Pursuant to (5), one step higher is calculated by multiplying the rate by 1.05. One step lower is calculated by dividing the rate by 1.05 (e.g., $2,300 x 1.05 = $2,415, one step higher; 2,300 ÷ 1.05 = 2,190 one step lower).
(B) Pursuant to (1) and (2), two steps higher is calculated by multiplying the rate by 1.05 and then multiplying the product by 1.05 (e.g., $2,300 x 1.05 = $2,415 x 1.05 = $2,536, two steps higher).
(b) Unless otherwise provided by resolution of the board, the maximum rate of the lowest salary range currently authorized for a class is used to make salary comparisons for the purposes of this chapter.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18807 and 19050.4, Government Code.
HISTORY
1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).
2. Relettering and amendment of former subsections (a)-(c) to new subsections (a) and (b), and repealer of Schedules A and B filed 3-8-89; operative 3-8-89 (Register 89, No. 11).
3. Change without regulatory effect of subsection (a)(3) filed 6-29-89 (Register 89, No. 27).
4. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
For the purpose of this article, a class series is any vertically related group of classes, covering the same occupational specialty and same program area, which constitute a primary promotional pattern for a specifically identifiable group of employees.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.
HISTORY
1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).
2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§433. Voluntary Transfers Between Classes.
Note • History
Unless specifically prohibited pursuant to Section 430 or the provisions of 433.1, appointing powers may allow employees to voluntarily transfer between classes when the employee possesses any licenses, certificates, or registration required in the “to” class provided that either:
(a) The salary range of the “to” class is exactly the same or any amount lower than that of the “from” class.
Or
(b) The salary range of the “to” class is any amount higher than that of the “from” class, provided that:
(1) It is not a promotional salary range; and
(2) The two classes are in different class series unless the board specifically provides for transfer within a series; and
(3) There is no class in the “to” series that is exactly the same in salary as the “from” class; and
(4) The “to” class is the class in its series that is immediately higher in pay than the “from” class; and
(5) The transfer does not preclude a future transfer that is part of the established upward mobility pattern through which the employee is moving; and
(6) The two classes do not contain positions that have a supervisory-subordinate relationship under the appointing power making the transfer.
In applying these criteria, separate salary ranges within a class shall be treated as if they were separate classes when a board resolution allows salary ranges other than the lowest range for the class to be used for salary comparison purposes.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.
HISTORY
1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).
2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
3. Change without regulatory effect amending opening paragraph and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of first paragraph filed 2-5-2002; operative 2-5-2002. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2002, No. 12).
§433.1. Voluntary Transfers Between Classes--Bargaining Unit 10 Employees.
Note • History
Unless specifically prohibited pursuant to Section 430, appointing powers may allow employees to voluntarily transfer between classes when the employee possesses any licenses, certificates, or registration required in the “to” class provided that either:
(a) The salary range of the “to” class is exactly the same or any amount lower than that of the “from” class; and, for any class assigned to State Bargaining Unit 10, excluding the following listed classes, the employee shall meet the minimum education requirement as identified in the respective class specification: Energy Analyst, Energy Resources Specialist I and II; Hazardous Materials Specialist, Associate Hazardous Materials Specialist and Senior Hazardous Materials Specialist (Technical); Associate Energy Specialist (Efficiency) and Energy Commission Specialist I, II, and III (Efficiency); Associate Energy Specialist (Forecasting) and Energy Commission Specialist I, II, and III (Forecasting); Associate Energy Specialist (Technology Evaluation and Development) and Energy Commission Specialist I, II, and III (Technology Evaluation and Development); Assistant and Associate Geologist and Senior Geologist (Specialist); Associate Geophysicist; Health and Safety Program Specialist I, II, and III; Assistant and Associate Meteorologist; Senior Meteorologist, Water Resources; Microbiologist Intern; Petroleum Geologist; Integrated Waste Management Specialist and Senior Integrated Waste Management Specialist; and Pest Prevention Assistant I, II, and III (Various Projects).
Or
(b) The salary range of the “to” class is any amount higher than that of the “from” class, provided that:
(1) It is not a promotional salary range; and
(2) The two classes are in different class series unless the board specifically provides for transfer within a series; and
(3) There is no class in the “to” series that is exactly the same in salary as the “from” class; and
(4) The “to” class is the class in its series that is immediately higher in pay than the “from” class; and
(5) The transfer does not preclude a future transfer that is part of the established upward mobility pattern through which the employee is moving; and
(6) The two classes do not contain positions that have a supervisory-subordinate relationship under the appointing power making the transfer; and
(7) For any class assigned to State Bargaining Unit 10, excluding the following listed classes, the employee shall meet the minimum education requirement as identified in the respective class specification: Energy Analyst, Energy Resources Specialist I and II; Hazardous Materials Specialist, Associate Hazardous Materials Specialist and Senior Hazardous Materials Specialist (Technical); Associate Energy Specialist (Efficiency) and Energy Commission Specialist I, II, and III (Efficiency); Associate Energy Specialist (Forecasting) and Energy Commission Specialist I, II, and III (Forecasting); Associate Energy Specialist (Technology Evaluation and Development) and Energy Commission Specialist I, II, and III (Technology Evaluation and Development); Assistant and Associate Geologist and Senior Geologist (Specialist); Associate Geophysicist; Health and Safety Program Specialist I, II, and III; Assistant and Associate Meteorologist; Senior Meteorologist, Water Resources; Microbiologist Intern; Petroleum Geologist; Integrated Waste Management Specialist and Senior Integrated Waste Management Specialist; and Pest Prevention Assistant I, II, and III (Various Projects).
In applying these criteria, separate salary ranges within a class shall be treated as if they were separate classes when a board resolution allows salary ranges other than the lowest range for the class to be used for salary comparison purposes.
NOTE
Authority cited: Sections 18211, 18213 and 18701, Government Code. Reference: Section 19050.4, Government Code.
HISTORY
1. New section filed 2-5-2002; operative 5-7-2002. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2002, No. 12).
2. Editorial correction amending operative date in History 1 (Register 2002, No. 25).
3. Amendment of subsections (a) and (b)(7) and Note filed 5-24-2006; operative 5-24-2006. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2006, No. 21).
§434. Involuntary Transfer Between Classes.
Note • History
When the transfer between classes is not voluntary on the part of the employee, the class to which the employee is transferred must have prior executive officer approval.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.
HISTORY
1. New section filed 10-19-82; effective thirtieth day thereafter (Register 82, No. 43).
2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
3. Editorial correction of History 2 (Register 95, No. 5).
Note • History
Consecutive transfers shall not be permitted when their combined result would be inconsistent with the provisions of this article or Government Code Section 19050.4.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19050.4, Government Code.
HISTORY
1. New section filed 10-19-82; effective thirtieth day thereafter (Register 82, No. 43).
2. Change without regulatory effect filed 12-21-88 (Register 89, No. 1).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§438. Temporary Assignments for Training and Development.
Note • History
(a) Eligibility for training and development assignments shall be limited to:
(1) employees who have permanent status in their present class; or
(2) employees who have probationary status and who previously have had permanent status and who, since such permanent status, have had no break in service due to a permanent separation.
(b) Employees shall be allowed to accept training and development assignments involving the duties of a different class only as outlined below under (1), (2), or (3):
(1) The training and development class is a class with substantially the same salary to which the employee could voluntarily transfer under the provisions of this article.
(2) The training and development class has a promotional salary range provided that:
(A) The higher salaried class is the class in the desired occupational area nearest in salary to the employee's current class that will provide an appropriate training experience; and
(B) When the training and development class is more than three steps higher than the employee's current class, the intent of the training and development assignment is to prepare the employee for a permanent move to the training and development class or to a closely related class, and the employee will meet minimum qualifications for the higher salaried class by the conclusion of the training and development assignment; and
(C) The training and development class is not in the same class series as the employee's present class.
(3) The training and development class has a demotional salary range provided that:
(A) It is the class in the desired occupational area nearest in salary to the employee's current class that will provide the appropriate training experience; and
(B) Any assignments to classes that are more than three steps lower than the employee's status class are approved in advance by the executive officer; and
(C) The purpose of the training and development assignment is to prepare for future service in a class that has a salary range that is substantially the same or promotional in comparison to the salary range of the employee's current classification.
(D) The assignment will provide experience that differs from the duties that the employee has previously performed.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 1-6-83; effective thirtieth day thereafter (Register 83, No. 2).
2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
3. Amendment of section heading, new subsection (a), relettering and amendment of new subsection (b) and redesignating all following paragraphs filed 11-20-91; operative 12-20-91 (Register 92, No. 8).
Note • History
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 5-23-83; effective upon filing pursuant to Government Code section 11346.2(d) (Register 83, No. 22).
2. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).
3. Change without regulatory effect of subsection (a) filed 12-21-88 (Register 89, No. 1).
4. Repealer filed 11-20-91; operative 12-20-91 (Register 92, No. 8).
Note • History
Employees may be promoted during a training and development assignment provided that:
(a) There is a vacant position to which the employee could be promoted if the employee were not on the training and development assignment; and
(b) The appointing power certifies that the employee would have been its first preference for appointment to the vacancy if he/she had not been on the training and development assignment; and
(c) No more than one person on a training and development assignment is promoted for each available vacancy; and
(d) The promotion will not result in a layoff at the termination of the training and development assignment.
The promotion and training and development assignment may be simultaneous provided that conditions of (a) through (d) above are met.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 5-23-83; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 83, No. 22).
2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
§441. Consecutive Temporary Assignments.
Note • History
Prior executive officer approval shall be required for any temporary assignment as defined in Government Code Section 19050.8 that results in an employee spending more than 24 months of any 36-month period on such temporary assignments. Such assignments shall not be approved when the executive officer determines that they constitute a continuation of the employee's previous temporary assignment.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 5-23-83; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 83, No. 22).
2. Amendment filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).
3. Change without regulatory effect filed 12-21-88 (Register 89, No. 1).
§442. Temporary Assignment to Meet Compelling Management Needs.
Note • History
(a) Eligibility for compelling management needs assignments shall be limited to:
(1) employees who have permanent status in their present class; or
(2) employees who previously have had permanent status and who, since such permanent status, have had no break in service due to a permanent separation.
(b) Subject to the approval of the executive officer, the appointing power may make temporary assignments pursuant to Government Code Section 19050.8 to meet program or departmental needs of limited duration that have a broad and significant impact on departmental operations and efficiency. Such needs must be urgent and nonrecurring and may involve either:
(1) Special projects or assignments that require a breadth and depth of demonstrated expertise or a level or response that cannot be obtained under normal staffing procedures; or
(2) Staffing situations that require temporary reassignments to prevent or alleviate a negative impact upon departmental operations and efficiency.
(c) Temporary assignments shall not be made or continued under this section where there is a reasonable basis for utilizing or pursuing other personnel management options, such as transfer, list appointment, classification plan changes, adverse action, layoff, probationary rejection, or medical termination. Other staff shall not be laid off, demoted, or similarly displaced as a result of temporary assignments made under this section.
(d) Employees placed on temporary assignments to meet a compelling management need shall remain in their current classifications for all purposes of the Act and these regulations. The duties and responsibilities of the position associated with the compelling management need may vary from those of the employee's appointment classification. Such assignments may only be made with the voluntary consent of the employee.
(e) An employee in a Career Executive Assignment may be placed in a temporary assignment to meet a compelling management need in accordance with the provisions of this section so long as such reassignment does not generate the need for an additional appointment to the Career Executive Assignment position. Prior executive officer approval shall be required.
(f) Either the employee or the appointing power may terminate the temporary assignment at any time for any reason, or the executive officer may terminate it, if it is determined to be inconsistent with the Government Code or board regulations.
(g) Within 30 days of approving any assignment under this section, the appointing power shall provide written notification of such assignment to the Department of Personnel Administration.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).
2. Change without regulatory effect of subsection (a) filed 12-21-88 (Register 89, No. 1).
3. New subsection (a) and relettering of following paragraphs filed 11-20-91; operative 12-20-91 (Register 92, No. 8).
4. Change without regulatory effect amending subsections (c)-(g) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§443. Temporary Assignments for Injured Employees.
Note • History
(a) Eligibility for returning injured employees to work assignments shall be limited to:
(1) employees who have permanent or probationary status in their present class; or
(2) employees who previously have had permanent or probationary status and who, since having had such status, have had no break in service due to a permanent separation.
(b) This section specifies when injured employees may receive temporary assignments involving duties of a class other than the one to which they are appointed. Temporary assignments involving duties that fall within the employee's appointment class may be made without respect to this section.
(c) For the purpose of Government Code Section 19050.8(c) an “injured” employee is an eligible employee with a medically verified disability, injury, or illness, whether job or nonjob related, that requires the employee to be reassigned to duties outside his/her current classification in order to remain productive.
(d) Eligibility for temporary assignments shall be limited to injured employees who, based on medical opinion, are unable to perform the essential duties of their current classification.
(e) When the employee and appointing power agree, an injured and eligible employee, including a career executive, may be placed in a temporarily modified work assignment involving duties not within the employee's current class for up to two years provided that:
(1) Such assignments shall not involve the duties of a class that has a promotional relationship to the employee's appointment class; and
(2) The assignments may involve the duties of a class that has a demotional relationship to the employee's appointment class only to the extent that such a demotional assignment is required in order to provide a productive work assignment that is within the employee's capability; and
(3) Such assignments for career executive employees require prior approval by the executive officer.
(4) Such assignments for career executive employees do not generate the need for an additional appointment to the Career Executive Assignment position.
(f) A probationary employee who is placed on a temporary assignment as defined in Government Code Section 19050.8(c) shall be considered temporarily absent from his/her appointment classification, and shall be subject to the probationary period extension provisions of Section 321.
(g) Either the employee or the appointing power may terminate the temporary assignment at any time for any reason, or the executive officer may terminate it, if it is determined to be inconsistent with the Government Code or board regulations.
NOTE
Authority cited: Section 19050.8, Government Code. Reference: Section 19050.8, Government Code.
HISTORY
1. New section filed 7-14-86; effective thirtieth day thereafter (Register 86, No. 29).
2. Change without regulatory effect of subsections (b) and (e) filed 12-21-88 (Register 89, No. 1).
3. New subsection (a) and relettering of following subsections including amendment to subsection (c) filed 11-20-91; operative 12-20-91 (Register 92, No. 8).
4. Change without regulatory effect amending subsections (b), (f) and (g) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§444. Publication and Screening.
Note • History
(a) Unless exempted under subsection (b), all transfers and training and development assignments that result in an employee moving to a position that is covered by an affirmative action or upward mobility goal established pursuant to Government Code Sections 19232, 19402, or 19790 shall be subject to the following posting and screening requirements.
(1) Advance notice of the opportunity for such movement shall be posted for at least seven days at the worksites of eligible departmental employees. Posting may be limited to geographic areas within which employees could reasonably be expected to accept the opportunity without a change of residence. The executive officer may specify a broader area of notice consistent with recruitment patterns for the class when she/he determines that an adequate affirmative action candidate group does not exist within the area specified above.
Alternatives to this posting process may be allowed when the executive officer finds that such alternatives are at least as effective as the prescribed process in meeting established affirmative action and upward mobility goals.
(2) The advance notice shall describe the opportunity and its duration and location and shall state that the opportunity is being offered consistent with State laws and Executive Orders ensuring equal opportunity for employment regardless of an applicant's sex, race, religion, ancestry, disability, age, or sexual orientation.
(3) All applicants must be considered based on published standards and criteria that have been made available to them during the application filing period. The consideration may consist of an application evaluation, oral interview, or similar civil service selection techniques.
(4) All applicants shall be informed of the results of the screening process. When the results will be used to select employees for future vacancies or training opportunities, the applicants shall be informed of their eligibility for such future selection.
(b) Transfers and training and development assignments shall be exempt from the requirements specified in section (a) when they:
(1) Involve movement of an employee between positions that are within the same classification and appointing power.
(2) Are intended to remedy a particular employee's performance deficiency that has been identified through the performance evaluation process conducted pursuant to Government Code Sections 19172 or 19992.2; or
(3) Provide a modified work assignment that is necessary to continue the employment of an injured or disabled employee; or
(4) Involve movement of an employee between positions under the same appointing power that fall within the same occupational and level category for affirmative action and upward mobility goal-setting purposes; or
(5) Are necessary to avoid the need to layoff or demote an employee, or involuntarily transfer an employee to another classification or to another geographic location that would require an employee to change his or her place of residence; or
(6) Are needed to continue the employment of an individual hired through the Career Opportunity Development Program established by the Welfare Reform Act of 1971.
NOTE
Authority cited: Sections 18701, 19792 and 19050.3, Government Code. Reference: Sections 19233, 19406 and 19792, Government Code.
HISTORY
1. New section filed 9-12-83; effective thirtieth day thereafter (Register 83, No. 38).
2. Change without regulatory effect of NOTE filed 12-21-88 (Register 89, No. 1).
3. Change without regulatory effect amending subsections (a)-(a)(1) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 20. Separations from Service
For the general statutory provisions on this subject, refer to Section 19500 of the act and sections following.
§445. Resignation from State Service. [Repealed]
History
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§446. Temporary and Permanent Separations.
Note • History
Temporary separations from state service shall include all types of leave of absence including leave under Section 599.785, military leave, suspension, termination for medical reasons, termination of permanent or probationary employee by layoff, termination by displacement, and disability retirement. Permanent separations from state service shall include dismissal; resignation; automatic resignation (AWOL); rejection during probationary period; termination for failure to meet conditions of employment; termination of limited-term, temporary authorization, emergency, Career Executive Assignment, or exempt appointment; and service retirement.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19996, Government Code.
HISTORY
1. New section filed 11-27-68; effective thirtieth day thereafter (Register 68, No. 45).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
4. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
5. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§447. Continuity of Intermittent Employment. [Repealed]
Note • History
NOTE
Reference: Section 19100, Government Code.
HISTORY
1. New section filed 5-15-73; effective thirtieth day thereafter (Register 73, No. 20).
2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)82); effective thirtieth day thereafter (Register 86, No. 20).
§448. Automatic Resignation of Intermittent Employees.
Note • History
(a) An intermittent employee whose continuity of employment in a position is interrupted by a nonwork period that extends longer than one year may be considered to have automatically resigned from the position without fault as of one year from the last day the employee was on pay status subject to the restrictions in subsection (b).
(b) separations are restricted to:
(1) nonwork periods not covered by a paid leave, a formal leave of absence without pay or other temporary separation and,
(2) those circumstances which create a presumption that the employee has abandoned his or her position.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19100.5, Government Code.
HISTORY
1. New section filed 5-15-73; effective thirtieth day thereafter (Register 73, No. 20).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
4. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
5. Designation and amendment of subsection (a), new subsections (b)-(b)(2) and amendment of Note filed 9-4-92; operative 10-5-92 (Register 92, No. 36).
Article 21. Layoff Review
For the general statutory provisions on this subject, refer to Section 19530 of the act and sections following.
§458. Corrective Action Initiated by the Executive Officer.
Note • History
When a position is reallocated to a lower class and the appointing authority fails within a four-month period following the reallocation either to reassign appropriate duties, to effect a change of status of the incumbent to a class appropriate for the assigned duties, or to develop a plan for corrective action which is approved by the executive officer, the executive officer may, pursuant to Government Code Section 18804, initiate a layoff in the class, including determining the area of layoff, or such other corrective action as deemed appropriate.
The appointing authority shall provide, upon request of the executive officer, in accordance with Government Code Section 18573, all the necessary information required to effect the corrective action.
The procedures established by the executive officer to implement this section shall provide for appropriate and timely notification to employees concerned of board actions which affect their position or status.
NOTE
Reference: Sections 18573 and 18804, Government Code.
HISTORY
1. New section filed 4-26-67; effective thirtieth day thereafter (Register 67, No. 17).
2. Amendment of section and NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of article heading filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19). For prior history of sections 450-457 and 460, see Register 25, No. 5, Register 60, No. 24 and Register 86, No. 20.
§460. Reemployment List Order.
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19533 and 19533.04, Government Code.
HISTORY
1. New section filed 10-3-80; effective thirtieth day thereafter (Register 80, No. 40).
2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
Note • History
A department undergoing layoff shall, prior to implementing a layoff, notify the board's executive officer of the impending layoff so that the executive officer may determine the applicability of Government Code Section 19798. If federal law or the United States Constitution requires the adjustment of the order of layoff pursuant to Government Code Section 19798, or if the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, a department may not proceed with a seniority-based layoff, but may have to adjust the order of layoff under the circumstances set forth in Section 471.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.
HISTORY
1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).
2. Repealer and new section and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Note • History
For purposes of this Article, in conjunction with the definitions used in Section 547.80, the following definitions shall apply:
(a) “Affected Workforce” means all employees in the class(es) of layoff.
(b) “Census Survey” is the assessment of affected workforce group members by means of analysis of questionnaires, in which the employees self-designate their race/ethnicity, gender, and, if applicable, disability category.
(c) “Class(es) of Layoff” means the class(es) designated for a reduction of incumbents through layoff, or demotion in lieu of layoff, under the provisions of Government Code Sections 19997, 19997.8 and 19997.9.
(d) “Department” means the civil service workforce under the appointing power initiating the layoff.
(e) “Relevant Labor Force” means the pool of individuals who possess the requisite qualifications for the classification or occupational group within the geographic area in which the department can reasonably expect to recruit.
NOTE
Authority cited: Sections 18701 and 19231, Government Code. Reference: Sections 11092.5, 12940, 19792, 19798, 19997, 19997.2, 19997.8 and 19997.9, Government Code; and Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).
HISTORY
1. New section filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.
2. Repealed by operation of Government Code section 11346.1(g) (Register 88, No. 26).
3. New section filed 6-16-88; operative 7-16-88 (Register 88, No. 26).
4. Amendment of subsection (b)(4)(G), new subsection (f) and relettering, and amendment of newly designated (g) and NOTE filed 2-24-92; operative 3-25-92 (Register 92, No. 12).
5. Change without regulatory effect amending subsections (a)(4)(G) and (g) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
6. Amendment of subsection (b)(4), repealer of subsections (b)(4)(A)-(G), and amendment of Note filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
7. Amendment of section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§471. Layoff Impact Determination.
Note • History
(a) A department undergoing layoff shall provide information to the board to allow the board to determine whether the department is required by federal law to adjust the order of layoff, or whether the department is mandated to conduct a seniority-based layoff, unless a seniority-based layoff would conflict with the provisions of a memorandum of understanding reached pursuant to the Ralph C. Dills Act, Government Code Section 3512 et seq. (Dills Act).
(1) The information to be provided to the board may consist of citation either to any applicable federal authority that requires the department to adjust the order of layoff pursuant to Government Code Section 19798, or to any information that shows that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds.
(2) If the department is subject to no federal authority that would require it to adjust the order of layoff pursuant to Government Code Section 19798, and is not aware of any information that shows that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, the department may so state in a declaration submitted to the board, and served upon the respective employee organization whose members may be impacted by the layoff.
(b) If the department determines that it is subject to the provisions of Government Code Section 19798, the department shall provide to the board evidence that it served upon the affected employee(s) and respective employee organization(s) notice of the department's determination under subsection 471(a)(1).
(c) If the executive officer determines that the department has demonstrated that it is not required by any federal authority to adjust the order of layoff and is not aware of any information that shows that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, the layoff review process shall end and the executive officer shall authorize the department to proceed with a seniority-based layoff of employees in the class(es) of layoff, unless a seniority-based layoff would conflict with the provisions of a memorandum of understanding reached pursuant to the Dills Act.
(d) If the executive officer determines pursuant to subsection 471(a)(1) that the department is required by federal law to adjust the order of layoff or that the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, and that therefore an adjustment of the order of layoff may be necessary, the department shall provide the following additional information to the board:
(1) Results of a departmental census survey of all employees in the class(es) of layoff, using SPB 1070, State Employee Race/Ethnicity Questionnaire (7/02), and SPB 131A, State Employee Disability Questionnaire Resurvey (6/01), which are hereby incorporated by reference in their entirety;
(2) Listing of the affected workforce incumbents in seniority order; and
(3) Any additional supporting information.
(e) Using the information provided by the department pursuant to subsections 471(d)(1), (2), and (3), the executive officer shall conduct a data analysis of the composition of the affected labor force by comparing the most relevant labor force representation with the current representation and post-layoff representation. If the analysis establishes that the labor force representation in the affected workforce after layoff would be either substantially the same as it was before such layoff, or equal to its relevant labor force percentage, the executive officer may authorize the department to proceed with a seniority-based layoff of employees in the class(es) of layoff.
(f) If the analysis conducted in subsection 471(e) establishes that the labor force representation after layoff will not be substantially the same as it was before layoff, the executive officer shall conduct an analysis of any evidence of the existence of discrimination in past hiring practices. This analysis shall include, but is not limited to, a review of job-related hiring and recruiting practices, bottom-line hiring and examination data, discrimination or merit issue complaints and appeals, or any other relevant and factual information. If this analysis establishes the possibility of past discriminatory hiring practices in the class(es) of layoff, the executive officer shall schedule a hearing as provided in Section 472.
(g) At any time during the board's review process, the executive officer may authorize a seniority-based layoff of part of the affected workforce in order to retain a sufficient number of employees with the highest seniority scores in the class(es) of layoff so as to maintain the same representation in the affected class(es) as existed prior to the layoff. Such retention shall not alter the order of seniority established for the current layoff.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18654.5, 19790 and 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.
HISTORY
1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).
2. Amendment filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.
3. Emergency language filed 7-9-87 repealed by operation of Government Code section 11346.1(f) (Register 88, No. 26).
4. Amendment filed 6-16-88; operative 7-16-88 (Register 88, No. 26).
5. Amendment filed 2-24-92; operative 3-25-92 (Register 92, No. 12).
6. Amendment of section heading, repealer and new section and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Note • History
All appeals submitted under this section shall be in writing and filed no later than 30 days from the date the affected employee, respective employee organization, or department was notified of the determination or decision of the department or executive officer under Section 471 by the department or the executive officer. Any factual assertions in support of the appeal shall be supported by documentary evidence and/or declarations under penalty of perjury.
(a) Appeal(s) as to the results of the departmental census survey and race/ethnicity, gender, or disability identification of the employee, and appeals as to whether the department is or is not mandated by federal law to adjust the order of layoff or would be at risk of losing federal funding if it does not adjust the order of layoff, shall be filed with the executive officer for resolution. The appeal(s) shall, at a minimum, set forth the legal and factual basis for the appeal(s). The executive officer shall investigate and may request additional information from the filing party and/or the department. If the appellant or the department disagrees with the decision of the executive officer, the appellant or the department may appeal that decision to the board, no later than 30 days from the date of notification of the determination by the executive officer. The board may rule on the appeal with or without a hearing.
(b) Appeal(s) as to the determination by the executive officer to allow the department to proceed with a seniority-based layoff of all or part of the affected workforce shall be filed with the Appeals Division of the State Personnel Board for resolution. The appeal(s) shall, at a minimum, set forth the legal and factual arguments as to why the determination(s) challenged in the appeal is/are improper. The Appeals Division shall be authorized to investigate and may conduct a hearing.
(c) The filing of an appeal pursuant to Section 37 shall not delay the implementation of a decision to proceed with a seniority-based layoff.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.
HISTORY
1. New section filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§472. Past Hiring Practices Hearing.
Note • History
When required by Section 471 or ordered pursuant to Section 471.1, the board shall conduct a hearing to determine if past discriminatory hiring practices have occurred in the class(es) of layoff.
(a) The executive officer shall give the department and employees in the affected workforce at least 15 days notice of the hearing and shall prepare a written report for the hearing. The report shall include all available data, statistical and otherwise, concerning past hiring practices related to the class(es) of layoff.
(b) Any other party may also present evidence at the hearing concerning past hiring practices related to the class(es) of layoff.
(c) If the board finds that past discriminatory hiring practices related to the class(es) of layoff have occurred, it shall:
(1) Issue Findings of Fact supporting its determination and an order to remedy such discrimination. To the extent permitted by law, such an order may include, but is not limited to, changing the order and/or subdivision(s) of layoff and reemployment so that the relative composition of the affected workforce of that category of employees discriminated against will be, as nearly as possible, the same immediately after the layoff as it was immediately before the layoff for those affected workforce groups.
(2) If the board finds no discrimination in past hiring practices has occurred, it shall issue an order requiring the layoff to continue in the normal order of seniority, unless a seniority-based layoff would conflict with the provisions of a memorandum of understanding reached pursuant to the Dills Act.
NOTE
Authority cited: Sections 18701 and 19702.1, Government Code. Reference: Sections 19790 and 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.
HISTORY
1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).
2. Amendment filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.
3. Emergency language filed 7-9-87 repealed by operation of Government Code section 11346.1(f) (Register 88, No. 26).
4. Amendment filed 6-16-88; operative 7-16-88 Register 88, No. 26).
5. Amendment of subsections (a) and (b) filed 2-24-92; operative 3-25-92 (Register 92, No. 12).
6. Amendment of section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§473. Considerations, Board Determination. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19798, Government Code.
HISTORY
1. New section filed 6-5-81; effective thirtieth day thereafter (Register 81, No. 23).
2. Renumbering and amendment of Section 473 to 472 filed 7-9-87 as an emergency; operative 7-9-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 11-6-87.
3. Emergency language filed 7-9-87 repealed by operation of Government Code Section 11346.1(f) (Register 88, No. 26).
4. Repealer filed 6-16-88; operative 7-16-88 (Register 88, No. 26).
Article 22. Duration Appointments
Note • History
Under authority of Section 19200 of the Government Code, the provisions of this article shall become effective whenever, subsequent to the adoption of this article, the Governor finds and proclaims that an emergency exists in preparing for the national defense.
NOTE
Reference: Section 19200, Government Code.
HISTORY
1. New Article 22 (§§ 500 to 513, inclusive) filed 11-27-50; designated to be effective when the Governor finds and proclaims that an emergency exists in preparing for the national defense. As of 12-2-50 the Governor has not made such a finding and proclamation (Register 22, No. 3).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Note • History
The executive officer shall require that appointments shall be made on a duration basis to all classes and positions in the state civil service, during the period these regulations are in effect except that he or she may permit regular appointments and hold regular examinations whenever this would be in the best interests of the State. Unless otherwise provided in these regulations, the regulations governing the status, tenure, and conditions of employment of regular employees shall govern the status and tenure of duration employees.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19100.5, Government Code.
HISTORY
1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
(a) “Duration appointment” means an appointment made under the provisions of Section 19200 of the Government Code and this article. Any such appointment shall terminate not later than 90 days after the Governor finds and proclaims that for the purposes of Section 19200 of the Government Code an emergency no longer exists.
(b) “Duration open examination” means an open competitive examination held for the express purpose of providing a list of persons available for duration appointment to state civil service positions.
(c) “Duration promotional examination” means a promotional examination held for the express purpose of providing a list of persons available for promotion by duration appointment to state civil service positions.
(d) “Duration employment list” means a duration eligible list, duration subdivisional promotional list, duration departmental promotional list, duration service-wide promotional list, duration departmental reemployment list, duration subdivisional reemployment list, or duration general reemployment list.
(e) “Duration eligible list” means a list of persons who have been examined in a duration open examination and who are eligible for certification only for duration appointment to state civil service positions.
(f) “Duration subdivisional promotional list” means a list of persons eligible for certification for duration appointment to a specific class resulting from a duration promotional examination for a particular subdivision of a state agency.
(g) “Duration departmental promotional list” means a list of persons eligible for certification for duration appointment to a specific class resulting from a duration promotional examination for a particular state agency.
(h) “Duration service-wide promotional list” means a list of persons eligible for certification for duration appointment to a specific class resulting from a duration promotional examination for the entire state service.
(i) “Duration general reemployment list” means a list established for the reemployment by duration appointment of persons in a particular class in any state agency, irrespective of the state agency in which the persons were previously employed.
(j) “Duration departmental reemployment list” means a list established for the reemployment by duration appointment of persons in a particular class in a particular state agency.
(k) “Duration subdivisional reemployment list” means a list established for the reemployment by duration appointment of persons in a particular class in a particular subdivision of a state agency.
(l) “Limited-term duration appointment” means a duration appointment from a duration or regular employment list for a period less than the probationary period.
(m) “Duration employee” means a person legally holding a position in the state civil service by reason of a duration appointment.
(n) “Probationary duration employee” or “duration probationer” means an employee who is serving a probationary period following a duration appointment from a duration or regular employment list.
(o) “Limited-term duration employee” means a duration employee appointed from a duration or regular employment list for a period less than the probationary period.
To establish lists of persons available for duration appointment, the executive officer may hold duration open examinations and duration promotional examinations. Duration employment lists shall not be used in making regular appointments. The regulations governing the conduct of regular examinations shall govern the conduct of duration examinations.
§504. Certification of Eligibles.
History
(a) Duration appointments may be made from regular or duration employment lists. The order of preference of employment lists in certifying eligibles for duration appointment shall be: subdivisional reemployment list, duration subdivisional reemployment list, departmental reemployment list, duration departmental reemployment list, subdivisional promotional list, duration subdivisional promotional list, departmental promotional list, duration departmental promotional list, general reemployment list, duration general reemployment list, service-wide promotional list, duration service-wide promotional list, eligible list, and duration eligible list.
(b) The certification of names from, the establishment of, and the maintenance of each type of duration employment list shall be done in accordance with the regulations that apply to the corresponding regular employment list, except as may be provided otherwise in these regulations.
(c) The acceptance or declination of a duration appointment from a regular employment list shall not affect the rights of an eligible to certification for a regular permanent appointment. The name of an eligible who accepts a duration appointment after certification from a regular employment list shall be retained on that list but the name shall not be certified in the making of additional duration appointments from that employment list.
HISTORY
1. Change without regulatory effect amending subsection (b) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§505. Probationary Period for Duration Appointment.
(a) Duration appointments shall be made subject to the same probation requirements as for regular permanent appointments.
(b) A permanent employee or a duration employee who has completed his probation and who has vacated his position to accept a duration appointment in another class and is rejected during the probationary period shall be reinstated in his former position.
§506. Eligibility for Promotion.
(a) Duration promotional examinations shall be open to permanent employees and duration employees who have completed their probation and shall otherwise be governed by the regulations applicable to regular promotional examinations.
(b) A duration employee shall not be eligible to compete in a regular promotional examination unless immediately preceding his duration appointment he had permanent civil service status in a class designated as appropriate for the examination.
§507. Reports of Performance. [Repealed]
History
HISTORY
1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§508. Counting of Duration Service. [Repealed]
History
HISTORY
1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
History
HISTORY
1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§510. Leave of Absence. [Repealed]
History
HISTORY
1. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§511. Discipline and Demotion.
The regulations governing the discipline, demotion, rejection, or dismissal of regular probationer or permanent employees shall apply to duration employees.
History
Except as otherwise provided in these regulations, the regulations governing reinstatement of probationary or permanent employees shall apply to duration employees.
HISTORY
1. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
(a) All duration appointments, unless sooner terminated by layoff or other means of separation, shall terminate 90 days after the Governor finds and proclaims that, for the purposes of Section 19200 of the Government Code, the emergency no longer exists. No duration employee, nor any person on a duration employment list, shall then be eligible for further state civil service employment except as he may otherwise be legally appointed.
(b) At the termination of a duration appointment, or of a temporary appointment immediately following the duration appointment, an employee who immediately preceding such appointments was a permanent or probationary employee shall be entitled to return to his former position, or a position in his former class in the same agency and in the same locality.
(c) All duration employment lists shall expire 90 days after the Governor finds and proclaims that for purposes of Section 19200 of the Government Code, the emergency no longer exists.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19100, Government Code.
HISTORY
1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§520. Personnel Reduction. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18031, 18032 and 18037, Government Code.
HISTORY
1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§521. Reduced Worktime Schedules. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18034(a), (b), (c), Government Code.
HISTORY
1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).
2. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§522. Return to Full-Time Work. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18034(d), Government Code.
HISTORY
1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§523. Layoff of Reduced Worktime Employees. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18034(e), 19530-19541, Government Code.
HISTORY
1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§524. Rights of Employees. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18038, and 18714(a), Government Code.
HISTORY
1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
§525. Reporting Programs. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18039, Government Code.
HISTORY
1. New section filed 4-3-81; effective thirtieth day thereafter (Register 81, No. 14).
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Repealer filed 5-15-86 as a change without regulatory effect pursuant to Title 1, California Administrative Code, Section 100(b)(2); effective thirtieth day thereafter (Register 86, No. 20).
Article 23. Training [Repealed]
HISTORY
1. Repealer of Article 23 (Sections 530-533, 533.1-533.3 and 534-536) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Article 24. Employer-Employee Relations [Repealed]
HISTORY
1. Repealer of Article 24 (Sections 540, 540.1-540.11 and 543-546) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35). For prior history of Article 24, including Section 541, see Registers 77, No. 17 and 77, No. 15.
Article 25. Discrimination [Repealed]
HISTORY
1. Repealer of article 25 (sections 547-547.2) filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34). For prior history, see Register 90, No. 22.
Article 26. Mandatory Retirement [Repealed]
HISTORY
1. Article 26 (sections 547.20-547.27) repealed pursuant to Title 1, Section 100(b)(2) of the California Administrative Code (Register 86, No. 28).
Article 27. Discriminatory Employment Practices [Repealed]
HISTORY
1. Change without regulatory effect repealing article 27 (sections 547.30-547.34) filed 6-24-98 pursuant to section 100, title 1 California Code of Regulations (Register 98, No. 26).
Article 28. Limited Examination and Appointment Program
Note • History
(a) This article shall apply to the alternative category of civil service examination and appointment established for the hiring of individuals with disabilities defined by Section 10. For purposes of this article, the alternative category shall be known as the “Limited Examination and Appointment Program” and referred to as LEAP in the remainder of this article.
(b) Participants in LEAP who receive a temporary appointment to a job classification established to assess their ability to perform in the regular civil service class shall have the same status as regular civil service employees with temporary appointments.
(c) All board regulations shall apply to persons participating in LEAP unless such regulations are in conflict with regulations in this article. If there is such a conflict, the regulations in this article shall apply.
NOTE
Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19240-19244, Government Code; and Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Change without regulatory effect amending subsections (a) and (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Amendment of subsection (a) and Note filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§547.51. LEAP Eligibility Criteria.
Note • History
(a) Only those applicants who possess the following shall be eligible to participate in the LEAP process:
(1) Written Verification from the California Department of Rehabilitation certifying that the applicant meets the definition of an individual with a disability contained in Section 10; and
(2) The education and experience requirements established by the board for participation in a LEAP classification examination.
(b) Where there is disagreement concerning the applicant's medical qualifications to be LEAP certified as specified in Section (a)(1), the executive officer shall determine the appropriateness of the certification based on the medical evidence submitted.
NOTE
Authority cited: Sections 18701 and 19421, Government Code. Reference: Sections 18931, 19241 and 19242.2, Government Code; and Public Health and Welfare Code, Title 42, Chapter 126, Sections 12101-12117 (Americans with Disabilities Act of 1990 [ADA]).
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Amendment filed 2-21-92; operative 3-23-92 (Register 92, No. 12).
3. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of subsection (a)(1) and Note filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§547.52. LEAP Readiness Evaluations.
Note • History
The education, experience and personal qualifications of LEAP applicants who meet the eligibility requirements of Section 547.51 shall be evaluated by competitive examination to determine readiness for appointment. Those applicants who are ready for immediate employment in a LEAP classification shall be placed on the referral list specified in Government Code Section 19242.2.
NOTE
Authority cited: Section 18701 and 19241, Government Code. Reference: Sections 19242 and 19242.2, Government Code.
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Amendment of section heading and section filed 7-14-98; operative 7-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 29).
§547.53. Appointment to a LEAP Classification.
Note • History
(a) Appointment to a LEAP classification shall be restricted to those who meet the criteria in Sections 547.51 and 547.52 and who are selected from a referral list as described in Section 19242.2, Government Code.
(b) LEAP eligibles shall remain on the referral list until they are appointed from the list or the list is abolished.
NOTE
Authority cited: Section 18701 and 19241, Government Code. Reference: Section 19242.4, Government Code.
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§547.54. LEAP Job Examination Period.
Note • History
(a) Appointment to a LEAP classification constitutes the beginning of a LEAP job examination period. The length of the LEAP job examination period shall be one-third the length of the probationary period of the permanent civil service class to which it is expected that the LEAP candidate will be appointed upon satisfactory completion of the LEAP job examination period unless extended under the provisions of Section 547.55(a) or reduced under the provisions of Section 547.55(b).
(b) Each LEAP candidate, upon appointment, shall be provided by the appointing power with written information which shall identify the specific knowledge, skills and abilities that are to be assessed in order to determine during the LEAP job examination period the candidate's ability to perform the duties of the permanent civil service classification to which appointment is sought.
(c) The executive officer shall determine the appropriate test of fitness for each LEAP classification. This test of fitness shall provide the LEAP candidates with sufficient opportunity to demonstrate that they possess the satisfactory level of knowledge, skill and ability to effectively perform the duties of the regular civil service classification to which appointment is sought.
(d) During the prescribed LEAP job examination period, the appointing power shall evaluate each LEAP candidate's ability to perform satisfactorily the duties of the regular civil service classification to which appointment is sought. LEAP candidate shall receive a written report of evaluation from the appointing power no less than once every four weeks.
NOTE
Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19242.4 and 19242.8, Government Code.
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Change without regulatory effect amending subsection (a) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§547.55. Extension or Reduction in Job Examination Period.
Note • History
(a) When the executive officer determines that the LEAP candidate has not been given the opportunity to demonstrate knowledge, skill and ability in a specific area identified in Section 547.54(b), the LEAP job examination period shall be extended for a period determined appropriate by the executive officer. Such extensions shall not result in the appointment exceeding the nine-month limit specified in Article VII of the State Constitution.
(b) The LEAP job examination period specified in Section 547.54(a) shall be reduced if the executive officer determines that all of the following apply:
(1) The LEAP candidate held a position in state civil service during twelve-month period prior to the effective date of the LEAP appointment; and
(2) The duties performed in the position in (1) above were equivalent in level of responsibility and requirements of knowledge, skills and abilities to the duties of the position to which the LEAP candidate will be appointed upon completion of the LEAP job examination period; and
(3) The position in (1) above was held by the LEAP candidate for a period of time that equals or exceeds the LEAP job examination period specified in Section 547.54(a); and
(4) The LEAP candidate has written evidence of satisfactory performance in all aspects of the position in (1) above; and
(5) The LEAP candidate's current appointing power requests that the LEAP job examination period be reduced.
(c) If all conditions specified in (b) above are met, the job examination period shall be reduced to a period determined appropriate by the executive officer.
NOTE
Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19242.4 and 19243.2, Government Code.
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Change without regulatory effect amending section heading and subsections (a), (b) and (b)(3) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§547.56. Transition from LEAP Position to Regular Civil Service Position.
Note • History
(a) The executive officer shall approve the LEAP candidate appointment to the regular civil service classification that corresponds to the LEAP classification if the following conditions are met:
(1) The job examination period specified in Section 547.54(a) has been successfully completed; and
(2) The appointing power submits verification to the executive officer that the LEAP candidate has successfully completed the LEAP job examination period.
(b) If, within 30 days of the end of the job examination period, the appointing power does not either extend the candidate's job examination period in accordance with Government Code Section 19243.2, or terminate the candidate's appointment in accordance with Government Code Section 19243.4, the candidate shall be presumed to have qualified in the examination and shall be appointed to the regular civil service classification effective the day following the last day of the job examination period.
NOTE
Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19242.9, 19243, 19243.2, and 19243.4, Government Code.
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Amendment of subsection (a)(1), (b) and NOTE filed 2-21-92; operative 3-23-92 (Register 92, No. 12).
3. Change without regulatory effect amending subsection (a)(1) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§547.57. Termination During Job Examination Period.
Note • History
(a) A LEAP candidate's appointment shall be terminated by the appointing power during or no later than 30 days following completion of the LEAP job examination period for failure to meet conditions for appointment provided in Section 547.53; failure to satisfactorily demonstrate the level of knowledge, skill and ability required by Section 547.54; for other reasons relating to the candidate's qualifications; for the good of the service; or for failure to demonstrate merit, efficiency, fitness including medical condition, or moral responsibility; but he or she shall not be terminated for any cause constituting prohibited discrimination as set forth in Government Code Sections 19700 to 19703, inclusive.
(b) A LEAP candidate whose appointment is terminated shall be given written notice by the appointing power of the proposed action at least five working days prior to the effective date of the termination. Such notice shall specify the reasons for the termination, the right to respond to the appointing power and the right to appeal the action to the State Personnel Board under the provisions of Sections 51-54.2.
(c) An appeal from termination shall be assigned to the hearing office process as defined in Section 52. The provisions of Government Code Sections 19574.1, 19574.2, 19579, 19580, 19581, and 19581.5 shall apply in the disposition of an appeal.
(d) To resolve the appeal, the board shall do one of the following:
(1) Affirm the action of the appointing power.
(2) Modify the action of the appointing power.
(3) Restore the name of the appellant to the LEAP referral list from which appointed.
(4) Restore the appellant to the position from which he or she was terminated but this shall be done only if the board determines, after hearing, that there is no substantial evidence to support the reason or reasons for termination, or that the termination was made in fraud or bad faith. At any such hearing, the appellant shall have the burden of proof; subject to rebuttal by him or her, it shall presumed that the termination was free from fraud and bad faith and that the statement of reasons therefor in the notice of termination is true.
(e) If the board restores a terminated LEAP candidate to his or her position, it shall direct the payment of salary to the employee for such period of time as the termination was improperly in effect as prescribed in Government Code Section 19180.
(f) The board, by decision or upon written request of a LEAP candidate whose appointment is terminated for reasons relating to the LEAP candidate's ability to demonstrate the knowledge, skill, and ability required by Section 547.54 and who is legally eligible for appointment in accordance with Section 547.53, shall restore the name of the LEAP candidate to the LEAP referral list from which appointed for the remaining period of eligibility.
NOTE
Authority cited: Sections 18701 and 19241, Government Code. Reference: Sections 19180, 19243.4, 19244, 19574.1, 19574.2, 19579, 19580, 19581, and 19581.5, Government Code.
HISTORY
1. New section filed 5-17-89; operative 6-1-89 (Register 89, No. 21).
2. Amendment filed 2-21-92; operative 3-23-92 (Register 92, No. 12).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Subchapter 1.5. Personal Services Contracts
Article 1. Definitions
§547.59. Definition of a Personal Services Contract.
Note • History
(a) A “Personal Services Contract” is defined as any contract, requisition, purchase order, etc. (except public works contracts) under which labor or personal services is a significant, separately identifiable element. The business or person performing these contractual services must be an independent contractor that does not have status as an employee of the State.
(b) A “cost-savings based Personal Services Contract” is any Personal Services Contract proposed to achieve cost savings and subject to the provisions of Government Code Section 19130(a).
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19130, Government Code.
HISTORY
1. Change without regulatory effect renumbering and amending former section 279.1 to section 547.59 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
2. Editorial correction providing correct placement for section 547.59 in subchapter 1.5, article 1 (Register 99, No. 51).
3. Change without regulatory effect renumbering and relocating former article 1 heading to article 2 and adopting new article 1 heading filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).
Article 2. Procedures for Reviewing Personal Services Contracts Proposed or Entered Into Pursuant to Government Code §19130(b)
§547.60. Standard and Control for Approval of Contracts.
Note • History
When a state agency requests approval from the Department of General Services for a contract let under Government Code §19130(b), the agency shall include with its contract transmittal a written justification that includes specific and detailed factual information that demonstrates how the contract meets one or more of the conditions specified in Government Code §19130(b).
NOTE
Authority cited: Section 10337(a), Public Contract Code; and Section 18701, Government Code. Reference: Section 19130, Government Code.
HISTORY
1. New subchapter 1.5 (articles 1-3), article 1 (sections 547.60-547.63) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
2. Change without regulatory effect renumbering and relocating former article 1 heading to article 2 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).
§547.61. Employee Organization's Request for Review.
Note • History
(a) Any employee organization that represents state employees may request that the board review a contract proposed or executed by a state agency pursuant to Government Code §19130(b) by filing with the board and serving upon the state agency a written request for review. The employee organization's request for review shall identify the contract to be reviewed and include the following:
(1) specific and detailed factual information that demonstrates how the contract fails to meet the conditions specified in Government Code §19130(b); and
(2) documentary evidence and/or declarations in support of the employee organization's position.
(b) The employee organization shall file a proof of service with the board that states when and how it served a copy of its request for review upon the state agency.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
§547.62. State Agency's Response.
Note • History
Within 7 days after the state agency receives a copy of the employee organization's request for review, the state agency shall serve a copy of that request upon the contractor(s) to the disputed contract. Within 15 days after the state agency receives a copy of the employee organization's request for review, the state agency shall file with the board and serve upon the employee organization:
(a) a copy of the proposed or executed contract; and
(b) the state agency's written response to the employee organization's request for review, which shall include:
(1) specific and detailed factual information that demonstrates how the contract meets one or more of the conditions specified in Government Code §19130(b); and
(2) documentary evidence and/or declarations in support of the state agency's position.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
§547.63. Employee Organization's Reply.
Note • History
Within 5 days after it receives from the state agency a copy of the contract and the state agency's response, an employee organization may file with the board and serve upon the state agency a written reply to the state agency's response.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
Article 3. Supplemental Procedures for Reviewing Personal Services Contracts Executed Under Either Government Code §19130(a) or §19130(b)
§547.64. Executive Officer Decision.
Note • History
Within 30 days after receiving a copy of the proposed or executed contract, the executive officer shall do one of the following:
(a) If the employee organization has shown that good cause exists for referring the disputed contract for a hearing for the purpose of taking evidence and hearing arguments, the executive officer, in accordance with §547.65, shall refer the matter to an administrative law judge or other authorized representative of the board to conduct an evidentiary hearing and submit a proposed decision; or
(b) If the employee organization has not shown that good cause exists for referring the disputed contract for a hearing for the purpose of taking evidence and hearing arguments, the executive officer shall issue a written decision either approving or disapproving the contract and explaining the reasons for the decision. The executive officer shall promptly give notice of his decision to all parties.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19130 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New article 2 (sections 547.64-547.65) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
2. Change without regulatory effect renumbering former article 2 heading to article 3 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).
Note • History
(a) Request for a Board Hearing. The employee organization may request that, in lieu of the executive officer making a decision approving or disapproving the disputed contract, the disputed contract be referred to the board for a hearing. To make such a request, the employee organization shall include with its request for review written arguments, evidence, and/or declarations that show good cause exists for scheduling a hearing for the purpose of receiving evidence and hearing arguments concerning the propriety of the disputed contract.
(b) Good Cause. In order to show that good cause exists for referring the disputed contract for a hearing for the purpose of taking evidence and hearing arguments, the employee organization must show that there are disputed issues of material fact regarding the contract that must be resolved before a determination is made as to whether the disputed contract meets the criteria of Government Code §19130 and that an evidentiary hearing is necessary to resolve these disputed issues of material fact.
(c) Executive Officer Determination. The determination as to whether the employee organization has shown that good cause exists for referring the disputed contract for an evidentiary hearing shall be made by the executive officer. If the executive officer determines that good cause does not exist for referring the disputed contract for an evidentiary hearing, the contract review process shall proceed as an investigation, and the executive officer shall issue a decision approving or disapproving the contract.
(d) Conduct of an Evidentiary Hearing. Upon finding that the employee organization has shown good cause for referring the disputed contract for an evidentiary hearing, the executive officer shall refer the contract to an administrative law judge or other authorized representative of the board to conduct an evidentiary hearing and submit a proposed decision to the board in accordance with the procedures set forth in Government Code, Title 2, Division 5, Part 2, Chapter 2, Article 2 (commencing with §18670) and Chapter 7, Article 1 (commencing with §19570), and the board regulations promulgated thereunder.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
Article 4. Procedures for Appealing an Executive Officer's Decision Approving or Disapproving a Contract Under Government Code §19130(a) or §19130(b) to the Board
§547.66. Appeal from an Executive Officer's Decision.
Note • History
Any party may appeal the executive officer's decision to the board by filing a written request with the board within 30 days after issuance of the executive officer's decision. (See §547.64(b).) Upon receipt of a timely appeal, the executive officer shall schedule the matter for briefing and oral arguments before the board. The board will decide the appeal upon the factual information, documentary evidence, and declarations submitted to the executive officer before he or she issued his or her decision. Upon the objection of a party, the board will not accept additional factual information, documentary evidence, or declarations that were not previously filed with the executive officer if the board finds that the submission of this additional factual information, documentary evidence, or declarations would be unduly prejudicial to the objecting party.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18654.5, 18670, 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New article 3 (section 547.66) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
2. Change without regulatory effect renumbering former article 3 heading to article 4 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).
Article 5. Procedures that Apply to Review Proceedings for Contracts Executed Under Government Code §19130(a) or §19130(b)
Note • History
(a) Continuances and Extensions. The executive officer may grant continuances of oral arguments before the board and extensions of time for briefs or other documents for those oral arguments upon the consent of all parties or for good cause shown.
(b) Filing. Requests for review, agency responses, briefs, and other documents may be filed with the board by facsimile sent to the chief counsel's office. A document will be considered filed with the board when the board actually receives it.
(c) Service. Requests for review, agency responses, briefs and other documents shall be served upon all other parties by personal delivery, facsimile, telecopy, express mail or other means designed to ensure that they are received by the other parties on the same day they are filed with the board.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New article 4 (sections 547.67-547.68) and section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
2. Change without regulatory effect renumbering former article 4 heading to article 5 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).
Note • History
(a) At any time after an employee organization requests that that board review a contract for compliance with Government Code §19130(a) or §19130(b), a contractor to the disputed contract may move to intervene as a party in the contract review process. Either the executive officer, administrative law judge or authorized representative who conducts an evidentiary hearing, or board, may grant a motion for intervention if all the following conditions are satisfied:
(1) A written motion is filed with the board, with copies served upon the state agency and the employee organization.
(2) The motion is made as early as practicable.
(3) The motion states facts demonstrating that the applicant has an interest in the disputed contract that may be affected by a decision upon that contract or that the applicant qualifies as an intervenor under a statute or regulation.
(4) The executive officer, administrative law judge, authorized representative or board determines that the interests of justice and the orderly and prompt conduct of the contract review process will not be impaired by allowing the intervention.
(b) If an applicant qualifies for intervention, the executive officer, administrative law judge, authorized representative or board may impose conditions on the intervenor's participation in the contract review process, either at the time that intervention is granted or at a subsequent time. Conditions include, but are not limited to, the following:
(1) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the motion.
(2) Limiting or excluding the intervenor's participation in any proceedings so as to promote the orderly and prompt conduct of the executive officer's investigation, the administrative law judge's or authorized representative's evidentiary hearing, or the oral arguments before the board.
(3) Requiring two or more intervenors to combine their presentations of evidence and arguments, and other participation during the executive officer's investigation, the administrative law judge's or authorized representative's evidentiary hearing, or oral arguments before the board.
(4) Limiting or excluding the intervenor's participation in settlement negotiations.
(c) As early as practicable in advance of the executive officer's investigation, the administrative law judge's or authorized representative's evidentiary hearing, or oral arguments before the board, the executive officer, administrative law judge, authorized representative or board shall issue an order granting or denying the motion for intervention, specifying any conditions, and briefly stating the reasons for the order. The executive officer, administrative law judge, authorized representative or board may modify the order at any time, stating the reasons for the modification. The executive officer, administrative law judge, authorized representative or board shall promptly give notice of an order granting, denying, or modifying intervention to the applicant and to all parties.
(d) Whether the interests of justice and the orderly and prompt conduct of the contract review process shall be impaired by allowing intervention is a determination to be made in the sole discretion, and based on the knowledge and judgment at that time, of the executive officer, administrative law judge, authorized representative or board. The determination is not subject to administrative or judicial review.
(e) If a contractor's motion for intervention is denied, the executive officer, administrative law judge, authorized representative or board may permit that contractor to submit written arguments and participate in the executive officer's investigation, the evidentiary hearing before the administrative law judge or authorized representative, or oral arguments before the board as the executive officer, administrative law judge, authorized representative or board may deem appropriate under the circumstances.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11440.50, 19130, 19131 and 19132, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. New section filed 5-3-99; operative 5-3-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 19).
2. Change without regulatory effect correcting reference citation to Government Code section 11440.50 filed 5-4-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 19).
Article 6. Procedures that Apply to Contracts Under Government Code §19130(a)
§547.69. State Agency Notice of Intent to Execute Cost Savings Personal Services Contract.
Note • History
(a) Any state agency proposing to execute a contract pursuant to Government Code section 19130(a), shall file with the board a Notice of Intent to Execute Personal Services Contract.
(b) The Notice of Intent shall include the following:
(1) A complete copy of the proposed contract;
(2) The following information with respect to those civil service employees who would otherwise perform the services to be rendered under the contract:
(A) The number of civil service employees in each classification who would otherwise perform the services;
(B) The number of hours required for each civil service employee to perform the services;
(C) The base hourly wage, as set forth in the State of California Civil Service Pay Scale, that the agency would be required to pay civil service employees to perform those services to be rendered under the contract.
(i) The cost of any employee benefits, as set forth in section (b)(2)(D), direct overhead costs, as set forth in section (b)(2)(E), indirect overhead costs, as set forth in section (b)(2)(F), or any other costs, shall not be included in the base hourly wage calculation, unless specifically authorized by this section;
(ii) The cost of any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, that the agency is required by law or collective bargaining agreement to pay to employ civil service employees to perform those services to be rendered under the contract, shall be calculated as part of the base hourly wage. If the bonus or differential is disbursed as a lump sum payment, the cost of the bonus or differential shall be amortized over the term of the proposed contract. The cost of any remuneration paid to an employee due to the employee possessing specialized skills or abilities (e.g., bilingual verbal and written skills), shall not be included as part of the base hourly wage, unless the specialized skill or ability is a prerequisite for employment in the civil service position that performs those services to be rendered under the contract. The state agency shall provide detailed, factual information concerning its assertion that it is required to pay any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, or that it incurs any additional costs to compensate individuals with specialized skills or abilities, in order to employ civil service employees to perform those services to be rendered under the contract.
(D) The hourly cost of employee benefits the agency would be required to provide to each civil service employee to perform those services to be rendered under the contract.
(i) For those proposed contracts not subject to the provisions of Government Code section 19134, employee benefits shall be itemized and limited to the following: health insurance premiums; dental insurance premiums; vision insurance premiums; employer contributions to employee retirement plans, including social security; paid holidays; sick leave benefits; and vacation leave benefits. For purposes of this section, hourly benefit costs shall be derived by calculating the annual cost per employee for each specified benefit, divided by the number of hours each employee is employed on an annual basis. The state agency shall also disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each specified employee benefit;
(ii) For those proposed contracts subject to the provisions of Government Code section 19134, hourly benefit costs shall be established using rates based on single employee, employee plus one dependent, and employee plus two or more dependents, or the costs may be based on a blended rate, as set forth in the “Personal Services Contract Pay Rates” published by the Department of Personnel Administration. To the extent that the hourly benefit rates established by the Department of Personnel Administration consist of items that would otherwise be categorized under the base hourly wage, direct overhead cost, or indirect overhead cost provisions of this section, the agency may only include those items as hourly benefit costs;
(E) The hourly cost of direct overhead costs the state agency would incur if it employed civil service employees to perform those services to be rendered under the contract.
(i) For purposes of this section, direct overhead costs shall be itemized and include, but not be limited to, the following: workers compensation insurance budget costs; unemployment insurance budget costs; disability insurance budget costs; additional rent and utilities that would only be incurred if the services in question were performed by the civil service; additional equipment and materials needed to perform those services to be rendered under the contract that would only be incurred if the services in question were performed by the civil service; uniforms; training mandated by law or otherwise required by the agency; background investigations, medical examinations, or drug testing, mandated by law or otherwise required by the agency; and reimbursement for licenses, certificates, or similar requirements needed before a civil service employee can perform those services to be rendered under the contract. For purposes of this section, hourly direct overhead costs shall be derived by calculating the annual cost per employee for each specified direct overhead cost, divided by the number of hours each employee is employed on an annual basis. The state agency shall also disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each specified direct overhead cost;
(ii) The cost of any equipment necessary to perform the contracted-for services claimed as a direct overhead cost shall be calculated by establishing the cost incurred each year by the contracting agency for the use of the equipment. (For example, a laptop computer purchased at an initial cost of $2,000.00, depreciates at a rate of $500.00 per year for each year of use. For a contract of three years duration, the state agency can claim computer equipment costs of $500.00 per year, for a total contract cost of $1,500.00.) If the equipment is leased, the contracting agency can claim the annual lease cost of the equipment as an annual direct overhead cost. The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each piece of equipment identified as a direct overhead cost incurred in the performance of the contracted-for services.
(iii) The cost of any uniforms claimed as a direct overhead cost shall be calculated by establishing the cost incurred each year by the contracting agency for the purchase of uniforms. (For example, for a contract of four years duration, the state agency purchases uniforms for each civil service employee at a cost of $200.00 during the first year of the contract, and $200.00 during the third year of the contract, for a total of $400.00 during the four year contract term. The state agency can claim $100.00 per employee, per year, in uniform costs.) In those instances where the civil service employee receives an annual uniform allowance, the annual uniform allowance shall be allowed as a direct overhead cost. The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each uniform cost identified as a direct overhead cost.
(iv) Any other costs incurred by the state agency when employing civil service employees to perform the contracted-for services, and claimed by the state agency as a direct overhead cost, including, but not limited to, the cost of background investigations, medical examinations, drug testing, license procurement, certificate procurement, or training, shall be calculated by establishing the cost incurred each year by the contracting agency for each cost claimed. (For example, for a contract of four years duration, the state agency conducts drug testing for each civil service employee at a cost of $200.00 during the first year of the contract, and $200.00 during the third year of the contract, for a total of $400.00 during the four year contract term. The state agency can claim $100.00 per employee, per year, in drug testing costs.) The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each expense identified as a direct overhead cost.
(F) The hourly cost of indirect overhead costs the state agency would incur if civil service employees were to perform those services to be rendered under the contract. Indirect costs shall not be included unless the cost can be attributed solely to the function in question and would not exist if that function were not performed in state service.
(i) For purposes of this section, indirect overhead costs shall be itemized and include, but not be limited to, the following: the pro rata share of existing administrative salaries and benefits (including managers who do not directly supervise the civil service employees performing those services to be rendered under the contract, human resources staff who process the recruitment, hiring, and separation of the civil service employees performing those services to be rendered under the contract, and executive management staff who have oversight of the program(s) impacted by the contract), rent, utilities, equipment costs and materials. For purposes of this section, hourly indirect overhead costs shall be derived by calculating the annual pro rata cost per employee for each specified indirect overhead cost incurred as a result of the agency performing those services to be rendered under the contract, divided by the number of hours each employee is employed on an annual basis. The state agency shall also disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual cost for each specified indirect overhead cost;
(G) The total hourly cost, based on those costs set forth in subdivisions (C) through (F), the state agency would incur for each civil service employee, if civil service employees were to perform those services to be rendered under the contract.
(H) A statement explaining why existing civil service employees cannot be re-directed or otherwise utilized to perform those services to be rendered under the contract.
(3) The following information with respect to the contract employees who are to perform the services to be rendered under the contract:
(A) The number of employees required to perform each of the services to be rendered under the contract;
(B) The number of hours each employee shall perform services under the contract;
(C) The base hourly wage that will be paid to each contract employee performing a function under the contract that would otherwise be performed by the civil service.
(i) The contractor shall verify that the cost of any employee benefits, as set forth in section (b)(3)(D), direct overhead costs, as set forth in section (b)(3)(E), or any other costs incurred by the contractor, shall not be included in the base hourly wage calculation, unless specifically authorized by this section. The contractor shall also verify that it is in compliance with all applicable state and federal labor laws;
(ii) The cost of any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, that the contractor is required to pay to employ private employees to perform those services to be rendered under the contract, shall be calculated as part of the base hourly wage. If the bonus or differential is disbursed as a lump payment, the cost of the bonus or differential shall be amortized over the term of the proposed contract. The cost of any remuneration paid to an employee due to the employee possessing specialized skills or abilities (e.g., bilingual verbal and written skills), shall not be included as part of the base hourly wage, unless the specialized skill or ability is a prerequisite to perform those services to be rendered under the contract. The state agency shall provide detailed, factual information concerning its assertion that the contractor is required to pay any recruitment or retention pay bonus or differential, or any geographic pay bonus or differential, or that the contractor incurs any additional costs to compensate individuals with specialized skills or abilities, in order to employ private employees to perform those services to be rendered under the contract.
(D) The hourly cost of employee benefits that will be provided to each contract employee.
(i) For those proposed contracts not subject to the provisions of Government Code section 19134, employee benefits shall be itemized and limited as set forth in section (b)(2)(D)(i), supra;
(ii) For those proposed contracts subject to the provisions of Government Code section 19134, hourly benefit costs shall be established as set forth in Section (b)(2)(D)(ii), supra;
(iii) Pursuant to Government Code section 19134, subdivision (d), if, in lieu of providing actual benefits as listed in subdivision (b)(3)(D)(i) of this section, the private contractor intends to provide a cash equivalent, the amount of the cash equivalent shall be equal to the applicable determination under subdivision (b)(3)(D)(ii) of this section;
(E) The hourly cost of direct overhead costs the private contractor will incur for each employee employed under the contract.
(i) For purposes of this section, direct overhead costs shall be itemized and include, but not be limited to, those items set forth in Section (b)(2)(E)(i) and (ii), supra;
(F) The total hourly amount the private contractor will charge the state agency for each contract employee to perform those services to be rendered under the contract.
(G) The annual costs the state agency will incur for activities related to inspection, supervision and monitoring activities to ensure proper administration of the contract. Inspection, supervision, and monitoring costs shall include, but not be limited to, the pro rata share of existing administrative salaries and benefits necessary for supervising and monitoring the contract, including costs associated with personnel supervision, invoice review, and the contract bidding process. Inspection, supervision and monitoring costs shall also include additional security or other risk costs incurred by the agency as a result of the contract. The state agency shall disclose the basis for, and methodology utilized, in arriving at its conclusions as to the annual contract inspection, supervision and monitoring costs, and specify the number of hours expended annually by agency staff, on a position-by-position basis, on contract inspection, supervision and monitoring duties. If no costs are claimed for oversight, the state agency shall provide the factual basis for its assertion;
(4) The industry level hourly wage for those services to be rendered under the contract. The term “industry level hourly wage “ as used in this section means the prevailing hourly rate of pay for the type of work in question in the local area where the contract would be let, as measured by reliable and statistically representative wage surveys such as those conducted by the Department of Industrial Relations or the Bureau of Labor Statistics. In the event that the most recent relevant wage survey data published by the Department of Industrial Relations differs from the wage survey data published by the Bureau of Labor Statistics, the board shall rely upon the wage survey data published by the Department of Industrial Relations, unless the wage survey data published by the Bureau of Labor Statistics is based on more recent information. The state agency shall identify the wage survey utilized and the date it was issued, and shall specify whether the wage is calculated in terms of mean or median wage.
(5) That the contract will not result in the displacement of civil service employees.
(A) For purposes of this section, displacement shall be limited to: layoff; involuntary demotion; involuntary transfer to a new class; involuntary transfer to a new location requiring a change of residence, and as defined in Department of Personnel dministration regulations; and time base reductions. Displacement does not include: changes in shifts or days off; reassignment to other positions within the same class and general geographic location;
(6) That the contract will not have an adverse impact on State Equal Employment Opportunity efforts, as set forth in Section 547.74;
(7) That the contract was awarded through a publicized, competitive bidding process;
(8) That the contract includes specific provisions pertaining to the qualifications of the staff who will perform each aspect of the work under the contract, as well as assurances that the contractor's hiring practices meet applicable nondiscrimination standards;
(9) That the potential for future economic risk to the state from potential contractor rate increases is minimal.
(10) That the contract is with a firm.
(A) A firm means a corporation, partnership, nonprofit organization, or sole proprietorship; and
(11) That the potential economic advantage of contracting is not outweighed by the public's interest in having a particular function performed directly by the state government.
(12) The state agency shall submit documentary evidence and/or declarations in support of the information provided by the state agency in accordance with the requirements of subsections (2) through (11).
(c) The board shall, within 5 days of receipt of the Notice of Intent to Execute Personal Services contract, forward a copy of the Notice to the employee organization(s) that represent(s) those civil service employees who would otherwise perform those duties to be rendered under the contract.
NOTE
Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19134, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. Change without regulatory effect adding new article 5 (sections 547.69-547.71) and renumbering former section 279.2 to section 547.69 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
2. Change without regulatory effect renumbering former article 5 heading to article 6 filed 2-7-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 6).
3. Amendment of article heading, renumbering of former section 547.69 to section 547.72 and new section 547.69 filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).
§547.70. Employee Organization's Request for Review.
Note • History
(a) Any employee organization that receives notification from the board, pursuant to Government Code section 19131, of a state agency's Notice of Intent to Execute Personal Services contract shall, within 15 days of the date of such notice having been mailed to the employee organization, be entitled to file with the board and to serve upon the state agency, a request for review of the contract for compliance with the requirements of Government Code section 19130(a). The employee organization's request for review shall identify the contract to be reviewed and include the following:
(1) Specific and detailed factual information that demonstrates how the contract fails to meet the conditions specified in Government Code section 19130(a); and
(2) Documentary evidence and/or declarations in support of the employee organization's position.
(b) The employee organization shall file a proof of service with the board that states when and how it served a copy of its request for review upon the state agency.
NOTE
Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19134, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. Change without regulatory effect renumbering and amending former section 279.3 to section 547.70 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
2. Renumbering of former section 547.70 to section 547.74 and new section 547.70 filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).
Note • History
(a) Within 10 days after receipt of service of the employee organization's request for review, the state agency may file with the board and serve upon the employee organization and the proposed contractor(s) a written reply to the employee organization's request.
(b) The state agency shall file a proof of service with the board that states when and how it served a copy of its reply upon the employee organization and the proposed contractor(s).
NOTE
Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 18670, 19130, 19131 and 19134, Government Code; and Section 10337, Public Contract Code.
HISTORY
1. Change without regulatory effect renumbering and amending former section 279.4 to section 547.71 filed 12-1-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 49).
2. Renumbering of former section 547.71 to section 547.73 and new section 547.71 filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).
§547.72. Undercut of State's Wage in Cost-Savings Based Contracts.
Note • History
When a Personal Services Contract is based on cost savings, a contractor's wages shall be at or above the industry's level and shall not undercut the State's pay rate for comparable work by more than 15%, except that if in a nonmetropolitan area of the State the contractor's rate of pay is more than 15% below the state rate, the contract may be approved if the contractors rate of pay is closer to the State rate than it is to the comparable industry rate in the local area. In no case shall a contractor's wages be more than 25% below the State's pay rate. Comparison of wages for this purpose shall not include the cost of benefits.
(a) Comparison of the contractor's and State's hourly rates will be made as follows:
(1) For contracts of one year or less duration, comparison shall be to the first step of the salary range of the class designated as the type of work performed by the Personal Services Contract except for classes with a special in-grade salary adjustment (SISA). In this case, comparison shall be made to the midpoint between the first and second steps.
(2) For contracts with durations of over one year up to two years, comparison shall be to the midpoint between the first and second steps of the salary range of the class designated as the type of work performed by Personal Services Contract except for classes with a SISA. Comparison in this case shall be made to the second step.
(3) For contracts with durations of over two years, comparison shall be to the second step of the salary range of the class designated as the type of work performed by Personal Services Contract.
(b) Cost-savings based Personal Services Contracts with duration of more than one year shall contain a clause indicating that in the event of an increase in the State's pay rates, the contractor's wage rate will be reviewed and adjusted in subsequent years of the contract so as not to exceed the relationship with State and industry rates identified in the first paragraph of this section.
(c) The term “industry rate” as used in this section means the prevailing hourly rate of pay for the type of work in question in the local area where the contract would be let, as measured by reliable and statistically representative wage surveys such as those conducted by the Bureau of Labor Statistics or the Department of Industrial Relations. In the event that the most recent relevant wage survey data published by the Department of Industrial Relations differs from the wage survey data published by the Bureau of Labor Statistics, the board shall rely upon the wage survey data published by the Department of Industrial Relations, unless the wage survey data published by the Bureau of Labor Statistics is based on more recent information.
NOTE
Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Section 19130(a)(2), Government Code.
HISTORY
1. Renumbering of former section 547.69 to section 547.72, including amendment of subsection (c) and Note, filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).
Note • History
(a) Savings generated through cost-savings based personal services contracting must justify the size and duration of the contracting agreement. To do so, such contracts must meet one of the following criteria:
(1) Achieve a savings of 10% or more compared to the cost of performing the same function within the civil service over the duration of the contract; or
(2) Achieve a savings of at least $50,000, in terms of 1988 dollars, per year compared to the cost of performing the same function within the civil service over the duration of the contract, provided that the savings equal at least 5% of the comparable civil service cost. The $50,000 standard shall be adjusted at the beginning of each fiscal year to reflect changes in the California Consumer Price Index as reported by the Department of Industrial Relations, and the adjusted figure shall be communicated by Board staff to all departments.
(b) Such savings need not be attained during each year of a multiyear contract, providing the overall savings meet one of the aforestated requirements.
NOTE
Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 19130(a)(5) and 19130(a)(6), Government Code.
HISTORY
1. Renumbering of former section 547.71 to section 547.73, including amendment of Note, filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).
§547.74. Equal Employment Opportunity Impact.
Note • History
No state agency may enter into a cost savings contract under Section 19130, subdivision (a) unless the agency can establish:
(a) Approval of the contract will not unreasonably interfere with the ability of the agency to comply with its equal employment opportunity plan; and
(b) The contractor is in compliance with the statutes and regulations administered by the Department of Fair Employment and Housing.
NOTE
Authority cited: Sections 18211, 18216 and 18701, Government Code. Reference: Sections 11135-11139.8, 19130(a)(4), 19130(a)(8), 19790, 19791, 19793, 19794, 19797 and 19798.5, Government Code; and Section 1431, Labor Code.
HISTORY
1. Renumbering of former section 547.70 to section 547.74, including amendment of section heading, repealer and new section and amendment of Note, filed 1-3-2008; operative 2-2-2008 (Register 2008, No. 1).
Subchapter 1.7. Equal Employment Opportunity Program
Article 1. State Work Force Data Collection and Evaluation
Note • History
The following definitions shall be used for work force data collection and evaluation of equal employment opportunity within state civil service, including those activities related to layoff:
(a) “Class” means a group of positions as defined in Government Code Section 18523.
(b) “Racial/Ethnic Group” includes persons who are members of one of the following groups: American Indian/Native American, Asian, Black/African American, Filipino, Hispanic, Pacific Islander, and White. These groups are defined as follows:
(1) “American Indian/Native American” means any person who is a member of an American Indian Tribe or band recognized by the Federal Bureau of Indian Affairs, or has at least one-quarter American Indian blood quantum of tribes or bands indigenous to the United States or Canada.
(2) “Asian” means any person whose origin is the Far East, Southeast Asian or the Indian subcontinent and includes, for example, China, Japan, and Korea.
(3) “Black/African American” means any person whose origin is any of the Black racial groups of Africa.
(4) “Filipino” means any person whose origin is the Philippine Islands.
(5) “Hispanic” means any person whose origin is Mexico, Puerto Rico, Cuba, Spain, or the Spanish-speaking countries of Central or South America. It does not include persons of Portuguese or Brazilian origin, or persons who acquired a Spanish surname;
(6) “Pacific Islander” means any person whose origin is in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
(7) “White” means any person whose origin is Caucasoid.
(c) “Occupational Group” means a group of jobs or classes that includes the entry level, other working levels, and supervisory levels within the same general occupational field of work;
(d) “Relevant Labor Force” means the pool of individuals who possess the requisite qualifications for the job within the geographic area in which the agency can reasonably expect to recruit.
(e) “Statistically Significant” means the degree of underutilization is equal to or greater than the .05 level of significance using the one-tailed Z Test method of statistical analysis outlined in Appendix 4 of the Interim Guidelines for Conducting the Annual Analysis of the State Work Force, issued March 2002, by the State Personnel Board. This document is hereby incorporated by reference in its entirety. Using this methodology, a computed Z value of 1.65 or greater is sufficient to conclude that any underutilization is statistically significant.
(f) “Underutilization” means having fewer persons of a particular group in an occupation or at a level in a department than would reasonably be expected by their availability in the relevant labor force.
(g) “Work Force” means incumbents in full-time and other-than-full-time positions in the state civil service employed by the appointing authority.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11092.5, 18523, 19702.1, 19790, 19791 and 19792, Government Code; Title VII of the Civil Rights Act of 1964, 42 USC, Sections 2000e-2 et seq.; “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity,” Federal Register, October 30, 1997; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16; and Hazelwood School District v. United States (1977), 433 U.S. 299, 308, fn. 14.
HISTORY
1. New subchapter 1.7, article 1 (sections 547.80-547.81) and section filed 9-25-2000; operative 9-25-2000 (Register 2000, No. 39). This regulatory action was subject to limited review by OAL and is exempt from those provisions of the Administrative Procedure Act specified in section 18215(b) of the Government Code.
2. Amendment of subchapter heading, article heading, section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§547.81. Establishment of Annual Equal Employment Opportunity Goals for Minorities and Women.
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 11092.5, 19702.1 and 19790, Government Code; Title VII of the Civil Rights Act of 1964, 42 USC, Sections 2000e-2 et seq.; Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Johnson v. Santa Clara Transportation Agency, 480 U.S. 616 (1987); and Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
HISTORY
1. New section filed 9-25-2000; operative 9-25-2000 (Register 2000, No. 39). This regulatory action was subject to limited review by OAL and is exempt from those provisions of the Administrative Procedure Act specified in section 18215(b) of the Government Code.
2. Repealer filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Subchapter 1.8. Upward Mobility
Article 1. Definitions
Note • History
For purposes of this Subchapter:
(a) “Bridging Career Ladders” and “Career Ladders and Lattices” mean the succession of job classifications in which employees may normally gain experience in order to advance from positions in low-paying occupations into technical, professional, or administrative positions.
(b) “Bridging Classifications” mean job classifications established to provide experience for employees in low-paying occupations that meets the minimum qualifications for traditional entry technical, professional, and administrative classifications.
(c) “Career Development Plan” means an employee's written plan for advancement, which identifies a career goal and the specific self-development actions, including, but not limited to, work experiences, college courses, and training classes, needed to achieve the goal.
(d) “Entry Technical, Professional, and Administrative Positions” mean those positions in technical, professional, and administrative classifications for which hiring is typically open to the public and into which employees in low-paying occupations may advance.
(e) “Good Faith Effort” means that the department can demonstrate by its actions that it is fully complying with all upward mobility statutes and regulations.
(f) “Low-Paying Occupations” mean the following groups of classifications identified in the California Civil Service Pay Scales (Pay Scales), 50th Edition, as published by the California Department of Personnel Administration: Horticulture; Office and Allied Services; Custodian and Domestic Services; Mechanical and Construction Trades; and bridging and career development classifications in other occupational areas.
(g) “Technical, Professional, and Administrative Classifications” mean classifications in the following occupational categories identified in the Pay Scales: Agriculture and Conservation; Education and Library; Engineering and Allied Services; Fiscal, Management and Staff Services; Legal; Medicine and Allied Services; State Emergency Disaster Program; Protective Services and Public Safety; and Social Security and Rehabilitation Services.
(h) “Upward Mobility” means the development and advancement of employees from positions in low-paying occupations to entry technical, professional, and administrative positions.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.
HISTORY
1. New subchapter 1.8 (articles 1-2, sections 547.82-547.87) article 1 (section 547.82) and section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).
Article 2. Upward Mobility Program Plans, Goals, and Related Procedures
Note • History
Each department shall appoint an upward mobility program coordinator to coordinate, monitor, and report on the department's upward mobility program efforts.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.
HISTORY
1. New article 2 (sections 547.83-547.87) and section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).
Note • History
Each department shall develop and maintain a written upward mobility plan as specified in the State Personnel Board's Guidelines for Administering Departmental Upward Mobility Employment Programs (Guidelines), revised July 25, 2000. This document is hereby incorporated by reference in its entirety. The plan shall include:
(a) A policy statement regarding the department's commitment to providing equal upward mobility opportunity for its employees in low-paying occupations.
(b) A description of the components of its program consistent with Government Code Section 19401, how employees may access the program, and where information about the program may be obtained.
(c) The roles and responsibilities of the employee, the employee's supervisor, the upward mobility program coordinator, the personnel office, the training office, and the equal employment opportunity office regarding the upward mobility program.
(d) Criteria for selecting employees in low-paying occupations to participate in the upward mobility efforts described in Government Code Section 19401.
(e) The number of employees in classifications in low-paying occupations used by the department; career ladders, bridging classes, and entry technical, professional, and administrative classes targeted for upward mobility; and planned upward mobility examinations.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.
HISTORY
1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).
Note • History
(a) Departments shall conspicuously post and otherwise publicize upward mobility development and job opportunities for a reasonable time period, but not less than five working days, to provide an equal opportunity for interested employees in low-paying occupations to apply.
(b) Departments shall select employees in low-paying occupations for participation in upward mobility activities using criteria that are as objective as possible and that can be applied in a consistent manner. Criteria shall include, but not be limited to, such factors as upward mobility objectives; staffing needs; available funds and other resources; employee status; employee performance in current position; employee motivation and potential for advancement; and the relevance of the training.
(c) No employee shall be guaranteed advancement under any departmental upward mobility program, but all interested employees in low-paying occupations shall be given equal consideration to participate in upward mobility efforts. Employees selected for upward mobility efforts shall prepare a career development plan and maintain a satisfactory level of performance on the job, in academic courses, and/or in training programs to continue in the program.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.
HISTORY
1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).
§547.86. Upward Mobility Goals.
Note • History
(a) In accordance with the Guidelines, each department shall annually establish upward mobility goals that reflect the number of expected appointments of employees in low-paying occupations to positions in entry technical, professional, and administrative classifications during the fiscal year. Goals shall be established by classification and expressed as a whole number. In establishing goals, consideration shall be given to the following:
(1) The history of upward mobility appointments over at least a three-year period.
(2) The anticipated number of appointment opportunities.
(3) The availability of qualified upward mobility candidates for appointment.
(b) Departments shall submit the following information to the Board for review and approval by July 1st of each year:
(1) Upward mobility goals for each appropriate entry technical, professional and administrative classification.
(2) An analysis of how successful the department was in meeting its goals for the previous year.
(3) A description of the department's actions that demonstrate a good faith effort to comply with the requirements of Government Code Section 19401.
(4) The number of employees participating in each of the department's upward mobility efforts specified in Government Code Section 19401.
(5) The amount and percentage of the department's annual training budget assigned for upward mobility development activities.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.
HISTORY
1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).
§547.87. Board Review and Response.
Note • History
In accordance with Government Code Section 19402, the board will annually review each department's upward mobility goals and the other information required under Section 547.86 and provide a written response either approving or requiring modification to the department's upward mobility program.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19400-19403, 19405 and 19406, Government Code.
HISTORY
1. New section filed 12-21-2000; operative 12-21-2000 pursuant to Government Code section 18214 (Register 2000, No. 51).
Subchapter 2. Career Executive Assignment Rules
PREFATORY NOTE
Articles 1-16, inclusive, are promulgated under the authority of Section 18701, Government Code, unless otherwise stated.
Article 1. General
Note • History
This chapter shall have special reference to the category of civil service appointment called “career executive assignments.” Except as may be included in these regulations by specific reference, Chapters 3 through 8 of Part 2 of the Civil Service Act and the regulations stemming from this authority do not apply to this category. Regulations adopted by the State Personnel Board under the provisions of the Government Code applicable to career executive assignments shall apply to such assignments.
NOTE
Authority cited: Section 19889, Government Code. Reference: Sections 18546, 18547, 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. New subchapter 2 (sections 548 through 548.145) filed 10-15-63; effective thirtieth day thereafter (Register 63, No. 18).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
It is the purpose of these regulations to establish a system of merit personnel administration which will further the development, selection, and effective use of career executives in the California state civil service. They are general in nature and are intended to facilitate the multi-departmental and service wide procedures which recognize and afford opportunity to the most competent. Responsibility rests upon appointing powers, competitors and the Personnel Board alike to be sure that all actions under these regulations conform to the intent and goals of this program.
NOTE
Authority cited: Section 19889, Government Code. Reference: Section 19889, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Change without regulatory effect amending section and adding Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 2. Position Assignment
§548.5. Career Executive Assignment Category.
History
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).
§548.6. Reporting New Positions or Duty Changes.
History
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).
History
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
Article 3. Compensation [Repealed]
HISTORY
1. Repealer of article 3 (sections 548.20-548.25) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Article 4. Employment Lists
§548.30. Career Executive Assignment Examinations.
Note • History
The appointing power may conduct competitive examinations subject to these regulations and the approval of the executive officer. The results of an examination may be used to make additional appointments to Career Executive Assignment positions that are substantially the same as the one for which the original examination was announced. However, the eligibility of persons for appointment to such positions shall be subject to either,
(a) The appointing power specifying in the announcement for the original examination the additional positions for which the competition shall be used to make appointments, the methods and standards of evaluation to be used in the examination, and the time for which the results of the original competition shall be used; or
(b) The appointing power subsequently announcing that applications will be accepted as a supplement to the original announcement and that all otherwise qualified persons who apply will be considered with those who applied under the original announcement.
Lists of persons who apply for announced examinations shall be maintained by the appointing power as long as the results of the competition are to be used. These lists shall be kept for the purpose of facilitating future competition by reducing the need for repetitive evaluation and for the purpose of providing a record of the results of competitive examinations. Such lists of persons who apply and are evaluated for consideration for appointment shall not confer eligibility for appointment to other positions in the Career Executive Assignment category which are not among those provided for in this section.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
4. Change without regulatory effect amending opening paragraph and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.32. Roster Merging. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18930, 18546, 19221 and 19222, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
Article 5. Examinations
§548.40. Competitive Examinations.
Note • History
Examinations for appointment to Career Executive Assignment positions shall be competitive and of such a character as fairly to test and determine the qualifications of candidates actually to perform the duties of the position to be filled. Examinations may include, but need not be limited to, an assessment of the candidates' character, education, experience, knowledge, skills, and ability. Examinations may be assembled or unassembled, written or oral, or in the form of a demonstration of skill, or any combination of these.
Examinations may include a review of applications, use of supplemental applications, appraisals of performance and executive potential, management exercises, and/or structured interviews.
The appointing power shall promulgate the job-related evaluation criteria that will be used to assess the qualifications of each candidate for the position. The appointing power shall assess each candidate's qualifications for the position based upon the evaluation criteria, and shall compare and rank each candidate against all other candidates based upon this assessment. Successful candidates shall be divided into 6 ranks based upon their scores. The first rank shall consist of candidates who receive scores of 95 percent or higher. The second rank shall consist of candidates who receive scores of 90 to 94 percent. The third rank shall consist of candidates who receive scores of 85 to 89 percent. The fourth rank shall consist of candidates who receive scores of 80 to 84 percent. The fifth rank shall consist of candidates who receive scores of 75 to 79 percent. The sixth rank shall consist of candidates who receive scores of 70 to 74 percent. Unsuccessful candidates shall receive a score of 65. All examination scores shall be rounded to the nearest whole percent. Each candidate shall be notified in writing of his or her score.
The appointing power shall appoint a candidate who is well-qualified to perform the duties of the position, and who is within one of the top three ranks. If there are fewer than a total of 5 candidates in the top three ranks, then the appointing power may consider candidates in the next lower ranks in rank order until there are at least 5 candidates available for consideration. For each examination, the appointing power shall maintain an examination file for a period of three years that includes, but is not limited to, the specific job-related evaluation criteria and selection procedures that were used in the examination; documentation on how those criteria were applied to the candidates; documentation as to the competitiveness of the candidates' qualifications relative to each other; and the appointing power's rationale for selecting the successful candidate.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 19889, 19889.2 and 19889.3, Government Code; and Alexander v. State Personnel Board (2000) 80 Cal.App.4th 526.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Amendment of section and Note filed 10-23-2000; operative 10-23-2000; amended and refiled 12-6-2000. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213(a) (Register 2000, No. 49).
§548.41. Examination Announcements.
Note • History
It is the policy of the State Personnel Board that examinations for appointment to Career Executive Assignment positions shall be publicized as widely as appears practicable. When it is in the best interest of the State and of economy and efficiency, examinations may be conducted with restricted publicity subject to the approval of the executive officer. The executive officer may authorize appointing powers to prepare and distribute examination announcements, to conduct examinations for Career Executive Assignment appointments, and to establish standards for the review and interpretation of such minimum qualifications as the board may establish for the Career Executive Assignment category. Such interpretive standards shall be expressed on the examination announcement as desirable knowledge, skills, abilities, or personal characteristics that are actually necessary to perform the duties of the position to be filled. Specific amounts, kinds and levels of education and experience shall not be required but may be indicated as desirable and as the most likely sources of the requisite knowledges, skills, abilities and personal characteristics. Examination announcements shall identify the position for which the competition is being conducted and the evaluation standards and methods to be applied. If the results of the examination may be used to make additional appointments, the announcement shall conform to the provisions of Article 4 of these regulations on employment lists. The appointing power shall provide information on the content and scope of the examination publicity and on the methods and results of the evaluation used on forms and by procedures prescribed by the executive officer. When examinations are announced there shall be reasonable assurance that potential competitors are provided opportunity to be informed of their general nature and scope.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18935, 18546, 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.42. Refusal to Examine or Approve Appointments.
Note • History
The executive officer may refuse to examine or to approve appointments to the Career Executive Assignment category for any reason specified in Government Code Section 18935.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 76, No. 33).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.43. Availability of Information on Examination Method.
Note • History
The method or methods by which the appointing power conducted the competitive examination for appointment shall be available for the information of competitors upon request.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
2. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
The same security precautions shall be observed in preparing and conducting examinations for Career Executive Assignment positions as are required in the preparation and conduct of other examination processes. Competitors likewise shall be bound by the same prohibitions and penalties applying to competitors in other examinations.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.45. Inspection of Examination Papers and Executive Assessment and Potential Ratings. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19220 and 19221, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
§548.46. Disqualification of Persons Related to Competitor.
Note • History
Interviewers and evaluators shall be disqualified from Career Executive Assignment examinations in the manner provided by Section 197.5 for examinations for the general civil service.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18930 and 19889.2, Government Code.
HISTORY
1. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.47. Fitness for Managerial Posts.
Note • History
Examinations for the Career Executive Assignment appointments shall give due regard to the general fitness of the competitors to serve in managerial posts as evidenced by demonstrated achievement and self development.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.48. Ratings of Performance and Potential.
Note • History
In any examination for Career Executive Assignment appointment the executive officer or the appointing power may make such inquiry into the backgrounds of the competitors and obtain such ratings of past performance and potential as will be helpful in determining their fitness to serve in a career executive assignment.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Editorial correction of printing error in History 2. (Register 92, No. 39).
§548.49. Appeal From Examination or Departmental Appointment.
Note • History
Within 30 days after the report of appointment to a Career Executive Assignment position is submitted to the executive officer, and employee who is otherwise eligible for appointment to the C.E.A. category may appeal to the State Personnel Board upon the grounds of irregularity, fraud or discrimination in the conduct of the examination.
If, upon review of the record of the examination, the board grants the appeal by finding fraud or discrimination, it may cancel the examination and appointment and require the appointing power to repeat the competition for the position with specific instructions that will avoid such fraud or discrimination in subsequent competition; it may order whatever corrective action it finds best provides an appropriate remedy.
If an appellant alleges irregularity in the conduct of the examination, the board may cancel the appointment and/or order a new examination only if the board finds the irregularity materially affected the appointment made as a result of the examination.
Appeals based on a challenge of the qualifications of the person appointment made as a result of an examination shall be heard only upon the grounds that such person is not well qualified and/or was not carefully selected.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 5-14-75; effective thirtieth day thereafter (Register 75, No. 20).
3. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
4. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Note • History
Expenses for nonsalaried assistants in the preparation and conduct of examinations may be provided as for the general civil service.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18546, Government Code.
HISTORY
1. Reinstatement of Section 548.50 which was inadvertently repealed instead of Section 548.5 on 8-28-85 (Register 85, No. 35) filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).
§548.52. Written Examinations.
Note • History
The scoring, determination of ratings, inspection of papers or answer sheets, and appeals of the conduct of written examinations shall be administered in the same manner as provided for the general civil service as provided in Sections 176, 177, 178, 179, 180, 185, 186, 187, 188, 189, 190.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19680 and 19889.2, Government Code.
HISTORY
1. New section filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 6. Promotion
§548.60. Promotional Examination Eligibility. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18546, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Reinstatement of Section 548.60 which was inadvertently repealed instead of Section 548.6 on 8-28-85 (Register 85, No. 35) filed 6-12-86; effective thirtieth day thereafter (Register 86, No. 24).
3. Repealer filed 11-20-87; operative 12-20-87 (Register 87, No. 48).
§548.61. Rights of Disadvantaged Employee.
Note • History
An employee who feels disadvantaged by any action taken by any superior or fellow employee in discouraging any manner hindering or preventing the employee from taking any examination or who alleges discrimination in State employment on the basis of age, sex, race, religious creed, color, national origin, ancestry, disability, marital status, or sexual orientation may appeal to the board in writing. Any such appeal or communication in connection therewith is confidential and shall not be disclosed without the consent of the employee taking such appeal. Immediately after receiving such appeal the board shall investigate and shall take such action as it deems necessary.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 18952, Government Code.
HISTORY
1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§548.62. Resignation of Eligible. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19220, 19221 and 19222, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, no. 33).
Article 7. Appointments
§548.70. Eligibility for Appointments.
Note • History
(a) Except as provided in this chapter, eligibility for appointment to a Career Executive Assignment position shall be established as the result of competitive examination of persons with permanent status; or who previously had permanent status in the state civil service; or persons who have been employed by the Legislature as defined in Government Code section 18990; or have held nonelected exempt positions in the executive branch of government as defined in Government Code sections 18992 and 19889.3; or persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991; who are well qualified to perform high administrative and policy-influencing functions. The scope and nature of such examinations may be determined by the appointing power subject to these regulations and the approval of the executive officer.
(b) This section will remain in effect until January 1, 2013, unless statutes are enacted before January 1, 2013, extending the sunset date of January 1, 2013, or making permanent Government Code sections 18546, 18990, 18992, and 19889.3.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18990, 18991, 18992, 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Redesignation and amendment of existing section as subsection (a), new subsection (b) and amendment of Note filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).
If Government Code sections 18546, 18990, 18992, and 19889.3
sunset on January 1, 2013, this section shall read:
§548.70. Eligibility for Appointments. [Provisionally effective January 1, 2013]
Note • History
(a) Except as provided in this chapter, eligibility for appointment to a Career Executive Assignment position shall be established as the result of competitive examination of persons with permanent status in the state civil service or persons retired from the United States military, honorably discharged from active military duty with a service-connected disability, or honorably discharged from active duty as defined in Government Code section 18991, who are well qualified to perform high administrative and policy-influencing functions. The scope and nature of such examinations may be determined by the appointing power subject to these regulations and the approval of the executive officer.
(b) This section shall become operative on January 1, 2013.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18990, 18991, 18992, 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Provisional version of section contingent upon sunset of Government Code sections 18546, 18990, 18992 and 19889.3 filed 9-1-2010; operative 10-1-2010. Amendment exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing with the Secretary of State and printing in the CCR pursuant to Government Code section 11343.8 (Register 2010, No. 36).
§548.71. Request for Certification. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.
HISTORY
1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
§548.72. Appropriate Lists. [Repealed]
History
HISTORY
1. Repealer filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
§548.73. Categories of Qualification. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
§548.74. Certification of the Roster. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
§548.75. Duty to Respond to Notice. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
§548.76. Waiver of Certification. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19220, 19221 and 19222, Government Code.
HISTORY
1. Repealer filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
§548.77. Report of Appointment.
Note • History
The appointing power shall report of each appointment to the executive officer within 30 days of the effective date of the appointment and on forms and by procedures established by the executive officer.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889 and 19889.2, Government Code.
HISTORY
1. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
2. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 8. Reinstatement
§548.90. Reinstatement of Employee.
Note • History
On the request of an appointing power, the executive officer may approve the reinstatement to a career executive assignment of any permanent employee, or an employee who previously had permanent status and who since such permanent status has had no break in the continuity of state service due to a permanent separation, who meets the reinstatement criteria stated in Government Code Section 19140.
The board, by resolution at the request of an appointing power, may approve the establishment of limited career executive assignment positions at levels classified within the general civil service to provide for the reinstatement of persons who are terminated from other career executive assignments. Such reinstatements may be approved only when all of the following conditions are present:
(a) The appointing power has an identified need for the services of the employee at a position at least equal to the highest general civil service classification authorized for use by the appointing power, and the duties and responsibilities of the individual concerned meet the definition of career executive assignment as stated in Government Code Section 18547; and
(b) The employee does not have prior status or employment list eligibility for appointment at this level; and
(c) The reinstatement will not result in a layoff or any other infringements of employees already in this classification.
It is not the intent of this section, nor shall this section provide any implied or expressed precedent authority for the establishment of career executive assignment positions other than those which fully meet the criteria specified in this section.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889 and 19889.3, Government Code.
HISTORY
1. Amendment filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).
2. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
3. Amendment filed 4-14-77; effective thirtieth day thereafter (Register 77, No. 16).
4. Change without regulatory effect amending subsection (c) and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.91. Reinstatement of Former Employee. [Repealed]
History
HISTORY
1. Amendment filed 11-1-72; effective thirtieth day thereafter (Register 72, No. 45).
§548.92. Breaks in Service. [Repealed]
History
HISTORY
1. Amendment filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Article 9. Transfer
§548.95. Transfer of Employee.
Note • History
With the approval of the executive officer, an appointing power may transfer an employee from one career executive assignment position to another at substantially the same or lower level of salary. Such transfer or demotions may, with the written approval of all parties, be made between appointing powers. Transfers between positions in different Career Executive Assignment levels and assignments shall be governed by the standards contained in Sections 430, 431, 432, 433 and 435 for transfer between general civil service classifications.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18547 and 19050.4, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 9-18-85;; effective thirtieth day thereafter (Register 85, No. 40).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.96. Transfer of Employee From General Civil Service to a Career Executive Assignment. [Repealed]
Note • History
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18547 19889, 19889.2 and 19889.3, Government Code.
HISTORY
1. New section filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
3. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
4. Invalidated by Professional Engineers in California Government v. State Personnel Board (2001) 90 Cal.App.4th 678, 109 Cal.Rptr.2d 375 and repealer filed 6-20-2002 per section 100(a)(3), title 1 of the California Code of Regulations (Register 2002, No. 25).
Article 10. Performance Appraisal [Repealed]
HISTORY
1. Repealer of article 10 (section 548.100) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Article 11. Absences [Repealed]
HISTORY
1. Repealer of article 11 (section 548.110) filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Article 12. Military and Defense Service
§548.115. Right to be Considered.
Note • History
Permanent civil service employees who are on military leave shall have the same rights to be considered for Career Executive Assignment appointments as if they were not on such leave.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19889 and 19889.2, Government Code.
HISTORY
1. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
2. Amendment filed 8-14-79; effective thirtieth day thereafter (Register 79, No. 33).
3. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 13. Service--General
§548.120. Responsibilities and Privileges. [Repealed]
History
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§548.121. Unauthorized Employment.
Any person acting in good faith in accepting an appointment or employment contrary to this chapter shall be paid by the appointing power the compensation promised by or on behalf of the appointing power or, in case no compensation is so promised, the actual value of any service rendered and the expense incurred in good faith under such attempted appointment or employment, and has a cause of action against the appointing power therefor.
§548.122. Medical Examination.
An appointing power may require an employee serving in a career executive assignment to undergo a medical examination for the same purposes and in the same manner as is provided for the general civil service.
Note • History
Good faith provisions as contained in Section 8 that apply to appointments in the general civil service shall apply in the same manner to appointments to positions in the Career Executive Assignment category.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19257 and 19257.5, Government Code.
HISTORY
1. New section filed 12-21-73; effective thirtieth day thereafter (Register 85, No. 40).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.124. Correction of Appointments.
Note • History
When the executive officer determines that a Career Executive Assignment appointment is unlawful, the executive officer shall take corrective and remedial action in the same manner as provided for the general civil service as provided in Sections 266 and 266.1. An employee holding such a Career Executive Assignment appointment shall have the right to receive notice, to respond, and to appeal such corrective action pursuant to Sections 266.2 and 266.3.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19257 and 19257.5, Government Code.
HISTORY
1. New section filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 14. Interjurisdictional Exchange
§548.130. Interjurisdictional Exchange.
Note • History
Participation of career executives in interjurisdictional employee exchange assignments shall be subject to the provisions of Section 427.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 18546, 18547, 19050.3 and 19050.8, Government Code.
HISTORY
1. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
2. Change without regulatory effect amending section and Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Article 15. Termination of Assignment
§548.135. Notice of Termination. [Repealed]
History
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
2. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§548.136. Appeal from Termination.
Note • History
Within 30 days after receipt of notice of termination of a career executive assignment, the affected employee may appeal to the State Personnel Board upon the grounds that the termination was effected for reasons of age, sex, sexual preference as prohibited by Governor's Executive Order B-54-79 (4/4/79), marital status, race, color, national origin, ancestry, disability as defined in Government Code Section 19231(a)(1), religion, or religious opinions and affiliations, political affiliation, or political opinions. After hearing the appeal, the board may affirm the action of the appointing power, or restore the affected employee to the career executive assignment.
NOTE
Authority: Sections 18701 and 19889.2, Government Code. Reference: Sections 19231, 19700, 19701, 19702, 19702.1, 19702.2, 19703, and 19889.2, Government Code; Gay Law Students Association v. Pacific Telephone and Telegraph Company (1979) 24 Cal.3d 458, 156 Cal.Rptr. 14, 595 P.2d 592.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15)
2. Amendment of section filed 8-19-91; operative 9-18-91 (Register 91, No. 50).
§548.137. Termination Upon Request of Employee. [Repealed]
History
HISTORY
1. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 77, No. 15).
§548.138. Reduction in Force. [Repealed]
Note • History
NOTE
Authority cited: Section 19221 and 19530-19541, Government Code.
HISTORY
1. New section filed 10-8-70; effective thirtieth day thereafter (Register 70, No. 41).
2. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
§548.139. Seniority Credits. [Repealed]
Note • History
NOTE
Authority cited: Section 19533, Government Code.
HISTORY
1. New section filed 10-8-70; effective thirtieth day thereafter (Register 70, No. 41).
2. Amendment filed 12-21-73; designated effective 4-1-74 (Register 73, No. 51).
3. Amendment of NOTE filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
4. Repealer filed 8-28-85; effective thirtieth day thereafter (Register 85, No. 35).
Article 16. Separations from State Service
§548.145. Separation of Employee.
History
A person serving in a career executive assignment may be separated from state service through resignation, automatic resignation, dismissal, retirement, or for medical reasons under the provisions of Government Code Section 19253.5 in the same manner as is provided for other civil service employees. The career executive assignment of a person so separated shall be deemed to have been terminated, and the separation to have been from a position in the class in the general civil service in which the employee had permanent status.
HISTORY
1. Amendment filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15).
Article 17. Reinstatement Following Termination
Note • History
“Former position,” for the purposes of this article, means the last position an employee held as a probationer or permanent employee or a position that is at least at the same salary level and to which the appointing power could have transferred the employee.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19889.3, Government Code.
HISTORY
1. New article 17 (sections 548.150-548.155) filed 3-9-81; effective thirtieth day thereafter (Register 81, No. 11).
2. Change without regulatory effect amending Note filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.151. Reinstatement to Former Position Following Termination.
Note • History
An employee terminated from a Career Executive Assignment shall be reinstated to his or her former position unless the employee elects to be appointed to another position, offered by the appointing power, for which he or she is eligible.
NOTE
Authority cited: Section 18701 and 19889.3, Government Code. Reference: Section 19889.3, Government Code.
HISTORY
1. Amendment of section heading filed 9-29-82; effective thirtieth day thereafter (Register 82, No. 40).
2. Amendment filed 9-18-85; effective thirtieth day thereafter (Register 85, No. 40).
§548.152. Permissive Reinstatement.
Note • History
An employee terminated from a Career Executive Assignment on or after January 1, 1981, after completing at least five years of state service may on or after the effective date of this rule be reinstated to a vacant position at the discretion of any appointing power within four years of such termination as follows:
1. Such employees who have completed at least one year but less than three years of career executive service may be reinstated to a position in a class that is not more that two steps higher in salary than the class in which the employee last served as a probationer or permanent employee, provided that such class is at least two steps lower in salary that the career executive level from which the employee is being terminated.
2. Such employees who have completed three or more years of career executive service may be reinstated to a position in any class that is at least two steps lower in salary than the career executive level from which the employee is being terminated.
For employees who are separated from state service, reinstatement eligibility under this rule shall not extend beyond the employee's reinstatement eligibility under Government Code Section 19140.
NOTE
Authority cited: Sections 18701 and 19889.3, Government Code. Reference: Section 19889.3, Government Code.
HISTORY
1. Amendment filed 9-29-82; effective thirtieth day thereafter (Register 82, No. 40).
§548.153. Mandatory Reinstatement.
Note • History
(a) The reinstatement rights provided under this section apply only to employees who are terminated from a Career Executive Assignment on or after April 3, 1981, after completing at least ten years of state service, including at least three consecutive years of career executive service under a single appointing power as specified in part (b) of this section, and who request reinstatement pursuant to this section, in writing, within ten days of receiving notice of the termination of their Career Executive Assignment.
(b) The three consecutive years of career executive service specified under part (a) must
(1) have occurred entirely within six years of the effective date of the employee's termination from a career Executive Assignment, and
(2) must terminate on or after January 1, 1981.
For the purposes of meeting this service requirement, exempt service shall not affect otherwise qualifying career executive service.
(c) Reinstatements under this section shall be to the last appointing power under which the employee completed three consecutive years of career executive service, as specified above.
(d) An eligible employee may request reinstatement to any general civil service level that is:
(1) At least two steps lower in salary than the lowest Career Executive Assignment level a which the employee served during his/her qualifying period of career executive service under this section, provided that the requested level is at least two steps lower than the level from which the employee is being terminated; and
(2) Above the level of the employee's former position.
An employee may limit his/her reinstatement request under this section to positions that the employee could reasonably be expected to accept without a change in his/her place of residence.
(e) Upon receipt of such a request, the appointing power shall reinstate the employee to a position at the requested level and, if applicable, location that is:
(1) Vacant; and
(2) In the same occupational area(s) as the Career Executive Assignment(s) that the employee held under the appointing power, provided such employee possesses any license, certificate, or registration required for the class in which the employee is being reinstated and performance in the Career Executive Assignment(s) combined wit the employee's prior employment history would reasonably predict successful performance in the lower level position.
An employee's refusal to accept a position offered pursuant to these provisions shall constitute a waiver of the employee's rights under this section to be reinstated to or to receive reemployment list eligibility for other positions at the same level, but shall not otherwise impact the rights and eligibilities provided by this article.
(f) If the appointing power does not have a vacant position that can satisfy the employee's reinstatement requested under this section, the following actions shall occur:
(1) If the employee's reinstatement request is not limited to his/her current location, the employee's name shall be placed on the appointing power's departmental and local subdivisional reemployment list for any classes containing positions which, if vacant, would satisfy the employee's reinstatement request pursuant to this section. If the employee's reinstatement request is limited to his/her current location, the employee's name shall be placed on a subdivisional reemployment list covering that location for the classes indicated above. Departmental or subdivisional reemployment list eligibility granted under this section shall not result in the employee's name being placed on any general reemployment list. Subdivisional eligibilities may be changed with the concurrence of the employee and the appointing power.
(2) The reinstatement and reemployment provision outlined in parts (e) and (f)(1) of this section shall be applied in descending order to any lower general civil service levels under the appointing power that contain positions which meet the criteria outlined in parts (d) and (e)(2) of this section.
(g) If an employee cannot be placed in a vacant position pursuant to this section, the employee shall be reinstated to his or her former position.
NOTE
Authority cited: Section 18701 and 19889.3, Government Code. Reference: Section 19889.3, Government Code.
HISTORY
1. Amendment filed 9-29-82; effective thirtieth day thereafter (Register 82, No. 40).
2. Amendment of subsection (f)(1) filed 11-19-82; effective thirtieth day thereafter (Register 82, No. 47).
3. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.154. Sequence of Reinstatement.
Note • History
When two or more employees are simultaneously seeking reinstatement or reemployment to the same class pursuant to the rights provided under this article, the appointing power shall act in the following sequence:
(a) All employees exercising a mandatory return right to their former position shall be reinstated.
(b) Employees seeking mandatory reinstatement or reemployment pursuant to Section 548.153 to a position other than their former position shall be appointed in seniority order to any remaining positions, provided that persons on reemployment lists shall be appointed only as allowed by Government Code Section 19056.
(c) Employees seeking permissive reinstatement pursuant to Section 548.152 may be reinstated to any remaining vacant positions.
NOTE
Authority cited: Section 18701, Government Code. Reference: Section 19889.3, Government Code.
HISTORY
1. Change without regulatory effect of subsection (b) filed 12-21-88 (Register 89, No. 1).
2. Change without regulatory effect amending subsections (b) and (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
§548.155. Probationary Period.
Note • History
An employee who is reinstated pursuant to Sections 548.152 or 548.153 shall be subject to the probationary period requirements specified in Section 322.
NOTE
Authority cited: Section 19889.3, Government Code. Reference: Sections 19170, 19171 and 19889.3, Government Code.
HISTORY
1. Amendment filed 5-29-84; effective thirtieth day thereafter (Register 84, No. 22).
2. Change without regulatory effect amending section filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
Subchapter 3. State Personnel Board--Conflict of Interest Code
Note • History
The Political Reform Act (Government Code Section 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation (2 Cal. Code of Regs. Section 18730) which contains the terms of a standard conflict of interest code, which can be incorporated by reference in an agency's code. After public notice and hearing it may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendix designating officials and employees and establishing disclosure categories, shall constitute the conflict of interest code of the STATE PERSONNEL BOARD.
All designated employees shall file their statements with the STATE PERSONNEL BOARD who will make the statements available for public inspection and reproduction. (Gov. Code Section 81008). Upon receipt of the statements of board members and the executive officer, the agency shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission.
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New subchapter 3 (sections 549-549.7 and Supplements) filed 5-27-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-16-76 (Register 7, No. 22).
2. Repealer of subchapter 3 (sections 549-549.7 and Supplements) and new subchapter 3 (section 549 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment filed 11-22-91; operative 12-23-91. Submitted to OAL for printing only (Register 92, No. 12).
4. Amendment of Appendix filed 4-6-94; operative 5-6-94. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 1-25-94 (Register 94, No. 14).
Appendix
Assigned
Designated Positions Disclosure Categories
Board Member 1, 2, 3, 4
Executive Officer 1, 2, 3, 4
Assistant Executive Officer 1, 2, 3, 4
All Division Chiefs 1, 2, 3, 4
Chief Counsel 1, 2, 3, 4
Staff Counsel 1, 2, 3, 4
All Administrative Law Judges 1, 2, 3, 4
Manager, Merit Appeals Office 1, 2, 3, 4
Consultant* 1, 2, 3, 4
Disclosure Categories
Category 1
Designated officials or employees assigned to this category must report:
(1) Investments and business positions in any business entity and income from any source of the type which, within the last two years, has contracted with the State Personnel Board to provide services, supplies, materials, machinery or equipment.
Category 2
Designated officials or employees assigned to this category must report:
(1) Investments and business positions in any business entity and income from any source of the type which, within the last two years, has contracted with the State Personnel Board to provide instructional or consultative services or facilities for training programs.
Category 3
Designated officials or employees assigned to this category must report:
(1) Investments and business positions in any business entity and income from any source of the type which, within the last two years, has contracted with any county, city, district or other political subdivisions of the State or with State agencies excepted from State civil service to provide technical personnel management services.
Category 4
Designated officials or employees assigned to this category must report:
(1) Investments and business positions in any business entity and income from any source which is an employment agency or a provider of temporary personnel.
*Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:
The executive officer may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The executive officer's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
Subchapter 4. Demonstration Project and Performance Based Budget Pilot Project Rules (Promulgated Under Authority of Government Code Sections 11808, 18701, and 19600)
Article 1. Demonstration Projects--Department of General Services
§549.5. Class; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
For the demonstration projects implemented by the Department of General Services pursuant to Section 11808 of the Government Code for Career Management Assignment and Career Supervisory Assignment “class” means a broadband class for which the same general title may be used to designate each position allocated to the class and which may include more than one speciality area within the same general field of work. In addition to the minimum qualifications for each broadband class, other job-related qualifications may be required for particular positions within the class. These other job-related qualifications shall be described in the key position statement established for each position within the class.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.
HISTORY
1. New subchapter 4, article 1 (sections 549.5-549.11) and section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Amendment of article heading, section heading, section and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.6. Examinations; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
The demonstration projects implemented by the Department of General Services pursuant to Section 19600 et seq., of the Government code shall affect the examination process to select candidates for Career Management Assignment and Career Supervisory Assignment positions. During these projects, this department shall conduct open or promotional examinations for positions classified as Career Management Assignment or Career Supervisory Assignment pursuant to the procedures in Subchapter 2, Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:
(a) The examination announcements specified by Section 548.41 shall specify the general minimum qualifications for the position as prescribed in the class specification and thew other job-related qualifications described in the key position statement established for the particular position within the class.
(b) The appointing power shall be governed by Subchapter 1, Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.
(c) The appointing power shall send a notification indicating the results of the selection process to all applicants for the position. Any eligible employee may appeal to the State Personnel Board, pursuant to Section 548.49, within 30 days of the date of the notification.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.
HISTORY
1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Amendment of first pragraph and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.7. General Reemployment Lists; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
(a) Within the classes in the Career Management Assignment and Career Supervisory Assignment categories there shall be maintained a general reemployment list for each class identified by functional subdivision, recognizing individual position skill-based requirements as indicated in the key position statement for each position consisting of the names of all persons who have occupied positions with probationary or permanent status in the class and who have been legally laid off or demoted in lieu of layoff.
(b) Within one year from the date of his or her resignation in good standing, or his or her voluntary demotion, the name of an employee who had probationary or permanent status may be placed on the general reemployment list as described in (a) above with the consent of the appointing power and the board. The general reemployment list may also contain the names of persons placed thereon by the board in accordance with other provisions of law or rule.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.
HISTORY
1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Amendment of Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.8. Departmental or Subdivisional Reemployment Lists; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
Within the classes in the Career Management Assignment and Career Supervisory Assignment categories there shall be maintained a separate departmental reemployment list for each class identified by functional subdivision, recognizing individual position skill-based requirements as indicated in the key position statement for each position consisting of the names of persons on the general reemployment list but employed in the Department of General Services at the time of separation. There shall also be maintained a separate subdivisional reemployment list within the Department of General Services which shall consist of the names of persons employed in a subdivision of the Department of General Services at the time of separation if subdivisions for the Department of General Services have been set up with the approval of the Department of Personnel Administration for layoff purposes.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.
HISTORY
1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Amendment of Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.9. Probation; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
(a) The Department of General Service may, with the consent of the employee, extend the length of the employee's probationary period in any class within either the Career Management Assignment or the Career Supervisory Assignment categories. No extension shall exceed twelve (12) months or 1680 hours beyond the original proscribed probationary period for the class.
(b) Requests to extend an employee's probationary period must be submitted in writing to the Personnel Office and approved by the Appointing Authority at least five working days prior to completion of the initial 12-month probationary period.
(c) A Job Improvement Plan (Plan) must be developed for any employee who is subject to an extension of their probationary period. The Plan must specify any formal training, practice sessions, on-the-job training, or other alternative methods for job improvement which will be used to bring the employee's performance to an acceptable level. The employee must participate in the development of the plan and agree to follow.
(d) Performance evaluations must be provided at four (4)-month intervals and the employee may be passed or rejected at any time during the twelve (12)-month extension.
(e) A rejection during the extended time period shall be considered the same as a rejection during the original probationary period and the employee shall retain all rights accorded by law or rule. Notice to the employee shall be in the manner proscribed by Government Code Section 19173.
(f) The employee will have the same rights to appeal a rejection during the extension of the probationary period as an employee who is rejected during the original probationary period.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.
HISTORY
1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Repealer and new section and amendment of Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.10. Appeal from Rejection During Probation; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
(a) It is the intent of the Board that the Department of General Services and the employees appointed to Career Management Assignment or Career Supervisory Assignment classes will collaborate on the performance assessment standards to be used to identify and communicate quality of performance.
(b) Employees that are rejected during probation from classes in the Career Management Assignment and Career Supervisory Assignment categories either during the original probationary period or an extension of that probationary period, will be permitted to appeal the rejection only on three grounds: (1) discrimination; (2) fraud; (3) patronage. Employees will file appeals with the Personnel Board. The Personnel Board will schedule the appeal for hearing only in cases where the rejected employee has made a prima facie case at the threshold stage of the process. Appeals which do not allege and offer proof of one or more of the three grounds for appeal noted above will be dismissed with prejudice.
(c) The decision of the board to modify the action of the appointing power pursuant to this rule shall be taken only if the board determines, after investigation or hearing, that the rejection was made as a result of discrimination, fraud or patronage. In any such proceeding, the rejected employee shall have the burden of proof. Subject to rebuttal by the employee, it shall be presumed that the action was free from discrimination, fraud and patronage and that the statement of reasons in the notice of rejection during probation is true.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702 and 19602, Government Code.
HISTORY
1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Amendment of subsections (b) and (c) and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.11. Tenure of Managerial and Supervisory Employees; Department of General Services--Career Management Assignment and Career Supervisory Assignment.
Note • History
The provisions of Government Code Sections 19590 through 19593 shall apply to employees appointed to classes in the Career Management Assignment category after November 1, 1995, and to employees appointed to classes in the Career Supervisory Assignment category after November 5, 1996, except that notwithstanding Section 19593, these rules shall also apply to demotions from Career Management Assignment or Career Supervisory Assignment positions, regardless of when the managerial or supervisory appointment was effective.
NOTE
Authority cited: Sections 18701 and 18702, Government Code. Reference: Sections 18701, 18702, 18703 and 19602, Government Code.
HISTORY
1. New section filed 1-30-97; operative 3-1-97 (Register 97, No. 5).
2. Amendment of section and Note filed 12-3-97; operative 12-3-97. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 97, No. 49).
§549.12. Selection and Examinations; Department of General Services.
History
The Department of General Services shall utilize the following certification process for all classes which would normally fall under the provisions of Government Code Sections 19057 and 19057.4 and are used within the department:
For positions in these classes, there shall be certified to the appointing power the names and addresses of all those eligibles whose scores, at time of certification, represent the three highest ranks on the employment list for the class, and who have indicated their willingness to accept appointment under the conditions of employment specified.
For purposes of ranking, scores of eligibles on employment lists for these classes shall be rounded to the nearest whole percent. A rank shall consist of one or more eligibles with the same whole percentage score.
If the names on the list from which certification is being made represent fewer than three ranks, then additional eligibles shall be certified from the various lists next lower in order of preference until names from three ranks appear. If there are fewer than three names available for certification, and the appointing authority does not choose to appoint from among these, the appointing authority may demand certification of three names. In that case, examinations shall be conducted until at least three names may be certified by the procedure described in this section; if the appointing authority is going to fill the position using the eligible list, it shall fill the position by appointment of one of the persons certified.
HISTORY
1. New section filed 6-5-97; operative 6-5-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only (Register 97, No. 29).
Article 2. Demonstration Project--Health and Welfare Agency Data Center
§549.30. Demonstration Project; Health and Welfare Agency Data Center Examinations and Appointments.
Note • History
If the Health and Welfare Agency Data Center appointing power wishes to appoint a competitor to a position for which an examination has been conducted within the Health and Welfare Agency Data Center demonstration project, the appointing power shall fill the vacancy by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class, and who is judged to be among the best qualified available competitors as a result of evaluations made pursuant to Section 549.31. If the appointing power has at the same time or within one year of the final date specified for filing an application for the examination more than one vacancy in the same class and for which the same or substantially similar job-related knowledge, skills and abilities are required, the first and every succeeding vacancy shall be filled in a like manner by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class and who is judged to be among the best qualified remaining competitors pursuant to Section 549.31 unless the appointing power chooses to conduct a new examination, in which case the appointing power shall appoint a competitor judged to be among the best qualified in the new examination and who also has filed a timely application for that examination and meets the minimum qualifications for the class. For the duration of the Health and Welfare Agency Data Center demonstration project and for a period of at least one year following its conclusion, the Health and Welfare Agency Data Center shall maintain records of each examination conducted within the demonstration project. The records shall be sufficient to permit an independent review of examinations conducted within the demonstration project to determine whether they have complied with the intent of this Section, Section 549.31 and Article VII, Section 1(b) of the California Constitution. For each examination, such records shall include, but not be limited to, (a) a list of competitors who filed an application for the examination together with a notation as to their date of filing, (b) justification whether each competitor met the minimum qualifications for the class, and (c) a summary of the evaluation pursuant to Section 549.31 of each competitor who is offered a position. The provisions of this regulation do not apply if an appointment is to be made from a reemployment list under Government Code Section 19056. The provisions of this regulation do not apply if an appointment is to be made from a general reemployment list pursuant to Government Code Section 19056.5, unless there are fewer than three persons on the general reemployment list willing to accept employment under the conditions of employment specified in which case the appointing power may appoint a competitor in accordance with the provisions of this Section.
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. New article 2 (sections 549.30-549.34) and renumbering and amendment of former section 216 to new section 549.30 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
§549.31. Health and Welfare Agency Data Center Demonstration Project Competitive Evaluations.
Note • History
Evaluations of education, experience, job related knowledge, skills, abilities and behaviors, and personal qualifications shall be made on a competitive basis in that each competitor shall be evaluated thereon in relation to the minimum and desirable qualifications for the class and position in question and in relation to the comparable qualifications of other competitors. The term “personal qualifications” includes all such personality traits and personal, moral, and physical characteristics as are necessarily comprehended by the minimum and desirable qualifications established for the class and position. When evaluating competitor's education, experience, and job related knowledge, skills, abilities and behaviors, interviewers shall consider the quality, and pertinence of such education, experience, and job related knowledge, skills, abilities and behaviors, and the degree to which competitor's total education and work histories and job related knowledge, skills, abilities and behaviors represent suitable preparation for the work of the class and position.
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. Renumbering and amendment of former section 216.1 to new section 549.31 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
§549.32. Health and Welfare Agency Data Center Demonstration Project Notices of Examination Results.
Note • History
As soon as an examination has been completed, each competitor shall be notified in writing of the results of this examination.
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. Renumbering of former section 216.2 to new section 549.32 filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
§549.33. Demonstration Project; Health and Welfare Agency Data Center; Definition of “Class”; Establishment of Minimum Qualifications.
Note • History
For the demonstration project at the Health and Welfare Agency Data Center, “class” means a consolidation of similar classes in the same occupational area into a broader and deeper grouping for which the same general title may be used to designate each position allocated to the class and which may include more than one speciality area within the general field of work. In addition to the general minimum qualifications for each “class”, other job related qualifications will be required for particular positions within the class. The other job-related qualifications shall be described in the Individual Position Descriptions established for each position within the class.
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. New section filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
§549.34. Demonstration Project; Health and Welfare Agency Data Center; Voluntary Transfer Between Classes.
Note • History
Voluntary transfer between the “classes” as defined in rule 549.33 and other classes will be permitted pursuant to State Personnel Board rules 430-435, except transfers form the Health and Welfare Agency Data Center class of Information Technology Specialist, Range E to the classes of Senior Programmer Analyst (Specialist and Supervisor) and Senior Information Systems Analyst (Specialist and Supervisor) will not be permitted under any circumstances.
NOTE
Authority cited: Section 19602, Government Code. Reference: Section 19602, Government Code.
HISTORY
1. New section filed 3-10-97; operative 3-10-97. Submitted to OAL for printing only (Register 97, No.11).
Article 3. Performance Based Pilot Projects--Department of Consumer Affairs
§549.40. Selection and Examinations; Department of Consumer Affairs.
Note • History
The Department of Consumer Affairs shall utilize the following certification process for all classes which would normally fall under the provisions of Government Code Sections 19057 and 19057.4 and are used within the department.
For positions in these classes, there shall be certified to the appointing power the names and addresses of all those eligibles whose scores, at time of certification, represent the three highest ranks on the employment list for the class, and who have indicated their willingness to accept appointment under the conditions of employment specified.
For purposes of ranking, scores of eligibles on employment lists for these classes shall be rounded to the nearest whole percent. A rank shall consist of one or more eligibles with the same whole percentage score.
If the names on the list from which certification is being made represent fewer than three ranks, then additional eligibles shall be certified from the various lists next lower in order of preference until names from three ranks appear. If there are fewer than three names available for certification, and the appointing authority does not choose to appoint from among these, the appointing authority may demand certification of three names. In that case, examinations shall be conducted until at least three names may be certified by the procedure described in this section; if the appointing authority is going to fill the position using the eligible list, it shall fill the position by appointment of one of the persons certified.
NOTE
Authority cited: Sections 18210, 18211, 18213 and 18701, Government Code. Reference: Sections 18211 and 18213, Government Code.
HISTORY
1. New article 3 (section 549.40) and section filed 3-19-97; operative 3-19-97. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 97, No. 18).
2. Amendment of section heading, section and Note filed 9-22-97; operative 9-22-97. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 97, No. 45).
Article 4. Demonstration Project--Multi-Departmental
§549.50. Demonstration Project: Examination for Managerial Classifications.
Note • History
Under State Personnel Board supervision, any department specifically approved by State Personnel Board action to be included in this demonstration project, shall conduct a demonstration project, pursuant to Sections 19600 and 19607 of the Government Code, affecting the examination process to select candidates for managerial positions. During this demonstration project, these departments shall conduct examinations for positions classified as managerial pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:
(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed for the specific classification.
(b) The appointing powers shall be governed by Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.
(c) The appointing power shall send a notification to all employees eligible for the position indicating which candidate has been selected. Any eligible employee may appeal to the State Personnel Board, pursuant to Section 548.49, within 30 days of the date of the notification.
NOTE
Authority cited: Sections 18210, 18211, 18213 and 18701, Government Code. Reference: Sections 19600 and 19607, Government Code.
HISTORY
1. New article 4 (section 549.50) and renumbering of former section 215.00 to new section 549.50, including amendment of section and Note, filed 9-17-97; operative 9-17-97. Submitted to OAL for printing only pursuant to Government Code sections 18210, 18211 and 18213 (Register 97, No. 38).
Article 5. Demonstration Project--Managerial Selection and Classification Consolidation and Broadbanding--Servicewide by Departmental Option [Repealed]
HISTORY
1. New article 5 (sections 549.60-549.67) and section filed 12-9-98; operative 12-9-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 50).
2. Repealer of article 5 (sections 549.60-549.67) and section filed 3-23-2000; operative 3-23-2000. Submitted to OAL for printing only pursuant to Government Code section 18213 (Register 2000, No. 15).
Article 6. Legislative Counsel Bureau -- Special Examination and Appointment Program
§549.70. Legislative Counsel Bureau: Examinations and Appointments.
Note • History
If the Legislative Counsel Bureau appointing power wishes to appoint a competitor to an information technology position for which an examination has been conducted, the appointing power shall fill the vacancy by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class, and who is judged to be among the best qualified available competitors as a result of evaluations made pursuant to Section 549.71.
If the appointing power has at the same time or within one year of the final date specified for filing an application for the examination more than one vacancy in the same class and for which the same or substantially similar job-related knowledge, skills, and abilities are required, the first and every succeeding vacancy shall be filled in a like manner by selection of a competitor who has filed a timely application for the examination pursuant to Section 174, who meets the minimum qualifications for the class and who is judged to be among the best qualified remaining competitors pursuant to Section 549.71, unless the appointing power chooses to conduct a new examination, in which case the appointing power shall appoint a competitor judged to be among the best qualified in the new examination and who also has filed a timely application for that examination and who meets the minimum qualifications for the class.
The Legislative Counsel Bureau shall maintain records of each examination conducted. The records shall be sufficient to permit an independent review of examinations conducted to determine whether they have complied with the intent of this Section, Section 549.71, and Article VII, Section 1(b) of the California Constitution. For each examination, such records shall include, but not be limited to (a) a list of competitors who filed an application for the examination together with a notation as to their date of filing; (b) justification whether each competitor met the minimum qualifications for the class; and (c) a summary of the evaluation pursuant to Section 549.71 of each competitor who is offered a position.
The provisions of this regulation do not apply if an appointment is to be made from a reemployment list under Government Code Section 19056. The provisions of this regulation do not apply if an appointment is to be made from a general reemployment list pursuant to Government Code Section 19056.5, unless there are fewer than three persons on the general reemployment list willing to accept employment under the conditions of employment specified, in which case the appointing power may appoint a competitor in accordance with the provisions of the Section.
Examinations shall be conducted pursuant to the procedures in Article 4 (commencing with Section 548.30) and Article 5 (commencing with Section 548.40) as with Career Executive Assignments.
NOTE
Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.
HISTORY
1. New article 6 (sections 549.70-549.74) and new section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).
2. Amendment of section heading, section and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).
§549.71. Legislative Counsel Bureau: Competitive Evaluations.
Note • History
Evaluations of education, experience, job-related knowledge, skills, abilities, behaviors, and personal qualifications shall be made on a competitive basis in that each competitor shall be evaluated thereon in relation to the minimum and desirable qualifications for the class and position in question and in relation to the comparable qualifications of other competitors. The term “personal qualifications” includes all such personality traits and personal, moral, and physical characteristics as are necessarily comprehended by the minimum and desirable qualifications established for the class and position.
When evaluating a competitor's education, experience, and job-related knowledge, skills, abilities, and behaviors, interviewers shall consider the quality and pertinence of such education, experience, and job-related knowledge, skills, abilities, and behaviors, and the degree to which the competitor's total education and work history and job-related knowledge, skills, abilities, and behaviors represent suitable preparation for the work of the class and position.
NOTE
Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.
HISTORY
1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).
2. Amendment of section heading and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).
§549.72. Legislative Counsel Bureau: Notice of Examination Results.
Note • History
As soon as an examination has been completed, each competitor shall be notified in writing of the results of the examination. Pursuant to Section 548.49, an appeal shall be filed within thirty (30) days from the date the candidate was notified of the examination results.
NOTE
Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.
HISTORY
1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).
2. Amendment of section heading, section and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).
§549.73. Legislative Counsel Bureau: Definition of “Class” and Establishment of Minimum Qualifications.
Note • History
For the Legislative Counsel Bureau, “class” means a consolidation of similar classes in the same occupational area into a broader and deeper grouping for which the same general title may be used to designate each position allocated to the class and which may include more than one specialty area within the general field of work.
In addition to the general minimum qualifications for each “class”, other job-related qualifications will be required for particular positions within the class. The other job-related qualifications shall be described in the individual Position Descriptions established for each position within the class.
NOTE
Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.
HISTORY
1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).
2. Amendment of section heading, section and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).
§549.74. Legislative Counsel Bureau: Voluntary Transfer Between Classes.
Note • History
Voluntary transfer between the “classes” as defined in Rule 549.73 and other classes will be permitted pursuant to State Personnel Board Rules 430-435, except that transfers from the Legislative Counsel Bureau class of Information Technology Specialist, Range E to the classes of Senior Programmer Analyst (Specialist and Supervisor) and Senior Information Systems Analyst (Specialist and Supervisor) will not be permitted under any circumstances.
NOTE
Authority cited: Sections 10205.1, 18701 and 18702, Government Code. Reference: Sections 18701 and 18702, Government Code.
HISTORY
1. New section filed 1-6-98; operative 1-6-98. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 98, No. 2).
2. Amendment of section heading and Note filed 3-21-2005; operative 3-21-2005 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2005, No. 12).
Article 7. Department of Motor Vehicles--Special Examination and Appointment Program
§549.80. Department of Motor Vehicles: Managerial and Supervisory Selection and Examination.
Note • History
Pursuant to Government Code section 19602.5, the Department of Motor Vehicles (DMV) may conduct examinations and make appointments to select candidates for specified managerial and supervisory classifications, as approved by the Executive Officer. Examinations for the above identified classifications shall be conducted pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:
(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed for the specific classification.
(b) The appointing power shall be governed by Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.
(c) Any eligible employee or applicant may appeal to the State Personnel Board, pursuant to Section 548.49, within thirty (30) days of the date of the notification of examination results.
(d) Examinations may be either open or promotional.
NOTE
Authority cited: Sections 18701 and 19602.5, Government Code. Reference: Sections 18930, 19054.1, 19600, 19605 and 19607, Government Code.
HISTORY
1. New article 7 (section 549.80) and section filed 6-27-2001; operative 6-27-2001 pursuant to Government Code section 11343.4. Submitted to OAL for printing only pursuant to Government Code section 19602 (Register 2001, No. 26).
2. Amendment of article heading, section heading, section and Note filed 3-19-2007; operative 1-9-2007 pursuant to Government Code section 18221. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2007, No. 12).
3. Amendment of first paragraph filed 2-25-2008; operative 1-22-2008. Submitted to OAL for printing only pursuant to Government Code sections 18211 and 18213 (Register 2008, No. 9).
Article 8. California Department of Transportation
§549.90. California Department of Transportation Managerial Selection Program.
Note • History
Under State Personnel Board supervision, the California Department of Transportation (Department) shall conduct the examination process to select candidates for positions designated M01 and M09. The Department shall conduct examinations for the above identified classifications pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Section 548.40 through 548.52) for Career Executive Assignments, with the following exceptions:
(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed for the specific classification.
(b) The appointing power shall be governed by Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.
(c) Any eligible employee may appeal to the State Personnel Board, pursuant to Section 548.49, within thirty (30) days of the date of the notification of examination results.
(d) Examinations may be either open or promotional.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19600, 19605 and 19607, Government Code.
HISTORY
1. New article 8 (section 549.90) and section filed 9-17-2001; operative 9-17-2001. Submitted to OAL for printing only pursuant to Government Code section 19602(f) (Register 2001, No. 38).
2. Amendment of article heading, section heading and section filed 3-19-2008; operative 1-22-2008. Submitted to OAL for printing only pursuant to Government Code section 19602(f) (Register 2008, No. 12).
Article 9. Demonstration Project -- Prison Industry Authority
§549.95. Prison Industry Authority Managerial and Supervisory Selection Demonstration Project.
Note • History
Under State Personnel Board (SPB) supervision, the Prison Industry Authority (PIA) shall conduct a demonstration project, pursuant to Government Code Sections 19600, 19605, and 19607, affecting the examination process to select candidates for positions designated M12 and S12 within PIA. During this demonstration project, the department shall conduct examinations for the above-identified classifications pursuant to the procedures in Article 4 (Section 548.30) and Article 5 (Sections 548.40 through 548.52) for Career Executive Assignments for testing purposes only, with the following exceptions:
(a) The examination announcements specified by Section 548.41 shall specify the minimum qualifications for the position as prescribed in the specific classification.
(b) The appointing power shall be governed by Section 171.1 in determining whether an applicant has completed the minimum time required by the experience component in the minimum qualifications, if any.
(c) Any eligible employee may appeal to SPB, pursuant to Section 548.49, within thirty (30) days of the date of the notification of the examination results.
(d) Examinations may be either open or promotional.
NOTE
Authority cited: Section 18701, Government Code. Reference: Sections 19600, 19605 and 19607, Government Code.
HISTORY
1. New article 9 (section 549.95) and section filed 11-4-2002; operative 11-4-2002. Submitted to OAL for printing only pursuant to Government Code section 19602(f) (Register 2002, No. 45).
Chapter 2. Board of Administration of Public Employees' Retirement System
Subchapter 1. Employees' Retirement System Regulations
Article 1. General
Note • History
For the purpose of the regulations contained in this subchapter, the term “board” means Board of Administration, Public Employees' Retirement System; “retirement allowance” means a service retirement allowance or disability retirement allowance payable under the Public Employees' Retirement Law to a retired person; “group insurance plan” means a policy of group life, accident, health, or disability insurance, or a contract of a nonprofit membership corporation for the purpose of defraying the cost of medical service (including service rendered by doctors of medicine, doctors of osteopathy, or doctors of chiropractic) or hospital care, or both.
NOTE
Authority cited: for Subchapter 1 (§§ 550 and 551): Sections 20120 and 20630, Government Code. Additional authority cited: Sections 20135, 20303, 22500, Government Code. Reference: Section 20133, Government Code.
HISTORY
1. New Subchapter 1 ( §§ 550 and 551) filed 12-15-59; effective 30th day thereafter (Register 59, No. 21).
2. Repealer of Subchapters 1 and 1.1, and new Subchapter 1 (Sections 550, 550.1, 560, 575, 580, 581) filed 6-29-60; effective thirtieth day thereafter (Register 60, No. 15). (For history of Subchapter 1.1, see Registers 56, No. 7, and 57, No. 18).
3. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
§550.1. Definitions. [Repealed]
History
HISTORY
1. Repealer filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
Note • History
The office of the board is located at 400 P Street, Sacramento, California. Correspondence should be addressed to the Executive Officer, Public Employees' Retirement System, P.O. Box 942702, Sacramento, California 94229-2702.
NOTE
Authority cited: Section 20120, Government Code. Reference: Section 20133, Government Code.
HISTORY
1. New section filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
2. Change without regulatory effect amending section filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).
Note • History
(a) The Board shall mail a Board Meeting Notice showing matters and other items of business scheduled to be conducted at an upcoming Board meeting to those interested parties who have requested such notice in writing. The Board Meeting Notice may be mailed via electronic mail or the U.S. Postal Service, and shall be mailed at least 10 days prior to the scheduled Board meeting to which it relates. The Board Meeting Notice shall also be available on the Internet at www.calpers.ca.gov.
(b) The Board Meeting Notice shall include:
(1) The name, address, and telephone number of any person who can provide further information prior to the meeting;
(2) The address of the Internet site where notices are made available; and
(3) A specific agenda for the meeting, containing a brief description of the matters and other items of business to be conducted or discussed in either open or closed session. A description of a matter or other item of business to be conducted or discussed in closed session shall include a citation to the specific statutory authority under which a closed session is being held.
(c) A Board Meeting Notice may contain additional information not described in subdivision (b).
NOTE
Authority cited: Sections 20120, 20121 and 20151, Government Code. Reference: Section 11125, Government Code.
HISTORY
1. New section filed 3-9-2011; operative 4-8-2011 (Register 2011, No. 10).
Article 2. Administration
§554. Election of Board Members.
Note • History
Board member elections shall be conducted by the Election Coordinator designated by the Executive Officer in accordance with procedures adopted by the Board.
All CalPERS staff directly involved in conducting Board elections shall be required to sign a statement that they have fully complied with the CalPERS Board election procedures and have faithfully performed their assigned duties in the election. These statements shall be on file with the CalPERS Executive Office and shall be completed each time an election is held. No CalPERS staff directly involved in conducting a CalPERS election shall use his/her official position to favor one candidate over another. Nothing in this section shall prohibit CalPERS staff who are eligible to vote in an election from exercising the same personal rights as other eligible voters.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27). For history of Article 2, see Register 64, No. 17.
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
4. Amendment of second paragraph filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
5. Change without regulatory effect correcting 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
6. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
7. Amendment filed 8-2-2001; operative 9-1-2001 (Register 2001, No. 31).
§554.1. Agency Responsibilities in Active Member Elections.
Note • History
Each public agency and each State department shall appoint an Agency Election Officer at the request of the Board in elections for Board members. Agencies shall immediately notify the Board of any change in the appointment.
Agency Election Officers shall:
(a) Certify that the designated Election Officer understands and will comply with the election instructions and that actions taken will be compatible with ethical election practices.
(b) Ensure the timely distribution to eligible members or posting of election materials sent by the Election Coordinator, according to the Election Coordinator's instructions.
(c) Ensure impartiality of the election process within the agency.
(d) Ensure no campaign material is distributed with the election material sent by the Election Coordinator.
(e) Promptly provide any information necessary to the election process at the request of the Election Coordinator.
(f) Certify, under penalty of perjury, that election materials were forwarded to PERS members in that agency, as instructed by the Election Coordinator.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. New subsection (a), repealer of former subsection (b) and amendment of newly designated subsection (b), and amendment of subsections (d) and (f) filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
4. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
Note • History
(a) Before each election for a Board member identified in Government Code 20090, subdivision (g) or a special election to fill a vacancy pursuant to Government Code section 20095, the Board shall adopt a Notice of Election. The complete text of the Notice of Election shall be adopted as an agenda item at a regularly noticed public meeting of the Board.
(b) The Notice of Election shall contain:
i. A statement of whether, at the time of the adoption of the Notice of Election, the incumbent intends to be a candidate for reelection, pursuant to Government Code section 20096.3;
ii. The election schedule, including without limitation, the date for submission of Nomination Petition forms, Nomination Acceptance/Ballot Designation forms, and the dates of the election pursuant to this section and section 554.3 of this article;
iii. Eligibility criteria for candidates and voters pursuant to Government Code section 20090, subdivision (g);
iv. Candidate nomination and election procedures as provided in section 554.3 of this article;
v. Information required by the Nomination Petition as provided in section 554.3, subdivisions (b) and (c), of this article;
vi. The minimum number of valid original signatures required for nomination as a candidate pursuant to section 554.3, subdivision (e) of this article; and
vii. Such other information as determined by the Board at the noticed public meeting.
(c) The election schedule shall provide the Board adequate time and flexibility to accommodate the nomination and candidate statement arbitration processes, various administrative procedures and voting periods, including the opportunity for a run-off election, if necessary, and to seat the newly elected Board members by statutory deadlines. In no event shall ballots be distributed to voters earlier than 60 days after the adoption of the original Notice of Election.
(d) Any amendment to the Notice of Election, including amendments to the election schedule, shall be set forth in an Amended Notice of Election, adopted at a noticed public meeting of the Board.
(e) The Election Coordinator shall publish the Notice of Election before each election, using methods designed to provide adequate notice to potential candidates and voters, including but not limited to:
a. Posting the Notice of Election on the CalPERS website.
b. Mailing the Notice of Election directly to eligible retired members.
c. Providing employers with sufficient copies of the Notice of Election to allow widespread notice to employees.
(f) Agency Election Officers shall provide notification to eligible active members by direct distribution of the Notice of Election to members or by posting the Notice of Election in employee work areas.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20090, 20095 and 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
3. Amendment of section and Note filed 6-26-2008; operative 7-26-2008 (Register 2008, No. 26).
§554.3. Nomination of Candidates [Effective until 1-16-2002].
Note • History
Members shall qualify for nomination if they meet the eligibility criteria adopted in advance of each election and publicized by the Board in the Notice of Election. Nomination shall be by petition, addressed to the Board and signed by members eligible to vote in the election being conducted. The minimum number of petition signatures required shall be determined by the Board and specified in the Notice of Election.
Only those petitions received in the Sacramento office of the System by the date specified in the Notice of Election shall be accepted.
Each nominee shall certify that the nominee accepts the nomination, consents to serve if elected and agrees to abide by a drawing of lots by the Secretary of State in case of a tied vote. Nominees shall return this certification on the form provided by the System by the date specified in the Notice of Election to have their names placed on the ballot.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
3. Amendment of first paragraph filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
4. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
5. Amendment of first paragraph adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.
§554.3. Nomination of Candidates [Effective 1-16-2002].
Note • History
(a) A person qualifies for nomination if he or she meets the eligibility criteria set forth in Government Code section 20090, subdivision (g), for the Board member position that is the subject of the election. To qualify for candidacy, a nominee must complete the procedures for nomination set forth in the Notice of Election. An individual nominee may not be a candidate for more than one Board member position during any particular election.
(b) Nomination shall be by petition, on the Nomination Petition form(s) provided by the System, addressed to the Board and signed by the nominee. The Nomination Petition form shall include all information required by this section as provided in the Notice of Election or any Amended Notice of Election. The petition shall identify clearly the specific Board member position for which the nominee seeks election. The petition shall also set forth information required to validate the nominee's eligibility, which shall include, the nominee's full name, last four (4) digits of the nominee's Social Security number, and employer or employer at retirement. The nominee shall also provide contact information, such as address, telephone number, fax number, and email address.
(c) A member or retired member shall be eligible to sign a Nomination Petition if he or she meets the eligibility criteria set forth in Government Code section 20090, subdivision (g), for the Board member position that is the subject of the election. Members or retired members signing a Nomination Petition shall provide identifying information for the purpose of validating membership in the System, which shall include, the member's or retired member's full name, last four (4) digits of his or her Social Security number, and employer or employer at retirement.
(d) The Nomination Petition Form shall be provided by the System as follows, pages 1 and 2 are reproduced below; subsequent identically formatted pages will be provided by the System for signature lines numbered 8 - 300:
Embedded Graphic 02.0003
Embedded Graphic 02.0004
(e) The minimum number of petition signatures required for candidacy shall be determined by the Board at a noticed public meeting and specified in the Notice of Election. In setting the minimum number of petition signatures, the Board will consider the goals of ensuring candidates have a minimum level of support and providing members and retirees access to candidacy. In no event shall less than 250 valid original signatures be required. Only those petitions received in the Sacramento office of the System by the date and time specified in the Notice of Election shall be accepted.
(f) Each nominee shall certify, on the Nomination Acceptance/Ballot Designation form provided by the System, that he or she accepts the nomination, consents to serve if elected and agrees to abide by a drawing of lots by the Secretary of State in case of a tied vote. If a nominee chooses to submit a Ballot Designation, he or she shall include the proposed Ballot Designation on the Nomination Acceptance/Ballot Designation form. The nominee shall return the Nomination Acceptance/Ballot Designation form by the date and time specified in the Notice of Election to have his or her name placed on the ballot.
(g) The Nomination Acceptance/Ballot Designation Form shall be provided by the System as follows:
Embedded Graphic 02.0005
CalPERS-BRD-195 (FRONT) (1/08)
Embedded Graphic 02.0006
CalPERS-BRD-195 (BACK) (1/08)
(h) The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to Section 554.3 filed July 2, 1982, shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
3. Amendment of first paragraph filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
4. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
5. Amendment of first paragraph adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 9-1-2001 (Register 2001, No. 31).
6. Amendment filed 6-26-2008; operative 7-26-2008 (Register 2008, No. 26).
7. Change without regulatory effect amending subsection (d) and repealing and adopting new Form CalPERS-BRD-74B (10/11) filed 4-23-2012 pursuant to section 100, title 1, California Code of Regulations (Register 2012, No. 17).
§554.4. Candidate Statements [Effective until 1-16-2002].
Note • History
Each candidate for an elective Board member position may provide a statement including the candidate's name, the word “Incumbent” when the candidate is the incumbent in the position for which the election is being held, job classification, employer (or employer at retirement), years of CalPERS-covered service, and a brief factual, biographical description of no more than 150 words of the candidate's education and background, and a list of organizations to which the candidate belongs, and positions held in those organizations. Statements indicating the candidate's opinion or positions on issues of general concern to the System's membership may be included, so long as they are clearly stated as the candidate's opinion or view. The statement must be truthful, and shall not include other information. The statements must not include any remarks or questions that are inherently misleading, including rhetorical remarks and questions that are inherently misleading.
The statement shall be filed with the Election Coordinator at the time the candidate accepts nomination. Once filed, statements may not be changed or withdrawn except by the Election Coordinator. The Election Coordinator shall reject or edit any statement which contains obscene, vulgar, profane, scandalous, untrue, libelous or defamatory matter or which does not meet the statement limitations stated above. The Election Coordinator may request the candidate to verify the truthfulness of any factual statements. The candidate shall provide timely verification upon such request. The Election Coordinator shall remove from the ballot the name of any candidate who fails to respond to such a verification request. Nothing in this section shall be deemed to make candidate statements or the authors thereof free or exempt from any civil or criminal action or penalty because of any false, slanderous or libelous statements offered for printing or distributed to voters. Information contained in the statement is the responsibility of the candidate and the Public Employees' Retirement System accepts no responsibility for the validity of the statement or the contents thereof.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
3. Change without regulatory effect amending first paragraph filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).
4. Amendment of first paragraph and Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
5. Amendment filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
6. Change without regulatory effect correcting subsections (a) and (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
7. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
8. Amendments adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.
§554.4. Candidate Statements [Effective 1-16-2002].
Note • History
(a) Each candidate for an elective Board member position may provide a candidate statement including the candidate's name, the word “Incumbent” when the candidate is the incumbent in the position for which the election is being held, job classification, employer (or employer at retirement), years of CalPERS-covered service, and a general statement of no more than 300 words. The statement must be truthful, and shall contain no obscene, vulgar, profane, libelous or defamatory matter. The statement shall not include any remarks or questions that are inherently misleading, including rhetorical remarks and questions that are inherently misleading.
(b) The statement shall be filed with the Election Coordinator at the time the candidate accepts nomination. Once filed, statements may not be changed or withdrawn except as provided herein.
(c) Within 7 calendar days following the end of the nomination period, the Election Coordinator shall distribute all candidate statements to each candidate in the respective contest. Each candidate shall have 10 calendar days (or such longer period as the Election Coordinator may provide to all candidates) after the distribution of the candidate statements by the Election Coordinator to submit to the Election Coordinator an addendum to the candidate's statement of no more than 300 words. No addenda may change the initial candidate statement, but addenda, if any, shall be in addition to the initial candidate statement. The Election Coordinator shall, within 7 calendar days after the date in which all addenda are due, provide all candidates with all candidate statements including addenda if any.
(d) No statement may be changed or withdrawn, except that:
(1) a candidate who withdraws from the election may withdraw his/her statement at any time prior to printing, or,
(2) a candidate statement may be modified in accordance with a determination of an arbitration conducted in accordance with subdivision (e) below.
(e) Any controversy or claim arising out of or relating to a proposed candidate's statement's compliance with the provisions of this section shall be determined by a third-party arbitrator conducting arbitration in accordance with the laws of the State of California and as provided below, and the Labor Arbitration rules of the American Arbitration Association (AAA) in effect on November 15, 2000, to the extent the AAA rules are not in conflict with this subdivision.
(1) A written request for arbitration related to any candidate's statement must be filed with CalPERS Election Coordinator by a candidate not later than 5 working days after the Election Coordinator's mailing of candidate statements pursuant to subdivision (c) above. Upon the Election Coordinator's receipt of a request for arbitration, the Board or its delegate shall designate an independent, neutral third-party arbitrator to administer the arbitration. No board member who is a candidate for election that is the subject of the arbitration may participate in the selection of the arbitrator except as specified in subdivisions (2-6) below.
(2) A request for arbitration shall set forth the nature of the controversy or claim, a brief statement of the basis of the controversy or claim, and the remedy sought.
(3) Upon receipt of a request for arbitration under this section, the Election Coordinator shall mail a copy of the request to all candidates for the same seat and to the third-party arbitrator. Within seven days of mailing the request for arbitration by the Election Coordinator, any candidate for the seat that is the subject of the arbitration may request to participate in the arbitration by filing a written request with the Election Coordinator, which the Coordinator shall promptly forward to the third party arbitrator.
(4) The third-party arbitrator shall promptly submit simultaneously to each party requesting to participate an identical list of names of three persons chosen from its panel of arbitrators. Each party shall have seven days from the date the list is submitted in which to file an objection with the third-party arbitrator to any name, number the remaining names to indicate order of preference, and return the list to the third-party arbitrator. From among the persons for whom no objection has been filed, and in accordance with the designated order of preference, the third-party arbitrator shall invite an arbitrator to serve. If every proposed arbitrator receives an objection, or if the arbitrator selected declines or is unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the third-party arbitrator shall make the appointment from among other members of the arbitrator's panel without the submission of any additional list.
(5) Any arbitration shall be held in the City of Sacramento. Any candidate for the same office may participate in the arbitration by filing notice with CalPERS. The determination of the arbitrator shall be rendered within 30 days of selection of an arbitrator and shall be final and binding on CalPERS and candidates for office.
(6) Each candidate participating in the arbitration shall bear its own expenses in connection with the preparation and presentation of his or her case at the arbitration proceedings. The fees and expenses of the arbitrator and all other expenses of the arbitration shall be borne equally by each candidate participating in the arbitration.
(f) The Election Coordinator shall distribute all deadlines and instructions related to candidate statements in writing to all candidates.
(g) Nothing in this section shall be deemed to make candidate statements or the authors thereof free or exempt from any civil or criminal action or penalty because of any statements offered for printing or distributed to voters. Information contained in the statement is the responsibility of the candidate and the California Public Employees' Retirement System accepts no responsibility for the validity of the statement or the contents thereof.
The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to Section 554.4 filed August 24, 1998 shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
3. Change without regulatory effect amending first paragraph filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).
4. Amendment of first paragraph and Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
5. Amendment filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
6. Change without regulatory effect correcting subsections (a) and (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
7. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
8. Amendments adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).
9. Amendment of subsections (a) and (c) filed 4-26-2012; operative 5-26-2012 (Register 2012, No. 17).
Note • History
(a) Except as provided in paragraph (b), below, the Election Coordinator shall cause ballots, candidate statements and postage paid return envelopes to be mailed by the System directly to the residence of each retired member, and to each eligible active member for whom the Board has a residence address and is permitted by law to use such address to mail these election materials. For those eligible active members for whom the Board does not have access to a legally permissible residence address, the Election Coordinator shall forward their ballots, candidate statements, and postage paid return envelopes to the Agency Election Officer with instructions to ensure that these materials are immediately provided to the identified member(s). For purposes of this section, “eligible active member” means a member of the System who is employed, on the date specified in the Notice of Election's criteria for voter eligibility, by an employer participating in the System.
Marked ballots shall be returned to the location designated by PERS in the postage paid return envelope provided by the System, or another comparable envelope, and the reverse side shall be signed by the voter certifying under penalty of perjury that the voter is eligible to vote in the election; otherwise the ballot shall not be valid.
(b) Where only one candidate has been nominated in accordance with section 554.3, the Election Coordinator shall, upon verification of the signatures presented in the nominating petition and upon the candidate's certification of his/her nomination acceptance, cancel the remaining election procedures and designate the single candidate to be certified as elected by the Secretary of State. Upon the Secretary of State's certification, the Board member elected through this process shall take his/her office on the day provided for by statute.
NOTE
Authority cited: Sections 20096 and 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
4. Amendment of newly designated subsection (a) and new subsection (b) filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-17-95 order including amendment of Note transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).
6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
§554.6. Ballot Counting and Runoff Election [Effective 1-16-2002].
Note • History
(a) Signed ballot envelopes shall not be opened until the deadline for final receipt of valid ballots. On the date specified in the Notice of Election at the location designated by CalPERS, the sealed signed envelopes containing the valid ballots shall be opened and canvassed publicly by an independent, neutral agent appointed by CalPERS for the purpose. The candidate having a majority of votes, or the winning lot as drawn by the Secretary of State in case of a tie vote, or the single candidate as provided in section 554.5(b), shall be certified by the Secretary of State as having been elected.
(b) Where the Board members elected under Government Code section 20090, subdivision (g)(1) are elected in the same election, the two positions shall be separately designated Position A and Position B. The position held by Charles Valdes on November 15, 2000 shall thereafter be designated Position A. The position held by William B. Rosenberg on November 15, 2000 shall thereafter be designated Position B.
(c) The candidate receiving the majority vote for each position shall be certified by the Secretary of State as having been elected. In the event that no candidate for any position receives a majority of votes (i.e., 50% of votes cast plus one vote), a runoff election will be conducted involving the two candidates who received the highest number of votes.
(d) The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed December 1, 1995 shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20090 and 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
4. Amendment filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-17-95 order transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).
6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
7. Amendment of section heading and section filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
9. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
10. Amendment of section heading, section and Note adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).
11. Change without regulatory effect designating last two paragraphs as subsections (c) and (d) filed 7-11-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 28).
§554.6. Ballot Counting and Runoff Election [Effective 1-16-2002].
Note • History
(a) Signed ballot envelopes shall not be opened until the deadline for final receipt of valid ballots. On the date specified in the Notice of Election at the location designated by CalPERS, the sealed signed envelopes containing the valid ballots shall be opened and canvassed publicly by an independent, neutral agent appointed by CalPERS for the purpose. The candidate having a majority of votes, or the winning lot as drawn by the Secretary of State in case of a tie vote, or the single candidate as provided in section 554.5(b), shall be certified by the Secretary of State as having been elected.
(b) Where the Board members elected under Government Code section 20090, subdivision (g)(1) are elected in the same election, the two positions shall be separately designated Position A and Position B. The position held by Charles Valdes on November 15, 2000 shall thereafter be designated Position A. The position held by William B. Rosenberg on November 15, 2000 shall thereafter be designated Position B.
The candidate receiving the majority vote for each position shall be certified by the Secretary of State as having been elected. In the event that no candidate for any position receives a majority of votes (i.e., 50% of votes cast plus one vote), a runoff election will be conducted involving the two candidates who received the highest number of votes.
The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed December 1, 1995 shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20090 and 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. Amendment filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
4. Amendment filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-17-95 order transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).
6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
7. Amendment of section heading and section filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
9. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
10. Amendment of section heading, section and Note adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).
§554.7. Notice of Election Results [Effective until 1-16-2002].
Note • History
(a) Within three working days after the public ballot canvassing, or after verification of the nominating signatures and certification of nomination acceptance as provided in section 554.5(b), the Election Coordinator shall post the unofficial election results and transmit these unofficial results to each candidate, utilizing express mail services.
(b) Following certification by the Secretary of State, the Election Coordinator shall notify the Executive Officer, candidates, Board members, staff and other interested parties of the official, certified results. Notification to the newly elected Board member shall include an Oath of Office form. This form is to be signed by the member in the presence of a notary public and returned to the System. The Election Coordinator shall file the Oath with the Secretary of State.
(c) Election results shall be publicized to agencies and members in a manner prescribed by the Board.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. New subsection (a), designation and amendment of subsection (b), and designation of subsection (c) filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
4. Amendment of subsection (a) filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-17-95 order including amendment of subsection (b) transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).
6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
7. Amendment of subsection (a) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
9. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
10. Amendment of subsection (a) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.
§554.7. Notice of Election Results [Effective 1-16-2002].
Note • History
(a) Within three working days after the public ballot canvassing of the election and runoff election, if any, or after verification of the nominating signatures and certification of nomination acceptance as provided in section 554.5(b), the Election Coordinator shall post the unofficial election results and transmit these unofficial results to each candidate, utilizing express mail services.
(b) Following certification by the Secretary of State, the Election Coordinator shall notify the Executive Officer, candidates, Board members, staff and other interested parties of the official, certified results. Notification to the newly elected Board member shall include an Oath of Office form. This form is to be signed by the member in the presence of a notary public and returned to the System. The Election Coordinator shall file the Oath with the Secretary of State.
(c) Election results shall be publicized to agencies and members in a manner prescribed by the Board.
The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed July 17, 1995 shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 7-2-82; effective thirtieth day thereafter (Register 82, No. 27).
2. Amendment filed 7-9-84; effective thirtieth day thereafter (Register 84, No. 28).
3. New subsection (a), designation and amendment of subsection (b), and designation of subsection (c) filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
4. Amendment of subsection (a) filed 7-17-95 as an emergency; operative 7-17-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-95 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-17-95 order including amendment of subsection (b) transmitted to OAL 10-27-95 and filed 12-1-95 (Register 95, No. 48).
6. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
7. Amendment of subsection (a) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
8. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
9. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
10. Amendment of subsection (a) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).
§554.8. Recount of an Election [Effective until 1-16-2002].
Note • History
(a) A request for a recount shall not delay the seating of an elected Board member. Such elected Board member shall take office, in accordance with the published election schedule, subject to the potential termination of such Board membership as a result of the recount.
(b) A candidate in the affected Board member election may file a written request with the Election Coordinator at the Sacramento Office of PERS for recount within ten working days following the mailing of the unofficial election results; otherwise, there shall be no opportunity for requesting a recount and the certified election results stand as the official results.
(c) A written request for a recount shall specify the election to be recounted, shall be signed by the candidate requesting the recount, and may specify any other relevant material to be examined.
(d) The Election Coordinator shall set a date for the recount upon receipt of the written request, and shall confirm this date upon receipt of the estimated cost to conduct the recount. The estimated cost of conducting a recount will include the system's administrative cost and the costs of the ballot counting contractor, if applicable. Legal tender of the amount of the estimated cost of conducting the recount shall be submitted by the candidate requesting the recount to the Election Coordinator within three working days following notification of the estimated cost to conduct the recount; otherwise, the recount shall be termined.
(e) If the results of the recount do not change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the unofficial results shall, upon receipt of Secretary of State certification, stand as the official election results. In this case, if the actual cost of the recount is less than the estimated cost deposited by the requester, PERS shall refund the amount which exceeds the actual cost; if the actual cost of the recount is more than the estimated cost, PERS shall invoice the requester for the difference.
(f) If the results of the recount do change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the recount results shall be resubmitted to the Secretary of State for certification as the official election results. In this case, PERS shall refund the amount of the estimated cost deposited by the requester.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
2. Change without regulatory effect amending subsection (f) filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).
3. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
4. Amendment of subsections (b), (e) and (f) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
5. Change without regulatory effect correcting subsection (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
6. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
7. Amendment of subsections (b), (e) and (f) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.
§554.8. Recount of an Election [Effective 1-16-2002].
Note • History
(a) A request for a recount shall not delay the seating of an elected Board member. Such elected Board member shall take office, in accordance with the published election schedule, subject to the potential termination of such Board membership as a result of the recount.
(b) A candidate in the affected Board member election may file a written request with the Election Coordinator at the Sacramento Office of CalPERS for recount within ten working days following the mailing of the unofficial election results of the runoff election, if any, otherwise, of the election; otherwise, there shall be no opportunity for requesting a recount and the certified election results stand as the official results.
(c) A written request for a recount shall specify the election to be recounted, shall be signed by the candidate requesting the recount, and may specify any other relevant material to be examined.
(d) The Election Coordinator shall set a date for the recount upon receipt of the written request, and shall confirm this date upon receipt of the estimated cost to conduct the recount. The estimated cost of conducting a recount will include the system's administrative cost and the costs of the ballot counting contractor, if applicable. Legal tender of the amount of the estimated cost of conducting the recount shall be submitted by the candidate requesting the recount to the Election Coordinator within three working days following notification of the estimated cost to conduct the recount; otherwise, the recount shall be termined.
(e) If the results of the recount do not change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the unofficial results shall, upon receipt of Secretary of State certification, stand as the official election results. In this case, if the actual cost of the recount is less than the estimated cost deposited by the requester, CalPERS shall refund the amount which exceeds the actual cost; if the actual cost of the recount is more than the estimated cost, CalPERS shall invoice the requester for the difference.
(f) If the results of the recount do change the ranking of the candidates (either the unofficial ranking or the certified ranking, depending upon whether the unofficial results have been certified by the Secretary of State as of the date of the recount), then the recount results shall be resubmitted to the Secretary of State for certification as the official election results. In this case, CalPERS shall refund the amount of the estimated cost deposited by the requester.
The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The amendments to this section filed August 24, 1998 shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
2. Change without regulatory effect amending subsection (f) filed 6-12-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 24).
3. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
4. Amendment of subsections (b), (e) and (f) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
5. Change without regulatory effect correcting subsection (b) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
6. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
7. Amendment of subsections (b), (e) and (f) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).
§554.9. Protest of an Election.
Note • History
(a) The filing of a protest shall not delay the seating of an elected Board member. Such elected Board member shall take office, in accordance with the published election schedule, subject to the potential termination of such Board membership as a result of the protest. Any newly elected member, as the result of a protest, shall hold office for a period equal to the remainder of the term of the vacated office.
(b) Any party who is an active or retired member of CalPERS, eligible to vote in the applicable Board member election, may protest a runoff election, if any, or an election, if no runoff election is conducted. A protest shall be filed with the Election Coordinator at the Sacramento Office of CalPERS within ten working days following the mailing of the certified election results. A protest shall be in writing, shall be identified using the word “protest”, shall specify the election, and shall state the grounds of the protest and suggested remedy.
(c) Upon receipt of a valid and timely protest, the Election Coordinator shall mail a copy of the request to all candidates for the same seat. The Board or its designee shall appoint an independent, neutral agent which shall designate a Protest Panel using the following process. The independent agent shall promptly submit simultaneously to each candidate for the same office that is subject of the protest an identical list of names of at least five persons chosen from its panel of arbitrators. Each candidate shall have seven days from the date the list is submitted in which to file an objection with the agent to any name, number the remaining names to indicate order of preference, and return the list to the agent. From among the persons for whom no objection has been filed, and in accordance with the designated order of preference, the agent shall invite members to serve on the Protest Panel. If every proposed panel member receives an objection, or if a panel member selected declines or is unable to act, or if any other reason the appointment cannot be made from the submitted list, the agent shall make the appointment from among other members of the agent's panel of arbitrators without the submission of any additional list. No Board member who is a candidate for election that is the subject of the protest may participate in the selection of the Protest Panel. The decision of the Protest Panel shall be final. The Protest Panel shall be comprised of no less than three people, all of whom are neither employed by CalPERS nor otherwise interested in the outcome of the election that is the subject of the protest. For purpose of the foregoing sentence only, membership in CalPERS does not, by itself, constitute an “interest in the outcome of the election.” The Protest Panel shall consider written and/or oral arguments submitted by the protestor and any other interested party, including the Board's staff. Any oral proceedings shall be held in the City of Sacramento. The determination of the Protest Panel shall be rendered within 30 days of selection of the Panel and shall be final and binding on CalPERS and candidates for office. Other procedures, including those for receiving and considering arguments and factual allegations, shall be determined by the Protest Panel in its sole discretion. A protest shall only be granted upon a finding that Board-adopted election procedures were not substantially followed and that, without this lack of substantial compliance, the election outcome would likely have been different.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20121, Government Code; Duva, Calif. School Employees' Assoc. v. PERS., et al., 1993 Sacramento Superior Court Case No. 375842.
HISTORY
1. New section filed 8-9-94; operative 9-8-94 (Register 94, No. 32).
2. Amendment of Note filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
3. Amendment filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
4. Change without regulatory effect correcting subsections (b) and (c) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
5. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
6. Amendment filed 8-2-2001; operative 9-1-2001 (Register 2001, No. 31).
§554.10. Ballot Designations [Effective until 1-16-2002].
Note • History
Each candidate for an elective Board member position may choose a Ballot Designation at the time he or she certifies acceptance of nomination as a candidate. The Ballot Designation will be printed below the candidate's name, on the ballots that are mailed to each eligible voter. The Ballot Designation must be accurate and not misleading.
Each candidate must choose a single Ballot Designation, in conformity with the following guidelines:
(a) If the candidate is already a Board member at the time he or she certifies acceptance of nomination, then the candidate may use the single word “Incumbent” and this is the only time it may be used as a designation. The word “Incumbent” may not be used in conjunction with the candidate's title as a CalPERS Board member.
(b) If the candidate holds an elected office at any level of government, or is an elected or appointed judge for a court of record in California, at the time he or she certifies acceptance of nomination, he or she may use the title of that office. If the candidate is retired from that office, the title may still be used, if preceded by the word “Retired.” The candidate shall not make any other reference to a prior elected or appointed office, such as by the word “former” or “ex.”
(c) The candidate may designate the principal profession or occupation in which he or she is engaged, at the time he or she certifies acceptance of nomination. This designation may be general or specific, but it shall not exceed three words in length. If the candidate is retired from the principal profession or occupation, it may still be designated if preceded by the word “Retired.” Any geographic reference that is part of the designation shall count as one word, but the word “Retired” shall not count. The candidate shall not make any other reference to prior professional or occupational status, such as by the word “former” or “ex.”
(d) The candidate shall not use the Ballot Designation to state, or imply, an endorsement or alliance. This means the designation cannot name a political party or any racial, religious or ethnic group. The candidate shall not use the Ballot Designation to state, or imply, a particular level of skill or performance. This means the designation cannot be modified by adjectives such as outstanding, leading, expert, virtuous, or eminent.
The determination of whether or not a Ballot Designation conforms to these guidelines shall be made in the sole discretion of the Election Coordinator. If a Ballot Designation does not conform, in whole or in part, it shall be reformed by the Election Coordinator with prior notice to the candidate, before it is printed on the ballots.
The Election Coordinator will provide each candidate with written criteria for choosing a Ballot Designation in conformity with these guidelines, including examples of designations that were used in prior elections. The choice of Ballot Designation must be made by each candidate, and the Public Employees' Retirement System accepts no responsibility for the content or validity of a given Ballot Designation.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
2. Amendment of subsections (a) and (d) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
4. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
5. Amendment of subsections (a) and (d) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31). Text of version effective through January 15, 2002, retained for reference.
§554.10. Ballot Designations [Effective 1-16-2002].
Note • History
Each candidate for an elective Board member position may choose a Ballot Designation at the time he or she certifies acceptance of nomination as a candidate. The Ballot Designation will be printed below the candidate's name, on the ballots that are mailed to each eligible voter. The Ballot Designation must be accurate and not misleading.
Each candidate must choose a single Ballot Designation, in conformity with the following guidelines:
(a) If the candidate already holds the Board member position to which he or she is seeking election, then the candidate may use the single word “Incumbent” and this is the only time it may be used as a designation. The word “Incumbent” may not be used in conjunction with the candidate's title as a CalPERS Board member.
(b) If the candidate holds an elected office at any level of government, or is an elected or appointed judge for a court of record in California, at the time he or she certifies acceptance of nomination, he or she may use the title of that office. If the candidate is retired from that office, the title may still be used, if preceded by the word “Retired.” The candidate shall not make any other reference to a prior elected or appointed office, such as by the word “former” or “ex.”
(c) The candidate may designate the principal profession or occupation in which he or she is engaged, at the time he or she certifies acceptance of nomination. This designation may be general or specific, but it shall not exceed three words in length. If the candidate is retired from the principal profession or occupation, it may still be designated if preceded by the word “Retired.” Any geographic reference that is part of the designation shall count as one word, but the word “Retired” shall not count. The candidate shall not make any other reference to prior professional or occupational status, such as by the word “former” or “ex.”
(d) The candidate shall not use the Ballot Designation to state, or imply, an endorsement or alliance. This means the designation cannot name a political party or any racial, religious or ethnic group. The candidate shall not use the Ballot Designation to state, or imply, a particular level of skill or performance. This means the designation cannot be modified by adjectives such as outstanding, leading, expert, virtuous, or eminent.
The determination of whether or not a Ballot Designation conforms to these guidelines shall be made in the sole discretion of the Election Coordinator. If a Ballot Designation does not conform, in whole or in part, it shall be reformed by the Election Coordinator with prior notice to the candidate, before it is printed on the ballots.
The Election Coordinator will provide each candidate with written criteria for choosing a Ballot Designation in conformity with these guidelines, including examples of designations that were used in prior elections. The choice of Ballot Designation must be made by each candidate, and the California Public Employees' Retirement System accepts no responsibility for the content or validity of a given Ballot Designation.
The amendments to this section adopted on March 21, 2001 shall become operative on January 16, 2002. The addition of this section filed August 24, 1998 shall remain in effect until that time.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 20096, Government Code.
HISTORY
1. New section filed 8-24-98; operative 9-23-98 (Register 98, No. 35).
2. Amendment of subsections (a) and (d) filed 11-30-2000 as an emergency; operative 11-30-2000 (Register 2000, No. 48). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect correcting subsection (a) of 11-30-2000 emergency action filed 12-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 51).
4. Pursuant to the order of the Superior Court of California, Court of Sacramento, dated April 20, 2001, in California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC v. Public Employees Retirement System, et al., No. 00CS01662, the emergency amendment filed 11-30-2000 has been invalidated and is unenforceable until adopted in full compliance with the Administrative Procedure Act. Reinstatement of section as it existed prior to 11-30-2000 emergency amendment (Register 2001, No. 22).
5. Amendment of subsections (a) and (d) adopted by CalPERS Board 3-21-2001; submitted to OAL and filed 8-2-2001; operative 1-16-2002 (Register 2001, No. 31).
§555. Action of Executive Officer.
Note • History
The Executive Officer is hereby authorized to act: on any application for refund of contributions, crediting of service, correction of records, retirement for disability or service, and death benefits and allowances; and to fix and authorize the payment of any refund, allowance or benefit to which such applicant may be found to be entitled; to cause medical examination of retired persons; and to reinstate such persons from retirement upon his determination that disability does not exist. The Executive Officer may refer the question of an applicant's entitlement to any refund, allowance or benefit or of his reinstatement from retirement to a hearing officer for hearing.
The Executive Officer is hereby authorized and empowered to delegate to his subordinates authority to take any such action on his behalf.
NOTE
Authority cited for Article 2: Section 20120, Government Code. Reference: Sections 20107 and 20133, Government Code.
HISTORY
1. New Article 2 ( §§ 555 through 555.4) filed 8-10-64; effective thirtieth day thereafter (Register 64, No. 17).
2. Amendment filed 2-26-75; effective thirtieth day thereafter (Register 75, No. 9).
History
Any applicant dissatisfied with the action of the Executive Officer on his application, other than his referral of the matter for hearing, may appeal such action to the Board by filing a written notice of such appeal at the offices of the Board within thirty days of the date of the mailing to him by the Executive Officer, at his most recent address of record, of notice of the action and right of appeal. An appeal shall contain a statement of the facts and the law forming the basis for appeal. Upon a satisfactory showing of good cause, the Executive Officer may grant additional time not to exceed 30 days, within which to file such appeal.
HISTORY
1. Amendment filed 4-28-76; effective thirtieth day thereafter (Register 76, No. 18).
Any applicant filing an appeal shall be entitled to a hearing, and upon the filing of an appeal in accordance with these rules, or upon the Executive Officer's referral of any question for hearing, the Executive Officer shall execute a statement of issues. Such action of the Executive Officer shall not preclude the Board from recalling the proceedings for its review or hearing.
Any member whose retirement for disability has been requested by his employer shall be entitled to a hearing. The Executive Officer, upon determination that a member shall be retired for disability on such application, shall file an accusation and serve a copy thereof on the member and his employer.
All hearings shall be conducted in accordance with the provisions of Chapter 5, Part 1, Division 3, Title 2 of the Government Code. Each case shall be heard by the hearing officer alone. All proposed decisions of hearing officers shall be referred to the Board. The Executive Officer is hereby authorized and empowered to take, in the name and on behalf of the Board, any action which the Board is authorized or directed by law to take with respect to procedural and jurisdictional matters in connection with any case in which a statement of issues or accusation has been filed.
Note • History
Reasonable requests for information and service with respect to a claim for benefits shall be satisfied without charge, except that there shall be a standard charge for copywork. With respect to matters other than a claim for benefits, requests for information and service shall be satisfied only upon agreement to pay to the System a fee representing cost to the System for providing such information and service.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20120-20124, Government Code.
HISTORY
1. New section filed 12-6-77; effective thirtieth day thereafter (Register 77, No. 50).
§558. Incompatible Activities Statement.
Note • History
The following activities are deemed to be inconsistent, incompatible, in conflict with, or inimical to the duties of PERS officers or employees:
(1) Using the prestige or influence of the state or PERS for the officer's or employee's private gain or advantage or the private gain of another.
(2) Using state time, facilities, equipment (including but not limited to xerox machines, telephones, vehicles, postage meters, data processing or word processing equipment, or personal computers) or supplies for private gain or advantage.
(3) Using, or having access to, confidential information available by virtue of state employment (including but not limited to confidential data filed by a member or beneficiary with the board, and confidential contract, financial, investment or legal information) for private gain or advantage.
(4) Providing confidential information (including but not limited to confidential data filed by a member or beneficiary with the board, and confidential contract, financial, investment or legal information) to persons to whom issuance of this information has not been authorized.
(5) Receiving or accepting money or any other consideration (including but not limited to entertainment, lodging, travel expenses, services or other items) from anyone other than the state for the performance of his or her job duties as a state officer or employee.
(6) Performance of an act in other than his or her capacity as a state officer or employee knowing that the act may later be subject, directly or indirectly to the control, inspection, review, audit, or enforcement by the officer or employee.
(7) Receiving or accepting, directly or indirectly, any gift, including money, or any service, gratuity, favor, entertainment, hospitality, loan, or any other thing of value from anyone who is doing or is seeking to do business of any kind with the Public Employees' Retirement System or whose activities are regulated or controlled by PERS under circumstances from which it reasonably could be substantiated that the gift was intended to influence the officer or employee in his or her official duties or was intended as a reward for any official actions performed by the officer or employee.
(8) Subject to any other laws, rules, or regulations as pertains thereto, not devoting his or her full time, attention, and efforts to his or her state office or employment during his or her hours of duty as a state officer or employee.
The following activities are specifically deemed to be incompatible, inconsistent, in conflict with, or inimical to the duties of PERS officers and employees due to the nature of the responsibilities of the Public Employees' Retirement System:
(9) Accepting commercial transportation or lodging of any type, or accepting direct or indirect payment or reimbursement for lodging or transportation of any type from any person, business entity, or organization doing or seeking to do business of any kind with PERS, except where:
(A) the travel and/or accommodations or payment or reimbursement for such are provided in connection with training, or a meeting, seminar, or conference which the Executive Officer, or the Board President where the proposed attendee is the Executive Officer, has determined to be of educational value to the attendee; and
(B) the acceptance of the transportation, lodging, payment or reimbursement for such is not prohibited by any other section of this regulation or by any other provision of law.
PERS or the State of California shall pay for travel and lodging expenses of PERS officers and employees on PERS-related business whenever possible. Only if the system or the state is unable to pay the officer's or employee's travel or lodging expenses may a PERS officer or employee accept commercial transportation or lodging of any type, or reimbursement or direct or indirect payment for lodging or transportation of any type, from sources other than PERS or the State of California.
Prior to accepting commercial transportation or lodging or payment or reimbursement for lodging and/or transportation of any type from a source other than PERS or the State of California, the Assistant Executive Officers and employees shall obtain written approval from the Executive Officer, and the Executive Officer shall obtain prior written approval from the Board President.
(10) Claiming travel expenses from PERS for other than state business. No employee shall accept dual payment for travel expenses.
(11) Initiating contact with state administrators or legislative personnel for the purpose of presenting PERS' policy or position on legislation or amendments thereto or initiative or referendum petitions, unless such act is a part of the officer's or employee's official duties. This prohibition does not preclude officers or employees, as private citizens, from contacting legislative or administrative personnel.
(12) Publishing any writing or making any statement to the media which directly or indirectly refers to his or her connection with PERS unless such an act is part of the officer's or employee's official duties, or unless such writing or statement contains an appropriate disclaimer indicating that the views expressed are his or her own and do not necessarily reflect the views of PERS or the Board.
(13) PERS employees and officers shall report all gifts, gratuities and other considerations which are not prohibited by this regulation, except those which are from family members or which are clearly given in a personal or social setting. Such report shall be on PERS' gratuity reporting form, in the month the gift was received. Even gifts which have no monetary value or are of nominal value are to be reported.
(14) All gifts, gratuities and other consideration which are prohibited by the provisions of this regulation are to be returned to the sender whenever possible. The return of prohibited gifts and other consideration can be at PERS' expense, through the mail room, and can include any insurance needed.
(15) For purposes of this regulation, “outside employment” is defined as any services performed by a PERS employee or officer on his or her own time, during other than normal working hours, for which he or she receives any form of compensation.
Outside employment is deemed inconsistent, incompatible, in conflict with, or inimical to the officer's or employee's duty to PERS if it violates any of the provisions of this regulation, or any other law.
PERS officers and employees must obtain prior approval, in the manner described below, before engaging in the types of employment described in (A)-(C):
(A) Outside employment with any person, organization or business entity of any type that contracts with PERS to provide goods or services, or contracts with PERS for any other purpose.
(B) Being a partner in, or acting as an officer or board member of, or as a consultant or contractor to, or owning more than a five percent ownership interest in any business, institution, or any agency which he/she knows has financial dealings with PERS.
(C) Any employment, the nature of which is parallel to or closely allied with the services provided to PERS by the officer or employee, including but not limited to, attorneys performing outside legal work, investment officers providing outside investment services, or actuaries providing outside actuarial services.
A PERS officer or employee who wishes to engage in outside employment or an activity which meets the criteria set forth above in subsection (C), must first make a written request for and receive a written determination that such outside employment or activity is not inconsistent, incompatible, or in conflict with the officer's or employee's duty to PERS. An employee will obtain this determination from his or her Division Chief or function head. Division Chiefs or function heads, and Assistant Executive Officers, will obtain this determination from the PERS Executive Officer.
The PERS Executive Officer shall not engage in such outside employment which meets the criteria set forth above in subsection (C), unless he or she has obtained prior approval from the Board by way of formal Board action.
An officer or employee who is engaged in outside employment on the effective date of this regulation may continue such employment while the request for determination is being processed.
This regulation does not attempt to specify every possible limitation on officer or employee activities that might be determined incompatible under Government Code section 19990.
Nothing in this regulation shall exempt any person from applicable provisions of any other laws of this state. The standards of conduct set forth in this regulation are in addition to those prescribed in PERS' Conflict of Interest Code.
If a PERS officer or employee violates any provision of this regulation, he or she will be liable for disciplinary action to include possible dismissal or removal from office.
If a PERS officer or employee is notified that he or she has violated any provision of this regulation, or that a category of outside employment is prohibited, the officer or employee may appeal through PERS' personnel complaint procedure.
NOTE
Authority cited: Section 20120, Government Code. Reference: Section 19990, Government Code.
HISTORY
1. New section filed 1-17-89; operative 2-16-89 (Register 89, No. 11).
§559. Disclosure of Placement Agent Fees, Gifts and Campaign Contributions.
Note • History
(a) Definitions:
(1) Amendment. Amendment means any modification to an agreement with an External Manager (including by a vote, consent, or waiver by the limited partners/investors or a subset of the limited partners/investors, or separate side agreement or amendment to a side agreement) to continue, terminate, or extend the term of the agreement or the investment period, increase the commitment of funds by CalPERS, or increase or accelerate the fees or compensation payable to the External Manager.
(2) CalPERS Vehicle. CalPERS Vehicle means a corporation, partnership, limited partnership, limited liability company, association or other entity either domestic or foreign, constituting or managed by an External Manager in which CalPERS is the majority investor and that is organized in order to invest with, or retain the investment manager services of other, External Managers, i.e., a fund of funds.
(3) CalPERS Vehicle Manager. CalPERS Vehicle Manager means the general partner, managing member, or investment manager of a CalPERS Vehicle.
(4) Consultant. Consultant means an individual or firm, and includes an individual designated in a CalPERS contract as a key personnel of a Consultant firm who is contractually retained or has been appointed to a pool by CalPERS to provide investment advice to CalPERS but who do not exercise investment discretion.
(5) External Manager. External Manager means either of the following:
(A) A Person who is seeking to be, or is, retained by CalPERS or by a CalPERS Vehicle to manage a portfolio of securities or other assets for compensation, or
(B) A Person who manages an Investment Fund and who offers or sells, or has offered or sold an ownership interest in the Investment fund to CalPERS or a CalPERS Vehicle.
The External Manager usually has full discretion to manage CalPERS assets, consistent with investment management guidelines provided by CalPERS and fiduciary responsibility. A CalPERS Vehicle Manager is an External Manager.
(6) Investment Fund. Investment fund means a private equity fund, public equity fund, venture capital fund, hedge fund, fixed income fund, real estate fund, infrastructure fund, or similar pooled investment entity that is, or holds itself out as being, engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, owning, holding, or trading securities or other assets. Notwithstanding the above, an investment company that is registered with the Securities and Exchange Commission pursuant to the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 et seq.) and that makes a public offering of its securities is not an investment fund.
(7) Person. Person means an individual, corporation, partnership, limited partnership, limited liability company, association or other entity (whether domestic or foreign).
(8) Placement Agent. Placement Agent means any Person directly or indirectly hired, engaged, retained by, or serving for the benefit of or on behalf of an External Manager or an Investment Fund managed by an External Manager, and who acts or acted for compensation as a finder, solicitor, marketer, consultant, broker or other intermediary in connection with the offer or sale to CalPERS or a CalPERS Vehicle either of the following:
(A) In the case of an External Manager within the meaning of section (a)(5)(A), the investment management services of the External Manager, or
(B) In the case of an External Manager within the meaning of section (a)(5)(B), an ownership interest in an investment fund managed by the external manager.
Notwithstanding the above, a Placement Agent shall not include any individual who is an employee, officer, director, equity holder, partner, member, or trustee of an External Manager who spends one-third or more of his or her time, during a calendar year, managing the securities or assets owned, controlled, invested or held by the External Manager.
(9) Placement Agent Information Disclosure. Placement Agent Information Disclosure is defined in subsection (b)(1).
(b) Each External Manager and CalPERS Vehicle Manager is responsible for providing:
(1) The following information (collectively, the “Placement Agent Information Disclosure”) to CalPERS staff or, if applicable, to the CalPERS Vehicle Manager within 45 days of the time investment discussions are initiated by the External Manager or the CalPERS Vehicle Manager, but in any event, prior to the completion of due diligence. For proposed and new investments, the Placement Agent Information Disclosure shall be provided by utilizing the “CalPERS Placement Agent Information Disclosure Form -- Proposed and New Investment Agreements” revised August 12, 2010 and incorporated herein by reference. For Amendments to existing investments, the Placement Agent Information Disclosure is required prior to execution of the Amendment and shall be provided by utilizing the “CalPERS Placement Agent Information Disclosure Form -- Amendments” revised August 12, 2010 and incorporated herein by reference.
(A) A statement whether the External Manager, or any of their principals, employees, agents or affiliates has compensated or agreed to compensate, directly or indirectly, any Person (whether or not employed by the External Manager or the CalPERS Vehicle Manager) to act as a Placement Agent in connection with the offer of assets, securities, or services to CalPERS or a CalPERS Vehicle.
(B) The name and relationship for each Placement Agent in connection with the investment by CalPERS, and attach a resume for each Placement Agent detailing the person's education, professional designations, regulatory licenses and investment and work experience. If any such Person is a current or former CalPERS Board member, employee or Consultant or a member of the immediate family of any such person, such information shall be specifically noted. When an entity is retained as a Placement Agent, any officer, director, or employee actively providing placement agent services with regard to CalPERS or receiving more than 15% of the placement agent fees shall provide information required by this subsection.
(C) A written copy of any and all agreements between the External Manager and the Placement Agent related to the assets, securities or services offered to CalPERS.
(D) A description of any and all compensation of any kind provided or agreed to be provided to a Placement Agent related to the assets, securities, or services offered to CalPERS, including the nature, timing and value thereof.
(E) A description of the services to be performed by the Placement Agent and a statement as to whether the Placement Agent is utilized by the External Manager for all prospective clients or only with a subset of the External Manager's prospective clients.
(F) The names of any current or former CalPERS Board members, employees, or Consultants who suggested or otherwise assisted in the retention of the Placement Agent.
(G) A statement that the Placement Agent is registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority or the Commodity Futures Trading Commission, and the details of such registration. If, however, the Placement Agent is located and operating outside of the United States and interacts exclusively with CalPERS Vehicles formed and operating outside of the United States, the statement may indicate that the Placement Agent (or any of its affiliates as applicable) is registered with a recognized non-U.S. financial regulatory authority and the details of such non-U.S. registration.
(H) A statement whether the Placement Agent, or any of its affiliates, is registered as a lobbyist with any state or national government.
(2) An update of any changes to any of the information included in the Placement Agent Information Disclosure within 14 calendar days of the date that the External Manager knew or should have known of the change in information.
(3) Representation and warranty as to the continuing accuracy of the information included in the Placement Agent Information Disclosure in any final written agreement with a continuing obligation to update any such information within 14 calendar days of the date that the External Manager knew or reasonably should have known of any material change in the information. A CalPERS Vehicle Manager does not need to represent and warrant as to the accuracy of information provided to them by an External Manager with whom the CalPERS Vehicle invests.
(c) Each Placement Agent shall, prior to acting as a Placement Agent, disclose to CalPERS (1) all campaign contributions made by the Placement Agent to any CalPERS Board Member or person(s) who has the authority to appoint a person to the CalPERS Board during the prior 24-month period and (2) all gifts, as defined in Government Code section 82028, given by the Placement Agent to any CalPERS Board Member or person(s) who has the authority to appoint a person to the CalPERS Board during the prior 24-month period. Additionally, any subsequent campaign contribution or gift made by the Placement Agent to any CalPERS Board Member or person(s) who has the authority to appoint a person to the CalPERS Board during the time the Placement Agent is receiving compensation in connection with a CalPERS investment shall also be disclosed.
(d) CalPERS staff and, except as specified below, CalPERS Vehicle Managers are responsible for all of the following:
(1) Providing External Managers with a copy of this regulation at the time that discussions are initiated with respect to a prospective investment or engagement.
(2) Confirming that the Placement Agent Information Disclosure has been received within 45 days of the time investment discussions are initiated, but in any event, prior to the completion of due diligence and any recommendation to proceed with the contract or Amendment.
(3) For new contracts and Amendments, declining the opportunity to retain or invest with the External Manager if the Placement Agent Information Disclosure reveals that the External Manager has used a Placement Agent that is not registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority or, if appropriate, the Commodity Futures Trading Commission. Notwithstanding the above, CalPERS Vehicle Managers may invest in External Managers where the Placement Agent is registered with a recognized non-U.S. financial regulatory authority consistent with subsection (b).1.g.
(4) For new contracts and Amendments, securing the agreement of the External Manager in the final written agreement between CalPERS or the CalPERS Vehicle and the External Manager to provide CalPERS or the CalPERS Vehicle the following remedies in the event the External Manager or CalPERS Vehicle Manager knew or should have known of any material omission or inaccuracy in the Placement Agent Information Disclosure or any other violation of this section:
(A) Whichever is greater, the reimbursement of any management or advisory fees paid for the prior two years or an amount equal to the amounts paid or promised to be paid to the Placement Agent as a result of the CalPERS or CalPERS Vehicle investment or engagement; and
(B) At CalPERS or the CalPERS Vehicle's option, as appropriate, and without any default, penalty or liability on the part of CalPERS or the CalPERS Vehicle to the External Manager, the authority to terminate immediately the investment management contract or other agreement with the External Manager, to withdraw without default, penalty or liability on the part of CalPERS or the CalPERS Vehicle from the limited partnership, limited liability company or other investment vehicle, or alternatively at CalPERS or the CalPERS Vehicle's discretion to cease making further capital contributions (and paying any fees on these recalled commitments) to the limited partnership, limited liability company or other investment vehicle without penalty; provided, however, that notwithstanding the foregoing, CalPERS or the CalPERS Vehicle shall pay when due all obligations due to a third party lender with respect to commitment debt secured by CalPERS or the CalPERS Vehicle's unfunded commitment.
(5) For new contracts and Amendments, confirming that the final written agreement between CalPERS or the CalPERS Vehicle and the External Manager provides that the External Manager shall be solely responsible for, and CalPERS or a CalPERS Vehicle shall not pay (directly or indirectly), any fees, compensation or expenses for any Placement Agent used by the External Manager.
(6) Rejecting any External Manager or Placement Agent's solicitation for any new offer of assets, securities, or services for five years after they have committed a violation of this section unless the Investment Committee reduces the penalty in an open session upon a showing that the violation was immaterial, unintentional, and that a reduction of the penalty is consistent with the fiduciary responsibilities of the Investment Committee as described in Article XVI, section 17 of the California Constitution.
(7) Providing copies of the Placement Agent Information Disclosure to the CalPERS Senior Investment Officer for the asset class for which the External Manager performs investment services, the CalPERS Chief Investment Officer, the CalPERS Chief Executive Officer, the CalPERS Chief of the Office of Enterprise Compliance and CalPERS' General Counsel. The CalPERS Vehicle Manager shall only be responsible for providing a copy of the Placement Agent Information Disclosure to CalPERS staff.
(8) Providing the Investment Committee with a copy of the Placement Agent Information Disclosure whenever the Investment Committee makes or approves the decision to invest with the External Manager. This obligation does not apply to the CalPERS Vehicle Manager.
(9) Compiling a monthly report containing the names and amounts of compensation agreed to be provided to each Placement Agent by each External Manager as reported in the Placement Agent Information Disclosures, providing the report to the Investment Committee, and disclosing the report to the public by posting it to the CalPERS website. The CalPERS Vehicle shall only be responsible for providing this information to CalPERS staff. The report will also include campaign contributions and gifts to CalPERS Board Members reported by Placement Agents. Notwithstanding the above, CalPERS staff may provide the required disclosure confidentially to the Investment Committee if disclosure involves a proposed investment and public disclosure will impair CalPERS' ability to maximize its investment returns. In such cases, disclosure will be made at the first open meeting of the Investment Committee that is held after the final decision is made whether to invest with the External Manager. The disclosure will include a detailed explanation why the disclosure was originally made confidential.
(10) Reporting to the Investment Committee at least quarterly any material violations of this section. The CalPERS Vehicle shall only be responsible for providing this report to CalPERS staff.
(e) External Managers and Placement Agents shall comply with this section and cooperate with CalPERS staff in meeting CalPERS staff's obligations under this section.
(f) CalPERS staff is responsible for implementing this section for CalPERS Vehicles by seeking the written agreement of CalPERS Vehicle Managers to comply with this section. If any such CalPERS Vehicle does not agree in writing to comply with this section, CalPERS staff shall report to the Investment Committee the refusal.
(g) All parties responsible for implementing, monitoring and complying with this regulation should consider the spirit as well as the literal expression of its provisions. In cases where there is uncertainty whether a disclosure should be made, this regulation shall be interpreted to require disclosure.
(h) Only the Investment Committee can grant exceptions to this regulation, except that the CalPERS Chief Investment Officer can agree to an exception for an Amendment, where the decision cannot be delayed until the next Investment Committee meeting. Any exceptions agreed to by the Chief Investment Officer shall be reported out to the public and the Investment Committee within 60 days. The Investment Committee and Chief Investment Officer shall only provide exceptions that are consistent with their fiduciary responsibilities as described in Article XVI, section 17 of the California Constitution, and provided further that all such exceptions are fully disclosed to the public.
(i) The Placement Agent Information Disclosure and their attachments shall be public records subject to disclosure under the California Public Records Act except as provided in subsection (d)(9). No confidentiality restrictions shall be placed by the External Manager or the Placement Agent on any information provided pursuant to this section.
NOTE
Authority cited: Sections 7513.85(a), 20120 and 20121, Government Code. Reference: Sections 7513.8, 7513.85 and 7513.9, Government Code.
HISTORY
1. New section filed 1-28-2011; operative 1-28-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).
2. Change without regulatory effect amending subsection (a)(5), adding subsections (a)(5)(A)-(B) and (a)(6), renumbering subsections, amending newly designated subsection (a)(8) and adding subsections (a)(8)(A)-(B) filed 11-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 47).
§559.1. Required Contract-Related Disclosures.
Note • History
(a) Definitions.
For the purposes of this Section:
(1) Agent. Agent means any Person hired, engaged, retained by, or serving for the benefit of or on behalf of a Proposer or Contractor, who acts or acted for compensation as a finder, solicitor, marketer, lobbyist, consultant, broker, representative, agent or other intermediary to assist, directly or indirectly, in preparing a Proposal to CalPERS or in securing a Contract with CalPERS.
(2) Board Member. Board Member means a current or former member of the CalPERS Board of Administration.
(3) Contract. Contract means an agreement between CalPERS and any Person to provide CalPERS goods and/or services. Contract includes new contracts and amendments to existing contracts (including contract extensions), letters of engagement, consulting purchase orders and similar agreements.
(4) Contractor. Contractor means any Person providing services to CalPERS pursuant to a Contract.
(5) Contract-Related Disclosure Form. Contract-Related Disclosure Form means the document provided by a Proposer or Contractor to CalPERS as required in subdivision (b) hereof.
(6) Familial Relationship. Familial Relationship means a relationship by blood, marriage, registration of domestic partnership or adoption.
(7) Person. Person means an individual, corporation, partnership, limited partnership, limited liability company, association or other entity (whether domestic or foreign).
(8) Proposal. Proposal means any Person's written response to a Solicitation.
(9) Proposer. Proposer means any Person who provides a Proposal in response to a Solicitation.
(10) Solicitation. Solicitation means any process by which CalPERS seeks to procure a Person to provide goods and/or services to CalPERS, including without limitation Requests for Proposal and Invitations to Bid, regardless of amount.
(11) Staff Member. Staff Member means anyone employed at CalPERS within the five (5) years preceding the date the Contract-Related Disclosure Form is due.
(12) Things of Value. Things of Value include, but are not limited to, payments, gifts, loans, cash, meals, travel, awards, campaign contributions, charitable donations, and/or reimbursements. Things of Value do not include:
(A) Informational material such as books, reports, pamphlets, calendars, or periodicals within the meaning of Government Code section 82028, subdivision (e).
(B) Items that CalPERS determines are negligible in light of their amount, nature, purpose, or timing.
(C) Free admission, and refreshments and similar non-cash nominal benefits provided to any Board Member or Staff Member for giving a speech, participating on a panel or making a substantive formal presentation at a seminar or similar event, where the speech, participation or presentation is for official CalPERS business and the member is representing CalPERS in the course and scope of his or her official duties.
(b) Each Proposer or Contractor shall submit to CalPERS a Contract-Related Disclosure Form, signed by an individual authorized to bind the Proposer or Contractor and containing the information listed in (1) and (2) below. For Proposals, the Contract-Related Disclosure Form is due no later than the final filing date for the Solicitation. For Contract amendments, engagements, purchase orders, and any Contracts for which a Contract-Related Disclosure Form was not submitted within one (1) year preceding the execution of the Contract, the Contract-Related Disclosure Form is due no later than the date of execution. The Contract-Related Disclosure Form is required for Contracts where the total amount is $10,000 or more, and for all Proposals and Contracts that are the result of an Invitation to Bid or a Request for Proposal, regardless of amount. The Contract-Related Disclosure Form is not required when a Placement Agent Information Disclosure is required by Section 559.
(1) The name of every Agent and the following information for each identified Agent:
(A) A copy of all contracts, agreements, and other documents memorializing the relationship between the Proposer or Contractor and the Agent.
(B) A description of any financial or Familial Relationship(s) between the Agent and a Board Member or Staff Member, including the name(s) of the Board Member(s) and the Staff Member(s).
(C) Any Things of Value given or offered by the Agent to a Board Member or Staff Member during the twelve (12) months preceding the date the Contract-Related Disclosure Form is due.
(2) Any Things of Value given or offered by the Proposer or Contractor to a Board Member or Staff Member during the twelve (12) months preceding the date the Contract-Related Disclosure Form is due.
(3) If the Proposer or Contractor does not have any information requested in (1) or (2) above, the Proposer or Contractor will indicate this on the Contract-Related Disclosure Form.
(4) The Contract-Related Disclosure Form shall be provided by the System as follows:
Embedded Graphic 02.0007
Embedded Graphic 02.0008
(c) If Proposer or Contractor determines at any time the information provided on the Contract-Related Disclosure Form is or has become inaccurate, untrue, incomplete or misleading, Proposer or Contractor shall notify CalPERS and provide an updated Contract-Related Disclosure Form within 14 calendar days of the date Proposer or Contractor knew or should have known of such defect or change in the information.
(d) Failure of a Proposer or Contractor to submit a complete and accurate Contract-Related Disclosure Form pursuant to subdivision (b), or failure to timely update the Contract-Related Disclosure Form as described in subdivision (c) above:
(1) For Proposers, will result in the disqualification of the Proposer from participation in the Solicitation, if the Proposer knew or should have known the information existed as of the date the Contract-Related Disclosure Form was due.
(2) For Contractors, may result at CalPERS discretion, and without any default, penalty or liability by or on the part of CalPERS, in termination of the Contract if the Contractor knew or should have known the information existed as of the date the Contract-Related Disclosure Form was due.
(e) CalPERS will review the Contract-Related Disclosure Form, and will gather additional information as it deems necessary to make a reasonable and informed decision, and determine whether the information provided demonstrates, or contributes to the appearance of, a conflict of interest or improper influence in connection with the decision to award the Contract.
(f) If CalPERS determines there is a conflict of interest or improper influence, or the appearance of a conflict of interest or improper influence, in connection with the decision to award the Contract, CalPERS may disqualify the Proposer or terminate the Contract, as applicable.
(g) The CalPERS General Counsel may exempt a Solicitation or Contract from requiring the Proposer or Contractor to submit the Contract-Related Disclosure Form when in his or her opinion it is necessary to meet the fiduciary requirements imposed on the System. The CalPERS General Counsel will report the exemption to the CalPERS Board of Administration.
(h) The submitted Contract-Related Disclosure Form and any attachments shall be public records under the California Public Records Act except as provided in subdivision (b)(1)(A) above, to the extent such documents or information are deemed proprietary or trade secret. No confidentiality restrictions shall be placed by the Proposer or Contractor on any information provided pursuant to this section.
NOTE
Authority cited: Government Code sections 20120 and 20121. Reference: Government Code sections 20151, 20152.5, 20153, 87100 and 87103.
HISTORY
1. New section filed 5-8-2012; operative 5-8-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 19).
Article 3. Public Employees' Retirement System--Conflict of Interest Code
The Political Reform Act (Government Code sections 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict-of-interest codes. The Fair Political Practices Commission has adopted a regulation (2 Cal. Code of Regs. Sec. 18730) that contains the terms of a standard conflict-of-interest code, which can be incorporated by reference in an agency's code. After public notice and hearing, the standard code may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendices, designating positions and establishing disclosure categories, shall constitute the conflict-of-interest code of the California Public Employees' Retirement System (“CalPERS”).
Designated employees, consultants, board members and candidates shall file their statements of economic interests with the CalPERS filing officer, who will make the statements available for public inspection and reproduction. (Gov. Code Sec. 81008.) With respect to certain employees and officials such as board members who are determined to manage public investments, within the meaning of Government Code Section 87200, CalPERS shall make and retain copies and forward the originals to the Fair Political Practices Commission. All other statements will be retained by CalPERS. While public officials who manage investments are not required to be listed in this code, those officials are listed at the end of this document for clarity. Unlike the designated positions, these officials' reporting obligations are not limited by reference to a reporting category.
CONFLICT-OF-INTEREST CODE FOR THE PUBLIC
EMPLOYEES' RETIREMENT SYSTEM
Appendix
Assigned Disclosure Designated Positions Category
ACTUARIAL & EMPLOYER SERVICES BRANCH
ACTUARIAL OFFICE
Chief Actuary 1
Deputy Chief Actuary 2
Associate Pension Actuary 2
Senior Pension Actuary 2
Supervising Pension Actuary 2
Senior Life Actuary 2
Staff Services Manager III 2
EMPLOYER SERVICES DIVISION
Division Chief 1
Staff Services Manager II (Supervising) 2
Staff Services Manager III 2
ADMINISTRATIVE SERVICES BRANCH
FISCAL SERVICES DIVISION
Division Chief 1
Accounting Administrator (All) 2
Staff Administrative Analyst (Accounting System) 2
Staff Services Manager (All) 2
HUMAN RESOURCES DIVISION
Division Chief 1
Labor Relations Manager I 2
Staff Services Manager II (Supervising) 2
Staff Services Manager III 2
OPERATIONS SUPPORT SERVICES DIVISION
Division Chief 1
Staff Services Manager (All) 2
STRATEGIC MANAGEMENT SERVICES DIVISION
Division Chief 1
DIVERSITY PROGRAM
Diversity Program Coordinator 2
Staff Counsel III (Spec) 1
ENTERPRISE PRIVACY AND PROTECTION
Privacy & Security Officer 2
Data Processing Manager III 2
EXECUTIVE OFFICE
Assistant Executive Officer (All) 1
Principal Advisor to Board President 2
EXTERNAL AFFAIRS
STAKEHOLDER RELATIONS
Staff Services Manager II (Supervising) 2
OFFICE OF GOVERNMENTAL AFFAIRS
Division Chief 1
PUBLIC AFFAIRS OFFICE
Division Chief 1
Staff Services Manager III 2
HEALTH BENEFITS BRANCH
OFFICE OF EMPLOYER & MEMBER HEALTH SERVICES
Division Chief 1
Associate Governmental Program Analyst 3
Nurse Consultant 3
Retirement Program Specialist II (Tech) 3
Retirement Program Specialist II (Supervisor) 3
Staff Services Manager I 3
Staff Services Manager II (Supervising) 3
Staff Services Manager III 2
OFFICE OF HEALTH PLAN ADMINISTRATION
Division Chief 1
Medical Consultant II 3
Nurse Consultant I 3
Pharmaceutical Consultant II 3
Research Analyst II 3
Research Program Specialist I 3
Staff Services Manager (All) 3
OFFICE OF HEALTH POLICY AND PROGRAM SUPPORT
Division Chief 1
Associate Governmental Program Analyst 3
Associate Information Systems Analyst 4
Health Program Manager III 2
Research Analyst II 3
Research Manager II 2
Research Program Specialist I 3
Research Program Specialist II 3
Staff Services Manager (All) 1
DIVISION OF OPERATIONS AND INFRASTRUCTURE SUPPORT
Division Chief 1
Associate Governmental Program Analyst 3
Staff Services Manager I 2
Staff Services Manager II (Supervising) 2
INFORMATION TECHNOLOGY SERVICES BRANCH
COMET - PENSION SYSTEM RESUMPTION PROJECT
Division Chief 1
Business Deputy 2
Staff Services Manager II (Supervising) 4
ENTERPRISE TRANSITION MANAGEMENT
Division Chief 1
INFORMATION TECHNOLOGY ADMINISTRATIVE DIVISION
Data Processing Manager III 2
Data Processing Manager II 4
INNOVATION SERVICES AND IMPLEMENTATION DIVISION
Division Chief 1
Data Processing Manager II 4
Data Processing Manager III 4
Data Processing Manager IV 4
Senior Information System Analyst (Supervising) 4
System Software Specialist III (All) 4
PSR EMPLOYER READINESS PROJECT
Project Manager, PERT 2
TECHNOLOGY SERVICES AND SUPPORT DIVISION
Division Chief 1
Data Processing Manager II 4
Data Processing Manager III 4
Data Processing Manager IV 4
System Software Specialist III (All) 4
INVESTMENT OFFICE
Administrative Assistant I 2
Administrative Assistant II 2
Associate Governmental Program Analyst 2
Investment Officer (All) 2
Staff Services Manager I 2
INVESTMENT POLICY AND BUSINESS SUPPORT
Division Chief 1
Associate Governmental Program Analyst 2
Staff Services Manager (All) 2
AFFILIATE INVESTMENT PROGRAMS
Associate Governmental Program Analyst 2
Investment Officer (All) 2
Retirement Program Specialist II (Tech) 2
Staff Services Manager I 2
Staff Services Manager II (Supervising) 2
LEGAL OFFICE
Deputy General Counsel 1
Assistant Chief Counsel 1
Staff Counsel 1
Staff Counsel III 1
Staff Counsel IV 1
OFFICE OF AUDIT SERVICES
Division Chief 1
Associate Program Evaluator 2
Program Evaluator Specialist 2
Program Evaluator 2
Senior Program Evaluator Specialist 2
Senior Program Evaluator 2
Staff Program Evaluator 2
Staff Program Evaluator Specialist 2
Staff Management Auditor 2
Supervising Management Auditor 2
OFFICE OF ENTERPRISE COMPLIANCE
Chief Compliance Officer 2
Investment Officer I 2
Staff Services Manager II (Supervising) 2
MEMBER AND BENEFIT SERVICES BRANCH
BENEFIT SERVICES DIVISION
Division Chief 1
Staff Services Manager III 2
CUSTOMER SERVICE AND EDUCATION DIVISION
Division Chief 1
Staff Services Manager III 2
MEMBER SERVICES DIVISION
Division Chief 1
Staff Services Manager II (Supervising)(JLRS) 2
Staff Services Manager III 2
OFFICE OF POLICY AND PROGRAM DEVELOPMENT
Division Chief 1
Staff Services Manager I 2
R STREET PROJECT
Division Chief 1
CONTRACTS FOR SERVICES
Consultants Who Do Not Manage Public Investments *
________
* Consultants shall be included in the list of designated positions and shall disclose pursuant to the broadest disclosure category in the code, subject to the following limitation:
The General Counsel may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope, and thus, is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The General Counsel's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict-of-interest code. (Gov. Code Sec. 81008.)
Appendix B DISCLOSURE CATEGORIES
Category 1
Designated individuals in Category 1 must report:
All investments and business positions in business entities, and income (including gifts, loans, and travel payments).
All interest in real estate located in whole or in part within the State of California.
Category 2
Designated individuals in Category 2 must report:
All investments and business positions in business entities, and income (including gifts, loans, and travel payments) from sources which are of the type (1) to contract with CalPERS, (2) in which funds administered by the Board may be invested (including securities, real estate and business entities), or (3) to act as finder, solicitor, marketer, consultant, broker, placement agent or other intermediary to a contract or investment referenced in (1) or (2) above.
All interest in real estate located in whole or in part within the State of California
Category 3
Designated individuals in Category 3 must report:
All investments and business positions in business entities, and income (including gifts, loans, and travel payments) from sources which are of the type (1) to contract with CalPERS to provide health care services or (2) to act as a finder, solicitor, marketer, consultant, broker, placement agent or other intermediary to a contract referenced in (1).
Category 4
Designated individuals in Category 4 must report:
All investments and business positions in business entities, and income (including gifts, loans, and travel payments) from sources which are of the type (2) to sell, rent or lease information technology equipment, hardware, software, facilities, supplies or services to CalPERS or (2) to act as a finder, solicitor, marketer, consultant, broker, placement agent or other intermediary to any goods or services referenced in (1).
AGENCY POSITIONS THAT MANAGE PUBLIC
INVESTMENT FOR PURPOSES OF SECTION
87200 OF THE GOVERNMENT CODE
It has been determined that individuals in the positions listed below are officials who manage public investments, within the meaning of Government Code section 87200, and will file the Form 700 Statement of Economic Interests:
Board Members
Chief Executive Officer
Deputy Executive Officer
General Counsel
Chief Investment Officer
Director of External Affairs
Senior Investment Officer (All)
Senior Portfolio Manager (All)
Chief Operating Investment Officer
Portfolio Manager (All)
Consultants Who Manage Public Investments
NOTE
Authority cited: Article XVI, Section 17, California Constitution; Sections 87200 et seq., 87300 and 87304, Government Code. Reference: Sections 87200 et seq. and 87300 et seq., Government Code.
HISTORY
1. New article 3 (sections 560-560.9) filed 3-31-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-9-78 (Register 78, No.13). For history of former article 3 (section 560), see Register 64, No.24.
2. Amendment of article 3 (sections 560-560.9) filed 9-26-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 8-8-79 (Register 79, No.39).
3. Repealer of article 3 (sections 506-560.9) and new article 3 (section 560 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No.9).
4. Amendment filed 5-11-90; operative 6-10-90. Approved by Fair Political Practices Commission 3-30-90 (Register 90, No. 25).
5. Amendment of second paragraph and Appendix filed 2-10-95; operative 2-10-95. Submitted to OAL for printing only pursuant to Government Code section 11346.2 (Register 95, No. 6).
6. Amendment of section and Appendix filed 5-9-2000; operative 6-8-2000. Approved by Fair Political Practices Commission 3-10-2000 (Register 2000, No. 19).
7. Repealer and new section and Appendix filed 1-17-2006; operative 2-16-2006. Approved by Fair Political Practices Commission 11-7-2005 (Register 2006, No. 3).
8. Amendment of section and Appendices filed 3-2-2012; operative 4-1-2012. Approved by Fair Political Practices Commission 1-11-2012 (Register 2012, No. 9).
Article 3.5. Member Home Loan Program
Note • History
These regulations interpret and implement the Dave Elder Public Employees' Retirement System Member Home Loan Program authorized by Section 20200 of the Government Code. The regulations establish criteria and procedures for eligibility determination, loan origination, terms, servicing and termination.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. New Article 3.5 (Sections 561-561.14) filed 5-18-81; effective thirtieth day thereafter (Register 81, No. 21).
2. Amendment of section and Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
3. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Note • History
Loans issued pursuant to these regulations and loan modifications to loans fully owned by the System shall provide the greatest benefit to members and annuitants consistent with the Board's role as fiduciary for all members and annuitants, the sound investment of the retirement fund, and the financial integrity of the program.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Note • History
“Annuitant” means a person who receives an allowance from the System.
“Board” means the Board of Administration of the System as set forth in Section 20021 of the Government Code.
“Correspondent” means a lending institution which meets the System's minimum standards for appointment for mortgage loan correspondents, which may be changed from time to time, and such lending institution has entered into a correspondent's agreement with the System which is still valid at the time of origination of the loan.
“Home” means a single-family dwelling, two-family dwelling, three-family dwelling, four-family dwelling, single-family cooperative apartment, and single-family condominium within the state which the borrower intends to make his or her permanent and principal residence. “Home” does not include duplexes or other multi-unit equity interests or living units forming a part of any commercial activity.
“Loan” means a loan secured by a first note and deed of trust on a home to a borrower pursuant to the provisions of these regulations.
“Member” means a person within the provisions of section 20200(b) of the Government Code.
“Officers” means members of the Board of Administration of the California Public Employees' Retirement System, and its designees.
“Principal residence” means the home that the borrower intends to occupy as permanent and principal residence for the term of the loan. It does not include a purchase for speculative, temporary, interim, or second home purposes.
“System” means the Public Employees' Retirement System, as set forth in section 20058 of the Government Code.
NOTE
Authority cited: Sections 20120, 20121, 20200 and 20201, Government Code. Reference: Sections 20002, 20021, 20200 and 20201, Government Code.
HISTORY
1. Amendment adding new definition of ``Officers” and amendment of Note filed 6-20-2002; operative 7-20-2002 (Register 2002, No. 25).
2. Amendment of definitions of “Correspondent,” “Currently employed member” and “Home” filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
3. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
§561.3. Eligibility for Loans.
Note • History
At the time of origination, loans shall be available only to qualified members and annuitants for the purchase or refinancing of homes in accordance with the provisions of these regulations.
A member or annuitant shall not be eligible for a second loan under this program while a loan which he or she originated remains outstanding.
Effective January 1, 2002, “officers” as defined herein (Sec. 561.2) shall not be eligible for a home loan under the Member Home Loan Program.
NOTE
Authority cited: Sections 20120, 20121, 20200 and 20201, Government Code. Reference: Sections 20002, 20021, 20200 and 20201, Government Code.
HISTORY
1. Amendment filed 10-29-92; operative 11-30-92 (Register 92, No. 44).
2. Amendment adding third paragraph and amendment of Note filed 6-20-2002; operative 7-20-2002 (Register 2002, No. 25).
3. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Note • History
To the extent that they are not in conflict with the provisions of these regulations, loan standards shall be as defined in the Board's “Minimum Standards of Acceptability for Conventional Single-Family Real Estate Mortgage Loans and FHA-VA Loans” as they exist on the effective date of these regulations, and as they may be formally changed from time to time.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
Note • History
Loans shall carry interest rates which shall be set consistent with market rates.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Amendment filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Note • History
Borrowers shall certify in their loan application that they intend to occupy the home as their principal residence. Borrowers shall notify the correspondent servicing the loan immediately when they cease to occupy the home as their principal residence.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
§561.7. Failure to Comply with Certification and Notice Requirement.
Note • History
Failure to comply with the provisions of Section 561.6 within ten days may cause the outstanding balance of the loan to become immediately due and payable.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
§561.8. Amount of Loan and Mortgage Insurance.
Note • History
At the time the loan is originated, the amount of the loan shall provide a loan to value ratio of a maximum of 100 percent for the first loan for a single-family dwelling, single-family cooperative apartment, or single-family condominium; 95 percent for the first loan on a two-family dwelling; and 90 percent for the first loan on a three-family dwelling or four-family dwelling. The portion of any loan exceeding 80 percent of value shall be insured by an admitted mortgage guaranty insurer conforming to the provisions of Chapter 2A (commencing with Section 12640.01) of Part 6 of Division 2 of the Insurance Code in an amount so that the unguaranteed portion of the loan does not exceed 75 percent of the market value of the property together with improvements thereon.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of section and Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
Note • History
The maximum term for any loan shall be 360 months.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Editorial correction of Reference cite (Register 95, No. 5).
2. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
§561.10. Originating and Servicing of Loans.
Note • History
Subject to the Housing Financial Discrimination Act of 1977 and other applicable law, correspondents, when approved by the System, shall originate and service loans pursuant to the correspondent's agreement with the System.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Repealer of section 561.10 and renumbering of former section 561.11 to new section 561.10, including amendment of section heading and section, filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Note • History
The Board shall not be obligated to purchase a loan from an originating correspondent unless all of the requirements for such purchase have been met and the Board has executed a commitment to purchase such loan.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Renumbering of former section 561.11 to new section 561.10 and renumbering of former section 561.12 to new section 561.11 filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Note • History
With respect to all loans for which the Board has executed a commitment, the purchase price shall not exceed that amount set forth in the System's commitment.
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Renumbering of former section 561.12 to new section 561.11 and renumbering of former section 561.13 to new section 561.12 filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
§561.13. Purchase Price. [Renumbered]
Note • History
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Section 20200, Government Code.
HISTORY
1. Amendment of Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Renumbering of former section 561.13 to new section 561.12 filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
§561.14. Administration of the Program. [Repealed]
Note • History
NOTE
Authority cited: Sections 20120 and 20200, Government Code. Reference: Sections 20099 and 20200, Government Code.
HISTORY
1. Amendment of section and Note filed 11-18-2004; operative 12-18-2004 (Register 2004, No. 47).
2. Repealer filed 12-21-2010; operative 1-20-2011 (Register 2010, No. 52).
Article 4. Contracts
§565. Payment of Contributions.
Note • History
Member and employer contributions shall be received in the System's Sacramento office on or before 15 calendar days following the last day of the pay period to which they refer.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20536, 20537, 20572 and 20615, Government Code.
HISTORY
1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
2. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).
3. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§565.1. Submission of Payroll and Contribution Information.
Note • History
(a) The employer shall submit payroll and contribution information using the CalPERS reporting system or in a manner as otherwise prescribed by the Board.
(b) Payroll and contribution information for each pay period shall be submitted on or before 30 calendar days following the last day of the pay period to which it refers.
(c) CalPERS shall notify the employer of payroll and contribution information reporting errors. The employer shall correct such errors within 60 calendar days of the date of the notice from CalPERS.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20572 and 20615, Government Code.
HISTORY
1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
2. Amendment of section heading, section and Note filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).
§565.2. Interest on lnsufficient Contributions.
Note • History
(a) If within a fiscal year an employer fails to pay at least 90% of the member and employer contributions due within the prescribed time set forth in Section 565, CalPERS may bill the employer for the total amount then due. If an employer fails to pay the billed amount within 30 calendar days of the bill, interest shall be charged upon the amount due from the original due date until received by CalPERS.
(b) If an employer fails to pay at least 99% of the member and employer contributions due at fiscal year end, CalPERS shall bill the employer for the total amount then due. If an employer fails to pay the billed amount within 30 calendar days of the date of the bill, interest shall be charged upon the amount due from the original due date until received by CalPERS.
(c) Interest shall be charged as set forth in Government Code section 20537.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20537, 20572 and 20615, Government Code.
HISTORY
1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
2. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).
3. Amendment of section heading, section and Note filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).
§565.3. Cost Assessment for Incomplete or Erroneous Payroll and Contribution Information.
Note • History
(a) If an employer fails to file complete or correct payroll and contribution information as required by these regulations within the time period set forth, an assessment to recover the cost of follow-up and special accounting of $200.00 for each report may be made. The assessment shall be made monthly until the posted payroll and contribution information is complete and correct.
(b) If, in the opinion of the Executive Officer, such assessment is insufficient to meet the added costs because of special circumstances, he or she shall estimate such costs and make an appropriate supplemental assessment.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20536, 20572 and 20615, Government Code.
HISTORY
1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
2. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).
3. Amendment of section heading, section and Note filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).
Note • History
(a) A reasonable extension of time for filing payroll reports and payment of contributions may be granted by the Executive Officer, or the alternates whom he may designate, whenever in his judgment good cause exists.
(b) This extension, at the discretion of the Executive Officer or his designated alternate, may be granted for one specific report or blanket authority over a specific time span.
(c) Requests for time extensions must be received in the Sacramento office of the System not later than 10 days prior to the due date of the reports and contributions for which the extension is being requested.
(d) Waiver of Assessments. The Executive Officer, or his designated alternate, is empowered to waive assessments of interest or penalties if in his judgment reports of member and employer contributions and payment of such contributions become delinquent as a result of conditions beyond control of the employer.
(e) Audit Discrepancies. Contributions determined to be payable as a result of audits performed by the System are not subject to this Article.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20532, 20536, 20537, 20572 and 20615, Government Code.
HISTORY
1. New section filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§565.5. Method for Collecting Administrative Costs.
Note • History
(a) Notice of the amount of any fee for service (including fee for preparation of an actuarial valuation), or cost assessment for incomplete or erroneous payroll and contribution reporting (including late enrollment) shall be provided to the employer through the employer's preferred communication method or, if no preference has been selected, by mail.
(b) An employer shall promptly pay the amount due, or shall notify the board if the employer disputes the amount due.
(c) Failure of an employer to pay or dispute the amount due within 30 days of the date of the notice shall be deemed to be agreement as to the amount due and consent for the Board to deduct the amount shown in the notice from the employer's reserve account, or to demand payment from the employer.
(d) If an employer notifies the Board of a dispute for the amount within 30 days of the date of the notice, the Board will not deduct the amount from the employer's account until the dispute is resolved and further notice is given.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20283, 20535, 20536, 20572 and 20615, Government Code.
HISTORY
1. New section filed 4-30-2012; operative 5-30-2012 (Register 2012, No. 18).
Note • History
A contract amendment, or that portion thereof which requires an adjustment in the amount of monthly benefit payments which were paid or payable prior to such contract amendment, shall become operative on the first day of the month next following a period of 30 days after receipt of final documentation of the adoption of such amendment by the Board, in its Sacramento office.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20460, 20460.1, 20474 and 20475, Government Code.
HISTORY
1. New section filed 5-8-79; effective thirtieth day thereafter (Register 79, No. 19).
2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§566.1. Employer-Paid Member Contributions (EPMC) Conversions.
Note • History
(a) A contracting agency or school employer may report the value of all or part of the normal contributions required to be paid by a member, for an individual or “group or class” of employees.
A contracting agency may also, by contract amendment(s), convert Employer-Paid Member Contributions (EPMC) to compensation earnable for a group or class of employees, only during the period of final compensation. A school employer may also, by contract amendment(s), convert EPMC to compensation earnable if all districts under the County Office of Education pass Resolutions for same.
Either provision: (1) reporting the value of EPMC as compensation; or (2) converting EPMC to compensation earnable, can only be provided to an individual if the most closely related group also has the same EPMC provision.
The contract amendment(s) to convert, must conform with the following standards as well as other applicable provisions of law:
(1) The period of final compensation must be the 12 months or 36 months immediately preceding the effective date of retirement.
(2) The provision must be fully funded for the group or class of employees, based on PERS' actuarial assumptions with the right of review set forth in subsection (b).
(3) The provision must conform to federal Internal Revenue Code standards for “qualified plan status” of the System in Section 401(a), including “non-discrimination testing”.
(4) The provision must be contained in applicable current written labor agreements as well as in adopted resolutions.
(5) The conversion of EPMC to compensation earnable is an increase in payrate for all purposes.
(6) If an employee does not provide 12 months or 36 months notice of retirement, the employer shall make necessary corrections to the payrate and report adjustments to PERS.
(7) If an employee cancels his/her retirement date, this provision shall be applied to his/her new final compensation period.
(b) A contracting agency, school employer or recognized employee organization may request a review by PERS of the additional employer contributions required to fund the contract amendment provision to convert EPMC described in subsection (a). The request must comply with the following procedures:
(1) PERS will provide written notice of the rate increase to the employer by certified mail. The employer will send a copy of PERS' written notice within ten days of its receipt to all affected employee organizations, by certified mail.
(2) The request must be submitted in writing to PERS within 30 days of the date of certified receipt of the rate increase. The request should be addressed and submitted to the Actuarial Office, Public Employees' Retirement System, P.O. Box 942709, Sacramento, California, 94229-2709.
(3) A request made by an employer must be accompanied by an ordinance or resolution adopted by the governing body stating the rationale and factual basis and a copy of the receipt of certified mail and proof of service that a written notice of the rate change was sent to specified employee organization(s). A request made by an employee group must be accompanied by a signed statement of an officer of the employee organization who is authorized to contractually bind the organization, setting forth the rationale and factual basis.
(4) The request must contain actuarial evidence, prepared by a certified actuary independent of PERS, sufficient to demonstrate why a different rate may be justified to fund the contract amendment. All economic and non-economic assumptions relied upon by the independent actuary must be submitted to PERS along with the request.
PERS will acknowledge the request in writing within 15 calendar days of its receipt. PERS will issue a substantive determination to grant or deny the request for a different rate within 45 days from the date of acknowledgement. PERS will specify the reason(s) for its grant or denial, and will give the requestor a copy of all actuarial evidence and any other factual data relied upon in making its determination.
(c) An employer or recognized employee organization directly affected by the PERS determination may petition the Board of Administration to adopt a different rate for fully funding the conversion of EPMC during final compensation, based on the administrative record established during the review. The Board will not conduct an administrative hearing in accordance with the Administrative Procedure Act, but will respond to the petition in open session at one of its regularly scheduled meetings.
Both the petitioner and PERS may submit a written statement to the Board in support of its position in advance of the meeting. This statement must not be longer than three pages, single spaced. It must be received by the Executive Office, Public Employees' Retirement System, P.O. Box 942701, Sacramento, CA 94229-2701, at least 15 days prior to the scheduled meeting.
NOTE
Authority cited: Sections 20120-20124 and 21760, Government Code. Reference: Sections 20691, 20692, 20636 and 20636.1, Government Code.
Research Note: See Internal Revenue Code Sections 401 and 415; Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr. 388]; City of Sacramento v. Public Employees' Retirement System (1991) 229 Cal.App.3d 1470 [280 Cal.Rptr. 847].
HISTORY
1. New section filed 7-5-94 as an emergency; operative 7-5-94 (Register 94, No. 27). A Certificate of Compliance must be transmitted to OAL by 11-2-94 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-5-94 order transmitted to OAL 10-28-94; disapproved by OAL and order of repeal as to 7-5-94 order filed on 12-14-94 (Register 94, No. 50).
3. New section refiled 12-15-94 as an emergency, with amendments; operative 12-15-94 (Register 94, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-14-95 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-15-94 order including amendments transmitted to OAL 4-11-95 and filed 5-23-95 (Register 95, No. 21).
5. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§569. Employer Paid Member Contributions.
Note • History
A contracting agency or school employer that pays all or a portion of normal member contributions based on compensation earnable, as Employer Paid Member Contributions (EPMC), must conform to the “group or class” requirements in Section 20691 of the Government Code and these regulations.
(a) Specifically, the payment of EPMC must be:
(1) Authorized in a written labor agreement;
(2) Based on earnings for normally-required duties;
(3) Based on earnings for normal hours of employment;
(4) Paid periodically, along with the earnings on which it is based;
(5) Based on earnings that are historically consistent; and
(6) Not final settlement pay.
However, the employer may qualify its payment of EPMC, by electing a cumulative “time-in-grade exception” which shall only apply to persons newly-hired into the pertinent group or class of employment.
(b) To be classified as “newly-hired,” a member of the group or class must not have been previously hired or retained by the employer in any capacity whatsoever.
(c) To elect the time-in-grade exception, the employer's governing body must adopt an enabling resolution or ordinance in which it agrees to abide by the standards in this Section 569. The exception cannot take effect until after the resolution or ordinance has been reviewed and approved by CalPERS.
(d) The time-in-grade exception may be incremental, but it cannot exceed a total of five (5) years. For example, the employer may set a three-year threshold for paying fifty percent (50%), which increases by paying twenty-five percent (25%) each year, for up to two additional years of time-in-grade.
(e) Once a newly-hired employee has satisfied the time-in-grade exception, he or she shall be entitled to payment of EPMC on the same terms that apply to all other employees in the pertinent group or class.
The exception from paying EPMC pursuant to this Section 569 is separate and apart from the exception from paying and reporting the value of EPMC as an item of special compensation pursuant to Section 571(a). Both of these exceptions are separate and apart from, or do they apply to, the process for converting EPMC to payrate during the period of final compensation pursuant to Section 20692 of the Government Code.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Section 20691, Government Code.
HISTORY
1. New section filed 9-22-99; operative 10-22-99 (Register 99, No. 39).
2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
Note • History
“Final settlement pay” means any pay or cash conversions of employee benefits in excess of compensation earnable, that are granted or awarded to a member in connection with or in anticipation of a separation from employment. Final settlement pay is excluded from payroll reporting to PERS, in either payrate or compensation earnable.
For example, final settlement pay may consist of severance pay or so-called “golden parachutes”. It may be based on accruals over a period of prior service. It is generally, but not always, paid during the period of final compensation. It may be paid in either lump-sum, or periodic payments.
Final settlement pay may take the form of any item of special compensation not listed in Section 571. It may also take the form of a bonus, retroactive adjustment to payrate, conversion of special compensation to payrate, or any other method of payroll reported to PERS.
NOTE
Authority cited: Sections 20120-20124, Government Code; Calif. Const. Art. XVI, Section 17. Reference: Sections 20636 and 20636.1, Government Code.
Research Note: Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr.2d 388]; City of Sacramento v. Public Employees' Retirement System (1991) 229 Cal.App.3d 1470 [280 Cal.Rptr. 847]; Santa Monica P.O.A. v. Bd of Admin. Public Employees' Retirement System (1978) 69 Cal.App.3d 96 [137 Cal.Rptr. 771].
HISTORY
1. New section filed 7-5-94 as an emergency; operative 7-5-94 (Register 94, No. 27). A Certificate of Compliance must be transmitted to OAL by 11-2-94 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance, including amendment of section, as to 7-5-94 order transmitted to OAL 10-28-94 and filed 12-14-94 (Register 94, No. 50).
3. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§570.5. Requirement for a Publicly Available Pay Schedule.
Note • History
(a) For purposes of determining the amount of “compensation earnable” pursuant to Government Code Sections 20630, 20636, and 20636.1, payrate shall be limited to the amount listed on a pay schedule that meets all of the following requirements:
(1) Has been duly approved and adopted by the employer's governing body in accordance with requirements of applicable public meetings laws;
(2) Identifies the position title for every employee position;
(3) Shows the payrate for each identified position, which may be stated as a single amount or as multiple amounts within a range;
(4) Indicates the time base, including, but not limited to, whether the time base is hourly, daily, bi-weekly, monthly, bi-monthly, or annually;
(5) Is posted at the office of the employer or immediately accessible and available for public review from the employer during normal business hours or posted on the employer's internet website;
(6) Indicates an effective date and date of any revisions;
(7) Is retained by the employer and available for public inspection for not less than five years; and
(8) Does not reference another document in lieu of disclosing the payrate.
(b) Whenever an employer fails to meet the requirements of subdivision (a) above, the Board, in its sole discretion, may determine an amount that will be considered to be payrate, taking into consideration all information it deems relevant including, but not limited to, the following:
(1) Documents approved by the employer's governing body in accordance with requirements of public meetings laws and maintained by the employer;
(2) Last payrate listed on a pay schedule that conforms to the requirements of subdivision (a) with the same employer for the position at issue;
(3) Last payrate for the member that is listed on a pay schedule that conforms with the requirements of subdivision (a) with the same employer for a different position;
(4) Last payrate for the member in a position that was held by the member and that is listed on a pay schedule that conforms with the requirements of subdivision (a) of a former CalPERS employer.
NOTE
Authority cited: Sections 20120 and 20121, Government Code. Reference: Sections 20630, 20636 and 20636.1, Government Code.
HISTORY
1. New section filed 7-11-2011; operative 8-10-2011 (Register 2011, No. 28).
§571. Definition of Special Compensation.
Note • History
(a) The following list exclusively identifies and defines special compensation items for members employed by contracting agency and school employers that must be reported to CalPERS if they are contained in a written labor policy or agreement:
(1) INCENTIVE PAY
Bonus - Compensation to employees for superior performance such as “annual performance bonus” and “merit pay”. If provided only during a member's final compensation period, it shall be excluded from final compensation as “final settlement” pay. A program or system must be in place to plan and identify performance goals and objectives.
Dictation/Shorthand/Typing Premium - Compensation to clerical employees for shorthand, dictation or typing at a specified speed.
Longevity Pay - Additional compensation to employees who have been with an employer, or in a specified job classification, for a certain minimum period of time exceeding five years.
Management Incentive Pay - Compensation granted to management employees in the form of additional time off or extra pay due to the unique nature of their job. Employees within the group cannot have the option to take time off or receive extra pay. This compensation must be reported periodically as earned and must be for duties performed during normal work hours. This compensation cannot be for overtime, nor in lieu of other benefits excluded under the statutes, nor for special compensation not otherwise listed in this Section 571.
Marksmanship Pay - Compensation to local police officers, county peace officers and school police or security officers who meet an established criterion such as “certification” as a marksperson.
Master Police Officer - Compensation to local police officers, county peace officers and school police or security officers who meet specified requirements, years of employment, performance standards, education, Peace Officer Standard Training (POST), and perform a specialty assignment.
Physical Fitness Program - Compensation to local safety members and school security officers who meet an established physical fitness criterion.
Value of Employer-Paid Member Contributions (EPMC) - The full monetary value of employer-paid member contributions (EPMC) paid to CalPERS and reported as an item of special compensation on behalf of all members in a group or class.
The value of EPMC is calculated on all “compensation earnable” excluding the special compensation of the monetary value of EPMC paid to CalPERS by the employer under Government Code section 20636(c)(4), thus eliminating a perpetual calculation.
(A) A resolution or ordinance of the governing body must be provided to CalPERS indicating the group or class, effective date, and the percent or amount of EPMC being paid and reported as an item of special compensation. The resolution or ordinance must be formally adopted by the employer's governing body, and submitted to CalPERS for review and approval.
(B) The resolution or ordinance must specify that the value of EPMC will be reported as an item of special compensation consistently, for all members in the affected group or class of employment -- except that the employer's governing body may elect a “time-in-grade exception” which shall only apply to persons newly-hired into the pertinent group or class of employment.
(C) To be classified as “newly-hired,” a member of the group or class must not have been previously hired or retained by the employer in any capacity whatsoever.
(D) The time-in-grade exception must be elected in the same resolution or ordinance, or by amendment thereto, as adopted by the employer's governing body for the purpose of paying and reporting the value of EPMC, pursuant to this Section 571. The exception can only be used for the value of EPMC, and not for any other item of special compensation.
1. The time-in-grade exception must be applied consistently to all newly-hired employees in the pertinent group or class.
2. The time-in-grade requirement may be incremental, not to exceed a total of five (5) years. For example, the initial requirement may be three years for paying fifty percent (50%) with increases of twenty-five percent (25%) for each additional year of time-in-grade.
3. Once the initial time-in-grade requirement has been met by a newly-hired employee, the employer shall begin paying and reporting the value of EPMC for him or her to the same extent as for all others in the pertinent group or class.
(E) To implement the time-in-grade exception, the employer's governing body must acknowledge that it may experience an upward adjustment to its employer contribution rate. The acknowledgment must be included in the resolution or ordinance by which the employer's governing body elected to pay and report EPMC as an item of special compensation, by adoption or amendment thereto.
(F) The full terms of the resolution or ordinance by which the employer's governing body elects to pay and report the value of EPMC as an item of special compensation -- along with any time-in-grade exception for newly-hired employees -- must be incorporated into the written labor agreement that pertains to the affected group or class of employment.
The time-in-grade exception from paying and reporting the value of EPMC as an item of special compensation pursuant to this Section 571, is separate and apart from the time-in-grade exception from paying EPMC pursuant to Section 569 of these regulations. Both of these exceptions are separate and apart from, nor do they apply to, the process for converting EPMC to payrate during the period of final compensation, pursuant to Section 20692 of the Government Code.
Off-Salary-Schedule Pay - Compensation in addition to base salary paid in similar lump-sum amounts to a group or class of employees. These payments are routinely negotiated through collective bargaining in lieu of increases to the salary schedule. These payments are based on a similar percent of scheduled salary not to exceed six percent (6%) per fiscal year. The contracting agency or school employer may adopt similar action for non-represented groups or classes of employment as were negotiated through collective bargaining.
(2) EDUCATIONAL PAY
The items of special compensation outlined below do not include reimbursement to an employee for the cost of an application or test, books, tuition or travel.
Applicator's Differential - Compensation to employees who are required to maintain a Qualified Pesticide Applicator's Certificate.
Certified Public Accountant Incentive - Compensation to miscellaneous employees passing an exam and receiving a license as a Certified Public Accountant.
Educational Incentive - Compensation to employees for completing educational courses, certificates and degrees which enhance their ability to do their job. A program or system must be in place to evaluate and approve acceptable courses. The cost of education that is required for the employee's current job classification is not included in this item of special compensation.
Emergency Medical Technician Pay - Compensation to safety employees who obtain and maintain an emergency medical technical (EMT) certification.
Engineering Registration Premium - Compensation to engineers who have taken and passed a California engineering proficiency exam and are registered with the State of California.
Government Agency Required Licenses - Compensation to employees receiving and maintaining a license required by government or regulatory agencies to perform their duties.
International Conference of Building Officials (ICBO) Certificate - Compensation to building inspectors who obtain and maintain an International Conference of Building Officials (ICBO) certificate in one or more certified areas.
Mechanical Premium (Brake Adjustment License, SMOG Inspector License) - Compensation to employees who obtain and maintain state-required mechanical licenses.
National Institute of Automotive Service Excellence (NIASE) Certificate - Compensation to mechanics who obtain and maintain a National Institute of Automotive Service Excellence (NIASE) certificate.
Notary Pay - Compensation to clerical employees who obtain and maintain a notary public certificate from the State of California or are deputized by an agency's chief administrative officer to sign legal or financial documents for the agency.
Paramedic Pay - Compensation to employees who obtain and maintain certification in auxiliary medical techniques.
Peace Officer Standard Training (POST) Certificate Pay - Compensation to local police officers, county peace officers and school police or security officers who obtain Peace Officer Standard Training (POST) certification.
Reading Specialist Premium - Compensation to certificated employees who have obtained special training and provide literacy instruction as part of their teaching duties.
Recertification Bonus - Compensation to local firefighters who obtain and maintain a fire safety and prevention certificate for a specified period of time.
Special Class Driver's License Pay - Compensation to school bus drivers or street maintenance employees who are required to obtain and maintain a special class driver's license to perform their duties.
Undergraduate/Graduate/Doctoral Credit - Compensation to school district employees who are required to obtain a specified degree.
(3) PREMIUM PAY
Temporary Upgrade Pay - Compensation to employees who are required by their employer or governing board or body to work in an upgraded position/classification of limited duration.
(4) SPECIAL ASSIGNMENT PAY
Accountant Premium - Compensation to rank and file employees who are routinely and consistently responsible for developing the employer's budget.
Administrative Secretary Premium - Compensation to an administrative secretary responsible for coordinating meetings, plans and other specialized activities for the governing body of the contracting agency or school employer.
Aircraft/Helicopter Pilot Premium - Compensation to safety employees who are routinely and consistently assigned as aircraft/helicopter pilots.
Asphalt Work Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to mix, transport and/or apply a tar-like substance for sidewalks, roads, roofs and/or parking lots.
Audio Visual Premium - Compensation to miscellaneous employees who are routinely and consistently responsible for operating audio visual equipment.
Auditorium Preparation Premium - Compensation to school employees who are routinely and consistently assigned to prepare auditorium(s), i.e. setting up stages, lighting, props and chairs for performing arts purposes.
Bilingual Premium - Compensation to employees who are routinely and consistently assigned to positions requiring communication skills in languages other than English.
Branch Assignment Premium - Compensation to employees who are routinely and consistently assigned to a branch office or work site that is identified as “rural” or “remote” in the written labor agreement.
Canine Officer/Animal Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to handle, train and board a canine or horse. Compensation shall not include veterinarian fees, feed or other reimbursable expenses for upkeep of the animal.
Cement Finisher Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to finish cement work, e.g. watering, brushing or surfacing.
Circulation Librarian Premium - Compensation to library staff who are routinely and consistently assigned to the circulation desk of the library.
Computer Operations Premium - Compensation to employees who have special knowledge of computer processes and applications.
Confidential Premium - Compensation to rank and file employees who are routinely and consistently assigned to sensitive positions requiring trust and discretion.
Contract Administrator Coordinator Premium - Compensation to school employees who routinely and consistently coordinate administrative contracts for instruction or facility maintenance.
Crime Scene Investigator Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to analyze and explore a crime scene.
Critical Care Differential Premium - Compensation to nursing staff who are routinely and consistently assigned to critical and intensive medical or psychological care areas.
D.A.R.E. Premium - Compensation to local police officers, county peace officers and school police or security officers who routinely and consistently provide training to students on drug abuse resistance.
Detective Division Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to a detective or investigative division or intelligence duties.
Detention Services Premium - Compensation to employees who are routinely and consistently assigned to areas where criminally charged persons are confined and nursing staff who are routinely and consistently assigned to an adult facility where criminally charged persons are confined.
DUI Traffic Officer Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to enforce Driving Under the Influence (DUI) of alcohol or drug laws.
Extradition Officer Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to return a person to the custody of another jurisdiction.
Fire Inspector Premium - Compensation to “fire inspector” personnel who are routinely and consistently assigned to inspect buildings and other permanent structures for compliance with governmental safety standards.
Fire Investigator Premium - Compensation to “fire investigation” personnel who are routinely and consistently assigned to investigate causes of destructive burning.
Fire Prevention Assignment Premium - Compensation to rank and file local firefighters who are routinely and consistently assigned to specific fire inspections and investigative work during normal hours of employment that may differ from the work schedule of fire suppression personnel.
Fire Staff Premium - Compensation to rank and file local firefighters who are routinely and consistently assigned to administrative work during normal hours of employment that may differ from the work schedule of fire suppression personnel.
Flight Time Premium - Compensation to safety employees for time spent as co-pilot or crew on work related air missions.
Float Differential Premium - Compensation for nurses not specifically assigned to a specific station.
Front Desk Assignment (Jail) - Compensation to employees staffing a jail who are routinely and consistently assigned the duty of responding to questions from the public.
Fugitive Officer Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to pursue persons who have or are fleeing from justice.
Gang Detail Assignment Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to enforce laws relating to a group of individuals banded together for unlawful activities.
Grading Assignment Premium - Compensation to employees who are routinely and consistently assigned to inspect the degree of rise or descent of a sloping surface.
Hazard Premium - Compensation to employees who are routinely and consistently exposed to toxic, radioactive, explosive or other hazardous substances or perform hazardous activities to implement health or safety procedures.
Heavy/Special Equipment Operator - Compensation to employees who are routinely and consistently assigned to operate heavy equipment or specialized equipment.
Height Premium - Compensation to employees who are routinely and consistently required to work on ladders or mechanical devices at heights over 40 feet.
Housing Specialist Premium - Compensation to city housing specialists who are routinely and consistently assigned to perform administrative functions of the housing division.
Juvenile Officer Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to enforce laws that restrict the activities of juveniles.
Lead Worker/Supervisor Premium - Compensation to employees who are routinely and consistently assigned to a lead or supervisory position over other employees, subordinate classifications, or agency-sponsored program participants.
Library Reference Desk Premium - Compensation to library staff who are routinely and consistently assigned to provide direction or resources to library patrons.
Maintenance Premiums:
Gas Maintenance Premium - Compensation to maintenance employees who are routinely and consistently assigned to inspect gas construction, repair instruments or perform pipeline welder duties.
Plumber Irrigation System Premium - Compensation to plumbers who are routinely and consistently assigned as irrigation systems plumbing specialists.
Refuse Collector Premium - Compensation to maintenance employees who are routinely and consistently assigned to collect refuse.
Street Lamp Replacement Premium - Compensation to maintenance employees who are routinely and consistently assigned to replace street lamps from an aerial bucket.
MCO Instructor Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to train Motor Coach Operators, i.e. bus drivers.
Motorcycle Patrol Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to operate and/or patrol on motorcycle.
Mounted Patrol Premium - Compensation to local police officers and county peace officers who are routinely and consistently assigned to patrol on horseback.
Narcotic Division Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to drug enforcement.
Paramedic Coordinator Premium - Compensation to paramedics who are routinely and consistently assigned to coordinate training activities in auxiliary medical techniques.
Park Construction Premium - Compensation to groundskeepers who are routinely and consistently assigned to build park equipment.
Park Maintenance/Equipment Manager Premium - Compensation to park maintenance employees who are routinely and consistently assigned to equipment management and other administrative duties.
Parking Citation Premium - Compensation to employees who are routinely and consistently assigned to read parking meters and cite drivers who have violated parking laws.
Patrol Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to patrol detail.
Police Administrative Officer - Compensation to rank and file police officers, county peace officers and school police or security officers who are routinely and consistently assigned to police administration to provide support for the police chief and command staff in the operation of the police department.
Police Investigator Premium - Compensation to rank and file local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to analyze crimes or investigative accidents.
Police Liaison Premium - Compensation to rank and file local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to function as a liaison between special persons, groups or courts and the police/sheriff department.
Police Polygraph Officer - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to administer and interpret polygraph exams.
Police Records Assignment Premium - Compensation to employees who are routinely and consistently assigned to the police records division.
Rangemaster Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to supervise the target range facilities and all related activities.
Refugee Arrival Cleanup Premium - Compensation to employees who are routinely and consistently assigned to cleanup from activities directly related to refugee arrival flights.
Safety Officer Training/Coordinator Premium - Compensation to employees who are routinely and consistently assigned to instruct personnel in safety procedures.
Sandblasting Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to operate sandblasting equipment.
School Yard Premium - Compensation to part-time school district employees who are routinely and consistently assigned to supervise students during recreation.
Search Pay Premium - Compensation to employees who are routinely and consistently assigned to search and process prisoners in the induction area of jails.
Severely Disabled Premium - Compensation to school instructional aides who are routinely and consistently assigned to work with severely disabled students.
Sewer Crew Premium - Compensation to laborers who are routinely and consistently assigned to repair and maintain sewer systems.
Shift Differential - Compensation to employees who are routinely and consistently scheduled to work other than a standard “daytime” shift, e.g. graveyard shift, swing shift, shift change, rotating shift, split shift or weekends.
Solo Patrol Premium - Compensation to local police officers, county peace officers and school police or security officers who are routinely and consistently assigned to patrol alone in vehicles.
Sprinkler and Backflow Premium - Compensation to groundskeepers who are routinely and consistently assigned to repair large sprinkler head controllers, valves and backflow prevention devices.
Tiller Premium - Compensation to local firefighters who are routinely and consistently assigned to operate the tiller on an aerial ladder.
Tire Technician Premium - Compensation to equipment attendants who are routinely and consistently assigned to work on heavy duty tires, e.g. for buses and large construction equipment.
Traffic Detail Premium - Compensation to employees who are routinely and consistently assigned to direct traffic.
Training Premium - Compensation to employees who are routinely and consistently assigned to train employees.
Tree Crew Premium - Compensation to maintenance workers who are routinely and consistently assigned to remove, prune, or otherwise care for trees.
Utility Meter Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to re-read utility meters, repair or set and install meters.
Utilities Systems Operation Premium - Compensation to maintenance or carpenter employees who are routinely and consistently assigned to planner duties in the maintenance division.
Water Certification Premium - Compensation to miscellaneous employees who are routinely and consistently assigned to test local water quality for compliance with governmental health standards.
(5) STATUTORY ITEMS
Fair Labor Standards Act (FLSA) - Compensation paid for normal full-time work schedule including premium pay required by FLSA. For example, a firefighter's normal work schedule is 56 hours per week. FLSA states premium pay must be paid on all hours worked above 53 hours per week up to what is considered normal for employees on a full-time basis. In this example, the firefighter works 56 hours in a normal work week. Therefore compensation would be reported for 53 hours per week and FLSA premium pay would be reported for 3 hours per week. Any work performed above 56 hours per week would be considered overtime and would not be reported to PERS.
Holiday Pay - Additional compensation for employees who are normally required to work on an approved holiday because they work in positions that require scheduled staffing without regard to holidays. If these employees are paid over and above their normal monthly rate of pay for approved holidays, the additional compensation is holiday pay and reportable to PERS.
For those employees with written labor agreements providing holiday credit and allowing employees to cash out accumulated holiday credit, the cash out must be done at least annually and reported in the period earned. If a written labor agreement allows an employee to accumulate holiday credit beyond the year in which it is earned and an employee later elects to cash out accumulated holiday credit, it is not compensation for PERS purposes.
If an employee utilizes the cash out option only during his/her final compensation period, it will be considered final settlement pay and excluded from reportable compensation. If the cash out option is also utilized near his/her final compensation period, it may still be excluded based upon a review of the contracting agency or school employer's experience relating to: the number of employees in the group with this option; the number of employees who exercise this option; the frequency with which employees exercise this option; whether or not the cash out is paid periodically, and in a manner that is historically consistent; and whether or not the cash out would create an unfunded liability over and above PERS' actuarial assumptions. This review will be conducted by PERS on a case-by-base basis.
Uniform Allowance - Compensation paid or the monetary value for the purchase, rental and/or maintenance of required clothing, including clothing made from specially designed protective fabrics, which is a ready substitute for personal attire the employee would otherwise have to acquire and maintain. This excludes items that are solely for personal health and safety such as protective vests, pistols, bullets, and safety shoes.
(b) The Board has determined that all items of special compensation listed in subsection (a) are:
(1) Contained in a written labor policy or agreement as defined at Government Code section 20049, provided that the document:
(A) Has been duly approved and adopted by the employer's governing body in accordance with requirements of applicable public meetings laws;
(B) Indicates the conditions for payment of the item of special compensation, including, but not limited to, eligibility for, and amount of, the special compensation;
(C) Is posted at the office of the employer or immediately accessible and available for public review from the employer during normal business hours or posted on the employer's internet website;
(D) Indicates an effective date and date of any revisions;
(E) Is retained by the employer and available for public inspection for not less than five years; and
(F) Does not reference another document in lieu of disclosing the item of special compensation;
(2) Available to all members in the group or class;
(3) Part of normally required duties;
(4) Performed during normal hours of employment;
(5) Paid periodically as earned;
(6) Historically consistent with prior payments for the job classification;
(7) Not paid exclusively in the final compensation period;
(8) Not final settlement pay; and
(9) Not creating an unfunded liability over and above PERS' actuarial assumptions.
(c) Only items listed in subsection (a) have been affirmatively determined to be special compensation. All items of special compensation reported to PERS will be subject to review for continued conformity with all of the standards listed in subsection (b).
(d) If an items of special compensation is not listed in subsection (a), or is out of compliance with any of the standards in subsection (b) as reported for an individual, then it shall not be used to calculate final compensation for that individual.
NOTE
Authority cited: Sections 20120-20124, 20636(c)(6) and 20636.1(c)(6), Government Code. Reference: Sections 20630, 20636, 20636.1 and 20691, Government Code.
Research Note: See Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr.2d 388]; City of Sacramento v. Public Employees' Retirement System (1991) 237 Cal.App.3d 1470 [280 Cal.Rptr. 847]; City of Fremont v. Board of Administration (1989) 219 Cal.App.3d 1026 [263 Cal.Rptr. 164]; Guelfi v. Marin County Employees' Retirement Association (1983) 145 Cal.App.3d 297 [193 Cal.Rptr. 343]; Rose v. City of Hayward (1981) 126 Cal.App.3d 926 [179 Cal.Rptr. 287]; Santa Monica P.O.A. v. Bd. of Admin. Public Employees' Retirement System (1978) 69 Cal.App.3d 96 [137 Cal.Rptr.771].
HISTORY
1. New section filed 7-5-94 as an emergency; operative 7-5-94 (Register 94, No. 27). A Certificate of Compliance must be transmitted to OAL by 11-2-94 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-5-94 order transmitted to OAL 10-28-94; disapproved by OAL and order of repeal as to 7-5-94 order filed on 12-14-94 (Register 94, No. 50).
3. New section refiled 12-15-94 as an emergency, with amendments; operative 12-15-94 (Register 94, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-14-95 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-15-94 order including amendments transmitted to OAL 4-11-95 and filed 5-23-95 (Register 95, No. 21).
5. Amendment of subsections (a)-(a)(1), new subsections (a)(1)(A)-(F) and amendment of Note filed 9-22-99; operative 10-22-99 (Register 99, No. 39).
6. Amendment of subsection (a)(5) filed 5-22-2002; operative 6-21-2002 (Register 2002, No. 21).
7. Amendment of subsection (b)(1), new subsections (b)(1)(A)-(F) and amendment of Note filed 7-11-2011; operative 8-10-2011 (Register 2011, No. 28).
8. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§572. Employees Not In a Group or Class of Employment.
Note • History
An employee who is not in a “group or class of employment” within the meaning of the Public Employees' Retirement Law, may request an exception from the “average increase” procedure set forth in Sections 20636 and 20636.1. The local employer may request this exception on the employees behalf.
The request must be submitted in writing, no later than 30 days after the employee first received PERS' estimate of benefits payable. If the estimate is mailed, the 30-day deadline is thirty-five calendar days after the postmark date. The request must be submitted to the:
CUSTOMER ACCOUNT SERVICES DIVISION
PUBLIC EMPLOYEES' RETIREMENT SYSTEM
P.O. BOX 942704
SACRAMENTO, CA 94229-2704
PERS will acknowledge the request in writing, within 15 calendar days of its receipt. PERS will grant or deny the request, and specify its reasons in writing, within 45 days from the date of acknowledgement. PERS' decision to grant or deny the request will be based on a comparison between increased compensation earnable, as reported for the employee during his or her period of final compensation and compensation earnable reported for the group or class of employees in his or her same membership classification.
PERS will review the full history of payroll reporting for the employee, and all relevant payroll reporting for the membership classification, as to both payrate and special compensation. In no case will an exception be granted if PERS determines that the comparative increase in compensation earnable by the employee fails to conform with the following standards set forth in subsections (a) and (b) below as well as other applicable provisions of the law.
(a) If reported in payrate, the increased compensation must be:
(1) Contained in a written labor agreement;
(2) Part of normally-required duties;
(3) Performed during normal hours of employment;
(4) Paid periodically as earned;
(5) Historically consistent with prior payments for the membership classification; and
(6) Not final settlement pay.
(b) If reported in special compensation, the increased compensation must be:
(1) Contained in a written labor agreement;
(2) Part of normally-required duties;
(3) Performed during normal hours of employment;
(4) Paid periodically as earned;
(5) Historically consistent with prior payments for the membership classification;
(6) Listed as special compensation in Section 571; and
(7) Not final settlement pay.
(c) Reported increased compensation must not constitute “final settlement pay” within the meaning of Section 570 and Section 20636 and 20636.1 of the Government Code. It must conform with federal Internal Revenue Code standards in Section 415 for maintaining “qualified plan status” of the System, and in Section 401, including the “non-discrimination testing”.
If the request is denied, the employee or employer may appeal PERS' decision to the Board by the procedure set forth in Sections 555.1-555.4, and Section 20134 of the Government Code.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 20636 and 20636.1, Government Code; IRC Sections 401, 415.
Research Note: Oden v. Public Employees' Retirement System (1994) 23 Cal.App.4th 194 [28 Cal.Rptr.2d 388]; City of Sacramento v. Public Employees' Retirement System (1991) 229 Cal.App.3d 1470 [280 Cal.Rptr. 847]; Santa Monica P.O.A. v. Bd. of Admin. Public Employees' Retirement System (1978) 69 Cal.App.3d 96 [137 Cal.Rptr. 771].
HISTORY
1. New section filed 7-5-94 as an emergency; operative 7-5-94 (Register 94, No. 27). A Certificate of Compliance must be transmitted to OAL by 11-2-94 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance, including amendment of section heading and text, as to 7-5-94 order transmitted to OAL 10-28-94 and filed 12-14-94 (Register 94, No. 50).
3. Change without regulatory effect amending first and third paragraphs, subsection (c) and Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
Note • History
Compensation and compensation earnable for members in the optional categories authorized in Section 20322 (referred to hereafter in this regulation as “optional members”), must be reported by contracting agency and school employers pursuant to the same statutory and regulatory requirements that apply to all other members.
(a) Specifically, said compensation shall conform to the “group or class” requirements that apply to payrate and items of special compensation, as shown below:
(1) Contained in a written labor agreement;
(2) Part of normally-required duties;
(3) Performed during normal hours of employment;
(4) Paid periodically as earned;
(5) Historically consistent with prior payments for the membership classifications; and
(6) Not final settlement pay.
(b) For persons who become optional members before July 1, 1994 by virtue of their position as a “city attorney” or “assistant city attorney” the following standards shall also apply:
(1) If compensation or compensation earnable (whether reported as payrate or special compensation) are set forth in a contract for legal services, then that contract shall be the equivalent of a written labor agreement.
(2) Compensation and compensation earnable shall be limited to payment for work performed by the optional member in his or her individual capacity as the city attorney or assistant city attorney, and shall not include payment for work performed by other persons (e.g., partner, associate, consultant) in the office of city attorney or a law firm that provides the services of a city attorney.
NOTE
Authority cited: Sections 20120-20123, 20636 and 20636.1, Government Code. Reference: Sections 20322, 20630, 20636 and 20636.1, Government Code.
HISTORY
1. New section filed 9-22-99; operative 10-22-99 (Register 99, No. 39).
2. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
Article 5. Member Contributions
§575. Refund of Additional Contributions.
Note • History
Contributions made by a member pursuant to Section 20630, Government Code, in excess of normal contributions, shall be refunded on written application filed in the office of the board at any time; provided, however, that such refund may not be made within one year following the date of any previous refund of additional contributions, and provided further that a partial refund shall not be made. Such refund may be authorized by the board notwithstanding the limitations herein with respect to the date of previous refund upon a showing of good cause therefor.
NOTE
Authority cited: Section 20120, Government Code. Reference: Section 20630, Government Code.
HISTORY
1. Amendment filed 1-30-80; effective thirtieth day thereafter (Register 80, No. 5).
§575.1. Deposit of Contributions.
Note • History
Any deposit of contributions for, but not limited to, service credit elections, except those made pursuant to Government Code section 21073.1, to be made in installments, must be made by payroll deduction upon such installment plan as may be elected, subject to the following conditions:
(a) Installments must be uniform for each payroll period;
(b) The installments may not be less than $15.00 per month (or the semi-monthly, bi-weekly or quadri-weekly equivalent); and
(c) The number of installments may not exceed 180 monthly (or the semi-monthly, bi-weekly or quadri-weekly equivalent) payroll periods.
(d) Interest on the unpaid balance of the amount payable to the Public Employees' Retirement Fund, except as provided in subsections (e) and (f), shall accrue at the member interest crediting rate provided in section 20178 on the effective date of the member's election or contribution adjustment.
(e) Interest on the unpaid balance of the amount payable to the Public Employees' Retirement Fund for a member's election to receive service credit subject to section 21052 shall accrue at the actuarial interest rate used in the calculation of the benefit liability.
(f) Interest on the unpaid balance of the amount payable to the Judges' Retirement Fund or the Judges' Retirement Fund II for a judge's election to receive service credit, pursuant to section 75030.8 or 75506.5, shall accrue at the actuarial interest rate used in the calculation of the benefit liability.
For purposes of this section, the applicable interest rate provided in subsections (d), (e), and (f) shall be applied from the effective date of the service credit election or contribution adjustment through the completion of payments.
An installment plan elected by a member or judge may be modified to extend the period of payment upon the Board's finding that the existing plan is effecting a hardship for the member or judge provided, however, that the plan as extended does not result in a total number of deductions, including the number already paid, exceeding the maximum permitted under this section and otherwise complies with this section.
NOTE
Authority cited: Sections 20120 and 20121, Government Code. Reference: Sections 20750 and 21050, Government Code.
HISTORY
1. New section filed 2-16-72; designated effective 4-1-72 (Register 72, No. 8).
2. Amendment of section and Note filed 5-8-2000; operative 6-7-2000 (Register 2000, No. 19).
3. Amendment of section and Note filed 7-6-2006; operative 8-5-2006 (Register 2006, No. 27).
§575.2. Deposit of Contributions Pursuant to Government Code Section 21073.1.
Note • History
Any deposit of contributions for a member service credit election pursuant to Government Code section 21073.1, to be made in installments, must be made by payroll deduction upon such installment plan as may be elected by the member, subject to the following conditions:
(a) Installments must be uniform for each payroll period;
(b) The installments may not be less than $15.00 per month (or the semi-monthly, bi-weekly or quadri-weekly equivalent); and
(c) The number of installments may not exceed 180 monthly (or the semi-monthly, bi-weekly or quadri-weekly equivalent) payroll periods.
(d) Interest on the unpaid balance of the amount payable to the Public Employees' Retirement Fund shall accrue at the member interest crediting rate provided in section 20178 on the effective date of the member's election.
For purposes of this section, the interest rate provided in subsection (d) shall be applied from the effective date of the member's election through the completion of payments.
An installment plan adopted by a member may be modified to extend the period of payment upon the Board's finding that the existing plan is effecting a hardship for the member provided, however, that the plan as extended does not result in a total number of deductions, including the number already paid, exceeding the maximum permitted under this section and otherwise complies with this section.
NOTE
Authority cited: Sections 20120, 20121 and 21073.1, Government Code. Reference: Section 21073.1, Government Code.
HISTORY
1. New section filed 5-4-2000; operative 5-4-2000 pursuant to Government Code section 11343.4(d). Exempt from OAL review pursuant to Government Code section 21073.1 (Register 2000, No. 18).
2. Amendment of introductory paragraph, new subsection (d) and new penultimate paragraph filed 7-6-2006; operative 8-5-2006 (Register 2006, No. 27).
§576. Additional Contributions by Employer.
Note • History
(a) An employer's election, pursuant to Section 20710, Government Code, to make additional contributions, shall be made by filing with the Board a copy of formal action taken by the employer's governing body. Such election shall be effective with respect to payroll periods beginning on and after the date specified by the governing body but no earlier than the 30th day following filing in the office of the Board.
(b) An employer's election to make such additional contributions is subject to the following conditions:
(1) Such additional contributions must be separately identified and reported to the Board on the regular payroll reports of the employer each time a payment is made.
(2) The employer shall provide each affected employee with an annual and accumulative statement of the specific amounts contributed by the employer to that employee's additional contribution account.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20016, 20710, 20711 and 20712, Government Code.
HISTORY
1. New section filed 2-26-75; effective thirtieth day thereafter (Register 75, No. 9).
2. Amendment of subsection (b) filed 6-18-76; effective thirtieth day thereafter (Register 76, No. 25).
3. Change without regulatory effect amending subsection (a) and Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
Article 6. Service Credit
(No Rules Filed)
Article 7. Benefits
Note • History
A person is receiving at least one-half of his support from a member if the member is making regular contributions in cash or kind to such support to the extent of one-half or more thereof.
(a) “Support,” includes food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items of maintenance of the persons supported at the standard of living in the occupation or employment engaged in by the person supported while he was employable. In determining support at the time of death, consideration may be given to support during the year preceding death. To the extent that the person supported and other persons derive support from a common fund or receive a common item of support and expenditures cannot be identified as to person and disproportionate support requirements are not shown, the person's support shall be established by equal proration of the total expenditures between the persons.
(b) A contribution made to a fund to which several persons contribute and from which several members of a family derive common support will be presumed made to the support of each person deriving support from the fund in the proportion of such contribution to the total contribution. Community funds of a member and a member's spouse contributed to the support of the member's parent or parents will be considered a contribution by the member to a maximum of the amount of community funds or property considered the property of the member under this rule.
(c) Any person claiming a benefit as a dependent parent shall file an affidavit or statement under penalty of perjury concerning the income and support in such form or forms and in such detail as may be required by the Executive Officer.
NOTE
Authority cited: Section 20120, Government Code. Reference: Sections 20041, 21263, 21263.4, and 21382.2, Government Code.
HISTORY
1. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
2. Editorial correction of Reference cite (Register 95, No. 5).
§580.1. Full-Time Student--Educational Institution.
Note • History
For purposes of any benefit payable to or because of a child who is a full-time student, a full-time student is one who is in full-time attendance at an educational institution if he is carrying a subject load which is considered full time for day students under the standards and practices of the educational institution. However, a student will not be considered in full-time attendance if:
A. He is enrolled in a junior college, college, or university in a course of study of less than 13 school weeks' duration; or
B. He is enrolled in any other educational institution and either the course of study is less than 13 school weeks' duration or his scheduled attendance is at the rate of less than 20 hours a week.
A high school, trade or vocational school, junior college, college or university is an “educational institution” if:
(a) It is operated or directly supported by the United States, by a State or local government or a political subdivision thereof; or
(b) It has been approved by a State, or accredited by a State-recognized or nationally-recognized accrediting agency; as determined by the Executive Officer.
This definition includes both public and private schools which meet the requirements of (a) or (b) above.
Survivor benefits will be reduced or discontinued effective the month following loss of student status as determined under forms and procedures established by the Executive Officer.
NOTE
Authority cited: Sections 20120-20124, Gov. Code. Reference: Section 21382.5, Gov. Code.
HISTORY
1. New Section filed 10-22-69 as an emergency; designated effective 11-10-69 (Register 69, No. 43).
2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 12-30-69 (Register 70, No. 1).
3. Amendment filed 2-26-75; effective thirtieth day thereafter (Register 75, No. 9).
§581. Retirement Allowance Deductions.
Note • History
(a) Approval of Group Insurance Plans.
Any contracting agency under the Public Employees' Retirement System having an insurance plan for its active and retired employees or retired employees or any association composed of employees and persons retired under the Public Employees' Retirement System, or of such retired persons having an insurance plan for its membership, may submit such plan to the board for approval.
(1) Eligibility.
Any person retired under the Public Employees' Retirement System and any beneficiary under the system who is eligible for coverage under an insurance plan approved by the board, may authorize, pursuant to these rules, deductions to be made from monthly payments of his retirement allowance or benefit for payment of premiums, dues, or charges under such plan.
(2) Forms and Procedures.
The executive officer shall prescribe, subject to these rules, procedures and forms for the filing of authorizations.
(3) Place of Filing.
Authorization shall be filed in the office of the board provided, however, that the executive officer may prescribe in the alternative, filing with the insurer or nonprofit membership corporation issuing the insurance plan, if such insurer or corporation has undertaken in a writing filed with the board to:
(A) Supply to the board statements of deductions as specified in authorizations received by it and to save the State, the board and its employees harmless from liability for any errors in withholding or transmitting deductions except for moneys actually withheld but not transmitted.
(B) Keep all authorizations received by it available for inspection by authorized representatives of the board.
(4) Time of Filing.
Authorizations may be made effective only with regard to retirement allowance payments and premiums, dues or charges becoming due more than 30 days after the date of receipt in the office of the board of the authorization, or, where the alternative procedure under these rules is prescribed by the executive officer, of the insurer's or nonprofit membership corporation's statement of authorized deductions.
(5) Authorization Changes.
Deductions may be changed in amount or terminated in the manner provided for filing of authorizations and may be made effective only as to retirement allowances payable more than 30 days after notice is received in the office of the board.
(6) Refunds.
Any amounts which have been deducted and paid to an insurer or nonprofit membership corporation and which are refundable under the insurance plan because of death of the retired person, shall be refunded to the board for distribution under the Public Employees' Retirement Law.
(b) Forms and Procedures for Deductions of National Service Life Insurance.
The executive officer shall provide forms and procedures for authorization by persons retired under the Public Employees' Retirement System of deductions from retirement allowances for payment of premiums on National Service Life Insurance or United States Government Converted Insurance.
(1) Time and Place of Filing.
Authorizations under this article shall be filed in the office of the board and may be given effect only as to retirement allowances payable and premiums becoming due more than 30 days after receipt of the authorization in the office of the board.
(c) Deduction of Employee Association Dues or Credit Union Payments or Shares.
(1) Eligibility and Conditions.
A retired person who was a state member and who is a member of any bona fide association comprised principally of employees and former employees of agencies of the State of California may authorize monthly deduction of dues of such Association, or any retired member or beneficiary who is a member of a credit union may authorize monthly deductions for payments or shares to credit unions from his retirement allowance subject to the following conditions:
(A) The Association or credit union has filed with the Public Employees' Retirement System a written request for such deduction in accordance with this subsection, and the executive officer finds in connection with such request that there is compliance with this subsection.
(B) The retired person's written authorization for deduction is filed with the Association or credit union.
(C) The Association or credit union will keep all authorizations received by it available for inspection by an authorized representative of the Board.
(D) The Association or credit union has filed an agreement which holds the Retirement System harmless from any liability except for dues or payments actually withheld but not transmitted.
(E) Any dues or payments deducted in error shall be offset, or refunded to the Board for distribution in accordance with the Public Employees' Retirement Law.
(F) The allowance of the retired person continues sufficient in amount to permit such deductions after giving effect to requests for income tax deductions and medical-hospital and life insurance premiums.
(2) Forms and Procedures.
The executive officer shall prescribe, subject to these rules, procedures and forms for the implementation of this subsection.
(3) Cost Reimbursement.
The executive officer shall determine the administrative costs from time to time for processing and making such deductions and is authorized to collect such charges by either a withholding from amounts deducted for the Association or credit union or by a direct billing.
(4) Time and Place of Filing.
(A) Authorizations for deductions under this section may be made effective only with regard to retirement allowances payable more than 30 days after receipt in the office of the Board in Sacramento of the Notice of Authorization. No retroactive deductions will be taken.
(B) Deductions may be changed in amount or terminated in the manner provided for filing Notices of Authorization and may be made effective only as to retirement allowances payable more than 30 days after notice is received in the Sacramento office of the Board.
NOTE
Authority cited: Section 20120, Government Code. Reference: Section 20135, Government Code.
HISTORY
1. Amendment of subsection (c) filed 2-3-78; effective thirtieth day thereafter (Register 78, No. 4). For prior history, see Register 70, No. 16.
§582. Beneficiary Designations.
Note • History
A member may designate as beneficiary to receive any benefit payable to a member's designated beneficiary upon death before or after retirement, any person or persons, including a corporation; provided, however, that a beneficiary designated to receive payments under an optional settlement based on life contingency may be only a natural person. The designation must be in writing, except as otherwise provided in this section, must give the name of the person and his address, and must be filed in the office of the board in Sacramento, California. The right of a beneficiary to receive payment of a benefit is contingent on his survival at the time of the member's death, and the member may designate a beneficiary or beneficiaries on the contingency that the first beneficiary does not so qualify.
A member may, subject to the conditions set forth in this paragraph, designate as beneficiaries or contingent beneficiaries, other than a beneficiary to receive payment under an optional settlement based on life contingency of the beneficiary, his children or his grandchildren by class rather than by naming the individuals as otherwise required in this section. For purposes of such designation, “children” shall mean natural or adopted children and “grandchildren ” shall mean natural or adopted children of the member's “children,” and shall include such children or grandchildren in being at the time of the member's death or who are conceived before the member's death and born thereafter. Payments of a benefit by the system on the basis of a determination in good faith of the existence and identity of the members of a class so designated shall constitute a complete discharge and release of the system from further liability for the benefit, notwithstanding that it may not have discovered a beneficiary otherwise entitled.
NOTE
Authority cited: Section 20120, Government Code. Reference: Sections 20303, 20037, 21204 and 21205, Government Code.
HISTORY
1. New section filed 12-15-61; effective thirtieth day thereafter (Register 61, No. 25).
2. Amendment filed 12-13-66; effective thirtieth day thereafter (Register 66, No. 44).
§583. Election of Survivor Coverage.
Note • History
An election of 1959 survivor allowance coverage as provided for by Section 21577 of the Government Code shall be subject to the following conditions:
(1) Notice of right to elect 1959 survivor coverage shall be provided by the System to contracting agencies subject to Chapter 9, Article 6 of the Government Code. It shall be the contracting agency's responsibility to notify eligible members of their right to elect hereunder.
(2) Eligible members who are employees of a contracting agency on the date such agency becomes subject to Government Code Section 21577 shall have the right to elect 1959 survivor allowance coverage. Such election must be made prior to or within 30 days of the effective date of the contracting agency's amendment to become subject to Section 21577.
(3) Members who are employees of a contracting agency on the date such agency becomes subject to Government Code Section 21577, and who elected not to be covered during the initial election period, shall have a second right of election within a three-month period beginning nine months following the effective date of the agency's contract for such coverage.
(4) To be valid, elections may be made only by the member personally in writing in the format prescribed by the Executive Officer and must be received at an office of the Board within the prescribed time periods. A member's failure to submit a valid election will be deemed an election to not be covered by the 1959 survivor allowance.
(5) A contracting agency's election to be subject to Government Code Section 21572 in lieu of Government Code Section 21571 shall not create a new right of election by employees of that agency.
(6) A member's effective date of coverage shall be (a) the date a valid election is received by the Board, during the first election period; or (b) the date which is one year following the effective date of the agency's contract for such coverage with respect to valid elections during the second election period; or (c) the date of membership for members entering employment after the date of the agency's contract for such coverage.
(7) Contributions for a member so electing shall begin in the pay period during which coverage becomes effective.
NOTE
Authority cited: Sections 20120-20124, Government Code. Reference: Sections 21571, 21572, 21576, 21577 and 21583, Government Code.
HISTORY
1. New section filed 10-22-69 as an emergency; designated effective 11-10-69 (Register 69, No. 43).
2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 12-30-69 (Register 70, No. 1).
3. Amendment filed 4-30-74 as an emergency; effective upon filing (Register 74, No. 18).
4. Amendment filed 9-6-74; effective thirtieth day thereafter (Register 74, No. 36).
5. Repealer and new section filed 6-11-82; effective thirtieth day thereafter (Register 82, No. 24).
6. Change without regulatory effect amending first paragraph, subsections (2)-(3) and (5) and Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§585. Retirement Optional Settlement 4.
Note • History
(a) For purposes of any request for a new form of optional settlement 4 subject to the approval of the board, the request must comply with applicable federal and state requirements and the following administrative requirements. If staff determines a request for a new option 4 allowance type should be denied based upon administrative criteria, stall will bring the request before the board to either approve or deny the request.
(1) There is no existing option or option 4 type that could be used to accomplish substantially the same results.
(2) Each beneficiary would receive a minimum of 25% of the member's monthly allowance. This minimum would not apply in the case of a community property interest.
(3) Each beneficiary is alive and named at the time of the designation.
(4) Upon the death of a beneficiary, there would be no continuing allowance to a secondary or contingent beneficiary.
(5) Any proposed change in future allowance payment to the retired annuitant or named beneficiary is based upon an easily identifiable event, such as a specified date or death of the retired annuitant.
(6) The requested annuity is a combination of life annuities, joint life annuities (on no more than two lives), a temporary life annuity, an annuity certain, or lump sums payable upon the death of the member or a beneficiary.
(7) The total of all lump sums payable upon death cannot exceed the amount of the member's contributions with interest at the time of retirement.
(8) The total amount (excluding lump sums payable upon death) payable in any month cannot exceed three times the amount that would have been payable for that month if the member had elected an unreduced allowance and was alive in the month.
(9) It is reasonable to expect that at least 100 members will elect the option within two years of the date that the option first becomes available.
(b) The Board may, in its discretion, establish a review period for any approved option 4 allowance type to monitor conformity with the standards in subsection (a) and may, on a prospective basis, terminate any current or added option 4 allowance type in subsection (c) that does not conform to those standards.
(c) The following alternative forms of option 4 allowance have been approved by the Board. However, the amount to be paid to the beneficiary cannot be more than what the member could provide the beneficiary under option 2W.
(1) “Specific Dollar Amount to a Beneficiary”
The member may specify that upon his or her death after retirement, a monthly allowance in an amount determined by the member be paid to a named beneficiary for life.
(2) “Specific Percentage to a Beneficiary”
The member may specify that upon his or her death after retirement, a monthly allowance in an amount equivalent to a specified percentage of the member's unmodified allowance be paid to a named beneficiary for life. Or, a member may specify that upon the death of either the member or named beneficiary, the survivor would receive a certain percentage of the member's unmodified allowance.
(3) “Option 2W and Option 1 Combined”
The member may specify the same monthly allowance the member is receiving continue to be paid to his or her named beneficiary upon the member's death and that upon the subsequent death of the named beneficiary, any member contributions not used to fund the allowance be paid in a lump sum to a secondary beneficiary or beneficiaries.
(4) “Reduced Allowance for Fixed Period of Time”
The member may specify a percentage of his or her unmodified allowance to be received for a fixed period of time immediately following retirement. At the end of the specified period, the member begins to receive an increased allowance that is the actuarial equivalent of his or her remaining benefit. The allowance may be based on the member's life alone or on the joint lifetimes of the member and a named beneficiary.
(5) “Multiple Lifetime Beneficiaries”
The member may name more than one beneficiary to receive a lifetime monthly allowance following the death of the member after retirement.
(6) “Option 3W and Option 1 Combined”
The member may specify that one-half of the monthly allowance the member is receiving continue to be paid to his or her named beneficiary upon the member's death and that upon the subsequent death of the named beneficiary, any member contributions not used to fund the allowance be paid in a lump sum to a secondary beneficiary or beneficiaries.
(7) “Reduction upon Death of Retiree or Named Beneficiary”
The member may specify a minimal reduction of at least one dollar to the unmodified allowance to provide the highest allowance possible while both the member and beneficiary are living. Upon the death of either of them, the continuing allowance will be significantly reduced for the survivor.
NOTE
Authority cited: Sections 20121 and 21458, Government Code. Reference: Section 21458, Government Code.
HISTORY
1. New section filed 4-26-2004; operative 5-26-2004 (Register 2004, No. 18).
Article 7.5. Normal Retirement Age and Bona Fide Separation in Service
Note • History
The purpose of this Article is to ensure the federal tax-qualified status of the Public Employees' Retirement System by prohibiting in-service distributions to the extent required by the Internal Revenue Code, and the regulations promulgated thereunder. In the event the applicable federal law changes, the federal law shall supercede these regulations.
NOTE
Authority cited: Sections 20121 and 21220.5, Government Code. Reference: Section 21220.5, Government Code.
HISTORY
1. New article 7.5 (sections 586-586.2) and section filed 8-20-2004; operative 9-19-2004 (Register 2004, No. 34).
§586.1. Normal Retirement Age.
Note • History
(a) The normal retirement age of a member shall be the later of:
(1) the age when the member is first eligible to retire pursuant to Article 1 through Article 5 of Chapter 12, Part 3, Division 5 of Title 2 of the Government Code; or
(2) the highest specified age applicable to the member in the benefit formula, where the highest specified age is defined as:
(A) 65 if the member is entitled to benefits under Government Code sections 20176 or 21100;
(B) 60 if the member is entitled to benefits under Government Code sections 21353 or 21354.3;
(C) 55 if the member is entitled to benefits under Government Code sections 21354, 21354.1, 21354.5, 21363, 21363.1, 21366, 21369, or 21369.1; and
(D) 50 if the member is entitled to benefits under Government Code sections 21362, 21362.2, 21363.3, 21363.4 or 21363.8.
(b) In the event an existing benefit formula is modified or a new benefit formula is enacted, the chief actuary may determine the normal retirement age until such time that the regulations may be amended.
NOTE
Authority cited: Sections 20121 and 21220.5, Government Code. Reference: Section 21220.5, Government Code.
HISTORY
1. New section filed 8-20-2004; operative 9-19-2004 (Register 2004, No. 34).
§586.2. Bona Fide Separation in Service.
Note • History
(a) For purposes of working for a CalPERS-covered employer after retirement pursuant to Article 8, of Chapter 12, Part 3, Division 5 of Title 2 of the Government Code, a member who has not attained normal retirement age shall have a bona fide separation in service. A bona fide separation in service is defined as:
(1) no predetermined agreement between the employer and the member prior to retirement to return to work for the employer after retirement; and
(2) a separation in service of at least 60 calendar days between the date of the member's retirement and the first day of work for the employer as a retired person. The 60 days shall commence on the day after retirement.
(b) Any retired person employed in violation of this regulation shall be subject to the consequences provided in Government Code section 21220.
(c) In the event an emergency has been declared as provided in Government Code Section 8558 that requires the employment of a retired person, the 60 calendar day separation in service requirement set forth in subdivision (a)(2) of this regulation shall not apply.
NOTE
Authority cited: Sections 20121 and 21220.5, Government Code. Reference: Section 21220.5, Government Code.
HISTORY
1. New section filed 8-20-2004; operative 9-19-2004 (Register 2004, No. 34).
Article 7.6. Participation in Risk Pools
§588. Risk Pools — Definitions.
Note • History
(a) For purposes of this Article, a “Rate Plan” consists of all CalPERS members for which a single employer contribution rate is produced annually.
(b) For purposes of this Article, a “Side Fund” shall be the difference between the actuarial value of assets and the actuarial liabilities of the rate plan at the time of joining a risk pool.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New article 7.6 (sections 588-588.10) and section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.1. Risk Pools -- Required Participation for Existing Contracting Agencies; Effective Date for Mandated Benefits for New and Existing Contracting Agencies.
Note • History
Following the creation of risk pools pursuant to Section 20840 of the Government Code, any existing contracting agency with a rate plan of less than 100 active members on any annual actuarial valuation date shall be required to participate in a risk pool. Participation shall be effective as of that valuation date for all members of that rate plan, but no earlier than the June 30, 2003 actuarial valuation which will be used to set employer contribution rates for fiscal year 2005-2006. The effective date of a pool's mandated benefits pursuant to §20840 of the Government Code for contracting agencies who participate in a risk pool is the first day that the agency is required to pay for the mandated benefits.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
2. Amendment of section heading and section filed 9-14-2009; operative 10-14-2009 (Register 2009, No. 38).
§588.2. Risk Pools -- Required Participation for New Contracting Agencies.
Note • History
A new contracting agency with CalPERS following the creation of risk pools shall be required to participate in a risk pool if the number of active members in the rate plan is less than 100 at the time of the initial actuarial valuation provided that the actuary determines such participation will not be unfavorable to other agencies in the pool. In the event that such participation would be unfavorable, the matter may be referred to the CalPERS Board for a hearing.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
2. Amendment filed 9-14-2009; operative 10-14-2009 (Register 2009, No. 38).
§588.3. Risk Pools — Optional Participation.
Note • History
A contracting agency with 100 or more active members on each annual valuation date after June 30, 2003 may, by amendment to its contract, participate in a risk pool provided that the actuary determines such participation will not be unfavorable to other agencies in the pool. In the event that such participation would be unfavorable, the matter may be referred to the CalPERS Board for a hearing.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.4. Risk Pools — County Offices of Education, School Districts and Community College Districts.
Note • History
Notwithstanding Section 588.1, county offices of education, school districts and community college districts shall not be required to participate in a risk pool. County offices of education, school districts and community college districts shall only be allowed to establish a contract with CalPERS to participate in a risk pool if the service retirement formula of the risk pool provides higher factors at all ages than the service retirement formula applicable to school members.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.5. Risk Pools — Amortization of Side Funds.
Note • History
The side fund shall be amortized at the actuarially assumed investment return. All investment gains and losses on the side fund that exceed or fall below the actuarially assumed investment return shall be attributed to the risk pool.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.6. Risk Pools — Assignment to Risk Pools.
Note • History
A rate plan participating in a risk pool shall be assigned to one of the risk pools based on the service retirement formula applicable to its active members.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.7. Risk Pools — Leaving and Transferring Between Risk Pools.
Note • History
Any contracting agency participating in a risk pool shall be allowed to transfer the assets and actuarial liabilities of its rate plan into another risk pool by contracting for a service retirement formula offered by the other risk pool. For this purpose, the assets to be transferred shall be the pro-rata share of the current pool's net assets (net of all side funds) plus the rate plan's remaining side fund, as determined by the actuary. Following the transfer to the new pool, a new side fund shall be established equal to the difference between the assets brought into the new pool and the product of the actuarial liabilities of the rate plan under the new service retirement formula and the net funded ratio of the new pool as determined by the actuary. A contracting agency shall not be allowed to terminate its participation in a risk pool, unless the agency's contract is terminated pursuant to Sections 20570, 20571, or 20572 of the Government Code. Upon termination of the contract, the affected members shall become part of the terminated agency pool pursuant to Section 20578 of the Government Code.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.8. Risk Pools — Classification of Benefit Provisions.
Note • History
The CalPERS Board shall separate the benefit provisions available to a contracting agency into various classifications. These classifications will be handled as follows:
(a) Class 1 benefits may vary by rate plan within each risk pool. Agencies contracting for a Class 1 benefit will be responsible for the past service liability associated with such benefit and will be required to pay a surcharge established by the actuary to cover the ongoing cost (normal cost) of the Class 1 benefit. Class 1 benefits shall be the optional benefits meeting the following criteria:
(i) Impact the ongoing cost (either total or employer normal cost) of the risk pool by more than 0.25% of payroll; or
(ii) The benefit is not available to all plans participating in the risk pool.
(b) Class 2 benefits may vary by rate plan within each risk pool. Agencies contracting for a Class 2 benefit will be required to pay the full one time cost of the benefit, as established by the actuary. Class 2 benefits shall be the optional benefits, other than Class 1 benefits, meeting the following criteria:
(i) No impact on the ongoing cost (normal cost) of the risk pool; and
(ii) Provide a one time increase in benefit with an identifiable increase in accrued liabilities.
(c) Class 3 benefits may vary by rate plan within each risk pool. However, the employer contribution rate will not vary within the risk pool due to the Class 3 benefits. Class 3 benefits shall be the optional benefits meeting the following criteria:
(i) Impact the ongoing (normal cost) of the risk pool by no more than 0.25% of payroll
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.9. Risk Pools — Merger of Risk Pools.
Note • History
In the event that the number of contracting agencies participating in a risk pool is determined by the actuary to be too small to reduce the volatility in employer contribution rates caused by unexpected demographic events, the risk pool will be merged with another risk pool identified by the actuary.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
§588.10. Risk Pools — Superfunded Status.
Note • History
For employers participating in a risk pool, the actuary shall determine on an annual basis whether or not the employer's rate plan is superfunded pursuant to Section 20816 of the Government Code. In determining whether the rate plan is superfunded, the actuary shall use assets equal to the pro-rata share of the current pool's net assets plus the plan's remaining side fund. Superfunded plans may cover its employees' normal member contributions using its employer assets. Such transaction will be tracked through the rate plan's individual side fund.
NOTE
Authority cited: Sections 20120, 20121 and 20840, Government Code. Reference: Section 20840, Government Code.
HISTORY
1. New section filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
Article 8. Replacement Benefits Plan
§589. Establishment and Status of Plan.
Note • History
(a) Establishment.
(1) There is hereby established and adopted a retirement plan entitled the California Public Employees' Retirement System Replacement Benefits Plan (the “Plan”) to restore the annual retirement benefits otherwise earned by Members of CalPERS but which are limited by the rules of Section 415 of the Internal Revenue Code of 1986, as amended (“Tax Code”). CalPERS is a tax qualified plan under Section 401(a) of the Tax Code and is a governmental plan as defined in Section 414(d) of the Tax Code.
(2) This Plan is established pursuant to the provisions of Section 401(m) of the Tax Code and Section 21757 of the Government Code. This Plan constitutes the regulations that implement Part 3.4 of the Government Code, as provided in Section 21760 thereof.
(3) The state, each school employer, and each contracting agency is deemed to have elected to contract with the Board of CalPERS for administration of this Plan, pursuant to Government Code Section 21761.
(b) Effective Date.
(1) This Plan shall be effective as of January 1, 1999, and benefits shall be payable from this Plan on and after that date.
(2) Benefits shall be paid to CalPERS Members with respect to periods beginning on and after the Effective Date for which their CalPERS benefits are limited by Section 415.
(3) In addition, benefits with respect to periods prior to the Effective Date and on and after January 1, 1993, shall be payable under this Plan as provided in Sections 589.2 and 589.3 below.
(c) “Portion of CalPERS” -- This Plan shall be deemed to be a “portion” of CalPERS and each retirement plan which exists as a part of CalPERS solely to the extent required by, and within the meaning of, Section 415(m)(3) as in effect on January 1, 2000, and not for any other purpose.
(d) Purpose and Tax Status of this Plan -- In accordance with Section 415(m), this Plan is solely for the purpose of providing to Members of CalPERS, and Other Recipients that part of the annual benefit otherwise earned under CalPERS that exceeds the limitations on benefits imposed by Section 415.
NOTE
Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New article 8 (sections 589-589.10) and section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
2. Amendment of subsection (a)(3) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).
Note • History
(a) Plan Definitions -- Terms used in this Plan shall have the meaning set out below:
(1) “Board” means the CalPERS Board of Administration.
(2) “CalPERS” means the California Public Employees' Retirement System.
(3) “Commencement Date” means the date of commencement of participation in this Plan as set out in Subsection 589.2(b) hereof.
(4) “Effective Date” means January 1, 1999.
(5) “Government Code” means the California Government Code.
(6) “HI Taxes” means federal hospital insurance taxes.
(7) “Member” means person who has qualified for membership in the California Public Employees Retirement System and on whose behalf an employer has become obligated to pay contributions to such System
(8) “OASDI” Taxes means federal old age, survivor and disability insurance taxes.
(9) “Other Recipient” means any recipient of benefits from CalPERS other than the Participant, such as a beneficiary, spouse, former spouse, eligible survivor, surviving parent, surviving child, or other recipient of benefits payable from CalPERS.
(10) “Participant” means a CalPERS Member who participates in this Plan pursuant to Section 589.2 hereof.
(11) “PERF” means the Public Employees' Retirement Fund as established under Government Code Section 20170.
(12) “Plan” means this California Public Employees' Retirement System Replacement Benefits Plan.
(13) “Plan Administrator” means the Board.
(14) “Plan Year” means the 12-month period beginning on July 1 and ending on June 30.
(15) “Replacement Benefit Custodial Fund” means the fund established pursuant to Government Code Section 21758, which is separate and apart from the PERF and any other CalPERS retirement trust fund and which is established to collect, hold and disburse funds to provide benefits under the Plan.
(16) “Recommencement Date” means the date of recommencement of participation in this Plan as set out in Subsection 589.2(d) hereof.
(17) “Section 415” means Section 415 of the Tax Code.
(18) “Tax Code” means the Internal Revenue Code of 1986, as amended, and any rules and regulations issued thereunder.
(b) Other Definitions -- Terms used but not defined herein which are used in and defined under the Government Code as that Code governs CalPERS shall be deemed to be a reference to the terms used in and defined in the Government Code, and shall be defined in exactly the same manner as they are defined therein unless otherwise specifically provided in this Plan.
NOTE
Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
Note • History
(a) CalPERS Members With Benefits Limited by Section 415 -- Participation in this Plan is limited solely to those CalPERS Members or Other Recipients whose benefits earned or payable under CalPERS are limited by Section 415 for periods on and after the Effective Date.
(b) Commencement of Participation -- Participation in this Plan shall commence on the first date (on or after the Effective Date) with respect to which benefits payable to the Member from CalPERS are limited by Section 415. This date is the Commencement Date.
(c) Cessation of Participation -- Participation in this Plan shall cease as of the first date for which benefits payable to the CalPERS Member or Other Recipient are no longer limited by Section 415.
(d) Re-commencement of Participation.
(1) If any Participant has ceased participation in this Plan but at a later date his or her CalPERS benefits payable are again limited by Section 415, he or she shall again commence participation as provided in Subsection 589.2(b) hereof and shall cease participation as provided in Subsection 589.2(c) hereof.
(2) If a Participant's CalPERS benefits stop, then he or she shall cease participation in this Plan and his or her benefits shall stop under this Plan. He or she shall again commence participation as provided in Subsection 589.2(b) hereof and shall cease participation as provided in Subsection 589.2(c) hereof.
(e) Other Recipients -- Any Other Recipient of benefits from CalPERS shall receive benefits under this Plan as of the first date (on or after the Effective Date) with respect to which benefits payable to him or her from CalPERS are limited by Section 415. The Other Recipient's benefits payable under this Plan shall cease as of the first date for which his or her CalPERS benefit is no longer limited by Section 415.
(f) Limited Retroactive Participation -- CalPERS Members or Other Recipients whose benefits payable under CalPERS were limited by Section 415 for periods beginning on and after January 1, 1993 and ending with the Effective Date, shall be Participants in this Plan solely for the purpose of paying to them benefits that were limited by Section 415 during that period and shall be Participants solely for the time period necessary or appropriate to complete such payment. This Participation may be in addition to the Participation otherwise provided for in this Section.
(g) No One Else Shall Receive Benefits -- No one other than a person described in this Section shall receive any benefits under this Plan, except as required by domestic relations orders or applicable law.
NOTE
Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
Note • History
(a) Benefits Contingent on Funding -- No benefits shall accrue under this Plan to any Participant or Other Recipient unless and until the state, the school employer, or the contracting agency, as appropriate, has paid to CalPERS the amount that CalPERS has invoiced the state, school employer, contracting agency or Participant for the benefits payable, as provided in Sections 589.4 and 589.5 hereof.
(b) Amount of Benefit -- Initial Determination.
The benefit payable under this Plan shall be initially determined for each Participant at the Participant's Commencement Date under the following steps:
(1) Calculate the Participant's benefit payable under CalPERS at the time of the Commencement Date without regard to the limits of Section 415 and after taking into account the form of CalPERS benefit selected by the Participant.
(2) Determine the amount of the Participant's CalPERS benefits (if any) attributable to after tax Member contributions and attributable to rollover contributions at the Commencement Date after taking into account the form of CalPERS benefit selected by the Participant.
(3) Subtract the amount determined in (2) from the amount calculated under (1); this is the amount subject to the Section 415 limits and therefore subject to Section 415 testing.
(4) Determine the maximum benefits payable to the Participant from CalPERS under the then current benefit payment limits of Section 415, ignoring any benefits that may be attributable to after tax Member contributions or rollover Member contributions. This determination shall take into account the applicable dollar limits, and the form of benefit payment chosen. The limits may differ based on other factors such as whether the Participant qualifies for the special safety member limits under Section 415 and when he or she first became a CalPERS Member.
(5) Subtract the amount determined under (4) from the amount determined under (3). If the amount in (3) is greater than that in (4), the difference is the initial benefit payable under this Plan. If the amount in (4) is equal to or greater than the amount in (3), then no benefits are payable under this Plan.
(6) Section 415 establishes annual benefit limits and therefore, the amount of the initial benefit to be paid under this Plan that is determined under (4) is an annual benefit. For payment under this Plan, however, the amount of such initial benefit shall be converted to equal quarterly amounts.
(c) Amount of Benefit -- Redeterminations.
(1) As of each January 1 following the Participant's Commencement Date or Recommencement Date (or the date of commencement or recommencement of benefits under this Plan for any Other Recipient), the Participant's, or Other Recipient's, benefit under this Plan shall be redetermined by following each of steps (1) through (6) of Subsection 589.3(b), but using the then current amounts determined by applying (i) cost of living adjustments and other changes (if any) to the benefits provided under CalPERS, and (ii) cost of living adjustments, and other changes (if any) to the maximum benefit limits established by Section 415.
(2) At the Plan Administrator's sole discretion, the amount of every Participant's and Other Recipient's benefits (on a uniform basis and not separately for any particular Participant or Other Recipient) may be redetermined at a date other than January 1 if there is a material change in the rules governing the maximum benefit limits established under Section 415 or a material change in CalPERS benefits, or for any other material reason at the Plan Administrator's sole discretion.
(d) Amount of Benefit -- Recommencement of Participation -- When a Participant or Other Recipient recommences participation in this Plan, a recalculation shall occur under Subsection 589.3(c) hereof, treating the first month for which benefits resume under this Plan as if it were a date of recalculation under Subsection 589.3(c). Any cost of living adjustments shall not apply to benefits payable under this section of the Plan until they otherwise would occur under the operation of this Plan and CalPERS.
(e) Amount of Benefit -- Other Recipients.
Other Recipients shall be entitled to benefits under this Plan as follows:
(1) Other Recipients shall be entitled to benefits under this Plan only if they are entitled to benefits that are limited by Section 415 under CalPERS after the death of a CalPERS Member or upon legal separation or dissolution of a marriage of a Member.
(2) The benefit payable to an Other Recipient under this Plan shall be determined as if he or she were the Participant, substituting in the calculations under Subsections 589.3(b) or 589.3(c), as applicable, the amounts due to such Other Recipient for the amounts due to the Participant.
(f) Timing of Payments.
(1) The amount of benefit provided under this Plan shall be paid quarterly starting as of the first day of the last month of the first calendar quarter following the Commencement Date. At the Plan Administrator's sole discretion, payments may be made from this Plan more or less frequently than quarterly, (and this may be done on an individual Participant basis), provided that payments to a Participant or Recipient shall be made at least annually.
(2) A pro rata amount, smaller than the quarterly payment, shall be paid for part of a quarter when the period of payment begins after the first day of the quarter or ends before the last day of the quarter.
(g) Form of Benefit Paid -- The benefit paid to a Participant or Other Recipient under this Plan shall be paid in the same form as benefits are paid to him or her under CalPERS, except that periodic benefits paid under this Plan shall be paid quarterly unless otherwise provided herein.
(h) Limited Retroactive Payments.
(1) The amounts that are payable to any Participant or Other Recipient covered by Subsection 589.2(f) above shall be determined as if the Effective Date for this Plan for the Participant or Other Recipient was the first date on and after January 1, 1993 on which benefits payable to him or her under CalPERS were limited by Section 415, and the last date for which benefits were so limited was December 31, 1998. All of the other provisions in this Section 589.3 (including but limited to Subsection 589.3(a)) shall apply to determine such payment, except as provided in this Subsection 589.3(h).
(2) Benefits payable under this Subsection 589.3(h) shall be paid as soon as reasonably practicable.
(3) Benefits payable under this Subsection 589.3(h) shall be paid, to the extent reasonably practicable, in a single sum.
(i) Determination Solely By Plan Administrator -- The Plan Administrator shall have sole authority and discretion to determine the amount of benefits (if any) that are payable under this Section 589.3.
NOTE
Authority cited: Section 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
2. Amendment of subsection (a) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).
Note • History
(a) Employer Contributions Required -- The state, each applicable school employer, and each applicable contracting agency shall make contributions to this Plan in amounts to be fixed and determined by the Board. The Board shall have sole authority and discretion to determine the amount of contributions that must be paid to this Plan by the state, each applicable school employer, and each applicable contracting agency. The Board shall make such determination after receiving advice on such contributions from the Chief Actuary of CalPERS.
(b) Employer Contribution Amount.
(1) The amount of each employer's contributions to this Plan shall be equal to the amount of estimated benefits payable from this Plan for the applicable calendar year for applicable Participants and/or Other Recipients.
(2) The Board may require payment of additional contributions or other amounts owed to this Plan from one or more applicable employers during the applicable calendar year as is necessary to provide benefits under this Plan.
(c) Time and Manner of Employer Contributions -- Employer contributions shall be made at the time and in the manner as is fixed by the Board.
(d) Excess Amounts -- If, at the end of any calendar year, assets are held in the Replacement Benefit Custodial Fund that are in excess of what was required during the calendar year to pay benefits under the Plan, such excess shall be used only to pay Plan expenses.
(e) Source of Contributions -- To the extent practicable and subject to the approval of the CalPERS Chief Actuary, contributions to this Plan shall be made from amounts that otherwise would have been contributed by the employer to CalPERS. Such contributions shall be deposited in the Replacement Benefit Custodial Fund. Under no circumstances shall any amount be transferred from the PERF to or for the use of this Plan.
(f) Invoice for Contributions.
(1) The Plan Administrator shall invoice each applicable contributing employer no later than the fifteenth day of January of each year.
(2) In addition, the Plan Administrator shall invoice each applicable contributing employer under this Plan as soon as is reasonably practicable in order to obtain the funds needed to pay benefits under this Plan for Members who become Participants after the beginning of the calendar year, and for other appropriate circumstances.
(3) The employer shall promptly pay to CalPERS the amount invoiced.
(4) No benefits shall accrue or be payable to any person under this Plan unless and until payment of the amount invoiced for such person is made by the applicable contributing employer.
(g) Replacement Benefit Custodial Fund.
(1) All contributions under this Plan shall be deposited in the Replacement Benefit Custodial Fund.
(2) The Plan Administrator shall establish, within the Replacement Benefit Custodial Fund, an individual account for each Participant or Other Recipient to hold contributions with respect to her or her benefit under this Plan, pursuant to Section 21758(e) of the Government Code. All benefits paid to such Participant and Other Recipient shall be paid from such accounts.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
2. Amendment of subsection (a) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).
Note • History
(a) Tax Withholding -- The Plan Administrator shall have full authority to determine and withhold any and all taxes that are or may be due from all amounts contributed or paid under the Plan (including but not limited to income and payroll taxes), to pay them to the appropriate government agency, and to file and distribute necessary or appropriate tax reports and forms.
(b) Agent for Paying Taxes -- The state, each affected school employer, and each affected contracting agency hereby designate the Plan Administrator as its agent for purposes of paying taxes and filing such forms and returns as are required by the Internal Revenue Service and any other tax agency with respect to benefits paid from this plan. The state, each affected school employer, and each affected contracting agency shall execute and file such forms and other documents as are deemed necessary or appropriate by the Plan Administrator in connection with this designation.
(c) Payment of OASDI and HI Taxes by Employers, Participants and Other Recipients.
(1) The state, applicable school employers, applicable contracting agencies, Participants and Other Recipients shall promptly pay to the Plan Administrator amounts equal to such OASDI and HI Taxes that the Plan Administrator determines are due from them with respect to benefits paid from this Plan. Amounts paid under this Subsection 589.5(c)(1) shall be held in a special tax escrow account until paid and shall not be held in the Replacement Benefit Custodial Fund.
(2) The Plan Administrator shall determine the amount of OASDI and HI taxes due with respect to any Participant or Other Recipient pursuant to applicable Treasury Regulations, and shall do the following:
(A) invoice the state, the school employer, or contracting agency, as appropriate, for the full amount of the employer taxes due on benefits payable with respect to applicable Participants and Other Recipients from this Plan,
(B) collect the employer OASDI and HI Taxes due from such employer prior to the payment of any benefits under this Plan to the Participant or Other Recipient,
C) collect the employee taxes due from the Participant or Other Recipient from benefits payable from this Plan prior to payment of any such benefits, and
(D) as agent of the state, school employer, or contracting agency, pay such taxes and file such forms and returns as directed by the Internal Revenue Service.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
2. Amendment of subsections (b), (c)(1), (c)(2)(A) and (c)(2)(D) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).
§589.6. Exemption from Process; Assignments Prohibited.
Note • History
(a) Benefit Not Subject to Execution, Process or Assignment -- The right of a person to any benefit or other right under this Plan and any money that is set aside to pay such benefits are not subject to execution or any process whatsoever except to the extent permitted by Section 704.110 of the Code of Civil Procedure, and are unassignable, except as specifically provided in this Plan.
(b) Marital Dissolution or Legal Separation.
(1) The provisions of Subsection 589.6(a) will not apply in the case of any property settlements upon marital dissolution or legal separation which are made in accordance with a domestic relations order (DRO) issued in accordance with state domestic relations law.
(2) If the community property is divided upon the marital dissolution or legal separation of a Member, then the provisions of Sections 21290 through 21298 of the Government Code shall apply to this Plan in the same manner as they apply to CalPERS.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
Note • History
(a) Administration by the Board.
(1) The management and control of this Plan is vested in the Board.
(2) This Plan shall be administered by the Board in conformity with its powers and duties set forth in the Government Code commencing with Section 20000, including but not limited to all powers and duties set forth in Chapter 2 of Part 3 of the Government Code.
(3) For determining the administrative powers and responsibilities of the Board, the term “Replacement Benefit Custodial Fund” shall replace reference to the “Public Employees' Retirement Fund” in Article 5 of Chapter 2 of Part 3 of the Government Code. The Board has the exclusive control of the administration and investment of the Replacement Benefit Custodial Fund.
(b) Costs of Administration.
(1) The administrative costs of this Plan shall be paid from (i) earnings on assets of the Replacement Benefit Custodial Fund, (ii) funds credited to accounts of Participants or Other Recipients under this Plan, (iii) forfeitures of amounts that have been credited to such accounts but which are not paid because of death of the Participant or Other Recipient, and (iv) amounts described in Subsection 589.4(d) above.
(2) Administrative costs of this Plan shall not be paid from the PERF.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
Note • History
(a) Replacement Benefit Custodial Fund -- All benefits payable under this Plan shall be paid solely from the Replacement Benefits Custodial Fund.
(b) No Employee Deferrals -- No employee contributions or deferrals shall be made or allowed under the Plan at any time. In accordance with Section 415(m), no election to defer compensation under this Plan shall be provided, at any time or in any manner, to any person.
(c) No Use of CalPERS Assets -- Except as specifically allowed by governing federal and state law (including but not limited to governing federal and state tax laws), assets used to provide benefits under this Plan shall not be commingled with the monies of the PERF or any other CalPERS retirement trust fund or any other qualified plans, nor shall this Plan ever receive or use any assets of the PERF.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
Note • History
(a) Applicable Law -- This Plan shall be governed by the laws of the State of California and applicable federal law.
(b) No Employment Rights -- Nothing in this Plan shall be construed as giving to a Participant any right to be retained in the employment of the state, the school employer, or any contracting agency.
(c) Unclaimed Benefits and Accumulations -- In any situation where benefits are payable under this Plan, a reasonable search, including mailing of a registered letter to the last known address, shall be made to ascertain the whereabouts of the eligible Participant or other Recipient.
If the person or persons entitled thereafter come forward and request payment and establish such entitlement, the amounts then due, including retroactive payments from the Commencement Date, shall be paid accordingly.
(d) Benefit Limits -- Nothing in this Plan shall be construed as creating an entitlement to any benefits greater than what is otherwise provided under the sections of the Government Code that govern the benefits provided by CalPERS determined without regard to the limits of Section 415.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
2. Amendment of subsection (b) filed 11-18-2002; operative 12-18-2002. Submitted to OAL for printing only pursuant to Government Code section 21760 (Register 2002, No. 47).
§589.10. Amendment or Termination of Plan.
Note • History
(a) Right to Amend Plan -- Notwithstanding any other provision of this Plan, the Board has the right to amend this Plan at any time and at any manner for any reason whatsoever. This right to amend includes, but is not limited to, the right to amend the Plan to reduce or eliminate any or all benefits under the Plan for any or all persons who may be Participants and/or Other Recipients or otherwise may be entitled to benefits under the Plan. Benefits may be reduced or eliminated for any or all persons (including Participants and/or other Recipients) even if they are then entitled to or are receiving benefits under the Plan.
(b) Right to Terminate Plan -- Notwithstanding any other provision of this Plan, the Board has the right to terminate this Plan at any time and for any reason whatsoever. This right to terminate the Plan includes, but is not limited to, the right to terminate any or all benefits under the Plan for any or all persons who may be Participants and/or Other Recipients or otherwise may be entitled to benefits under the Plan. Benefits may be terminated for any or all persons (including Participants and/or other Recipients) even if they are then entitled to or are receiving benefits under the Plan.
(c) Vested Rights -- Nothing in this Section 589.10 shall be construed as affecting any vested rights that a Participant or Other Recipient may otherwise have under California law.
(d) Preservation of Tax Status -- This Plan shall not in any way jeopardize the tax qualified status of CalPERS. To maintain this qualified status, the Board shall take all necessary or appropriate action, including but not limited to amending this Plan and any rules governing this Plan, solely for the purpose of complying with applicable federal tax laws and regulations.
NOTE
Authority cited: Sections 20120, 20121 and 21760, Government Code. Reference: Section 21757, Government Code.
HISTORY
1. New section filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c). Submitted to OAL for printing only (Register 2001, No. 4).
Article 8.1. Terminated Agency Pool Asset Allocation Strategy
§589.11. Terminated Agency Pool -- Investment Earnings Allocation.
Note • History
Assets pooled in the Terminated Agency Pool shall be invested in accordance with the strategic investment policy and/or asset allocation strategy determined by the board for such pooled assets and the Terminated Agency Pool will be credited with income and interest earned on those assets in accordance with such policy and/or strategy.
NOTE
Authority cited: Section 20121, Government Code. Reference: Sections 20174 and 20576, Government Code.
HISTORY
1. New article 8.1 (section 589.11) and section filed 3-6-2012; operative 4-5-2012 (Register 2012, No. 10).
Subchapter 2. Social Security (OASDHI) Regulations
Article 1. General
Note • History
The office of the board is located at 400 P Street, Sacramento, California. Correspondence should be addressed to the Executive Officer, Public Employees' Retirement System, P.O. Box 942709, Sacramento, California 94229-2709.
NOTE
Authority cited for Subchapter 2 (§§ 590 through 598.1, 599 and 599.1): Section 22500, Government Code.
HISTORY
1. New Subchapter 2 (§§ 590 through 598.1, 599 and 599.1) filed 7-6-55, as an emergency; effective upon filing (Register 55, No. 10). (For former Sections 590 through 599, designated as Chapter 3, issued by Director of Finance, see Register 55, No. 6. Repealer filed 7-22-55 as an emergency; effective upon filing.)
2. Amendment filed 4-23-57 as an emergency; effective upon filing (Register 57, No. 7).
3. Amendment filed 12-9-64; effective thirtieth day thereafter (Register 64, No. 24).
4. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
5. Change without regulatory effect filed 4-18-88; operative 5-18-88 (Register 88, No. 18).
Note • History
For the purpose of the regulations contained in this chapter, the term “board” means the Board of Administration of the Public Employees' Retirement System; the term “code” means the California Administrative Code; the term “register” means the California Administrative Register; the term “supervisor” means the agency or individual designated by the Governor to supervise the conduct of divisions and referendums as provided by Part 4, Division 5 of Title 2 of the Government Code; the term “member” with respect to any retirement system shall include in addition to members of the system any nonmember in a position in which he may elect membership for purposes of division of the system; and the term “federal system” means the Old-Age, Survivors, Disability, and Health Insurance provisions of the Social Security Act.
NOTE
Additional authority cited: Section 22151, Government Code.
HISTORY
1. Amendment filed 6-22-59 as an emergency; effective upon filing (Register 59, No. 10).
2. Certificate of Compliance--Section 11422.1, Government Code; filed 8-20-59 (Register 59, No. 14).
3. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
§592. Tenses, Gender and Number.
For the purpose of the regulations contained in this chapter, the present tense includes the past and future tenses, and the future the present; the masculine gender includes the feminine, and the feminine, the masculine; and the singular includes the plural, and the plural, the singular.
Article 2. Referendum Procedures for Local Public Agencies
Note • History
Any public agency, as defined in Sections 22009, et seq., of the Government Code, except the State, desiring to hold a referendum, shall first adopt a resolution or ordinance to do so. Such resolution or ordinance shall specify who are the employees eligible to vote in such referendum, and shall designate by name and title the individual who will conduct the referendum. Such resolution or ordinance shall establish the effective date upon and after which services performed for such public agency shall be covered under the agreement under the provisions of Section 218 of the Social Security Act. Such resolution or ordinance shall include a request to the board for authorization to hold such referendum.
NOTE
Authority cited: Section 20121, Government Code. Reference: Section 22300, Government Code.
HISTORY
1. Amendment filed 12-9-64; effective thirtieth day thereafter (Register 64, No. 24).
2. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
3. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
4. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
Upon receipt of the board's authorization to hold a referendum, the public agency shall set a date upon which its eligible employees shall vote in such referendum. This date may be set by the individual who will conduct the referendum, on behalf of such public agency.
§595. Submission of Proposed Notice and Procedure.
The public agency shall prepare a notice of referendum, specifying, among other matters, the time and place for voting. Such notice, together with a proposed plan of procedure in the conduct of such referendum, shall be submitted to the supervisor for approval.
After approval by the supervisor of the notice and plan of referendum, the public agency shall give such notice to all employees eligible to vote in the referendum. Notice of referendum shall be given by either personal service or first class mail, and in addition thereto, by posting such notice on all bulletin boards maintained by such agency to give notices to employees.
Ballots shall be furnished to all employees eligible to vote in such referendum, and only to such employees. The ballots so furnished shall contain a statement of the question to be voted upon in the referendum. Such question shall be in the words and figures contained in the notice of referendum hereinabove mentioned. Provision shall be made for an indication by the voter of a vote in either the affirmative or negative. The ballots shall be counted by or under the supervision of the individual who conducts the referendum.
§598. Certification of Referendum.
Note • History
(a) Upon completion thereof, the individual who conducts the referendum shall, if such be the facts, certify to the supervisor that:
(1) A referendum by secret written ballot was held on question of whether service in positions covered by the retirement system of the public agency should be excluded from or included under the agreement under the provisions of Section 218 of Title II of the Social Security Act;
(2) An opportunity to vote in such referendum was given (and was limited) to eligible employees;
(3) Not less than 90 days' notice of such referendum was given to all such employees;
(4) Such referendum was conducted by him;
(5) A majority of the eligible employees voted in favor of including service in such positions under an agreement under said Section 218;
(6) That with respect to such referendum the conditions specified in Section 218(d) of the Social Security Act have been met, and that the protection afforded employees in positions covered by the retirement system as to which such referendum has been had, as well as those receiving periodic benefits under such retirement system, will not be impaired as a result of making an agreement, bringing such employees under social security in accordance with the declared policy of the Congress set forth in Section 218(d) of the Social Security Act.
(b) Accompanying such certification, the individual who conducted the referendum shall forward to the supervisor:
(1) His affidavit of service and posting of the notice of referendum;
(2) A certified copy of the notice of referendum;
(3) All ballots cast in the referendum.
(c) Certification to Governor. The supervisor shall thereupon certify to the Governor or such other state official designated by the Governor that such referendum has been conducted and completed in full accordance with law and these regulations.
(d) Destruction of Referendum Ballots. The ballots cast in the referendum shall be forwarded by the supervisor to the office of the board, where such ballots shall be retained for a period of 30 days following acceptance by the Department of Health and Human Services of the modification including in coverage under the federal-state agreement the retirement system coverage group with respect to which the referendum was held. At the expiration of the said 30-day period, the ballots shall be destroyed.
NOTE
Authority cited: Section 22500, Government Code. Reference: Section 22300, Government Code.
HISTORY
1. New subsection (d) filed 6-29-60; effective thirtieth day thereafter (Register 60, No. 15).
2. Amendment filed 7-18-61 as an emergency; effective on filing (Register 61, No. 14).
3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).
4. Amendment of subsection (d) filed 2-11-81; effective thirtieth day thereafter (Register 81, No. 7).
All action taken by any public agency in accordance with law and these regulations, but taken before the formal adoption hereof, is hereby ratified, approved and confirmed.
§598.50. Authorization for Division; Supervision by Referendum Supervisor. [Repealed]
Note • History
NOTE
Authority cited for Article 2.5: Sections 22151 and 22500, Government Code.
HISTORY
1. New Article 2.5 ( §§ 598.50 through 598.54) filed 10-14-57; effective thirtieth day thereafter (Register 57, No. 18).
2. Repealer of Article 2.5 ( §§ 598.50 through 598.54) filed 7-18-61 as an emergency; effective upon filing (Register 61, No. 14).
3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).
Article 3. Division of Retirement Systems
§598.60. Authorization for Division.
Note • History
The governing body of any public agency, as defined in Sections 22009, et seq., of the Government Code, except the State, may divide a retirement system established by it into two parts in accordance with these rules, one part composed of positions of members of such system who desire coverage under the Federal System, and the other composed of positions of members who do not desire such coverage.
NOTE
Authority cited for new Article 3 (Sections 598.60 through 598.69, inclusive): Section 20121, Government Code. Reference: Section 22150, Government Code.
HISTORY
1. New Article 3 (Sections 598.60 through 598.69) filed 6-22-59 as an emergency; effective upon filing (Register 59, No. 10).
. (For former Article 3 (Sections 599 through 599.3), see Registers 55, No. 16, and 57, No. 18. Repealer filed 6-22-59 as an emergency; designated effective on filing.)
2. Certificate of Compliance--Section 11422.1, Government Code; filed 8-20-59 (Register 59, No. 14).
3. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
4. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
5. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§598.61. Division Election. [Repealed]
History
HISTORY
1. Repealer filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).
§598.62. Resolution Requesting Division.
Note • History
Authorization shall be requested by a resolution adopted by the governing body or such other officer or body as may be authorized or directed by law to divide the system. The resolution shall include: (1) a designation of the members, if any, who are excluded from participation in the division; (2) a designation by name and title of the local division officer who will conduct the division; and (3) the effective date on and after which services of members will be included in the federal system. The resolution shall provide for reimbursement of estimated costs incurred by the State in connection with the division and shall fix the date for the division or authorize the local division officer to fix such date. Two copies of the resolution properly certified shall be filed with the board.
NOTE
Additional authority cited: Section 22150, Government Code.
HISTORY
1. Amendment filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).
§598.63. Executive Officer's Authorization.
Note • History
The Executive Officer, upon the filing of a resolution complying with these regulations, shall authorize a division of the retirement system and shall designate the State division supervisor to supervise the conduct of the division.
NOTE
Additional authority cited: Section 22150, Government Code.
HISTORY
1. Amendment filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).
The local division officer shall, upon issuance of the authorization, prepare a notice of the division which shall contain among other matters the date of the division and an explanation of the modification if any to be made in the retirement system as it applies to public agency employees. He shall submit such notice together with the proposed plan of procedure to the state division supervisor for approval. The approved notice shall be given not less than 90 days prior to the date set for the division to all persons who are eligible members of the system. Such notice shall also be given to each person who becomes an eligible member after the notice date to and including the date fixed for the division. Notice shall be given by personal delivery or by first-class mail and must be posted on all bulletin boards maintained by the agency to give notices to employees.
§598.65. Division Election Form.
History
Each member of the retirement system on the division date shall be supplied with a division election form devised or approved by the executive officer, Public Employees' Retirement System, containing provisions for an election by the member whether he desires to be or not to be included in the part of the system to be covered under the Federal System. If supplied by mail, the form shall be sent by first-class mail. Failure to execute and return a form indicating an election to be included in that part of the system to be covered under the federal system on the division date or within 10 days or such longer period thereafter as may be prescribed by the executive officer, shall be deemed an election not to be included in such part, unless the board finds that the failure was due to circumstances beyond the control of the member.
HISTORY
1. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
2. Amendment filed 11-21-75 as an emergency; effective upon filing (Register 75, No. 47).
3. Certificate of Compliance filed 3-2-76 (Register 76, No. 10).
§598.66. Certificate of Conduct of Division.
Upon completion of division procedures in compliance with these rules, the local division officer shall so certify to the state division supervisor. He shall forward to the supervisor a certified list of the members eligible to participate in the division and all election forms properly executed and returned by eligible members in the division.
§598.67. Division Supervisor's Certificate.
Note • History
The supervisor of the division, upon receipt thereof and upon finding that the division was conducted in compliance with applicable law and these rules, shall approve the list and election forms and file the same in the office of the board where they shall be maintained as a permanent record. He shall thereupon certify to the Governor or to any such other State official designated by the Governor to make the certification required in Section 218(d)(6) of the Federal Social Security Act with respect to the division that:
(a) An opportunity to vote by written ballot on the question whether they wish to be covered under the federal system was given to all individuals who were members of the system at the time the vote was held.
(b) Not less than 90 days' notice was given to all individuals who were members of such system on the date the notice was issued.
(c) The vote was conducted under the supervision of the division supervisor.
(d) All written election forms returned and approved by the supervisor, together with a list of the members eligible to participate in the division, have been filed in the office of the board.
NOTE
Additional authority cited: Section 22150, Government Code.
HISTORY
1. Amendment filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).
§598.68. Application and Agreement.
When the division supervisor's certificates have been filed, the governing body of the public agency may submit an application and agreement to the board for coverage under the federal system of the members of the system established by these procedures composed of the members electing such coverage.
§598.69. Application of Article. [Repealed]
History
HISTORY
1. Repealer filed 6-26-63 as an emergency; effective upon filing (Register 63, No. 11).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 8-21-63 (Register 63, No. 14).
§598.75. Authorization for Division. [Repealed]
Note • History
NOTE
Authority cited for Article 4: Sections 22151 and 22500, Government Code.
HISTORY
1. Repealer of Article 4 (Sections 598.75 through 598.80) filed 12-9-64; effective thirtieth day thereafter (Register 64, No. 24). For prior history, see Register 61, No. 21.
§598.81. Authorization for Division. [Repealed]
Note • History
NOTE
Authority cited for Article 4.5 (Sections 598.81 through 598.86), Sections 22151, 22156, 22500, Government Code. Additional authority cited: Section 20120, Government Code.
HISTORY
1. New Article 4.5 (Sections 598.81 through 598.86) filed 1-4-72 as an emergency; effective upon filing (Register 72, No. 2).
2. Certificate of Compliance filed 5-2-72 (Register 72, No. 19).
3. Repealer of Article 4.5 (Sections 598.81 through 598.86) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
§598.90. Resolution of Intention. [Repealed]
Note • History
NOTE
Authority cited for new Article 5 (Sections 598.90 through 598.93): Sections 22151 and 22500, Government Code.
HISTORY
1. New Article 5 (Sections 598.90 through 598.93) filed 7-30-59 as an emergency; effective upon filing (Register 59, No. 13). Certificate of Compliance filed 8-20-59.
2. Repealer of Article 5 (§§ 598.90-598.93) filed 7-18-61 as an emergency; effective on filing (Register 61, No. 14).
3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).
Article 6. Transfer of Members of Divided System
§599. Authorization for Transfer.
Note • History
Any public agency which has divided a retirement system may request a transfer of members from the system composed of positions of members not desiring coverage under the federal system to the system composed of members desiring such coverage pursuant to this article. Such request must include both the members of the system who elected not to be covered and those nonmembers having an option to be members, who either elected not to be covered or who had no right of election under the law at the time of the division.
NOTE
Authority cited for Article 6 (Sections 599 through 599.5), Sections 22155 and 22500, Government Code.
HISTORY
1. New Article 6 (Sections 599 through 599.5) filed 8-19-59 as an emergency; effective upon filing (Register 59, No. 14).
2. Certificate of Compliance--Section 11422.1, Gov. Code, for Article 6 (Sections 599 through 599.5) filed 10-13-59 (Register 59, No. 18).
3. Amendment filed 2-14-62; effective thirtieth day thereafter (Register 62, No. 3).
4. Change without regulatory effect amending Note filed 9-22-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 38).
§599.1. Resolution Requesting Transfer--Contents.
The governing body of the public agency shall adopt and file with the board a resolution requesting the Board of Administration to execute a modification to the federal-state agreement to accomplish such transfer. The resolution shall specify a date before which members desiring to transfer must file their written requests with the State.
§599.2. Resolution Requesting Transfer--Time for Filing.
History
The resolution of the governing body must be filed before the first day of the twenty-fourth month following the execution by the appropriate federal official of the modification including the employees of the agency in the Federal System, or December 1, 1969, whichever is later, and may not specify a date for filing requests earlier than 60 days following execution of such modification, or 15 days following the filing of the resolution, whichever is later.
HISTORY
1. Amendment filed 10-17-61; effective thirtieth day thereafter (Register 61, No. 21).
2. Amendment filed 9-8-65 as an emergency; effective upon filing (Register 65, No. 17).
3. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-22-65 (Register 65, No. 20).
4. Amendment filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
§599.3. Notice of Right to Transfer.
The governing body shall give or cause to be given, on or before the filing of the resolution, notice to eligible members of the right to request a transfer and of the date by which such requests must be filed in the office of the board and shall make available to such members forms devised or approved by the executive officer upon which such requests may be filed.
§599.4. Member Request for Transfer.
Any member of the part of a divided retirement system composed of positions of members not desiring coverage with respect to which a resolution has been filed in accordance with this article may file a written request with the Board of Administration that his position be transferred to the part of the system composed of members desiring coverage. Such request shall be on a form devised for the purpose and approved by the executive officer; provided, however, that the executive officer shall accept the filing of any writing signed by the member which clearly states his intention to transfer. A member's request for transfer must be received in the office of the board on or before the date specified in the resolution for such filing. Requests duly filed with the board shall be maintained as a permanent record. The executive officer shall provide the agency with the names of the persons requesting transfer.
§599.5. Modification Providing for Transfer.
Note • History
Upon the filing of a resolution in accordance with this article and expiration of the period for filing of member requests, as fixed by the resolution, the executive officer or, in his absence, the assistant executive officer, shall execute on behalf of the board and deliver to the Secretary of Health and Human Services, a modification to the agreement to include members so requesting in the federal system.
NOTE
Authority cited: Section 22500, Government Code. Reference: Section 22155, Government Code.
HISTORY
1. Amendment filed 2-11-81; effective thirtieth day thereafter (Register 81, No. 7).
§599.6. Transfer of School Members. [Repealed]
History
HISTORY
1. New section filed 7-18-61 as an emergency; effective on filing (Register 61, No. 14).
2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-17-61 (Register 61, No. 21).
3. Amendment filed 8-16-66 as an emergency; effective upon filing (Register 66, No. 27).
4. Certificate of Compliance--Section 11422.1, Government Code, filed 10-26-66 (Register 66, No. 37).
5. Repealer filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
§599.7. Transfer of State Members. [Repealed]
History
HISTORY
1. New section filed 9-8-65 as an emergency; effective upon filing (Register 65, No. 17).
2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 10-22-65 (Register 65, No. 20).
3. Repealer filed 4-9-68; effective thirtieth day thereafter (Register 68, No. 15).
Article 7. Termination Procedures for Local Public Agencies [Repealed]
HISTORY
1. Change without regulatory effect repealing article 7 (sections 599.50-599.55) pursuant to section 100, title 1, California Code of Regulations (Register 86, No. 52). For prior history, see Register 76, No. 32; Register 78, No. 21; and Register 81, No. 7.
Subchapter 3. Public Employees' Medical and Hospital Care Act Regulations
Article 1. Definitions, Coverage, Enrollment, Conversion, Minimum Standards, Alternative Benefit Plans, Contributions, Contingency Reserve Fund, Contracting Agency Participation and Medicare Part B
Note • History
For the purposes of this subchapter:
(a) Terms used in this subchapter that are defined by the Public Employees' Medical and Hospital Care Act (Title 2, Division 5, Part 5 (commencing with Section 22750) of the Government Code) shall have the meanings therein set forth.
(b) “Employing office” means any office of the state or contracting agency to which jurisdiction and responsibility for health benefits action for the employee concerned have been delegated. For annuitants, whether or not the annuitant is also an employee, the Health Benefits Division of the Public Employees' Retirement System is the employing office.
(c) “Payroll office” means either the office of the State Controller for agencies participating under the Uniform Payroll System, or the employing office for agencies not participating under the Uniform Payroll System, irrespective of whether or not salary warrants are issued by the State Controller.
(d) “Time.” Whenever in this subchapter a time is stated in which an act is to be done, the time is computed by excluding the first day and including the last day. If the last day is a holiday, it is also excluded.
(e) “Annuity period” means the period for which a single installment of a retirement allowance or annuity is customarily paid for annuitants.
(f) “Enroll” means to file with the employing office a properly completed Health Benefits Plan Enrollment Form electing to be enrolled in a health benefits plan.
(g) “Enrolled” means to be enrolled in a health benefits plan approved by the Board under this subchapter.
(h) “Register not to enroll” means to file with the employing office a properly completed Health Benefits Plan Enrollment Form electing not to be enrolled in a health benefits plan.
(i) “Cancellation” is the act, by an enrolled employee or annuitant who is eligible to continue enrollment, of filing a Health Benefits Plan Enrollment Form, terminating enrollment in a health benefits plan.
(j) “Administrative action” is the completion or approval, by the Health Benefits Division, of a Health Benefits Plan Enrollment Form terminating or changing the enrollment of an employee, annuitant, or family member in accordance with the provisions of this subchapter.
(k) “Eligible” means eligible under the law and this subchapter to be enrolled.
(l) “Retirement System” means the Public Employees' Retirement System, the State Teachers' Retirement System, the Legislators' Retirement System, or the Judges' Retirement System, as the case may be, under which a retired person has acquired the status of “annuitant.”
(m) Tenses and Number. The present tense includes the past and future, and the future the present; the singular includes the plural and the plural the singular.
(n) A “child,” as described in Government Code section 22775, means an adopted, step, or recognized natural child until attainment of age 26, unless the child is disabled as described in section 599.500, subdivision (p).
(o) In addition to a “child” as described in Government Code section 22775, “family member” also includes any child for whom the employee or annuitant has assumed a parent-child relationship, in lieu of a parent-child relationship described in subdivision (n), as indicated by intentional assumption of parental status, or assumption of parental duties by the employee or annuitant, as certified by the employee or annuitant at the time of enrollment of the child, and annually thereafter up to the age of 26 unless the child is disabled as described in section 599.500, subdivision (p). This section should not be construed to include foster children.
(p) “Disabled child,” means a child, as described in Government Code section 22775 and section 599.500, subdivision (n) or (o), who at the time of attaining age 26, is incapable of self-support because of a physical or mental disability which existed continuously from a date prior to attainment of age 26 and who is enrolled pursuant to section 599.501, subdivisions (f) and (g), until termination of such incapacity.
(q) Meanings of terms related to Medicare are as follows:
“Medicare” means the Health Insurance For The Aged provided under Title XVIII of the Social Security Act; “Part A” means Hospital Insurance as defined in Title XVIII of the Social Security Act; and “Part B” means Medical Insurance as defined in Title XVIII of the Social Security Act.
(r) “Supplemental Plan” means a health benefits plan providing supplemental benefits for persons enrolled under Medicare Parts A and B.
(s) “Health benefits plan” or “plan” means a health benefits plan contracted for or approved by the Board pursuant to Sections 22793, 22850 and 22853, Government Code.
(t) “Conversion plan” means a nongroup contract offered by the carrier as its standard individual membership plan.
(u) “Control Period” means a period from January 1 through June 30 or July 1 through December 31.
(v) “Alternative benefit plan” means a health benefits plan approved, or contracted for, by the Board exclusively for employees or annuitants of contracting agencies pursuant to Section 22850(f)(2) of the Government Code.
NOTE
Authority cited: Sections 22794, 22796, 22800, 22830, 22831, 22846(a) and 22860, Government Code. Reference: Sections 22750-22944, Government Code.
HISTORY
1. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 74, No. 36.
2. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
3. Amendment of subsections (j) and (o)-(s) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
4. New subsection (t) filed 4-13-2004 as an emergency; operative 4-13-2004 (Register 2004, No. 16). A Certificate of Compliance must be transmitted to OAL by 8-11-2004 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 4-13-2004 order transmitted to OAL 8-3-2004 and filed 9-15-2004 (Register 2004, No. 38).
6. Change without regulatory effect amending subsections (a), (n), (q) and (t) and amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
7. Amendment of subchapter heading, new article 1 heading and amendment of first paragraph and subsection (a) filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).
8. Amendment of subsection (n), new subsections (o) and (p) and subsection relettering filed 2-15-2011; operative 2-15-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 7).
Note • History
(a) Each employee or annuitant other than those excluded by subsections (b) or (c) below, is eligible to be enrolled in a health benefits plan at the times and under the conditions prescribed in this subchapter, provided however that no person shall be enrolled in a supplemental plan who at the time of enrollment is not also enrolled under Part A and Part B of Medicare. An eligible employee or annuitant enrolled in both Parts A and B of Medicare, or who has a family member who is so enrolled, may be enrolled in a basic plan contracted for by the Board with respect to persons not enrolled in Parts A and B, and in a supplemental plan provided by the same carrier with respect to all persons enrolled in Parts A and B.
(b) Employees in the following groups are not eligible:
(1) Employees serving under:
(A) Intermittent appointments except where employment is on a permanent basis.
(B) Appointments to positions for which contributions are made by the employer to health and welfare programs providing prepaid hospital and medical care in accordance with Sections 14876 and 18853.5 of the Government Code, or Section 1705.5 of the Harbors and Navigation Code, or other similar provisions; or appointments to positions for which salary payment is made in lieu of payment to health and welfare programs providing prepaid hospital and medical care; or
(C) Appointments to positions not exceeding six months duration unless the employee is enrolled prior to beginning service under such appointment or unless the appointment is in lieu of a permanent appointment pending establishment of and certification from a list from which the position may be filled.
(2) Inmates of institutions who are allowed compensation for such services as they are able to perform.
(3) Persons employed as student assistants and graduate assistants and as student aids in special schools in the State Department of Education and Vocational Rehabilitation, and the public schools of the State.
(4) Blind persons and other physically handicapped persons employed by the California Industries for the Blind, or in opportunity centers for the blind by the Department of Education who are not civil service employees.
(5) Persons serving at a State college solely as a teacher in any summer session or intersession for which compensation is specifically attributable to such service in summer session or intersession.
(6) Any member of the Veterans' Home of California who is employed by said Home, or by the Post Exchange thereof or in other Post Fund activities, except as an employee of a contracting agency.
(7) Any employee paid wholly from funds not controlled by the employer or from revolving or similar funds from which regular payroll deduction of the insurance premium cannot be made.
(8) Employees of a contracting agency who are not members of the Public Employees' Retirement System or the State Teachers' Retirement System.
(c) Annuitant whose monthly allowance is insufficient to pay withholdings required under the lowest cost plan available is not eligible.
(d) Annuitants whose effective date of retirement is more than 120 days after their date of separation from employment are not eligible.
(e) Annuitants who were not enrolled at the time of separation from employment are not eligible.
(f) A disabled child as described in section 599.500, subdivision (p), who is age 26 or over is to be enrolled at the time of the initial enrollment of the employee or annuitant provided that satisfactory evidence of such disability is filed with the Board within 60 days of the initial enrollment.
(g) A disabled child, as described in section 599.500, subdivision (p), who attains age 26 is to be continued in enrollment if he or she is enrolled at the time he or she attains age 26, provided that satisfactory evidence of such disability is filed with the Board during the period commencing 60 days before and ending 60 days after the child's 26th birthday.
(h) The Board shall make determinations of the applicability of this section to specific employees or annuitants, or groups of employees or annuitants.
(i) A family member who is not acceptable for enrollment under the underwriting standards of the carrier where application for enrollment is under Section 599.502(c) or (f)(1)(B) is ineligible to be enrolled except during an open enrollment period.
NOTE
Authority cited: Sections 22794, 22796, 22800, 22830, 22831, 22846(a) and 22860, Government Code. Reference: Sections 22760(h), 22775, 22800, 22819, 22830, 22831, 22832 and 22837, Government Code.
HISTORY
1. Amendment of subsections (e)(2) and (f) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 75, No. 49.
2. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
4. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
5. Change without regulatory effect amending subsection (c) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
6. Amendment of subsections (f) and (g) filed 2-15-2011; operative 2-15-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 7).
Note • History
(a) Type of Enrollment. An eligible employee or annuitant may enroll for self alone, self and one family member or self and two or more family members. If he or she enrolls for other than self alone, he or she shall enroll all eligible family members. All eligible family members shall be enrolled under the enrollment of only one employee or annuitant. The following family members are not required to be enrolled:
(1) A family member covered under another basic group plan that is not contracted for or approved by the Board;
(2) A family member who is a spouse not living in the member's household; or
(3) A family member who is a child who has attained the age of 18; or
(4) A family member who is a member of the armed forces.
(5) A plan shall not be liable for benefits for a family member, other than as provided in Sections 599.502(f)(1)(E) and 599.503(d), nor shall an employee or annuitant be obligated for an increased premium or charge because of such member unless he or she has been included by name in the employee's or annuitant's enrollment.
(6) Upon discovery that a family member required to be enrolled has not been so included, except as provided in Sections 599.502(f)(1)(E) and 599.503(d), the employee or annuitant shall be given notice that all coverage of family members will cease on the last day of the following month unless he or she has changed his or her enrollment to include such family members prior to the cessation of such coverage.
(b) Initial Enrollment.
(1) An eligible employee shall enroll or register not to enroll no later than his or her 60th calendar day of employment or reemployment following a break in service of at least one full monthly pay period.
(2) A permanent intermittent employee shall enroll or register not to enroll no later than 60 calendar days following the end of a control period in which he or she received credit for a minimum of 480 paid hours.
(3) An annuitant or an employee who is brought within coverage of the Act shall enroll or register not to enroll within sixty days of notice of eligibility.
(4) An employee who is on leave of absence without compensation, temporary disability compensation whether or not supplemented by sick leave or vacation, or Non-industrial Disability Leave, or Industrial Disability Leave, or other non-pay status, may not enroll while in such status but shall enroll or register not to enroll within 60 days of his or her return to pay status, if he or she would otherwise have been eligible to enroll during the nonpay status.
(5) An employee of a contracting agency which has filed an election to be subject to the Public Employees' Medical and Hospital Care Act, including an employee of such agency who was on leave of absence or other non-pay status and was enrolled in a health benefits plan of the agency, but shall enroll or register not to enroll no later than the 60th calendar day following such agency's effective date of participation under the Act.
(6) An annuitant who retired while an employee of a contracting agency which has elected to be subject to the Public Employees' Medical and Hospital Care Act, and whose retirement is effective on or prior to the effective date of such election, may enroll no later than the 60th calendar day following notification of eligibility.
(7) An employee whose enrollment did not become effective under the provisions of Section 599.503(a) because of failure to accomplish premium deductions may enroll within 60 calendar days of notification of right to enroll.
(c) Health Statement Enrollment:
An eligible employee may enroll at any time while in an employment in which he or she was eligible to but did not enroll at the time specified in this subsection, and an eligible annuitant may enroll if at the time of enrollment he or she presents a certification from the carrier of the plan that his or her enrollment is acceptable under the underwriting standards of the carrier.
(d) Re-enrollment:
(1) An employee whose enrollment terminated under Section 599.506(a)(5) may enroll within 60 calendar days following the end of a control period in which he or she received credit for a minimum of 480 paid hours.
(2) An employee whose enrollment terminated because of administrative failure to continue payroll deductions under Section 599.506(a)(1)(B) may enroll within 60 calendar days of receipt of notification of termination.
(3) A person whose enrollment terminated upon separation from employment and who is retired with an effective date no later than 120 days following the date of separation, may enroll as an annuitant within 60 calendar days of receipt of notification of eligibility or during any open enrollment period.
(4) An annuitant whose enrollment terminated under Section 599.506(d) because his or her retirement allowance was not sufficient to pay the withholdings of any plan in which he or she was eligible to be enrolled may re-enroll within 60 calendar days of notification that his or her retirement allowance is sufficient to pay the withholdings of a plan in which he or she is eligible to be enrolled.
(e) The Board will, at least once every three years, provide every employee and annuitant previously enrolled or eligible to enroll or continue enrollment an opportunity for enrollment, and every enrolled employee and annuitant an opportunity for change of enrollment, on such terms and conditions as it may prescribe.
(f) Change of Enrollment.
(1)(A) An enrolled employee or annuitant may, prior to, at the time of, or within 60 calendar days after acquiring his or her first eligible family member required to be enrolled, change his or her enrollment to include all family members required to be enrolled.
(B) An enrolled employee or annuitant may change his or her enrollment to include all eligible family members required to be enrolled who are acceptable for enrollment under underwriting standards of the carrier if at the time of such change he or she presents a certification of such acceptability from the carrier of the plan in which he or she is enrolled or if such change of enrollment is made during an open enrollment period.
(C) A family member who is not enrolled because of other group coverage or because such person is a spouse not living in the employee's or annuitant's household may not thereafter be enrolled as a family member except during an open enrollment period or pursuant to the carrier's certification of acceptability under its underwriting standards.
(D) A family member who is a child who has attained the age of 18 and who is not enrolled may not be enrolled except upon return from military service as provided in Section 599.502(f)(2), or pursuant to the carrier's certification of acceptability under underwriting standards, or during an open enrollment period.
(E) Notwithstanding any other provision of this subchapter, an employee or annuitant enrolled for self only may enroll a newborn or adopted child provided application for enrollment is received within 60 calendar days of the date of birth or the date physical custody was obtained. The coverage of a newborn or adopted child of an employee or annuitant enrolled for self only begins on the date of birth or the date physical custody is obtained and ends on the last day of that month unless an application to enroll that child is received.
(2) An employee or annuitant may at any time change his or her enrollment from self and family to self alone, or delete an eligible family member who is a child who has attained the age of 18 or enters military service. An employee or annuitant may decrease “family member” enrollment from self and two or more to self and one family member on or after the day on which the last family member in excess of one:
(A) ceases to be a family member;
(B) becomes enrolled in another basic group plan; or
(C) in case of a spouse, ceases to live in his or her household or enters military service.
(D) A spouse whose enrollment is terminated on the basis of ceasing to live in the household may not be enrolled thereafter except during an open enrollment period or pursuant to the carrier's certification of acceptability under its underwriting standards.
(E) A family member who is a spouse or a child who was deleted from an employee's or annuitant's enrollment upon entering military service or was in military service at the time of initial enrollment or at the time he or she became a family member may be enrolled upon return from military service.
(3) Except as described in 599.506(f), when a mandatory change of enrollment results in a retroactive cancellation or deletion of enrollment and creates a difference in premium based on the date a family member became ineligible for coverage and the date an employee or annuitant changed his or her enrollment to delete the ineligible family member, the employer and employee or annuitant may receive a refund. The amount of the refund shall not exceed those excess premiums paid for a period of up to six months prior to the date on which the action is processed and recorded, pursuant to the employee's or annuitant's request for retroactive cancellation or deletion of the ineligible family member.
(4) An employee or annuitant who is not enrolled, but is covered under the Public Employees' Medical and Hospital Care Act and this subchapter by enrollment of a spouse, may enroll in the same plan as was the spouse for self alone or self and eligible family members within 60 calendar days after termination of the spouse's enrollment. An employee who is not enrolled, but is covered by the enrollment of a parent, may enroll in any plan available within 60 calendar days after the termination of coverage as a family member. An employee or annuitant who is covered by enrollment of another under this subchapter may enroll in the same plan for self alone or self and eligible family members within 60 calendar days after the effective date of a change terminating his or her enrollment.
(5) An employee who is enrolled as an annuitant and whose status as an annuitant terminates, may enroll in the same plan under which he or she was covered as an annuitant, in a manner which will continue coverage.
(6)(A) An employee or annuitant who is enrolled in a plan with a restricted geographic service area and who moves, including all enrolled family members, or changes employment address may, within 31 calendar days before the move and ending 60 calendar days after the move, enroll in another health benefits plan.
(B) An employee or annuitant who is enrolled in a plan with a restricted geographic service area and who moves, and whose enrolled family members do not move, may, within 31 calendar days before the move and ending 60 calendar days after the move, enroll in another health benefits plan.
(C) An employee or annuitant who is enrolled in a plan with a restricted geographic service area and whose enrolled family members move, may within 31 calendar days before the move and ending 60 calendar days after the move, enroll in another health benefits plan.
(D) An employee or annuitant who moves into, or commences employment within, the service area of a plan with a restricted geographic service area may change his or her enrollment to that plan within the period beginning 31 calendar days before and ending 60 calendar days after the move.
(E) An employee or annuitant enrolled in a supplemental plan who moves, other than temporarily, out of the United States as defined in the Federal Social Security Act, may change his or her enrollment to the basic plan provided by the carrier of the supplemental plan.
(7) An employee or annuitant who is enrolled in a health benefits plan which ceases to be an approved health benefits plan may enroll in another plan at any time within 60 calendar days after the date set by the Board for withdrawal of its approval of the plan.
(8) When an employee or annuitant enrolled for self and family dies, leaving a family member as an annuitant entitled to enrollment in a health benefits plan, the enrollment shall continue by enrollment of the surviving annuitant. The family member annuitant may change or cancel the enrollment providing he or she does so within 60 calendar days of notification of continuation. The effective date of the change or cancellation shall be the first of the month following the death.
(9) For purposes of this subsection (f) and subsection (a) of this section, a change in custody of a child, whether or not accompanied by a change in economic dependency, at the option of the enrolled employee or employees may be considered to terminate or begin eligibility of the child as a family member of the employee or employees affected by the change in custody.
(10) An employee whose enrollment was continued under Section 599.504(b), (c), (d), (e) or (g) may within 60 days of return to pay status make any change in enrollment which he or she could have made had he or she been in pay status during the continuation.
(11) Upon a determination by the Board or the Executive Officer that an employee or annuitant is unable to maintain a satisfactory physician-patient or plan-employee-annuitant relationship, the Board or Executive Officer may permit a change of enrollment to another plan.
(12) An employee may add or delete family members under the provisions of this section during a period of continuation of enrollment under the provisions of Section 599.504.
(13) Enrollment of any person in a supplemental plan may not be changed to enrollment in a basic plan unless there is an involuntary termination of Medicare benefits or as provided in subdivision (f)(6)(E) of this section.
(g) Multiple Enrollment.
(1) A family member may be enrolled with respect to only one employee or annuitant. An employee or annuitant, who is also a family member of an employee or annuitant, may not be enrolled both as an employee or annuitant and a family member. Enrollment as a family member continues upon entry into employment unless the person enrolls under the rules applicable to employees, in which event enrollment as a family member terminates on the effective date of enrollment as an employee.
(2) An annuitant who would otherwise also be eligible to enroll as an employee must enroll as an annuitant; however, an annuitant who fails to enroll under rules applicable to annuitants and who subsequently becomes an employee, may enroll under rules applicable to employees.
(3) Employees who are employed in more than one position with an employer or employed by more than one employer may enroll with respect to one position or employer only.
(4) Employees and annuitants may not enroll in more than one plan. For the purposes of this subsection, one plan includes a combination of basic or supplemental plans. Where an employee or annuitant has filed more than one enrollment form, in the absence of specific instruction from the employee or annuitant to the contrary, the last enrollment form filed shall be taken as indicating the plan in which the employee desires to enroll.
(h) Late Enrollment or Change of Enrollment. Upon a determination by the Board or the Executive Officer that an employee or annuitant was unable, for cause beyond his or her control, to enroll or to change enrollment within the time limits prescribed by this subchapter, the Board shall accept his or her enrollment or change of enrollment provided he or she enrolls or changes enrollment within 31 days after he or she is first able to do so.
(i) Procedure. The employing office will afford each eligible employee and annuitant an opportunity to enroll or to register not to enroll during such times as his enrollment is authorized under these rules by supplying the necessary information relating to available plans and by assisting in the completion of a health benefits plan enrollment form. The employing office will forward all such forms properly completed to the Board's Health Benefits Division.
NOTE
Authority cited: Sections 22794, 22796, 22803, 22830, 22846 and 22860, Government Code. Reference: Sections 22830, 22831, 22832, 22834, 22836, 22837, 22839, 22840, 22841, 22842, 22843, 22844, 22846, 22847 and 22848, Government Code.
HISTORY
1. Amendment of subsections (c), (d)(3), and (f)(1)(D) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 75, No. 49.
2. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
4. Amendment of subsections (a)-(d) and (f) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
5. Amendment of subsections (f)(5)(A)-(D) filed 10-4-2001 as an emergency; operative 10-4-2001 (Register 2001, No. 40). A Certificate of Compliance must be transmitted to OAL by 2-1-2002 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 10-4-2001 order transmitted to OAL 2-1-2002 and filed 3-18-2002 (Register 2002, No. 12).
7. Amendment of subsection (f)(2)(C) and amendment of Note filed 6-24-2005; operative 6-24-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 25).
8. Redesignation of portions of second paragraph of subsection (f)(2)(C) as new subsections (f)(2)(D)-(E), redesignation and amendment of former third paragraph of subsection (f)(2)(C) as new subsection (f)(3) and subsection renumbering filed 9-27-2011; operative 9-27-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 39).
§599.503. Effective Date of Enrollment.
Note • History
(a) Normal Effective Date. The effective date of enrollment, re-enrollment, or change of enrollment shall be the first of the month following the date the employee or annuitant's Health Benefits Plan Enrollment Form is received in the employing office, subject to deferral under subsection (b) of this section. An enrollment shall not become effective if payroll deduction is not accomplished within six months following the date on which such enrollment would normally have become effective.
(b) Deferred Effective Date. The effective date of enrollment of an employee or annuitant who, in the month preceding that in which his or her enrollment would otherwise be effective, has insufficient earnings after all other mandatory deductions to permit deduction of his or her full contributions, shall be the first day of the month following that in which his or her earnings after other mandatory deductions are sufficient to permit such deduction. This applies to an employee hired on the last day of the month which is also the first day of a pay period.
(c) Effective Date of Enrollment by Certification of Acceptability. The effective date of enrollment, re-enrollment or change of enrollment for an employee or annuitant with respect to whom a certification of acceptability is received by his or her employing office shall be the first day of the following month subject to deferral under subsection (b) of this section.
(d) Effective Date of Enrollment of a Newborn Child or Adopted Child of an Employee or Annuitant Enrolled for Self and One or More Family Members. Notwithstanding the effective date of enrollment as otherwise specified in this section, and without requirement of any prior enrolling action, enrollment of a newborn child or adopted child of an employee or annuitant who has enrolled family members shall be effective on the date of birth or the date physical custody is obtained, and any increase in premium because of the addition of such family member shall be effective on the first of the following month.
(e) Effective Date of Enrollment of an Annuitant on Approval of Retirement. The effective date of enrollment of an annuitant under Section 599.502(d)(3) is the first of the month following the month in which retirement is approved, but in no event earlier than the first day of the month following the effective date of retirement.
(f) Effective Date of Enrollment of an Eligible Family Member (other than an adopted or newborn child). The effective date of a change of enrollment adding an eligible family member, other than an adopted or a newborn child, shall be the first of the month following the date the Health Benefits Plan Enrollment Form is received in the employing office. Enrollment of an eligible family member may not be earlier than the first day of the month following the acquisition of the family member.
(g) Contracting Agency Employees and Annuitants. Enrollments of a contracting agency's employees and annuitants which are received in the office of the Board on or before the last day of the month immediately preceding the effective date of the agency's participation under the Act shall be effective on the effective date of such agency participation.
(h) Effective Date of Enrollment of a Newborn Child or Adopted Child of an Employee or Annuitant Enrolled for Self Only. The effective date of enrollment of a newborn or adopted child of an employee or annuitant enrolled for self only shall be the first day of the month following the date of birth or the date physical custody is obtained. Any premium increase resulting from the enrollment of such child shall be due from the effective date of enrollment.
(i) Effective Date in Open Enrollment Period. The effective date of enrollment in special or limited open enrollment period shall be fixed by the Board in its action providing such open enrollment period.
NOTE
Authority cited: Sections 22794, 22796, 22846(a) and 22860, Government Code. Reference: Section 22846(a), Government Code.
HISTORY
1. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 75, No. 19.
2. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
3. Amendment of subsections (e) and (g)-(j) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
4. Change without regulatory effect amending subsection (d) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.504. Continuation of Enrollment.
Note • History
Subject to the right of an employee or annuitant to cancel his or her enrollment at any time, the enrollment of an employee or annuitant continues without change when he or she:
(a) returns to covered employment without a break in service of one or more full monthly pay periods.
(b) is granted a leave of absence without pay under the State Civil Service Act and the rules of the Department of Personnel Administration for a period of one or more full monthly pay periods including leaves of absence for military duty, or other comparable leave, or begins an absence for which he or she has applied for temporary disability compensation, provided he or she files with the Board application for continuation of enrollment prior to the commencement of the leave, or no later than the last day of the month following the month in which the last payroll deduction was taken.
(c) institutes legal proceedings in appealing dismissal from service for cause, provided he or she files with the Board application for continuation of enrollment no later than the last day of the month following the month in which the last payroll deduction was taken.
(d) is suspended from service for one or more full monthly pay periods without pay, provided he or she files with the Board application for continuation of enrollment no later than the last day of the month following the month in which the last payroll deduction was taken.
(e) receives in any monthly pay period insufficient compensation, after all other mandatory deductions, to permit deduction of his or her full contribution providing proper application for continuation of enrollment is filed no later than the last day of the month following the month in which the last payroll deduction was taken.
(f) applies for disability retirement and files an application for continuation of enrollment no later than the last day of the month following the month in which the last payroll deduction was taken. Upon receipt of premiums from the retirement system, the carrier shall refund overpayments to the annuitant.
(g) first attains the status of “annuitant.” The Retirement System shall continue the enrollment unchanged and the annuitant contributions required under the plan shall be deducted from the annuitant's retirement allowance.
(h) enters nonpay status as a permanent employee of a State college employed on a less-than-twelve-month basis, provided he or she files application for continuation of enrollment with the Board no later than the last day of the month following the month in which the last payroll deduction was taken.
If an enrolled employee or annuitant is not competent to act, the guardian, conservator, or person having special power of attorney of such enrolled employee or annuitant may act on his or her behalf to accomplish continuation of any enrollment permitted by this section.
Failure to file an application for continuation or failure to pay premiums after filing an application will result in loss of coverage for any period for which premiums were not paid.
NOTE
Authority cited: Sections 22794, 22796 and 22846(a), Government Code. Reference: Section 22846(a), Government Code.
HISTORY
1. Amendment of subsection (f) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 71, No. 3.
2. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
4. Amendment filed 6-9-85; effective thirtieth day thereafter (Register 86, No. 24).
5. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.505. Cancellation of Enrollment.
Note • History
(a) An enrolled employee or annuitant may cancel his or her enrollment at any time by filing with his or her employing office a properly completed Health Benefits Plan Enrollment Form requesting such cancellation. The effective date of cancellation shall be midnight of the last day of the month in which the enrollment form is received by the employing office.
(b) Upon cancellation, an employee or annuitant and the members of his or her family are not entitled to convert to an individual health benefits contract.
NOTE
Authority cited: Sections 22794, 22796 and 22846(a), Government Code. Reference: Section 22846(a), Government Code.
HISTORY
1. Amendment of subsections (a) and (c) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 69, No. 8.
2. Amendment of subsections (a) and (c) filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
3. Repealer of subsection (c) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
4. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.506. Termination of Enrollment.
Note • History
(a) An employee's enrollment ceases at midnight of the earliest of the following dates:
(1) The last day of the month following the month in which:
(A) employment is terminated either by resignation or by his or her agency for reasons other than for cause;
(B) the last payroll deduction was taken when payroll deduction was discontinued through administrative error if such deduction was not taken for a continuous period of six months;
(2) Where enrollment has been continued while appealing dismissal from service for cause, under the provisions of Section 599.504, the last day of the month in which such appeal action or actions has or have been terminated with the dismissal being upheld or in which the Board determines that the employee has ceased to diligently pursue his or her appeal.
(3) The last day of the month following the month in which employment status changes so that he or she is excluded from enrollment.
(4) The last day of the month in which he or she dies.
(5) The last day of the month following the last month during which a permanent intermittent employee worked less than 480 hours during a six-month control period or 960 hours during a twelve-month control period.
(6) The last day of the month in which application for disability retirement is denied or withdrawn by the employee where enrollment was continued under Section 599.504(f) pending action on the application.
(b) An annuitant's enrollment ceases at midnight of the earliest of the following dates:
(1) The last day of the month in which he or she dies.
(2) The last day of the month following the month in which he or she ceases to be in the status of “annuitant,” unless he or she is eligible for enrollment as an employee in which case his or her enrollment will continue under the plan in which he or she is enrolled.
(c) The coverage of a family member under an employee's or annuitant's enrollment ceases at midnight of the earliest of the following dates, unless he or she is eligible to enroll as an employee, in which case, if he or she enrolls within 60 calendar days after said date, his or her enrollment continues under the plan in which he or she enrolls:
(1) The last day of the month in which he or she ceases to be a family member, or to be eligible for enrollment as a family member. The enrollment of an employee or annuitant shall not be changed by such termination of coverage, and his or her contribution shall continue unchanged until he or she changes enrollment in the manner and at the time provided under Section 599.502(f)(2) or until an administrative document is processed. However, payment by the carrier of any difference between the premium paid between the date of termination of coverage and the effective date of the change in enrollment, and that which would have been paid had the change in enrollment been effective on the date of termination of coverage, shall not exceed those excess premiums paid for a period of up to six months prior to the date on which the action is processed and recorded, pursuant to the employee's or annuitant's request for retroactive cancellation or deletion of the ineligible family member. Payment shall be made to the employer or the enrolled employee or annuitant as their interests appear and in such manner as may be directed by the Executive Officer of the Board.
(2) The day the employee or annuitant ceases to be enrolled, unless the family member continues to be enrolled as a surviving annuitant under the provisions of Section 599.502(f)(7).
(3) On the effective date of an employee's or annuitant's change of enrollment to decrease or terminate family member enrollment.
(d) If the retirement allowance of an annuitant is not sufficient to pay the withholdings for the plan in which the annuitant is enrolled, the retirement system from which the allowance is being paid shall notify the annuitant of the plans available at a cost not in excess of the retirement allowance. The annuitant may enroll in another plan whose cost is no greater than his or her allowance, if such plan is available. If the annuitant does not or cannot elect a plan at a cost to him or her not in excess of the allowance, the enrollment of the annuitant shall cease, effective as of the end of the last month for which withholding was made. Each annuitant whose enrollment is so terminated is entitled to conversion pursuant to Section 599.507.
(e) Whenever under this section enrollment terminates on the last day of the month and the monthly payroll period for a state department or agency does not coincide with the calendar month, enrollment ceases as of the last day of the calendar month most closely corresponding to the payroll month in which the event resulting in the termination occurs.
(f) Notwithstanding effective dates prescribed in this section, a termination or cancellation of enrollment based on a reduction in hours or time base must be effective prospectively only. Upon a 30-day notice, terminations or cancellations for a reduction in hours or time base may be effective retroactively if coverage was based upon fraud or intentional misrepresentation of material fact.
NOTE
Authority cited: Sections 22794, 22796 and 22846, Government Code. Reference: Section 22846, Government Code.
HISTORY
1. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24). For prior history, see Register 72, No. 24.
2. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
3. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
4. Amendment of subsection (c)(1) and amendment of Note filed 6-24-2005; operative 6-24-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 25).
5. New subsection (f) filed 9-27-2011; operative 9-27-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 39).
Note • History
An employee or annuitant whose enrollment is terminated other than by cancellation or withdrawal of his or her employer from participation in the Public Employees' Medical and Hospital Care Act, and any family member whose coverage terminated because of termination of enrollment of an employee or annuitant or because of loss of family member status, is entitled to the issuance of a conversion plan provided that application is made and the premium or other periodic charge is paid within one month of the date of termination of enrollment or termination of family member status, in which event coverage under the conversion plan shall become effective at 12:01 a.m. the day following such termination.
NOTE
Authority cited: Sections 22794, 22796 and 22842, Government Code. Reference: Section 22842, Government Code.
HISTORY
1. Amendment filed 7-31-68 as an emergency; effective upon filing. (Register 68, No. 29). For prior history, see Register 67, No. 43.
2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 11-27-68 (Register 68, No. 45).
3. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
5. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
6. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.508. Minimum Standards for Health Benefits Plans.
Note • History
(a) To be qualified to be approved or adopted by the Board, a health benefits plan must:
(1) Comply with the Public Employees' Medical and Hospital Care Act and this subchapter, as amended from time to time.
(2) Accept enrollment, in accordance with this subchapter, without regard to physical condition, age, ethnic origin, religion or sex at the time of original group enrollment, of all eligible employees or annuitants, except that plans which are sponsored by employee organizations need not accept enrollment of persons who are not members of the organization.
(3) Provide for coverage of enrolled employees and annuitants, and covered members of their families.
(4) Extend to all employees, annuitants and family members who are eligible therefor the right, during the time allowed, to convert to a contract for health benefits regularly offered by the carrier, or an appropriate affiliate, for group conversion purposes. Such contract must, at the option of the employee, annuitant or family member, be continued in effect by the carrier except for fraud or nonpayment of contractual charges.
The contract shall, upon conversion, become effective as of the day following the date of termination of coverage, and the employee or annuitant shall pay the entire cost thereof directly to the carrier. The nongroup contract may not deny or delay any benefit that it provides for a person converting from a plan approved under this subchapter, except to the extent that benefits are continued under the health benefits plan from which he or she converts.
The Board may request an extension of time for conversion because of delayed determination of ineligibility for service retirement or disability retirement, in which case conversion must be permitted until the date specified by the Board in its request for extension.
Any such conversion contract may provide for an adjustment of benefits with respect to any covered person at such age as he or she becomes eligible to participate in benefits provided under either Part A or Part B of Title XVIII, Social Security Act.
(5)(A) Provide that any person, whether employee, annuitant, or family member, whose enrollment terminates other than by voluntary cancellation or termination of the group agreement, and who, on the day of termination is hospitalized, shall be granted a continuation of the benefits of the plan with respect to medical conditions that were present or pre-existing at the time of hospitalization or occurred during the hospitalization and which require continued hospitalization, but not beyond the 91st day following the termination.
(B) Provide that any person, whether employee, annuitant, or family member, whose enrollment has been changed from one plan to another and who on the effective date of such change is hospitalized, shall be granted a continuation of the benefits of the prior plan with respect to medical conditions that were present or pre-existing at the time of hospitalization or occurred during the hospitalization and which require continued hospitalization, but not beyond the 91st day following the last day of enrollment in the prior plan. Upon change of enrollment to the plan of a person so hospitalized on the effective date of the change, benefits with respect to the cause of such hospitalization shall not be paid or provided while that person is entitled to continuance of benefits under the prior plan, but all other benefits will be paid during such period.
(C) Provide that any person whether employee, annuitant or family member who is totally disabled on the date of termination of the group contract, shall be granted a continuation of the benefits of the plan with respect to the cause of such total disability for up to 12 months after the date of termination, subject to plan maximums and provisions.
(6) Provide that each employee and annuitant who enrolls in a plan receive evidence of enrollment in a form to be approved by the Board, summarizing the conditions of the plan including but not limited to, those concerning benefits, claims, and payment of claims.
(7) Provide a standard rate structure which contains one standard individual rate, one standard rate for employees and annuitants with one dependent, and one standard rate for employees and annuitants with two or more dependents, without geographical or other variation. Notwithstanding the foregoing, and subject to the approval of the Board, a health benefits plan may charge contracting agency employees and annuitants rates that are based on regional variations in the costs of health care services.
(8) Maintain statistical records regarding the plan as are agreed to by the Board, separately from those of any other activities or benefits conducted or offered by the carrier administering the plan, so as to reveal the utilization of benefits under the plan, the gross and net cost of such benefits, and the administrative cost experienced under the plan as it pertains to employees and annuitants enrolled under this subchapter.
(9) Provide for payment to a special reserve, as of the end of any contract period, of so much of the contributions and other income attributable to the plan as exceeds the sum incurred for benefit payments, administrative expenses, premium and other taxes, risk charges, and other retention charges. Upon the request of the Board, made after a public hearing on the question, contribution rates must be reduced and/or benefits increased, whichever is appropriate in judgment of the Board, whenever the special reserve exceeds the latest three calendar months' contributions paid under the plan. In determining the amount of incurred benefits paid under the plan, reasonable reserves may be established for pending claims and incurred but unreported claims. All such claim reserves, and the special reserves, must be accounted for separately from reserves maintained by the carrier for other plans. Income derived from the investment of the special reserves shall be credited to the reserves at 100% of the plan's annual corporate rate of interest. Income reasonably attributable to investment of claim reserves shall be taken into account in determining the amount of retention charges. In the event the contract is terminated, the underwriting or obligation under the plan is assumed by a different carrier, or approval of the plan is withdrawn, the special reserve and such portion of any claim reserves as are not finally utilized in the payment of benefits under the plan shall be paid into the Public Employees' Contingency Reserve Fund for the benefit of the plan, and the Board may then transfer such reserves to successor plans and/or carriers on such basis as it determines to be equitable after a public hearing held within 18 months following the effective date of the plan's termination, withdrawal of approval, or transfer to a different carrier. For a carrier providing service benefits, the board may approve the use of other equitable and practical financial procedures. For plans that are community-rated, the carrier shall, in lieu of being subject to the foregoing provisions of this paragraph, agree to furnish such financial and accounting reports and to follow such recording procedures as may be requested by the Board and that are consistent with the normal operations of the plan.
(10) Provide that in the event an employee or annuitant is dissatisfied with the amount paid or service rendered pursuant to his or her claim on his or her behalf or on behalf of a family member and so requests, representatives of the parties including a representative of the Board will confer in an effort to reach a settlement, provided that no agreement reached by such conferees shall bind the employee, annuitant, or carrier without each party's consent or bar any remedy otherwise available.
(b) To be qualified to be approved by the board, a health benefits plan must not:
(2) Have an initiation, service, enrollment, or other fee or charge in addition to the rate charged for the plan, except that notwithstanding subparagraph (b)(1) of this section, comprehensive group practice prepayment plans and individual practice prepayment plans may impose an additional charge to be paid directly by the employee or annuitant for certain medical supplies and services, if the supplies and services on which additional charges are imposed are clearly set forth in advance and are applicable to all employees and annuitants. This subparagraph does not apply to charges for membership in employee organizations sponsoring plans.
NOTE
Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22796, 22850(f)(1) and 22864(b)(3), Government Code.
HISTORY
1. Amendment of subsection (a)(2) filed 1-13-71; designated effective 4-1-71 (Register 71, No. 3). For prior history see Register 67, No. 43.
2. Amendment of subsection (a)(9) filed 12-2-75; effective thirtieth day thereafter (Register 75, No. 49).
3. Amendment of subsections (a)(1)-(a)(4), (a)(7) and (b)(1) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
5. Amendment of subsection (a) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
6. Amendment of subsections (a)(2)-(3) filed 10-4-2001 as an emergency; operative 10-4-2001 (Register 2001, No. 40). A Certificate of Compliance must be transmitted to OAL by 2-1-2002 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 10-4-2001 order transmitted to OAL 2-1-2002 and filed 3-18-2002 (Register 2002, No. 12).
8. Amendment of subsection (a)(7) and amendment of Note filed 4-15-2004 as an emergency; operative 4-15-2004 (Register 2004, No. 16). A Certificate of Compliance must be transmitted to OAL by 8-13-2004 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 4-15-2004 order transmitted to OAL 6-25-2004 and filed 8-9-2004 (Register 2004, No. 33).
10. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.509. Minimum Standards for Health Benefits Carriers.
Note • History
A health benefits plan will not be approved by the Board unless the carrier of the plan meets, in addition to the requirements of the Public Employees' Medical and Hospital Care Act, the following additional requirements:
(a) It must be lawfully engaged in the business of supplying health benefits.
(b) It must have, in the judgment of the Board, the financial resources, organizational facilities and experience in the field of health benefits to carry out its obligations under the plan.
In the case of carriers for service benefit plans and indemnity benefit plans, the Board in forming its judgment shall be guided by such factors as the length of time the carrier has been in the prepaid health benefits field, the capacity of the carrier to effectively service claims of enrolled employees and annuitants throughout the State, the general financial stability of the carrier as exhibited by examinations of the State Insurance Commissioner or other regulatory bodies, and the extent to which the carrier underwrites other prepaid health benefits plans in California.
In the case of carriers for group practice prepayment plans, the Board in forming its judgment shall be guided by such factors as the number of physicians practicing in the group, the number of physicians practicing in the group as specialists and their qualifications, the proportion of the group's income which is derived from prepayment as opposed to fee-for-service, the extent to which the group utilizes outside consultants, the extent to which ancillary and other related services, both in and out of the hospital, are available in the group, the stability of the group's finances and organization, and the potential for enrollment of employees and annuitants under the plan as well as the plan's capacity for servicing such potential enrollees including a demonstrated commitment to cost containment, innovative services, effectiveness of utilization review, and success in achieving market penetration.
In the case of carriers for individual practice prepayment plans, the Board in forming its judgment shall be guided by such factors as the number of physicians participating in the plan, the number of physicians practicing as specialists and their qualifications, the extent to which ancillary and other related services, both in and out of the hospital, are covered, the stability of the plan, finances and organization of the plan, the plan's financial responsibility, and the potential for enrollment of employees and annuitants under the plan, as well as the plan's capacity for servicing such potential enrollees including a demonstrated commitment to cost containment, innovative services, effectiveness of utilization review, and success in achieving market penetration.
(c) It must agree to keep such reasonable financial and statistical records and furnish such reasonable financial and statistical reports with respect to the plan as may be requested by the Board, which may include but is not limited to:
(1) Number of persons enrolled under the plan, by employee, annuitant, and family coverage.
(2) Contributions received from such employees and annuitants, and the employer.
(3) Claims incurred on behalf of such employees and annuitants, including health benefits payments made, or services rendered, by employee, annuitant, and family coverage.
(4) Expense and risk or other retention charges.
(5) Reserves established under the plan.
(d) It must agree to permit representatives of the Board to audit and examine its records and accounts which pertain, directly or indirectly, to the plan at such reasonable times and places as may be designated by the Board. However, any privileged medical information relating to any claimant's medical history and record need not be released by the carrier or revealed to the Board or its representatives, to the extent that any patient's identity is revealed. However, such data must be provided in abstract format upon request by the Board.
(e) It must agree to comply with requirements of the Board in the solicitation of enrollment of employees and annuitants and in any advertising concerning or involving participation in the plan.
(f) It must agree to accept, subject to adjustment for error or fraud, in payment of its prepayment charges for health benefits for all employees and annuitants enrolled in its plan, the contribution of each employee and annuitant withheld from the salary or retirement allowance payable to him or her.
NOTE
Authority cited: Sections 22794 and 22796, Government Code. Reference: Section 22796, Government Code.
HISTORY
1. Amendment of subsection (f) filed 11-27-68 as an emergency; effective upon filing (Register 68, No. 45). For prior history, see Register 68, No. 29.
2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 2-20-69 (Register 69, No. 8).
3. Amendment filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
5. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
6. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.510. Minimum Scope and Content of Basic Health Benefits Plans.
Note • History
(a) No contract shall be made or approved for a basic health benefits plan which does not include in its coverage the following benefits. The payment schedule for such benefits must be sufficient in the judgment of the Board to meet the major share of usual, customary or reasonable charges for such services.
(1) Hospital benefits.
(A) In-hospital.
Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits in the event of confinement in a hospital because of injury or sickness.
Hospital “room and board benefits” must be provided for at least the first 31 days of hospital confinement. “Miscellaneous hospital benefits” must be provided for hospital charges incurred over and above those for room and board, such as charges for the use of operating and cystoscopic rooms, anesthetic supplies, anesthesia when supplied by the hospital as a regular service and administered by a salaried employee, ordinary splints, plaster casts, and surgical dressings.
(B) Outpatient--hospital.
Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits because of accidental bodily injury, surgery or emergency treatment for sickness when not admitted to a hospital or confined as a registered bed patient. Such benefits shall include but are not limited to: 1. Charges for use of operating and cystoscopic rooms, 2. Charges for anesthetic supplies and anesthesia when supplied by the hospital as a regular service and administered by a salaried employee, and 3. Charges for ordinary splints, plaster casts and surgical dressings.
(2) Surgical Benefits In and Out of the Hospital.
Coverage must be extended to enrolled employees, annuitants and family members to provide benefits in the event of surgical operations performed because of injury or sickness.
(3) In-hospital medical benefits.
Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits for medical services rendered by attending physicians or physician anesthetists, other than those of a surgeon as described above, while a registered bed patient in a hospital.
(4) Outpatient medical benefits.
Coverage must be extended to enrolled employees, annuitants and family members to provide benefits for medical services rendered on an outpatient basis. Such services shall include those of a physician and surgeon for usual medical services and a physician anesthetist.
(5) Diagnostic, X-ray, and laboratory examinations benefits in and out of the hospital. Coverage must be extended to enrolled employees, annuitants, and family members and shall include those services of medical and paramedical personnel such as, but not restricted to, a pathologist, or a roentgenologist to provide for all ordinary clinical and pathological laboratory services and X-ray examinations. Such services may be rendered either by physicians or by salaried hospital or clinical personnel as appropriate.
(6) Maternity benefits. Coverage must be extended to each enrolled employee, annuitant, and covered family member to provide medical and hospital benefits for maternity care.
(7) Ambulance service benefits. Coverage must be extended to enrolled employees, annuitants, and family members to provide benefits for necessary local professional ambulance service to a hospital.
Determination of usual, customary, and reasonable charges for purposes of this subsection 599.510(a) shall take into account the Relative Value Studies of the California Medical Association with respect to any service included in such Studies.
(b) There shall be excluded from coverage set forth above:
(1) charges incurred in connection with bodily injury or disease covered by worker's compensation statutes or similar legislation.
(2) charges for which the claimant has been or is entitled to be reimbursed under any other basic hospital, surgical or medical plan not subject to these rules for which the employer shall have paid any part of the costs. Premiums or other consideration paid for the coverage not provided shall be returned to the person, state agency or contracting agency equitably entitled thereto.
(3) charges incurred during confinement in a hospital owned or operated by the United States Government, charges for services, treatments or supplies furnished by or for the United States Government or paid for by said United States Government, or charges incurred during confinement in a hospital owned or operated by a state, province, or political subdivision, unless there is an unconditional requirement to pay these charges without regard to any rights against others, contractual or otherwise.
(4) services and charges for services for which the claimant is entitled to have payment made on his or her behalf under Part A or Part B, Title XVIII of the Social Security Act.
(5) charges in accordance with such other exclusions as may be agreed to by the Board.
(c) There may be excluded from coverage set forth above:
(1) charges incurred by or on behalf of a family member or services received by a family member during a continuous period of hospitalization which commenced before the effective date of the enrollment if eligibility to enroll including him or her in coverage of a plan derives from other than an open enrollment period; and
(2) charges incurred or services received by an employee, annuitant, or family member during a continuous period of hospitalization which commenced before the effective date of his or her enrollment if eligibility to enroll derives from an open enrollment period. Such exclusion shall no longer apply upon the 91st day of enrollment in the plan.
NOTE
Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22796, 22850, 22853 and 22860, Government Code.
HISTORY
1. Amendment of subsection (b)(2) filed 7-31-68 as an emergency; effective upon filing (Register 68, No. 29). For prior history, see Register 66, No. 10.
2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 11-27-68 (Register 68, No. 45).
3. Amendment of subsection (b)(2) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
4. Amendment of subsections (a)(6) and (b)(1) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
5. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
6. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
7. Editorial correction of Authority cite (Register 95, No. 5).
8. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.511. Alternative Benefit Plans.
Note • History
(a) To be qualified to be approved, or contracted for, by the Board, an alternative benefit plan must comply with the Public Employees' Medical and Hospital Care Act and this subchapter.
(b) Notwithstanding any other provision of this subchapter, only employees and annuitants of contracting agencies and their family members shall be eligible to enroll in an alternative benefit plan.
(c) Notwithstanding any other provision of this subchapter, the Board may elect to offer one or more alternative benefit plans to contracting agency employers either in lieu of, or in addition to, any other health benefits plans approved or contracted for by the Board.
(d) In the event that the governing board of a contracting agency that is subject to the Public Employees' Medical and Hospital Care Act elects to provide an alternative benefit plan(s) to its employees or annuitants, it must file a resolution with the Office of Employer and Member Health Services of the Board. The resolution shall be effective on the first day of the second month following the month in which the resolution is received in the office of the Board.
NOTE
Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22850(f)(2) and 22864(b)(3), Government Code.
HISTORY
1. New section filed 4-13-2004 as an emergency; operative 4-13-2004 (Register 2004, No. 16). A Certificate of Compliance must be transmitted to OAL by 8-11-2004 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 86, No. 24.
2. Certificate of Compliance as to 4-13-2004 order transmitted to OAL 8-3-2004 and filed 9-15-2004 (Register 2004, No. 38).
3. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
Note • History
(a) Except as otherwise provided in Section 599.513 and subsection 599.512(e), the employer shall contribute toward the cost of coverage for each enrolled employee, annuitant, and family member, other than for periods during which the enrollment of an employee is continued under the provisions of subsections 599.504(b), (c), (d), (e), (f), or (g), or for a person who is eligible to enroll only on the condition that he or she pay the total cost of his or her coverage, exclusive of contribution made by the employer to the Public Employees' Contingency Reserve Fund in the amount provided by law.
(b) The contribution of each enrolled employee and annuitant toward the cost of coverage under the plan in which he or she is enrolled shall be an amount equal to the gross contribution rate established for the plan by contract, less the contribution to be made by the employer under subsection 599.512(a). The gross contribution rate shall consist of the basic contribution rate set forth in the contract.
Where enrollment is continued under Section 599.504 and the employer does not contribute under subsection 599.512 (a), the employee shall remit monthly during such continuation the gross contribution rate for his or her coverage under the plan to the carrier on or before the tenth day of the month preceding the month for which the contribution was due, or pursuant to any other arrangement agreed to by the Board. For all other enrollments the gross contribution rate required less the contribution made by the employer under subsection 599.512 (a) shall be withheld from salary or retirement allowance warrants.
For the purposes of application of this subsection to contributions due for enrollment in a prior year, the gross contribution rate and the employer's contribution under subsection 599.512 (a) shall be such a contribution rate for the year for which contribution is due.
(c) Contributions shall commence with the first salary or retirement allowance warrant payable to the employee or annuitant preceding the effective date of enrollment, and shall be made for coverage for a full period of one month. Contributions of the employer shall commence on the effective date of enrollment.
(d) Contributions shall terminate with the last contribution made immediately prior to the termination of enrollment.
(e) Contributions for an enrolled employee absent because of workers' compensation disability for which he or she has applied for temporary disability compensation, who continues enrollment under Section 599.504, shall be paid as follows:
(1) During the period of adjudication of his or her application for compensation and thereafter during such time as he or she receives temporary disability compensation which is not supplemented by sick leave or vacation, or if such supplemental payments are not sufficient to permit the deduction of his or her contribution, the employee shall pay the total cost of coverage as provided under subsection 599.512 (b).
(2) Upon establishment of entitlement to temporary disability compensation and his or her election to supplement such compensation with sick leave or vacation, the employee shall be entitled to receive payment of the employer's contribution for the period of adjudication, and deduction of the employee's contributions from payroll and payment of the employer's contributions shall continue thereafter so long as supplemental payments permit deduction of the full contribution of the employee.
NOTE
Authority cited: Sections 22794 and 22796, Government Code. Reference: Sections 22870-22899, Government Code.
HISTORY
1. Amendment of subsection (c) filed 7-5-74 as an emergency; effective upon filing (Register 74, No. 27) For prior history, see Register 72, No. 24.
2. Certificate of Compliance filed 9-6-74 (Register 74, No. 36).
3. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
4. Amendment of subsections (b) and (c) filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
5. Change without regulatory effect amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.513. Public Employees' Contingency Reserve Fund.
Note • History
(a) For all plans approved or contracted for under this part, there shall be established a Public Employees' Contingency Reserve Fund in accordance with Section 22910 of the Public Employees' Medical and Hospital Care Act.
(b) Contribution shall be made by the employers during each calendar year to the Public Employees' Contingency Reserve Fund on account of each approved or contracted plan, in the amount authorized by law.
(c) The contributions made to the Contingency Reserve Fund in (b), above, shall not be used for administrative expense purposes. They may be utilized to defray increases in future rates, to reduce the contributions of employees and annuitants and the employers, or to increase the benefits provided by any plan to the extent that amounts in the Fund are derived from that plan, upon determination by the Board.
NOTE
Authority cited: Sections 22796, 22800 and 22831, Government Code. Reference: Sections 22870, 22885, 22890, 22901, 22910 and 22913, Government Code.
HISTORY
1. Amendment filed 7-31-68 as an emergency; effective upon filing (Register 68, No. 29). For prior history, see Register 65, No. 20.
2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 11-27-68 (Register 68, No. 45).
3. Amendment of subsection (a), (b), (d)(1) and (d)(3) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
4. Amendment filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
5. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
6. Change without regulatory effect amending subsection (a) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.514. Application for Approval of Major Medical Plans Offered by Employee Organizations. [Repealed]
Note • History
NOTE
Authority cited: Sections 20120 and 22775, Government Code. Reference: Sections 22775 and 22776, Government Code.
HISTORY
1. Amendment filed 7-5-74 as an emergency; effective upon filing (Register 74, No. 27).
2. Certificate of Compliance filed 9-6-74 (Register 74, No. 36).
3. Repealer of subsection (c) and renumbering of subsection (d) filed 6-15-79; designated effective 8-1-79 (Register 79, No. 24).
4. Repealer filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
§599.515. Contracting Agency Participation.
Note • History
(a) Resolution. The resolution of the governing board of a contracting agency electing to be subject to the Public Employees' Medical and Hospital Care Act shall be filed with the Health Benefits Division of the Public Employees' Retirement System. If such resolution is filed with the Health Benefits Division on or before the tenth day of any month, the contracting agency and its employees and annuitants will become subject to the Act on the first day of the following month. The effective date of participation where the resolution is received in the Health Benefits Division after the tenth day of any month shall be at midnight of the last day of the following month. The resolution shall designate an officer or employee of the agency who shall be responsible for distribution, receipt and forwarding to the Health Benefits Division enrollment forms for its employees and annuitants, the filing of reports and the transmission of contributions.
A resolution filed with the Health Benefits Division may be revoked by the filing of a resolution of the governing board in the Health Benefits Division no less than ninety days prior to the effective date specified in the resolution electing to be subject to the Public Employees' Medical and Hospital Care Act.
(b) Reports. The agency shall file in the Health Benefits Division on or before the tenth day of each month such reports covering the employees and annuitants enrolled as of the first day of the month as the Board may require, and the total contributions due for each. The report shall be accompanied by payment of the total of such contributions for employees and the employer contributions due for annuitants of the agency enrolled under the program and the employer contribution for administrative costs and the Public Employees' Contingency Reserve Fund.
(c) Enrollment. The contracting agency shall make available to its employees and annuitants information concerning health benefit plans and procedures for enrollment and the enrollment forms prescribed by the Board. It shall cause all properly executed enrollment forms to be transmitted promptly to the Health Benefits Division.
(d) Delinquency. The Executive Officer of the Board, upon failure of a contracting agency to perform any act required by the Meyers-Geddes State Employees' Medical and Hospital Care Act or these rules, shall on behalf of the Board, make demand for performance of such act on the agency pursuant to Section 22939 of the Meyers-Geddes State Employees' Medical and Hospital Care Act. If such demand is not satisfied, the Executive Officer shall refer the matter to the Board at its next meeting.
(1) The contributions required of a contracting agency, along with contributions withheld from salaries of its employees, shall be forwarded monthly, no later than the 10th day of the month for which the contribution is due.
(2) Interest on late payments:
(A) If a public agency fails to pay contributions due within the prescribed time, interest shall be charged upon the amount due from the due date until received by the System in Sacramento.
(B) The rate of interest to be charged shall be equal to the short-term interest rate for the coverage month due.
(3) Cost assessment for late reporting:
(A) If a public agency fails to file a remittance report as required by these regulations within the time period set forth, an assessment to recover the cost of follow-up and special accounting of $25.00 for each report shall be made.
(B) If, in the opinion of the Executive Officer, such assessment is insufficient to meet the added costs because of special circumstances, he/she shall determine such costs and make an appropriate supplemental assessment.
(4) Time extension:
(A) A reasonable extension of time for filing remittance reports may be granted by the Executive Officer or designee whenever good cause exists.
(e) Termination. A contracting agency may terminate its participation under the Public Employees' Medical and Hospital Care Act by filing with the Board a resolution passed by a majority vote of its governing body. The resolution electing to terminate must be filed with the Health Benefits Division of the Public Employees' Retirement System no later than 60 days after the Board of Administration approves and announces the health plan premium rates for the following year. The termination becomes effective at the end of the current contract year. The election to terminate is irrevocable after the filing of the resolution, and a resolution electing to be subject to the Public Employees' Medical and Hospital Care Act may not be filed thereafter within five years of the termination date.
NOTE
Authority cited: Sections 20121, 22794, 22796, 22800, 22830, 22831 and 22846(a), Government Code. Reference: Sections 22901 and 22922-22939, Government Code.
HISTORY
1. Amendment of subsection (e) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32). For prior history, see Register 75, No 12.
2. Amendment of subsections (a), (b) and (c) filed 6-27-80; designated effective 8-1-80 (Register 80, No. 26).
3. Amendment filed 6-9-86; effective thirtieth day thereafter (Register 86, No. 24).
4. Amendment of subsection (e) filed 4-3-2003 as an emergency; operative 4-3-2003 (Register 2003, No. 14). A Certificate of Compliance must be transmitted to OAL by 8-1-2003 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 4-3-2003 order transmitted to OAL 7-9-2003 and filed 8-18-2003 (Register 2003, No. 34).
6. Amendment of subsection (e) filed 8-4-2004; operative 8-4-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 32).
7. Change without regulatory effect amending subsection (d) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.516. Payment of Surcharges for Late Enrollment in Medicare Part B.
Note • History
(a) As used in this section and Government Code section 22831(b):
(1) “Surcharge for late enrollment in Part B of Medicare” means the Part B penalties for late enrollment, exclusive of the Part B premium and interest or penalties for the late payment of premiums. At the discretion of the Board, Part B penalties may be paid directly to the Medicare program or annuitants may be reimbursed for the costs of their Part B penalties.
(2) “Annuitants” means annuitants and their family members.
(3) “Medicare eligible annuitants” means those annuitants and their family members who (a) are enrolled in a basic health benefits plan, (b) are eligible for Part A of Medicare without cost, (c) turned 65 between January 1, 1985 and June 30, 2005, and (d) have not previously enrolled in Part B of Medicare.
(4) “Adverse selection” means that the costs of covering Medicare eligible annuitants in a particular basic plan results in higher premiums for all members of that plan.
(5) “Less costly” means one of the following:
(A) The reduction in a carrier's basic plan premium and resulting savings from moving a Medicare eligible annuitant into the carrier's Medicare plan are greater than an amount equal to the costs of that annuitant's Part B penalties and the employer's mandatory contribution for enrollment in the carrier's Medicare plan. For purposes of this section, the employer's mandatory contribution shall include all amounts that the employer would be required to pay pursuant to Government Code section 22879.
(B) In the case of a self-funded plan administered by the Board, the costs of medical and pharmaceutical claims paid from the Health Care Fund on behalf of a Medicare-eligible annuitant have been, and are projected to be, an amount greater than the Part B penalties for that annuitant and the claim costs that would be paid by the Health Care Fund if the annuitant were enrolled in the plan's Medicare supplement.
(6) “Defined class of Medicare eligible annuitants” means a specific category or group of Medicare eligible annuitants identified or established at the discretion of the Board.
(7) “Determination” means an evaluation and decision made by the Board pursuant to these regulations and Section 22831(b) as to whether (a) adverse selection due to the enrollment of Medicare eligible annuitants has impacted a basic health benefits plan contracted for or approved by the Board and (b) the payment of the Part B penalties for the Medicare eligible annuitant(s) enrolled in that basic plan and their enrollment in a Medicare health benefits plan would be less costly than continued enrollment in the basic plan. An affirmative determination shall be referred to as a determination of cost savings.
(8) “CMS” means the Centers for Medicare and Medicaid Services, the federal agency which administers the Medicare program.
(b) If the Board makes a determination of cost savings with respect to a Medicare eligible annuitant or defined class of Medicare eligible annuitants enrolled in a basic health benefits plan, the Board may seek funding for, or otherwise arrange for, payment of the Part B penalties on behalf of those annuitants.
(c) Determinations will be specific to a designated basic health benefits plan and the costs of the Part B penalties will be based on CMS Medicare eligibility data. At its discretion, the Board may make determinations hereunder on an individual basis or for a defined class of Medicare eligible annuitants. Nothing in this section shall be construed as requiring the Board to undertake or make a determination with respect to a particular basic health benefit plan, individual annuitant, or group of annuitants.
(d) Except as specifically provided herein and approved by the Board, neither the California Public Employees' Retirement System nor any employer or other entity shall have any obligation to pay Part B penalties or reimburse individual annuitants for the costs of such penalties.
(e) Unless otherwise provided by law, the California Public Employees' Retirement System shall not be financially liable for the payment of Part B penalties.
(f) Neither the employer nor any other entity which funds the payment of Part B penalties pursuant to this section shall have any obligation to continue to pay, or fund the payment of, Part B penalties on behalf of any annuitant or family member in the event that:
(1) Funding is not available for payment of Part B penalties; or
(2) The Board determines that payment of the Part B penalties and the employer's mandated contribution is no longer less costly than enrollment in a basic health benefits plan; or
(3) The annuitant or family member, once enrolled in Medicare Part B, fails to pay the Part B premiums or otherwise fails to maintain continuous coverage under Part B.
(g) A Medicare Part B Penalty Reimbursement Program is hereby established for the payment or reimbursement of the penalties for late enrollment in Medicare Part B. If the Board makes a determination of cost-savings with respect to a Medicare eligible annuitant or defined class of Medicare eligible annuitants, each annuitant shall:
(1) Enroll in the Part B Penalty Reimbursement Program.
(2) Enroll in Medicare Part B at the earliest possible date, but no later than the end of the current Part B open enrollment period or, if the open enrollment period has closed, the next Part B open enrollment.
(3) Maintain continuous enrollment in Part B of Medicare and pay all Part B premiums when due. In the event that the program elects to reimburse the program participants for the costs of the Part B penalties rather than paying those penalties directly to Medicare, the annuitant must also timely pay all Part B penalties.
(4) Enroll in a Medicare health benefits plan approved or contracted for by the Board effective as of the date that Part B coverage commences.
(h) A Medicare Part B Penalty Reimbursement Program participant who fails to maintain Medicare Part B coverage, including due to a failure to timely pay the Part B premium and all penalties that are the responsibility of the participant, will not be eligible to re-enroll in a basic plan and may be required to reimburse the Part B penalties previously paid on his or her behalf. Termination of Medicare coverage for failure to pay the Part B premiums shall not constitute an involuntary termination of Medicare benefits under section 599.502(f)(12). In the event that the annuitant later re-enrolls in Part B, he or she will not be eligible to re-enroll in the program unless it is determined that there would be cost savings. Penalties and costs associated with lapse or cancellation of, and subsequent re-enrollment in, Part B of Medicare will not be reimbursed.
(i) Any Medicare eligible annuitant who is included in a cost savings determination made by the Board and who, after adequate notice from the Board of his or her right to enroll in the Part B Penalty Program, refuses to enroll in Medicare Part B and a Medicare health benefits plan approved or contracted for by the Board, shall no longer be eligible for continued enrollment in a basic health benefits plan.
NOTE
Authority cited: Sections 22794, 22796 and 22831(b), Government Code. Reference: Section 22831(b), Government Code.
HISTORY
1. New section filed 1-15-2004 as an emergency; operative 1-15-2004 (Register 2004, No. 3). A Certificate of Compliance must be transmitted to OAL by 5-14-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-15-2004 order, including amendment of subsections (a)(5)(A) and (h), transmitted to OAL 5-13-2004 and filed 6-28-2004 (Register 2004, No. 27).
3. Change without regulatory effect amending subsections (a), (a)(5)(A) and (a)(7) and amending Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
§599.517. Termination of Enrollment in Basic Health Benefits Plan for Failure to Enroll In Part A and Part B of Medicare.
Note • History
Except as otherwise provided under federal law or regulation, specified employees, annuitants and their family members who become Medicare-eligible, as defined below, may not be enrolled in a basic health benefits plan. Failure of a Medicare-eligible basic plan member to enroll in Part B of Medicare and in a Medicare Plan will result in termination of basic plan coverage.
(a) As used in this section and in Government Code section 22844:
(1) “Post-1997 Basic Health Plan Enrollees” means those annuitants and their family members who (a) have been continuously enrolled in a basic health benefits plan on or after January 1, 1998, and (b) turned 65 on or after January 1, 1998 and before January 1, 2005.
(2) “Post-2000 CSU Basic Health Plan Enrollees” means those annuitants of the California State University and their family members who (a) have been continuously enrolled in a basic health benefits plan on or after January 1, 2001, and (b) turned 65 on or after January 1, 2001 and before January 1, 2005.
(3) “Prospective Medicare Beneficiary” means an annuitant, employee or family member who is enrolled in a basic health benefits plan and, at the time of notification hereunder, is within the Medicare Initial Enrollment Period.
(4) “Medicare-Eligible” means eligible for Medicare Part A without cost and Part B.
(5) “Medicare Plan” means a Medicare supplement or Medicare-risk health benefits plan approved or contracted for by the board.
(6) “Deferral of Part B Enrollment” means deferral of Part B enrollment by a Medicare-eligible state or a contracting agency employee who, pursuant to federal law and regulations, has deferred enrollment in Part B of Medicare because he or she is actively employed and covered by a basic health benefits plan by virtue of that employment.
(b) Enrollment and continuation in a basic health benefits plan.
(1) Except as set forth below, Post-1997 Basic Health Plan Enrollees, Post-2000 CSU Basic Health Plan Enrollees, and Prospective Medicare Beneficiaries who are Medicare-eligible may not continue to be enrolled in a basic health benefits plan.
(2) A Medicare-eligible individual who applies for initial enrollment in a basic health benefits plan, or re-enrollment after a break in coverage, shall not be permitted to enroll in a basic plan notwithstanding the fact that he or she was enrolled in an employer-sponsored basic health plan prior to, or on the date of, the application for enrollment.
(3) A Medicare-eligible state or contracting agency employee who has deferred his or her enrollment in Part B, may continue to be enrolled in a basic health benefits plan until the earlier of retirement or termination of employment. Such employee must notify the Board immediately upon termination of his or her deferred status and must enroll in Part B of Medicare during his or her special enrollment period.
(c) Notice of Requirement to Enroll in Medicare.
(1) Post-1997 Basic Health Plan Enrollees and Post-2000 CSU Basic Health Plan Enrollees. No later than December 1, 2004, the Board shall provide notice to Post-1997 Basic Health Plan Enrollees and Post-2000 CSU Basic Health Plan Enrollees of their requirement to enroll in Part B of Medicare. This notice shall provide that (a) if they are Medicare-eligible they may not remain in a basic plan, (b) if they are eligible for Part A of Medicare without cost, they must enroll in Part B of Medicare and in a Medicare Plan in order to retain health plan coverage; and (c) the failure to provide the board with satisfactory evidence of enrollment in Part B, ineligibility for Part A without cost, or deferral of Part B enrollment will result in the termination of their basic plan enrollment.
(2) Prospective Medicare Beneficiaries. Commencing four (4) months prior to a Prospective Medicare Beneficiary's 65th birth month, the Board shall provide notice of the requirement to enroll in Medicare. This notice shall inform the Prospective Medicare Beneficiary that if he or she is Medicare-eligible, he or she may not remain in a basic health benefits plan and must timely enroll in Part B of Medicare and a Medicare Plan in order to retain health plan coverage. The notice shall also inform the Prospective Medicare Beneficiary that failure to provide the board with satisfactory evidence of enrollment in Part B, ineligibility for Part A of Medicare without cost, or deferral of Part B enrollment will result in the termination of his or her basic plan enrollment.
(d) Termination of enrollment in a basic health benefits plan.
(1) On or before March 31, 2005, Post-1997 Basic Health Plan Enrollees and Post-2000 CSU Basic Health Plan Enrollees shall provide the Board with satisfactory evidence of application for enrollment in Part B of Medicare during the 2005 Medicare open enrollment period, ineligibility for enrollment in Part A of Medicare without cost, or deferral of Part B enrollment. Failure to do so will result in termination of basic plan enrollment effective April 1, 2005.
(2) On or before June 1, 2005, a Post-1997 Basic Health Plan Enrollee or a Post-2000 CSU Basic Health Plan Enrollee who applied to enroll in Part B of Medicare during the 2005 open enrollment period shall provide the Board with satisfactory evidence of enrollment in Part B of Medicare and an application for enrollment in a Medicare plan. Failure to do so will result in termination of basic plan enrollment effective July 1, 2005.
(3) The basic plan enrollment of a Prospective Medicare Beneficiary who fails to provide to the Board satisfactory evidence of enrollment in Part B of Medicare, ineligibility for Part A of Medicare without cost, or deferral of Part B enrollment by the last day of his or her birth month, will be terminated effective the first of the subsequent month.
(4) To the full extent permitted by law, the Board shall have no liability for any costs, losses or damages incurred by any person as a result of, or arising from or related to, the termination of basic health benefits plan coverage in accordance with this section.
(e) Enrollment in a Supplemental Plan.
(1) Post-1997 Basic Health Plan Enrollees, Post-2000 CSU Basic Health Plan Enrollees, and Prospective Medicare Beneficiaries who are Medicare-eligible may enroll in a Medicare Plan by submitting an application to the Board and proof of enrollment in Parts A and B of Medicare. Enrollment in the Medicare Plan shall be effective on the date Medicare coverage became effective or the first of the month following receipt of the application, whichever is later.
(2) Notwithstanding (1) above, a person whose coverage has been terminated pursuant to subsection (d) and who subsequently submits evidence of enrollment in Parts A and B of Medicare may only enroll in a Medicare Plan under the following conditions:
(A) If the application and proof of enrollment in Parts A and B of Medicare are submitted within 90 days of the date that basic plan coverage terminated, enrollment in the Medicare Plan shall be retroactive to the effective date of Medicare coverage or a date 90 days prior to the submission of evidence of Medicare enrollment, whichever is later.
(B) If the application and proof of enrollment in Parts A and B of Medicare are submitted more than 90 days after the date that basic plan coverage terminated, the effective date of enrollment shall be the first of the month following receipt of the application or, if applicable, the effective date of coverage under open enrollment.
(f) Enrollment in a basic health benefits plan after termination.
If a person whose basic plan coverage has been terminated pursuant to subsection (d) subsequently submits satisfactory written confirmation that he or she is either not eligible for Part A of Medicare without cost or has deferred enrollment in Part B of Medicare, he or she may enroll in a basic health benefits plan under the following conditions:
(1) If the documentation is received by the Board within 90 days of the date that coverage terminated, re-enrollment in a basic plan shall be retroactive to the date coverage terminated.
(2) An application for enrollment received more than 90 days after basic plan coverage has terminated may be submitted only during a CalPERS Health Benefits Open Enrollment period.
(g) Request for administrative review -- termination of enrollment in basic health benefits plan.
(1) A person who has been notified that his or her enrollment in a basic plan has, or will be, terminated pursuant to subsection (d), may request an administrative review of the termination. The filing of a request for administrative review shall not delay the termination of basic plan enrollment.
(2) A request for administrative review must be filed with the Health Branch Assistant Executive Officer within 90 days of the termination date or the date of the notice of termination, whichever is later. The request for administrative review shall be in writing, state the grounds on which it is requested, the relief that is sought, and include all supporting evidence.
(3) The Health Branch Assistant Executive Officer or his or her designee shall acknowledge the request within 15 days of receipt. The Health Branch Assistant Executive Officer or his or her designee shall review the request and may request additional documentation. Written notification of the decision shall be mailed within 60 days of receipt of all pertinent information.
(h) Request for administrative review -- effective date of Medicare Plan enrollment.
(1) A person whose enrollment in a Medicare Plan is delayed pursuant to subsection (e)(2)(B) due to failure to timely submit evidence of enrollment in Part B of Medicare, may seek administrative review of the basis for the delayed effective date. The filing of a request for administrative review shall not delay the termination of basic plan enrollment.
(2) A request for administrative review must be filed with the Health Branch Assistant Executive Officer within 90 days of the notice of the effective date of enrollment in the Medicare Plan. The request for administrative review shall be in writing, state the grounds on which it is requested, the relief that is sought, and include all supporting evidence.
(3) The Health Branch Assistant Executive Officer or his or her designee shall acknowledge the request within 15 days of receipt. The Health Branch Assistant Executive Officer or his or her designee shall review the request and may request additional information. Written notification of the decision shall be mailed within 60 days of receipt of all pertinent information.
NOTE
Authority cited: Sections 22794 and 22796, Government Code. Reference: Section 22844, Government Code.
HISTORY
1. New section filed 3-22-2004 as an emergency; operative 3-22-2004 (Register 2004, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-20-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 3-22-2004 order, including amendment of section, transmitted to OAL 7-20-2004 and filed 8-31-2004 (Register 2004, No. 36).
3. Change without regulatory effect amending subsection (a) and Note filed 10-31-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 44).
Article 2. Prefunding Plan for Health Care Coverage for Annuitants
Note • History
For purposes of this article:
(a) “Health care coverage for annuitants” means postemployment healthcare benefits and other postemployment benefits provided to terminated or retired employees and their dependents and beneficiaries. For purposes of this definition, “postemployment healthcare benefits” means medical, dental, vision, and other health-related benefits, and “other postemployment benefits” means postemployment benefits other than pension benefits, including life insurance, disability, and long-term care benefits.”
(b) “Participating employer” means an employer, as defined at Government Code section 22942, that has elected to participate in the prefunding plan and that contracts with CalPERS, which contract sets forth the terms and conditions of the participating employer's participation in the prefunding plan.
(c) “Prefunding plan” means the Annuitants' Health Care Coverage Fund that is a trust fund intended to meet the requirements of Section 115 of the Internal Revenue Code and that is established pursuant to Government Code section 22940 to provide healthcare coverage for annuitants. The prefunding plan is sometimes referred to as the California Employers' Retiree Benefit Trust or CERBT.
NOTE
Authority cited: Section 22796, Government Code. Reference: Sections 22940 and 22942, Government Code.
HISTORY
1. New article 2 (sections 599.550-599.554) and new section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).
2. New section heading and amendment of subsections (b) and (c) and Note filed 3-28-2011; operative 4-27-2011 (Register 2011, No. 13).
§599.552.
Note • History
(a) The board may, in its discretion and upon terms and conditions set by the board, authorize an employer to participate in the prefunding plan.
(b) The governing body of a participating employer shall enter into a contract with the board, setting forth the terms and conditions of the employer's participation in the prefunding plan. The contract may be in the form of a resolution adopted pursuant to Section 22922.
(c) Upon approval by the board, an employer subject to the Public Employees' Medical and Hospital Care Act may file a new resolution with the board or amend an existing resolution on file with the board, to allow the employer to become a participating employer.
NOTE
Authority cited: Sections 22796 and 22922, Government Code. Reference: Sections 22922, 22940 and 22942, Government Code.
HISTORY
1. New section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).
§599.553.
Note • History
(a) The terms and conditions of the contract or resolution for participation in the prefunding plan shall include, but not be limited to, the following:
(1) Disbursements from the prefunding plan;
(2) The methodology and assumptions used to calculate the actuarial accrued liability for health care coverage for annuitants;
(3) The method of payments to and disbursements from the prefunding plan;
(4) The frequency and content of reports from the participating employer to the prefunding plan;
(5) The frequency and content of reports from the prefunding plan to the participating employer;
(6) The allocation of prefunding plan investment income to the participating employer;
(7) The allocation of administrative costs and expenses of the prefunding plan to the participating employer;
(8) The circumstances and requirements for transfer of assets into or out of the prefunding plan, provided that any such transfers:
(A) must be in accordance with the terms of the contract or resolution, and
(B) must satisfy the requirements of Section 115 of the Internal Revenue Code.
(9) The board may terminate the participation of a participating employer in the prefunding plan if:
(A) a participating employer elects to terminate participation in the prefunding plan;
(B) the board finds that the participating employer has failed to satisfy the terms and conditions required by this article, by board rules or regulations, or by the contract or resolution approved by the governing body of the participating employer and filed with the board; or
(C) the board terminates the prefunding plan.
(b) If participation in the prefunding plan terminates for a reason described in subdivision (a)(9)(A) or (B), then the assets attributable to the contributions by that employer shall remain in the prefunding plan for the continued payment of postemployment health care coverage for annuitants and the costs of administration, pursuant to the terms and conditions of participation established by the board and as agreed to by the employer.
(c) If participation in the prefunding plan is terminated by the board as described in subdivision (a)(9)(C), then the assets attributable to the contributions by participating employers shall be paid in the following order:
(1) The board shall retain for disbursement to annuitants an amount sufficient to pay the health care benefits to annuitants for current and future annuitants.
(2) The board shall retain for payment an amount sufficient to pay reasonable administrative costs.
(3) After the amounts described in paragraphs (1) and (2) have been retained or disbursed, the board shall pay to each participating employer in the prefunding plan on the date of termination, a pro rata share of the remaining assets in the prefunding plan. The board shall determine that pro rata share based on the ratio that the participating employer's accumulated contributions bear to the accumulated contributions of all participating employers.
NOTE
Authority cited: Sections 22796 and 22922, Government Code. Reference: Sections 22922, 22940 and 22942, Government Code.
HISTORY
1. New section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).
§599.554.
Note • History
The board shall determine the amount of administrative costs and expenses of the prefunding plan to be paid to the board by each participating employer in accordance with the terms of the contract or resolution.
NOTE
Authority cited: Sections 22796 and 22922, Government Code. Reference: Sections 22922 and 22940, Government Code.
HISTORY
1. New section filed 1-26-2007; operative 1-26-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 4).
Chapter 3. Department of Personnel Administration
EDITORIAL NOTE: The Department of Personnel Administration (DPA) succeeded to and became vested with the authority of the State Personnel Board (SPB), the State Board of Control (BOC), the Department of General Services (DGS) and the Department of Finance (DOF) with respect to the nonmerit aspects of the state personnel system on May 1, 1981. (Governor's Reorganization Plan No. 1 of 1981, Codified by Statutes of 1981, Chap. 230.) Pursuant to Government Code Section 19815.4(d): “All regulations relating to personnel administration heretofore adopted pursuant to this part by the State Personnel Board, State Board of Control, Department of General Services, and the Department of Finance, and in effect on the operative date of this part, shall remain in effect and shall be fully enforceable unless and until readopted, amended, or repealed by the director [of DPA].” Further, the DPA serves as the Governor's representative for collective bargaining and other labor relations purposes under the State Employer-Employee Relations Act (California Government Code Section 3512 et seq.).
Most of the pertinent SPB, BOC, DGS and DOF regulations now administered by DPA pursuant to Government Code Section 19815.4(d) have been transferred to this chapter (Title 2, Division 1, Chapter 3); some have not yet been included herein. Citations for the sections not yet transferred are set forth in the Detailed Analysis (below) in parentheses following the section number reserved for the parallel DPA provisions which will be incorporated as appropriate at the completion of rulemaking proceedings necessitated by Government Code Sections 11340 et seq.
Subchapter 1. General Civil Service Rules
Article 1. Definitions
Note • History
Unless context requires otherwise, the definitions hereinafter set forth govern the construction of these rules.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18520, Government Code.
HISTORY
1. New Subchapter 1 heading and new Article 1 (Sections 599.600-599.611) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history of Chapter 3, see Registers 83, No. 17 and 82, No. 42.
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 1-8.
Note
“Act” means Part 2.6 of Division 5 of Title 2 of the Government Code of the State of California.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Part 2.6 (commencing with Section 19815), Division 5, Title 2, Government Code.
Note
“Agency” includes “department,” “board,” “office,” “authority,” “commission,” and every other governmental unit.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19820, Government Code.
Note
“Appointing Power” means a person or group defined by statute as having authority to make appointments to positions in the state civil service. This in no way affects the delegation of authority, as defined in Section 7 of the Government Code.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18524, Government Code.
Note
“Department” means the Department of Personnel Administration of the State of California.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815(a), Government Code.
Note
“Employee” includes every officer and employee subject to the Act or these regulations.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815(d), Government Code.
Note
“Director” means the Director of the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815(b), Government Code.
§599.607. Use of Month or Calendar Month.
Note
“Month” means a calendar month unless otherwise specified. In the application of Government Code Sections 19856.1, 19858.1, 19859, 19861, 19863.1, 19991.7, 19996, 19997.3 and Sections 599.737, 599.738, 599.739, 599.740, 599.746, 599.747, 599.787, 599.791 and 599.840 relating to the earning of sick leave, paid educational leave, vacation allowances, and seniority, month or calendar month shall mean the monthly pay period as prescribed by the Department of Finance.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18538.1, Government Code.
§599.608. Qualifying Monthly Pay Period.
Note • History
Except as provided in Sections 599.609 and 599.776.1(b), in the application of Government Code Sections 19143, 19849.9, 19856.1, 19858.1, 19859, 19861, 19863.1, 19997.4, 599.682, 599.683, 599.685, 599.687, 599.737, 599.738, 599.739, 599.740, 599.746, 599.747, 599.787, 599.791, 599.840 and 599.843, an employee who has 11 or more working days of service in a monthly pay period shall be considered to have a complete month, a month of service, or continuous service. In the application of Government Code Section 19837, an employee shall be considered to have a month of state service if the employee either: (1) has had 11 or more working days of service in a monthly pay period; or (2) would have had 11 or more working days of service in a monthly pay period but was laid off or on a leave of absence for the purpose of lessening the impact of an impending layoff.
Except for absences that are counted under this section, absences from state service resulting from a temporary or permanent separation for more than 11 consecutive working days which fall into two consecutive qualifying pay periods shall disqualify one of the pay periods. Absences from the payroll that may be counted as state service under this section shall be counted only at the request of the employee and shall not exceed 12 months of state service regardless of the number or combinations of absences involved.
Service or credits earned on or after January 1, 1969, shall be accumulated under the provisions of this section. Service or credits prior to that date shall be accumulated under the rules in effect on December 31, 1968, except that in the application of Government Code Section 19997.4 and Sections 599.837 and 599.843 all seniority credit shall be accumulated under the provisions of this section. In either instance, service or credit may be accumulated during appropriate absences, as described in this section, and the amount accumulated will be based on the time the employee would have worked if not absent.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 18538.1 and 19997.4, Government Code.
HISTORY
1. Amendment filed 12-16-94; operative 7-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 50).
§599.609. Qualifying Monthly Pay Period for Hourly and Daily Rate Employees.
Note
In the application of Section 599.608, hourly or daily rate employees working in a state agency in which the full-time workweek is 40 hours who earn the equivalent of 160 hours of service in a monthly pay period or accumulated pay periods shall be considered to have a complete month, a month of service, or continuous service. The amount of accumulated service required for a complete month of service shall be proportionately adjusted for work in agencies in which the full-time workweek is other than 40 hours. Hours or days worked in excess of 20 days in a month by pay period shall not be counted or accumulated. When an employee has a break in service or changes to full time, any combination of time worked which does not equal one qualifying month of full-time service shall not be accumulated or counted.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 18538.1, 19997 and 19997.4, Government Code.
Note
“Regulations” means the regulations of the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 3532, Government Code.
Note • History
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19257 and 19257.5, Government Code.
HISTORY
1. Repealer filed 11-17-87; operative 12-17-87 (Register 87, No. 48).
Article 2. Traveling Expenses
Note • History
(a) It is the purpose of this Article to provide reimbursement for the necessary out-of-pocket expenses incurred by state officers and employees because of travel on official state business. Each state agency is charged with the responsibility of determining the necessity for, and the method of, travel, provided, however, that once such necessity has been determined, reimbursement shall be governed by these sections. It is the intent of the Department of Personnel Administration that state agencies shall not have discretion to provide reimbursement at a lower amount than contained in Department sections unless such discretion is specifically mentioned. Language of this article providing a specific time, distance, or amount shall be rigidly interpreted. Language such as “not more than” or “up to” a specified amount shall be interpreted as a rigid ceiling with departmental discretion below such ceiling.
(b) For the purpose of regulations governing claims for reimbursement an excluded employee is: an employee as defined in Section 3527(b) of the California Government Code (Ralph C. Dills Act): a nonelected officer or employee of the executive branch of government who is not a member of the civil service.
(c) For the purpose of regulations governing claims for reimbursement, a represented employee is defined in Section 3513(c) of the California Government Code (Ralph C. Dills Act).
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Change without regulatory effect amending section filed 9-11-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 51).
§599.615.1. Scope--Excluded Employees.
Note • History
(a) It is the purpose of this Article to provide and define reimbursement for the actual and necessary out-of-pocket expenses incurred by state officers, employees, and agents because of travel on official state business. Each state agency may determine the time and method of travel, location and lodging. Each State agency shall determine the necessity for travel and that such travel represents the best interest of the State. Once the necessity and method of travel, location and lodging have been determined, reimbursement shall be governed by these sections. The signature of the officer approving travel and payment is certification that the approving party has authorized the travel, that the expenses were incurred in order to conduct official state business and that the items claimed are appropriate and in keeping with these rules. State agencies shall not have discretion to provide reimbursement at a lower amount unless such discretion is specifically authorized by rule. Unless otherwise specified, receipts are required for each item of expense of $25.00 or more.
(b) For the purpose of regulations governing claims for reimbursement an excluded employee is: an employee as defined in Section 3527(b) of the California Government Code (Ralph C. Dills Act): a non-elected officer or employee of the executive branch of government who is not a member of the civil service.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
Note • History
For the purposes of this Article, the following definitions will apply:
(a) Headquarters. Headquarters shall be established for each state officer and employee and shall be defined as the place where the officer or employee spends the largest portion of his/her regular workdays or working time, or the place to which he/she returns on completion of special assignments, or as the Department of Personnel Administration may define in special situations.
(1) Where an office building or similar definite place constitutes the employee's headquarters, no per diem expenses shall be allowed at any location within 25 miles of said headquarters as determined by the normal commute distance.
(2) Where the major portion of an employee's working time is spent within a specifically assigned or limited geographical area, such as a patrol area or beat where the same routes are traveled frequently and routinely on one-day trips, no per diem expenses shall be allowed at any location within 25 miles from any point in this assigned area as determined by the normal commute distance.
In order to insure equity in special cases, agency heads may disregard this subsection and authorize individual claims based on subsection (1) of this rule.
(3) In cases where adherence to the 25-mile limitation creates an unusual and unavoidable hardship to the officer or employee, exceptions may be granted by the Department of Personnel Administration.
(4) Employees on travel status for less than 24 hours may claim subsistence expenses incurred before or after the regularly scheduled work day in accordance with Section 599.619(a) or the applicable provisions of a Memorandum of Understanding, as appropriate, provided the departure time or return time exceeds the regularly scheduled work day by one hour.
(b) Residence. A place of primary dwelling shall be designated for each state officer and employee. A primary dwelling shall be defined as the actual dwelling place of the employee which bears the most logical relationship to the employee's headquarters and shall be determined without regard to any other legal or mailing address. However, if an employee is temporarily required to dwell away from his/her primary dwelling place due to official travel away from headquarters, and said primary dwelling is either inhabited by his/her dependents or is maintained by the employee at a net monthly expense in excess of $200, such dwelling place may be continued as the employee's designated primary dwelling.
(1) No reimbursement for per diem or other subsistence expenses shall be allowed on the premises of an employee's primary dwelling.
(2) An employee shall have only one dwelling at which travel expenses are prohibited.
(3) When an employee maintains more than one dwelling, meeting the definition of residence set forth in Section 599.616(b) and the employee is required to officially travel to the location of the secondary dwelling, he/she may claim the non-commercial subsistence allowance rates defined in Section 599.619(c) or 599.621(c)(1) as appropriate.
(c) Travel Expenses. Travel expenses include:
(1) Per Diem Expenses. Per diem expenses consist of the charges and attendant expenses for meals and lodging and all charges for personal expenses incurred while on travel status.
(2) Business Expenses. Business expenses consist of the charges for business phone calls and telegrams; emergency clothing, equipment or supply purchases; and all other charges necessary to the completion of official business. Any emergency purchase shall be explained, and if over $25 must be approved by the department head, deputy, or chief administrative officer.
(d) Protective Services. A member of the California State Police assigned as provided by Government Code Section 14613, or a member of the California Highway Patrol assigned to supplement State Police capabilities under Section 14613, may claim subsistence allowance for in-state travel as follows:
(1) If expenses actually incurred by the employee while traveling with the protected individual exceed the per diem allowance authorized for in-state travel, the employee may elect to claim the subsistence allowance authorized by Section 599.619(d) or 599.621(d) as appropriate.
(2) Any expense claim submitted under (1), must contain a certification by the Chief of the California State Police naming the individual be--
ing protected and verifying that the travel expenses were incurred while the claimant was assigned to protect said individual.
(3) Claims submitted under this section shall not be subject to the limitations of Section 599.616(a).
NOTE
Authority cited: Sections 19815.4(d), 19816, 19820(a) and 19849.5, Government Code. Reference: Sections 11030 and 14613, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.616.1. Definitions--Excluded Employees.
Note • History
For the purposes of this Article, the following definitions will apply:
(a) Headquarters. Headquarters shall be established by the appointing power for each state officer and employee and shall be defined as the place where the officer or employee spends the largest portion of his/her regular workdays or working time, or the place to which he/she returns upon completion of special assignments, or as the Department of Personnel Administration may define in special situations.
(1) Where an office building or similar definite place constitutes the employee's headquarters, no per diem expenses shall be allowed at any location within 50 miles of said headquarters as determined by the normal commute distance.
(2) Where the major portion of an employee's working time is spent within a specifically assigned or limited geographical area, such as a patrol area or beat where the same routes are traveled frequently and routinely on one-day trips, no per-diem expenses shall be allowed at any location within 50 miles from any point in this assigned area as determined by the normal commute distance.
In order to insure equity in special cases, agency heads may disregard this subsection and authorize individual claims based on subsection (1) of this rule.
(3) In cases where adherence to the 50-mile limitation creates an unusual and unavoidable hardship to the officer or employee, exceptions may be granted by the appointing power.
(4) Employees on travel status for less than 24 hours may claim subsistence expenses incurred before, during, or after the regularly scheduled workday in accordance with Section 599.619(a).
(b) Residence. A place of primary dwelling shall be designated for each state officer and employee. A primary dwelling shall be defined as the actual dwelling place of the employee which bears the most logical relationship to the employee's headquarters and shall be determined without regard to any other legal or mailing address. However, if an employee is temporarily required to dwell away from his/her primary dwelling place due to official travel away from headquarters, and said primary dwelling is either inhabited by his/her dependents or is maintained by the employee at a net monthly expense in excess of $200, such dwelling place may be continued as the employee's designated primary dwelling.
(1) No reimbursement for per diem or other subsistence expenses shall be allowed on the premises of an employee's primary dwelling.
(2) An employee shall have only one dwelling at which travel expenses are prohibited.
(3) When an employee maintains more than one dwelling, meeting the definition of residence set forth in Section 599.616.1(b) and the employee is required to officially travel to the location of the secondary dwelling, he/she may claim reimbursement for actual expenses incurred for meals and incidentals as defined in Section 599.619(a) and in accordance with the rates and timeframes stated therein for short-term travel, or as defined in Section 599.619.1(b) for meals while on a long-term assignment.
(c) Travel Expenses. Travel expenses include:
(1) Meals and Lodging incurred as a result of business travel away from headquarters in order to conduct State business
(2) Transportation expenses incurred in order to conduct State business
(d) Business Expenses. Business expenses consist of the charges for business phone calls and telegrams; emergency clothing, equipment or supply purchases; and all other charges necessary to the completion of official business. Any emergency purchase shall be explained, and if over $25 must be approved by the department head, deputy, or chief administrative officer.
(e) Protective Services. A member of the California Highway Patrol assigned as provided by Government Code Section 14615 may claim subsistence allowance for in-state travel as follows:
(1) If expenses are actually incurred by the employee as a result of traveling with the protected individual exceed the maximum meal and lodging rates authorized in 599.619 for in-state travel, the employee may claim their actual expenses by providing receipts.
(2) Any expense claim submitted under (1), must contain a certification by the Commissioner of the California Highway Patrol naming the individual being protected and verifying that the travel expenses were incurred while the claimant was assigned to protect said individual.
(3) Claims submitted under this section shall not be subject to the limitations of Section 599.616.1(a).
(f) Long Term Assignment. Any assignment of 31 days or more to a given location other than headquarters. A Long Term Assignments is typically given for a project status job that requires the extended presence of an employee for a period in excess of 31 days but is not considered permanent due to the temporary nature of the assignment, the appointment, or scheduled completion date of the project. The employee's return home for weekends or incidental short term travel to another location does not break the continuity of a long term assignment.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19820(a) and 19849.5, Government Code. Reference: Sections 11030 and 14613, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
2. Amendment of subsections (a)(4) and (b)(3) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.
3. Amendment of subsection (b)(3) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).
§599.619. Reimbursement for Meals and Lodging--Excluded Employees.
Note • History
The employee on travel status shall be reimbursed actual expenses for receipted lodging, and for meals and incidentals as provided in this section, unless directed to travel under the provisions of 599.624.1. Lodging and/or meals provided by the state or included in hotel expenses or conference fees, or in transportation costs such as airline tickets, or otherwise provided shall not be claimed for reimbursement. Snacks and continental breakfasts, such as rolls, juice and coffee, are not considered to be meals. The circumstances of travel will determine the rate allowed.
(a) Short-term Travel. Reimbursement for short-term subsistence will be authorized only when the traveler incurs expenses arising from the use of reasonable, moderately priced commercial lodging and meal establishments, such as hotels, motels, bed and breakfast inns, campgrounds, restaurants, cafes, diners, etc. that cater to the general public. Employees who stay with friends or relatives may claim meals only in accordance with the rates and time frames set forth below. Lodging receipts are required. The short-term rate is intended for trips of such duration that weekly or monthly rates are not obtainable and will be discontinued after the 30th consecutive day assigned to one location unless an extension has been previously documented and approved by the appointing power. In extending short term travel, the appointing power shall consider the expected remaining length of the travel assignment.
(1) In computing reimbursement for continuous short term travel of more than 24 hours and less than 31 consecutive days, the employee will be reimbursed for actual costs up to the maximum allowed for each meal, incidental, and lodging expense for each complete 24 hours of travel, beginning with the traveler's times of departure and return, as follows.
(A) On the first day of travel on a trip of 24 hours or more:
Trip begins at or before 6am: breakfast may be claimed on the first day
Trip begins at or before 11am: lunch may be claimed on the first day
Trip begins at or before 5pm: dinner may be claimed on the first day
(B) On the fractional day of travel at the end of a trip of more than 24 hours:
Trip ends at or after 8am: breakfast may be claimed
Trip ends at or after 2pm: lunch may be claimed
Trip ends at or after 7pm: dinner may be claimed
If the fractional day includes an overnight stay, receipt lodging may be claimed. No meal or lodging expense may be claimed or reimbursed more than once on any given date or during any 24 hour period.
(C) Reimbursement shall be for actual expenses only, subject to the following maximum rates:
Meals:
Breakfast $ 6.00
Lunch $ 10.00
Dinner $18.00
Incidentals $ 6.00
Receipts for meals must be maintained by the employee as substantiation that the amount claimed was not in excess of the amount of actual expense. The term incidentals includes but is not limited to expenses for laundry, cleaning and pressing of clothing, and fees and tips for services, such as for porters and baggage carriers. It does not include taxicab fares, lodging taxes or the costs of telegrams or telephone calls.
Lodging:
Statewide, with receipts Actual up to $84.00 plus tax
When employees are required to do
business and obtain lodging in the
Counties of Los Angeles and San
Diego Actual lodging up to $110.00 plus tax
When employees are required to do business and obtain lodging in the Counties of Alameda, San Francisco, San Mateo and Santa Clara, actual lodging up to $140 plus tax.
If lodging receipts are not submitted, reimbursement will be for actual expenses for meals/incidentals only at the rates and time frames set forth in this section.
(2) In computing reimbursement for continuous travel of less than 24 hours, actual expenses, up to the maximums in (C) above, will be reimbursed for breakfast and/or dinner and/or lodging in accordance with the following timeframes:
Travel begins at or before 6 a.m. and ends at or after 9 a.m: Breakfast may be claimed.
Travel begins at or before 4 p.m. and ends at or after 7 p.m: Dinner may be claimed.
If the trip of less than 24 hours includes an overnight stay, receipted lodging may be claimed.
No lunch or incidentals may be reimbursed on travel of less than 24 hours.
(b) Long-term Travel. Reimbursement for long-term meals and receipted lodging will be authorized when the traveler incurs expenses in one location comparable to those arising from the use of commercial establishments catering to the long-term visitor. Meals and/or lodging provided by the state shall not be claimed for reimbursement. With approval of the appointing power and upon meeting the criteria in (3) below, an employee on long-term field assignment who is living at the long term location may claim either:
(1) $24.00 for meals and incidentals and up to $24.00 for receipted lodging for travel of 12 hours up to 24 hours; either $24.00 for meals or up to $24.00 for receipted lodging for travel less than 12 hours, or
(2) Reimbursement for actual individual expense, substantiated by receipts, for lodging, utility gas and electricity, up to a maximum of $1130 per calendar month while on the long term assignment, and $10.00 for meals and incidentals, without receipts, for each period of 12 to 24 hours; $5.00 for meals and incidentals for periods of less than 12 hours at the long term location
(3) To claim expenses under either (1) or (2) above the employee must meet the following criteria:
(A) the employee continues to maintain a permanent residence at the primary headquarters and
(B) The permanent residence is occupied by employee's dependents, or
(C) The permanent residence is maintained at a net expense to the employee exceeding $200 per month.
(D) The employee must submit substantiating evidence of these conditions to the appointing power in accordance with its requirements.
(4) Employees who do not meet the criteria to claim (1) or (2) above may claim $12.00 for meals and incidentals and $12.00 for receipted lodging for every 12 to 24 hours at the long term location; $12 for meals OR $12 receipted lodging for periods of less than 12 hours at the long term location.
(5) With approval of the appointing power, the reimbursement of long term lodging may continue when the employee is away from the long term location on short term business travel or other absences from that location as approved by the appointing authority.
(c) Out-of-State Travel. Out-of-state travel is any travel outside the State of California for the purpose of conducting business outside the State of California. For short-term out-of-state travel, employees will be reimbursed for actual lodging expenses, supported by a receipt, and will be reimbursed for meal and incidental expenses as defined in Section 599.619(a). Failure to furnish lodging receipts will limit reimbursement to meals only at the rates specified in (a). Long-term out-of-state travel will be reimbursed according to Section 599.619(c).
(d) Out-of-Country Travel. For short-term out-of-country travel, employees will be reimbursed for actual lodging expenses, supported by a receipt, and will be reimbursed for actual meal and incidental expenses subject to maximum rates in accordance with the published Government meal and incidental rates for foreign travel for the dates of travel. Failure to furnish lodging receipts will limit reimbursement to meals only in accordance with the published Government meal and incidental rates for foreign travel. Long-term out-of-country travel will be reimbursed according to Section 599.619(a) through (c).
(e) Exceptions to reimburse in excess of the maximum lodging rate cited in (a) of this rule may be granted by the Appointing Power only in an emergency, or when there is no lodging available at the State maximum rate or when it is cost effective. The Appointing Power shall document the reasons for each exception and shall keep this documentation on file for three calendar years from the date of the exception.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 3527(b) and 11030, Government Code.
HISTORY
1. New chapter 3 (sections 599.619-599.745, not consecutive) filed 10-12-82 as an emergency; effective upon filing (Register 82, No. 42). A Certificate of Compliance must be transmitted to OAL within 180 days or emergency language will be repealed on 4-10-83.
2. Certificate of Compliance including amendments transmitted to OAL 3-15-83 and filed 4-19-83 (Register 83, No. 17).
3. Redesignation of sections 599.619-599.632, not consecutive, to article 2 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
5. Amendment filed by the Department of Personnel Administration with the Secretary of State on 5-23-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86, No. 26).
6. Amendment filed by the Department of Personnel Administration with the Secretary of State on 7-8-87; operative 7-8-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 32).
7. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 31).
8. Amendment of subsection (a)(4) filed by the Department of Personnel Administration with the Secretary of State on 9-1-88; operative 10-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 41).
9. Amendment of subsections (a)(1) and (a)(5) filed by the Department of Personnel Administration with the Secretary of State on 6-30-89; operative 6-30-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 33).
10. Amendment of subsections (a)(2)-(a)(4) filed by the Department of Personnel Administration with the Secretary of State on 10-20-89; operative 10-20-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 49).
11. Change without regulatory effect amending section filed 9-10-91 (corrected text filed 9-11-91) pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 51).
12. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code 3539.5 (Register 92, No. 12).
13. Editorial correction of printing errors in subsections (a)(1) and (a)(2)(A) (Register 92, No. 34).
14. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
15. Amendment filed 7-1-97; operative 7-1-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 27).
16. Amendment of subsection (a)(1)(C) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.
17. Amendment of subsection (a)(1)(C) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).
§599.620. Subsistence Allowance--Nonrepresented Employees, California State University and Colleges.
Note • History
NOTE
Authority cited: Sections 19815.4 and 19820, Government Code. Reference: Sections 11030 and 13920, Government Code; and Title 2, California Administrative Code, Div. 2, Ch. 1, Section 706.
HISTORY
1. New section filed 10-15-82 as an emergency; effective upon filing (Register 82, No. 42). A Certificate of Compliance must be transmitted to OAL within 180 days or emergency language will be repealed on 4-13-83.
2. Repealed by operation of Government Code Section 11346.1(g) (Register 83, No. 37).
§599.621. Subsistence Allowance--Represented Employees.
Note • History
A represented employee is defined in Section 599.615(c) of these regulations.
The represented employee on travel status shall be reimbursed for lodging, meals and incidental expenses. The circumstances of travel will determine the rate allowed.
(a) Short-term subsistence allowance will be authorized in accordance with the applicable provisions of a Memorandum of Understanding when the traveler incurs expenses comparable to those arising from the use of good, moderately priced establishments, catering to the general public. The short-term allowance is intended for trips of such duration that weekly or monthly rates are not obtainable and will be discontinued after the 30th consecutive day in one location unless a continuation has been previously approved by the appointing power. After 30 consecutive days in one location, represented employees may claim the long-term allowance.
(1) Incidental allowance as defined in the applicable provisions of a Memorandum of Understanding may be claimed for each 24-hour period.
(b) Long-term subsistence allowance will be authorized when the traveler incurs expenses in one location comparable to those arising from the use of establishments catering to the long-term visitor.
(1) A represented employee on long-term field assignment who maintains a permanent residence elsewhere while living at the job location may claim the full long-term allowance if one of the following exists:
(A) Permanent residence is occupied by the represented employee's dependents, or
(B) Permanent residence is maintained at a net expense to the represented employee exceeding $200 per month.
To qualify for this allowance, a represented employee must submit substantiating evidence of either condition to the appointing power in accordance with its requirements.
(2) A represented employee on long-term field assignment who does not maintain a permanent residence away from the job site will be authorized a long-term subsistence allowance of one-half the long-term allowance per day rounded to the nearest dollar.
(3) Represented employees may claim the appropriate long-term subsistence allowance (60% of the appropriate short-term allowance plus the incidental allowance) for every 24-hour period on travel status. Allowances for partial day travel status will be as follows:
(A) Less than 12 hours, one-half the appropriate allowance rounded to the nearest dollar.
(B) 12 to 24 hours, the full allowance.
(c) A non-commercial subsistence allowance will be authorized when the traveler incurs expenses comparable to those arising from the use of non-commercial subsistence facilities such as, but not limited to, house trailers or camping equipment.
(1) Represented employees may claim the non-commercial subsistence allowance (60% of the appropriate short-term allowance plus the incidental allowance) for every 24-hour period on travel status. Allowance for partial day travel status will be as follows:
(A) Less than 12 hours, one-half the appropriate allowance rounded to the nearest dollar.
(B) 12 to 24 hours, the full allowance.
(d) Out-of-State Subsistence Allowance. For out-of-state travel, represented employees will be reimbursed actual lodging expenses, supported by a voucher, and will be reimbursed for meal and incidental expenses in accordance with the applicable provisions of a Memorandum of Understanding.
(e) Out-of-Country Subsistence Allowance. When represented employees are authorized to travel outside the United States, and maintain a permanent U.S. residence occupied by the represented employee's dependents or maintained at a net monthly expense exceeding $200, reimbursement of subsistence expenses may exceed established rates only upon prior approval of the specific rates by the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 3513(c), 11030 and 11032, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Change without regulatory effect of subsection (b) filed 7-7-86; effective thirtieth day thereafter (Register 86, No. 28).
4. Change without regulatory effect amending section filed 9-11-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 52).
§599.622. Meal Expenses--Represented Employees.
Note • History
A represented employee is defined in Section 599.621.
(a) Overtime Meals. When a represented employee is required to work overtime, he/she may receive an overtime meal allowance for actual expenses, supported by a voucher, (unless superseded by a Memorandum of Understanding), not to exceed the maximums prescribed in the applicable provisions of a Memorandum of Understanding for lunches. To be eligible, the represented employee must be required to report to work at least two hours prior to or be required to remain at least two hours past his/her regularly scheduled work day.
When required to work for extended periods of time, the represented employee may be reimbursed for actual meal expenses not to exceed the maximums prescribed for lunches in the applicable provisions of a Memorandum of Understanding for each additional six-hour period. No more than three overtime meal allowances may be claimed during any 24-hour period. The meal time itself shall not be included in the computation of overtime for purposes of this allowance.
Agencies operating facilities for feeding officers, employees, and official guests may instead furnish an official guest meal to a represented employee. Agencies shall maintain a record of all guest meals furnished for this purpose. A represented employee may not claim reimbursement for an overtime meal or be furnished a meal free of charge if claiming per diem.
(b) Business-Related Meals. When it is necessary for represented employees to conduct official state business during a meal, they may be reimbursed for actual meal expenses substantiated by a voucher up to the
maximums prescribed in the applicable provisions of a Memorandum of Understanding.
To claim reimbursement for a business-related meal, the circumstances surrounding the meal must be beyond the control of the represented employee and it must be impractical to complete the business during normal working hours. Represented employees may not claim reimbursement for a business-related meal if they are also claiming per diem.
Claims for meal expenses where business is incidental to the meal or the attendance of the represented employee is primarily for public or community relations are specifically prohibited.
This section is intended to allow an agency to reimburse represented employees for meal expenses in the limited number of instances when they are required to incur such expenses in connection with the conduct of official state business.
(c) Represented employees of the Department of Forestry engaged in emergency fire suppression activities may be reimbursed for meal expenses without regard to any limitations. Emergency fire suppression activities are defined as actions taken under emergency conditions to extinguish uncontrolled fires which threaten to destroy life, property, or resources.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19820 and 19822, Government Code. Reference: Sections 11030 and 19849.4, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.623. Miscellaneous Meal Expenses--Excluded Employees.
Note • History
(a) Overtime Meals. When an employee assigned to work week group 2 is required to work overtime, he/she may receive an overtime meal reimbursement of up to $8.00. To be eligible, the excluded employee must be required to report to work at least two hours prior to or remain at least two hours past his/her regularly scheduled work day, or work a minimum of 10 hours on a regularly scheduled day off or holiday.
When required to work for extended periods of time, the excluded employee may be reimbursed for meal expenses prescribed herein for each additional six-hours of overtime worked. No more than three overtime meal allowances may be claimed during any 24-hour period. The meal time itself shall not be included in the computation of overtime for purposes of this section.
In lieu of overtime meal reimbursement, agencies operating food service facilities may furnish an overtime meal to an excluded employee. Agencies shall maintain a record of all meals furnished for this purpose. An excluded employee may not claim reimbursement for an overtime meal or be furnished a meal free of charge if claiming travel meals.
Meals for Extended Arduous Work. On those rare occasions when an employee who is in a work week group other than work week group 2 would be required to physically or mentally work 10 hours or more (not including any breaks for meals) for an extended period of time, the employee, with approval of the appointing authority, may claim the actual cost of an arduous work meal up to $8.00. Such meals should only be approved when it is clear that the work schedule is consistently in excess of a normal full time schedule. Occasional extra hours worked, consistent with the nature of an other than Work Week Group 2 work schedule, do not meet the criteria for Extended Arduous Work Meals.
(b) Business-Related Meals. This section is intended to allow an agency to reimburse employees for meal expenses in the limited number of instances where they are required to incur such expenses in connection with the conduct of official state business with a person or persons from outside state government.
When it is necessary for an excluded employee to conduct official state business during a meal, he/she may be reimbursed for actual meal expenses, supported by a receipt, up to the maximums prescribed in Section 599.619(a)(1). Claims must include the establishment, the persons in attendance, the business conducted and the reason why the business had to be conducted during the meal period.
Business meals are not reimbursable when departments call meetings with their own and/or other department employees to conduct state business.
(1) To claim reimbursement for a business-related meal, the circumstances surrounding the meal must be beyond the control of the excluded employee and it must be impractical to complete the business during normal working hours, such as:
(A) to conduct state business with a person or persons from outside state service when availability of the person or persons is limited and it is imperative that business is conducted during the meal period, or
(B) to attend a board or commission meeting where attendance is mandatory and there is no adjournment during the meal period.
(2) Claims for meal expenses where business is incidental to the meal or the attendance of the excluded employee is primarily for public or community relations are specifically prohibited.
(c) Meals of Appointees. Members of non-salaried boards, commissions, and duly constituted advisory committees may be reimbursed for actual expenses up to the maximums prescribed in Section 599.619(a) when attending board, commission, and committee meetings. The restrictions of Section 599.616.1 do not apply. They may not claim this if they are also claiming subsistence allowance while on travel status.
While on travel status other than attending board, commission or committee meetings, appointees may be reimbursed for expenses prescribed in Section 599.619.
(d) Excluded employees of the Department of Forestry engaged in emergency fire suppression activities may be reimbursed for actual meal expenses without regard to mileage and time frame limitations to the extent that circumstances reasonably require such an exception. Emergency fire suppression activities are defined as actions taken under emergency conditions to extinguish uncontrolled fires which threaten to destroy life, property, or resources.
(e) Agencies operating facilities for feeding officers, employees and official guests may furnish an official guest meal to an employee. Agencies shall maintain a record of all guest meals furnished for this purpose. An employee may not claim reimbursement for a travel or overtime meal that has been provided as a guest meal.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. Repealer and new section filed by Department of Personnel Administration with the Secretary of State on 9-9-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Correction of History 1. (Register 86, No. 28).
3. Amendment filed by Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 31).
4. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code 3539.5 (Register 92, No. 12).
5. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
6. Amendment of subsection (c) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.
§599.624. Contracting for Subsistence Expenses.
Note • History
Agreements may be entered into with restaurants, hotels, and lodging houses for the furnishing of subsistence to groups of state employees when such method of handling is advantageous to the State. When such agreements are entered into, the vendor may receive payment either from the group leader or by billing the State on a regular itemized invoice.
(a) Group leaders who pay subsistence expenses for other personnel may claim reimbursement by submitting a vendor's invoice and a list of names of the employees whose expenses were paid.
(b) Members of a group who have some portion of their subsistence expenses paid by the group leader may claim reimbursement for the remainder of their actual and necessary subsistence expenses in accordance with Section 599.619(a) or the applicable provisions of a Memorandum of Understanding as appropriate for any subsistence not provided.
(c) The total payment under any such agreement shall not exceed the aggregate of the subsistence allowances otherwise claimable by the participating employees.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Editorial correction of first sentence (Register 95, No. 37).
§599.624.1. Contracting for Meals and/or Lodging Expenses--Excluded Employees.
Note • History
Appointing authorities may enter into agreements with restaurants, hotels, and lodging establishments for the furnishing of subsistence to state employees at or below the rates provided in these rules when such method of handling is advantageous to the State. When such agreements are entered into, the vendor may receive payment either from the employee, a group leader or by billing the State on a regular itemized invoice.
(a) Group leaders who pay subsistence expenses for other personnel may claim reimbursement by submitting a vendor's invoice and a list of names of the employees whose expenses were paid.
(b) Individuals who have specific meal and/or lodging expenses paid by the group leader or department may not claim reimbursement for those meal and lodging expenses per 599.619.
(c) The total payment under any such agreement shall not exceed the aggregate of the subsistence allowances otherwise claimable by the participating employees.
(d) No individual's reimbursement shall exceed the rate(s) negotiated under the provisions of this section or the maximum subsistence rates provided in these rules, whichever is less.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.625. Receipts or Vouchers.
Note • History
(a) Receipts or vouchers shall be submitted for every item of expense except as follows:
(1) Railroad and bus fares, where the fares are available in published tariffs, and travel is wholly within the State of California. However, vouchers must be submitted in the case of cash purchases of airplane travel, Pullman accommodations, or extra fare train, travel by any common carrier outside of the State except taxi or hotel bus fares.
(2) Subsistence allowances, except when specified.
(3) Street car, ferry fares, bridge and road tolls.
(4) Long distance telephone or telegraph charges, if date, place and party called are shown, unless the telephone call is in excess of $2.50 in which case vouchers or other supporting evidence shall be provided.
(5) Taxi or hotel bus fares, when necessary upon official business.
(6) All legal expenditures of $1 or less.
(7) Parking fees of $3.50 or less for any one continuous period of parking.
(b) In cases where receipts cannot be obtained or have been lost, a statement to that effect shall be made in the expense account and the reason given. In the absence of satisfactory explanation the amount involved shall not be allowed.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.625.1. Receipts--Excluded Employees.
Note • History
An excluded employee is defined in Section 599.615(b).
(a) Receipts are required for each item of expense of $25.00 or more. As specified in this rule, receipts are also required for items of expense of less than $25.00. Receipts shall be submitted with claims for every item of business expenses incurred while away from headquarters conducting state business except for actual expenses as follows:
(1) Railroad and bus fares of less than $25.00 when travel is wholly within the State of California.
(2) Street car, ferry fares, bridge and road tolls, local rapid transit system, taxi, shuttle or hotel bus fares, and parking fees of $10.00 or less for each continuous period of parking or each item of transportation expense noted in this item.
(3) Telephone, telegraph, fax or other business charges related to State business of $5.00 or less.
(b) In the absence of a receipt, reimbursement shall be limited to the non-receipted amount above.
(c) Regardless of the exceptions in (a) above, the authority approving the claim and/or the appointing power may require any additional verification, or information, he/she deems necessary to determine that an expense was actually and reasonably incurred. In the absence of satisfactory explanation no reimbursement shall be allowed. If there is reason to believe that inappropriate non-receipted expenses have been claimed, receipts may be required for each item of expense listed above for future travel.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 9-1-88; operative 10-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 41).
2. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code 3539.5 (Register 92, No. 12).
3. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.626. Transportation Expenses.
Note • History
(a) Transportation expenses consist of the charges for commercial carrier fares; private car mileage allowances; emergency repairs to state cars; overnight and day parking of state or privately-owned cars; bridge and road tolls; necessary taxi, bus, or streetcar fares; and all other charges essential to the transport from and to the official headquarters.
(b) Reimbursement will be made only for the method of transportation which is in the best interest of the State, considering both direct expense as well as the officer's or employee's time. Provided the mode of transportation selected does not conflict with the needs of the agency, the officer or employee may use a more expensive form of transportation and be reimbursed at the amount required for a less expensive mode of travel. Both modes of transportation will be shown on the travel claim with reference to this section.
(c) In any case in which reimbursement for expenses of transportation by private automobile or privately-owned airplane is claimed, the license number of the automobile or the civilian airplane license number as well as the name of each state officer, employee, or board, commission, or authority member transported on the trip shall be stated. As such reimbursement is for the expense of use of the automobile or airplane regardless of the number of persons transported, no reimbursement for such transportation shall be allowed any passenger in any automobile or airplane operated by another such officer, employee or member.
In the determination of fares or mileage paid for transportation by airplane, the point of origin or return shall be an appropriate airport facility serving the area of the employee's headquarters or residence, whichever results in the lesser distance or amount.
(d) Expenses arising from travel between home or garage and headquarters shall not be allowed. When a trip is commenced or terminated at claimant's home, the distance traveled shall be computed from either his/her headquarters or home, whichever shall result in the lesser distance.
Exceptions to the above are:
(1) Where such expenses are incurred by call back for overtime work necessitating more than one trip to the work location on a normal work day or by reason of any call back on an employee's normal day off.
(2) When the headquarters of a permanent, full time employee is located 24 or more kilometers (15 or more road miles) one way from the nearest residential area with available housing, the appointing power may authorize payment of expenses incurred by an employee in the use of a privately owned vehicle.
(A) The authorizing agency must obtain prior approval from the Department of Personnel Administration with regard to the location of the nearest residential area with available housing and amount of mileage to be paid.
(B) Reimbursement will be at the rate provided in Section 599.631(b) or the applicable provisions of a Memorandum of Understanding, as appropriate, for distance driven and authorized in accordance with this rule and being in excess of 48 kilometers (30 miles) round trip.
(C) The term “available housing” as used in this subsection is intended to relate primarily to the quantity of housing available and not to its quality or cost.
(D) Distance will be computed from a location within the selected nearest residential area to the employee's work headquarters by the most direct road route and not the actual miles driven.
(E) If an employee's residence is not located in the designated residential area, but is more than 48 kilometers (30 miles) round trip from his/her remote location headquarters, he/she may be reimbursed for travel from his/her residence or from the selected location within the designated residential area, whichever is less.
(F) Payments will be authorized only if the appointing power has determined that the employee cannot participate in a department sponsored car or van pool.
(G) An employee whose headquarters is designated as remote and who lives in the designated residential area who is required to report to a worksite other than headquarters for a particular day, and who is required to use his/her own vehicle shall receive payment for the round trip from the designated residential area to the worksite.
(H) An employee whose headquarters is designated as remote and who lives less than 24 kilometers (15 miles) from headquarters, who is required to report to a worksite other than headquarters for a particular day, and who is required to use his/her own vehicle shall receive payment for the round trip from his/her own residence to the worksite or his/her headquarters to the worksite, whichever is less.
(I) An employee whose headquarters is designated as remote, who does not live in the designated area but lives more than 24 kilometers (15 miles) from his/her headquarters, who is required to report to a worksite other than headquarters for a particular day and who is required to use his/her own vehicle shall receive payment for the actual round-trip distance by the most direct route, not to exceed:
1. The distance from the designated residential area to the worksite, or
2. The distance from the employee's headquarters to the worksite, whichever is greater.
(3) When travel to or from a common carrier commences or terminates one hour before or one hour after the regularly scheduled work day or on a regularly scheduled day off, distance may be computed from the employee's residence in accordance with Section 599.631(c) or the applicable provisions of a Memorandum of Understanding as appropriate.
(e) When an employee's regular work assignment requires him/her to rotate among two or more posts or work stations at different geographic locations within a metropolitan area either to protect state property or state personnel and he/she is instructed to report directly to the designated post for a full shift, distance from his/her home to the designated post and return shall be limited to that which exceeds the round trip distance from his/her home to his/her designated headquarters, and shall be computed at the rate set forth under Section 599.631(b) or in the applicable provisions of a Memorandum of Understanding as appropriate. For the purpose of determining the correct distance to be allowed in these situations, headquarters shall be a designated single geographic location or address regardless of whether the employee spends a major or significant portion of his/her working time there.
(f) No reimbursement will be allowed for transportation expense when the employee uses a privately-owned motorcycle or motor-driven cycle in the conduct of official state business.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.626.1. Transportation Expenses--Excluded Employees.
Note • History
(a) Transportation expenses consist of the charges for commercial carrier fares; private care mileage allowances; emergency repairs to state cars; overnight and day parking of state or privately-owned cars; bridge and road tolls; necessary taxi, bus, or streetcar fares; and all other charges essential to the transport from and to the official headquarters while on authorized state business.
(b) Reimbursement will be made only for the method of transportation which is in the best interest of the State, considering both direct expense as well as the officer's or employee's time. Provided the mode of transportation selected does not conflict with the needs of the agency, the officer or employee may use a more expensive form of transportation and be reimbursed at the amount required for the least expensive mode of travel that is in the best interest of the state. Both modes of transportation will be shown on the travel claim with reference to this section. A cost comparison shall be completed and attached to the claim. Cost comparisons shall include only the least costly methods of transport for those expenses actually being substituted, and shall include only the expenses of traveling from one location to another. Transportation expense at the travel work location will be reimbursed based on the actual business transportation expenses incurred while at the travel location.
(c) Expenses arising from travel between home or garage and headquarters shall not be allowed regardless of the employee's normal mode of transportation. When a trip is commenced or terminated at claimant's home, the distance traveled shall be computed from either his/her headquarters or home, whichever shall result in the lesser distance.
Exceptions to the above are:
(1) Where such expenses are incurred by call back to work necessitating more than one trip to the work location on a normal work day or by reason of any call back or pre-scheduled work on an employee's normal day off.
(2) When travel to or from a common carrier commences or terminates one hour before or one hour after the regularly scheduled work day or on a regularly scheduled day off, distance may be computed from the employee's residence in accordance with Section 599.631.
(3) When the criteria in 599.626(d)(2) for remote headquarters are met. This reimbursement is allowed only with the advance written approval of the Department of Personnel Administration.
(d) When an employee's regular work assignment requires him/her to report to or rotate among two or more posts or work stations at different geographic locations and he/she is instructed to report to a designated post, the reimbursable distance from his/her home to the designated post and return shall be limited to that which exceeds the round trip distance from his/her home to his/her designated headquarters. Reimbursement shall be computed at the rate set forth under Section 599.631.
(e) No reimbursement will be allowed for transportation expense when the employee uses a privately-owned motorcycle or motor-driven cycle in the conduct of state business.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
2. Amendment of subsection (c)(3) and (d) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.
§599.627. Special Transportation.
Note • History
(a) Where it is necessary to hire special conveyances, except automobiles, a full explanation, stating the facts constituting the necessity, shall accompany the expense claim.
(b) Commercial Automobile Rental.
(1) Reimbursement will be for actual and necessary costs of such rental when substantiated by a voucher. Where it is necessary to pay extra charges or premium rental rates for air conditioning, convertible bodystyle, expensive, or other luxury items, a full explanation shall accompany the expense claim.
(2) Reimbursement will not be made for a damage waiver. Reimbursement will be made to the officer or employee for any loss necessarily sustained by him/her by reason of his/her not having purchased such waiver.
(c) Where a privately owned bicycle is used in the conduct of official state business, the employee will be allowed to claim 4 cents per 1.6 kilometers (mile).
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code, Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.627.1. Special Transportation--Excluded Employees.
Note • History
(a) Where it is authorized and necessary to hire special conveyances, except automobiles, a full explanation, stating the facts constituting the necessity, shall accompany the expense claim.
(b) Commercial Automobile Rental.
(1) Reimbursement will be for actual and necessary costs of such rental when substantiated by a receipt. Where it is necessary to pay extra charges or premium rental rates for a larger vehicle or one that is specially equipped, a full explanation shall accompany the expense claim. Reimbursement of the additional expenses shall be subject to approval by the appointing power.
(2) Reimbursement will not be made for a damage waiver. Reimbursement will be made to the officer or employee for any loss necessarily sustained by him/her not having purchased such waiver.
(c) Where a privately owned bicycle is used in the conduct of official state business, the employee will be allowed to claim 4 cents per mile.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.628. Transportation by Aircraft.
Note • History
(a) Scheduled Airline. Claims for transportation by scheduled airline shall be allowed at the lowest fare available in conformity with the regular published tariffs for scheduled airlines in effect on the date the flight originated. Claims for reimbursement of higher fares or extra charges for transportation by scheduled airline may be allowed if accompanied by a full explanation stating the facts constituting the official necessity.
(b) Privately-Owned Aircraft. A claim of an employee for transportation by privately-owned aircraft shall be allowed where he/she has obtained prior approval of the use of this form of transportation from his/her department. If an employee is to act as pilot, he/she must satisfy the requirements of the Insurance Officer, Department of General Services, as to liability insurance coverage. The Insurance Officer shall file approved authorizations for such allowance with the State Controller.
(1) Except as provided in subsection (e), reimbursement for use of the employee's privately-owned aircraft shall be made at the rate of 28 cents per statute mile, or in accordance with the applicable provisions of a Memorandum of Understanding.
(A) Distance shall be computed on the basis of shortest air route from origin to destination, using airways whenever possible. Distance shown on claim shall be clearly marked “Air Distance.”
(B) When the trip is limited solely to state business and the “Air Distance” cannot accurately be computed from origin to destination, the department director may authorize reimbursement for the actual cost of renting a plane.
(2) Reimbursement for use of a rented aircraft will be for actual and necessary costs of such rental when substantiated by voucher.
(A) Reimbursement will be authorized only for the size and type aircraft necessary to complete the assignment.
(3) When substantiated by a voucher, reimbursement will be made for actual and necessary expenses for landing and parking fees in connection with the use of the aircraft. Reimbursement will not be allowed for storage or parking fees at the location where the privately-owned aircraft is normally stored.
(4) If an employee is to act as pilot and carry passengers he/she must, in addition to Federal Aviation Administration Regulations, have previously logged as a licensed private pilot in command of an aircraft at least 250 hours of actual flight. In addition, the employee pilot must have logged, as a pilot in command of an aircraft, at least 40 hours of actual flight within the preceding 12 months. Any employee pilot who has carried or intends to carry passengers may be required to present his/her log book substantiating that he/she meets the requirements. Passenger shall be defined as any person other than the pilot traveling in the aircraft. An employee pilot who carries a passenger but fails to meet the above qualifications shall not be reimbursed for transportation expense.
(c) Payment of Fare. Payment for transportation by aircraft may be made by (1) cash, (2) credit card, or (3) ticket order. When payment is made by cash, the travel expense claim must be accompanied by the traveler's flight coupon, in accordance with Section 599.625(a)(1). If no flight coupon was issued, as may be the case with chartered or private aircraft, a formal receipt must be submitted. If payment was made by credit card or by ticket order, this should be noted on the travel expense claim.
(d) Air Travel Insurance. Any state agency may insure its officers and employees against injury or death arising from aircraft accidents incurred while flying on state business in other than regularly scheduled passenger aircraft, subject to the following conditions:
(1) Insurance shall be provided only to those employees who are directd to fly to fulfill their work requirements. Insurance coverage shall not be provided when the use of a privately-owned aircraft is for point-to-point transportation and is a voluntary response from the employee, even though such use may be advantageous to the State.
(2) Application for insurance shall be submitted to, and the insurance procured by, the Department of General Services.
(3) Except as provided in subsection (4) below, the maximum limit of such insurance shall be $15,000 in the case of death or dismemberment for each officer and employee.
(4) For nonrepresented employees, as defined in Section 599.619, the maximum limit for air travel insurance shall be $50,000 in the case of death or dismemberment for each officer and employee.
(e) For nonrepresented employees reimbursement for use of the employee's privately-owned aircraft shall be made at the rate of 50 cents per statute mile.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 11030 and 11030.5, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 18).
4. Amendment of subsection (e) filed by the Department of Personnel Administration with the Secretary of State on 7-8-87; operative on 7-8-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 32).
§599.628.1. Transportation by Aircraft--Excluded Employees.
Note • History
In the determination of fare or mileage reimbursement for transportation by airplane, the point of origin and return shall be an appropriate airport facility serving the area of the employee's residence or headquarters, whichever is most advantageous for the State.
(a) Scheduled Airline. Reimbursement of expenses for transportation by scheduled airline shall be at the current contract rate; except that when the employee's actual airfare is lower, the lower amount shall be reimbursed. Claims for reimbursement of higher fares or extra charges for transportation by scheduled airline may be allowed if accompanied by a full explanation stating the facts constituting the official necessity, and approved by the appointing power.
(b) Privately-Owned Aircraft. A claim of an employee for transportation by privately-owned aircraft shall be allowed where he/she has obtained prior approval of the use of this form of transportation from his/her department. If an employee is to act as pilot, he/she must satisfy the following insurance requirements:
(1) certificate of current insurance in an amount of not less than $50,000 per person liability.
(2) certificate of current insurance in an amount of not less than $1,000,000 liability per incident.
(3) Reimbursement for the use of the employee's privately-owned aircraft shall be made at the rate of 50 cents per statute mile. Claims for reimbursement for privately-owned aircraft expenses must include the civilian airplane license number and the name of each state officer; employee; or board, commission, or authority member transported on the trip. No reimbursement of transportation expenses will be allowed any employee while a passenger in any airplane operated by another officer, employee or member.
(A) Distance shall be computed on the basis of shortest air route from origin to destination, using airways whenever possible. Distance shown on claim shall be clearly marked “Air Distance.”
(B) When the trip is limited solely to state business and the “Air Distance” cannot accurately be computed from origin to destination, the department director may authorize reimbursement for the actual cost of renting a plane.
(4) Reimbursement for use of a rented aircraft will be for actual and necessary costs of such rental when substantiated by a receipt.
(A) Reimbursement will be authorized only for the size and type aircraft necessary to complete the assignment.
(B) When substantiated by a receipt, reimbursement will be made for actual and necessary expenses for landing and parking fees in connection with the use of the aircraft. Reimbursement will not be allowed for storage or parking fees at the location where the privately-owned aircraft is normally stored.
(6) If an employee is to act as pilot and carry passengers he/she must, in addition to Federal Aviation Administration Regulations, have previously logged as a certified pilot, at least 250 hours of actual flight as pilot in command of an aircraft. In addition, the employee pilot must have logged, as a pilot in command of an aircraft, at least 40 hours of actual flight within the preceding 12 months.
Any employee pilot who has carried or intends to carry passengers may be required to present his/her log book substantiating that he/she meets the requirements. Passenger shall be defined as any person other than the pilot traveling in the aircraft. An employee pilot who carries a passenger but fails to meet the above qualifications shall not be reimbursed for transportation expense.
(c) Payment of Fare. Payment for transportation by aircraft may be made by (1) cash, (2) credit card, or (3) ticket order. When payment is made by cash, the travel expense claim must be accompanied by the traveler's flight coupon, in accordance with Section 599.625(a)(1). If no flight coupon was issued, as may be the case with chartered or private aircraft, a formal receipt must be submitted. If payment was made by credit card or by ticket order, this should be noted on the travel expense claim.
(d) Air Travel Insurance. Any state agency may insure that its officers and employees against injury or death arising from aircraft accidents incurred while flying on state business in other than regularly scheduled passenger aircraft, subject to the following conditions:
(1) Insurance shall be provided only to those employees who are directed to fly to fulfill their work requirements. Insurance coverage shall not be provided when use of a privately-owned aircraft is for point-to-point transportation and is a voluntary response from the employee, even though such use may be advantageous to the State.
(2) Application for insurance shall be submitted to, and the insurance procured by, the Department of General Services.
(3) Except as provided in subsection (4) below, the maximum limit of such insurance shall be $15,000 in the case of death or dismemberment for each officer and employee.
(4) For excluded employees, as defined in Section 599.619.1, the maximum limit for air travel insurance shall be $50,000 in the case of death or dismemberment for each officer and employee.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 11030 and 11030.5, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.629. Railroad Transportation.
Note • History
(a) No more than actual fare on any transportation service, in accordance with the latest tariffs at the time the trip was made, shall be allowed. Special rates and round-trip rates shall be used whenever possible.
(b) Reimbursement for roomette Pullman accommodations will be allowed. Where it is necessary to use Pullman accommodations more expensive than a roomette, a full explanation stating the facts constituting the official necessity shall accompany the expense account together with a receipted voucher.
(c) Unused portions of railroad and sleeping car tickets are subject to refunds and all steps necessary to secure refunds on such tickets shall be taken.
(d) Any unusual delay or a deviation from the shortest, usually travelled route shall be explained unless connected with return trip out-of-state deportation travel authorized by the Department of Mental Health or the Department of the Youth Authority.
(e) In connection with return trip out-of-state deportation travel authorized by the Department of Mental Health or the Department of the Youth Authority, reimbursement for subsistence and transportation expenses shall be made on the basis of shortest usually travelled routes, conventional train time, first class fare, and lower standard Pullman rates as certified to by a railroad passenger agent.
(f) Meals incurred while on overnight train travel will be reimbursed in accordance with Section 599.619(a) or the applicable provisions of a Memorandum of Understanding as appropriate.
(g) Tickets for rail transportation or Pullman accommodations may be purchased (1) by the individual, (2) by credit card, or (3) ticket order. If purchased by credit card, or by ticket order this fact should be noted on the individual's expense claim.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.629.1. Railroad Transportation--Excluded Employees.
Note • History
(a) No more than actual fare on any transportation service, in accordance with the latest tariffs at the time the trip was made, shall be allowed. Special rates and round-trip rates shall be used whenever possible.
(b) Reimbursement for roomette or Pullman accommodations will be allowed. Where it is necessary to use Pullman accommodations more expensive than a roomette, a full explanation stating the facts constituting the official necessity shall accompany the expense account together with a receipt.
(c) Unused portions of railroad and sleeping car tickets are subject to refunds and all steps necessary to secure funds on such tickets shall be taken.
(d) Any unusual delay or a deviation from the shortest, usually travelled route shall be explained.
(e) Any expenses related to deportation will be reimbursed in accordance with Federal Immigration and Naturalization Service rules.
(f) Meals incurred while on overnight train travel will be reimbursed in accordance with Section 599.619.
(g) Tickets for rail transportation or Pullman accommodations may be purchased by the individual, by credit card, or ticket order. If purchased by credit card or by ticket order, this fact should be noted on the individual's expense claim.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.630. Transportation by Automobile--Represented Employees.
Note • History
A represented employee is defined in Section 599.621.
(a) When the represented employee is authorized to use a privately owned automobile even though a state automobile is available, the rate as defined in the applicable provisions of a Memorandum of Understanding will be allowed.
(b) When the represented employee uses a privately owned automobile because the agency has determined that: (1) a state automobile is not available; or (2) it is more advantageous economically to the State for the employee to use his/her own automobile, even though a state automobile is available, the represented employees may claim up to 20.5 cents per 1.6 kilometers (mile) without certification and up to 25 cents per 1.6 kilometers (mile) with certification as defined in the applicable provisions of a Memorandum of Understanding. Even though a state automobile may in fact be on hand, it may not be available to the represented employee because it is reserved for other purposes or because it is more advantageous economically to the State for the represented employee to use his/her own automobile, or because use of a state automobile is unreasonable considering all circumstances in a particular situation. In determining economic advantage of state versus private automobile, a supervisor will include the following in his/her consideration.
(1) Distance to be traveled and duration of trip, as these affect direct costs.
(2) Location of the represented employee's residence, regular workplace, destination, and location of available state automobiles; as these factors affect employee time and distance traveled.
The Department of Personnel Administration may establish appropriate controls over payment of this allowance by a state agency when the Department reasonably believes that proper control has not been exercised by the agency.
(c) When the represented employee's use of a privately owned automobile is authorized for travel to or from a common carrier terminal, and the automobile is not parked at the terminal during the period of absence, a rate of 37 cents up to 50 cents per 1.6 kilometers (mile) as defined in the applicable provisions of a Memorandum of Understanding may be claimed while the employee occupies the vehicle for the distance between the terminal and his/her residence or headquarters, whichever is less, except if the employee commences or terminates travel one hour before or one hour after his/her regularly scheduled work day, or on a regularly scheduled day off, mileage may be computed from his/her residence.
Claims exceeding 41 cents per 1.6 kilometers (mile) must be certified in accordance with Section 599.630(b).
(d) All ferry, bridge, or toll road charges will be allowed.
(e) All necessary parking charges while on state business will be allowed for:
(1) Day parking on trips away from the headquarters office and employee residence.
(2) Overnight public parking on trips away from the headquarters and employee residence cities, except that parking should not be claimed if expense-free overnight parking is available.
(3) Day parking adjacent to headquarters office, but only if the employee had other reimbursable private car expenses for the same day. Represented employees may not prorate weekly or monthly parking fees.
(f) Gasoline and routine car repair expenses will not be allowed.
(g) The mileage reimbursement rates include the cost of maintaining liability insurance at the minimum amount prescribed by law and collision insurance sufficient to cover the reasonable value of the vehicle, less a standard deductible. When a privately owned vehicle operated by represented employee is damaged by collision or is otherwise accidentally damaged, reasonable reimbursement for repair will be allowed if:
(1) The damage occurred while the vehicle was used on official state business by permission or authorization of the employing agency; and
(2) The vehicle was damaged through no fault of the represented employee; and
(3) The amount claimed is an actual loss to the represented employee, and is not recoverable directly from or through the insurance coverage of any party involved in the accident; and
(4) The loss claimed does not result from a decision of a represented employee not to maintain collision coverage; and
(5) The claim is process in accordance with the procedures prescribed by the Department of General Services.
(h) Specialized Vehicles. Represented employees with a physical disability who must operate a motor vehicle on official state business and who operate only specially equipped or modified vehicles may claim up to 31 cents per 1.6 kilometers (mile) with certification in accordance with Section 599.630(b) of these regulations. Supervisors approving these claims must determine the employees's need for the use of such vehicles.
NOTE
Authority cited: Sections 19815.4(d), 19815, 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.631. Transportation by Privately Owned Automobile--Excluded Employees.
Note • History
(a) Where the employee is authorized to use a privately owned automobile on official state business the reimbursement rate shall be 34 cents per mile. Claims for reimbursement for private vehicle expenses must include the vehicle license number and the name of each state officer, employee or board, commission or authority member transported on the trip. No reimbursement of transportation expense shall be allowed any passenger in any vehicle operated by another state officer, employee or member.
(1) Expenses arising from travel between home and headquarters or garage shall not be allowed, except as provided in 599.626(d)(2) or 599.626.1(c), regardless of the employee's normal mode of transportation.
(2) When a trip is commenced or terminated at a claimant's home on a regularly scheduled work day, the distance traveled shall be computed from either his/her residence or headquarters, whichever shall result in the lesser distance except as provided in 599.626.1(c).
(3) However, if the employee commences or terminates travel on a regularly scheduled day off, mileage may be computed from his/her residence.
(b) Where the employee's use of a privately owned automobile is authorized for travel to or from a common carrier terminal, and the automobile is not parked at the terminal during the period of travel, the employee may claim double the number of miles between the terminal and the employee's headquarters or residence, whichever is less, at a rate as defined in Section 599.631(a), while the employee occupies the automobile for the distance between the terminal and his/her residence or headquarters. If the employee commences or terminates travel one hour before or after his/her regularly scheduled work day, or on a regularly scheduled day off, mileage may be computed from his/her residence.
(c) All ferry, bridge, or toll road charges will be allowed with any required receipts.
(d) All necessary parking charges while on state business will be allowed, with any required receipts, for:
(1) Day parking on trips away from the headquarters office and excluded employee's primary residence.
(2) Overnight public parking on trips away from the headquarters and excluded employee's primary residence, except that parking shall not be claimed if expense-free overnight parking is available.
(3) Day parking adjacent to either a headquarters office, a temporary job site or training site, but only if the excluded employee had other reimbursable private or state automobile expenses for the same day. An employee may not prorate weekly or monthly parking fees.
(e) Gasoline, maintenance and automobile repair expenses will not be allowed.
(f) The mileage reimbursement rates include the cost of maintaining liability insurance at the minimum amount prescribed by a law and collision insurance sufficient to cover the reasonable value of the automobile, less a deductible. When a privately owned automobile operated by state officer, agent or excluded employee is damaged by collision or is otherwise accidentally damaged, reimbursement for repair or the deductible to a maximum of $500.00 will be allowed if:
(1) The damage occurred while the automobile was used on official state business by permission or authorization of the employing agency; and
(2) The automobile was damaged through no fault of the state officer, agent or excluded employee; and
(3) The amount claimed is an actual loss to the state officer, agent or excluded employee, and is not recoverable directly from or through the insurance coverage of any party involved in the accident; and
(4) The loss claimed does not result from a decision of a state officer, agent or excluded employee not to maintain collision coverage; and
(5) The claim is processed in accordance with the procedures prescribed by the Department of Personnel Administration.
(g) Specialized Vehicles. An employee with a physical disability who must operate a motor vehicle on official state business and who can operate only specially equipped or modified vehicles may claim a rate of 34 cents per mile without certification and up to 37 cents per mile with certification. Where travel is authorized to and from a common carrier terminal, as specified in Section 599.631(b) the employee may compute the mileage as defined in Section 599.631(b). Supervisors approving these claims must determine the employee's need for the use of such vehicles.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. Amendment of subsections (a)-(c) and (h) filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 7-8-87; operative 7-8-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 32).
3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 31).
4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-30-89; operative 6-30-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 33).
5. Amendment filed 12-31-91 with Secretary of State by Department of Personnel Administration; operative 12-31-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 12).
6. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
7. Amendment of subsection (a)(1) filed 1-10-96; operative 1-10-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 96, No. 38).
8. Editorial correction of subsection (g) (Register 96, No. 38).
9. Amendment of subsection (a) filed 7-1-97; operative 7-1-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 27).
10. Amendment of subsections (a), (a)(2) and (g) filed 10-28-99; operative 11-2-99. Submitted to OAL for printing only (Register 99, No. 51). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.
11. Amendment of subsections (a) and (g) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).
§599.632. Transportation by Automobile-- Nonrepresented Employees, California State University and Colleges.
Note • History
NOTE
Authority cited: Sections 19815.4 and 19820, Government Code. Reference: Sections 11030 and 13920, Government Code; and Title 2, California Administrative Code, Div. 2, Ch. 1, Section 714.
HISTORY
1. New section filed 10-15-82 as an emergency; effective upon filing (Register 82, No. 42). A Certificate of Compliance must be transmitted to OAL within 180 days or emergency language will be repealed on 4-13-83.
2. Repealed by operation of Government Code Section 11346.1(g) (Register 83, No. 37).
§599.633. Travel Allowances While on Sick Leave, Vacation or Compensating Time Off (CTO).
Note • History
(a) When a state officer or employee is granted sick leave while away from his/her headquarters for purposes of state business, such officer or employee may claim reimbursement for travel expenses in accordance with the allowances prescribed by these rules during such sick leave, provided the allowances for travel expenses shall not be authorized for a period exceeding three days. The time limitation prescribed by this section may be exceeded in unusual cases approved by the Department of Personnel Administration.
(b) When a state officer or employee is authorized time off on vacation or CTO while away from his/her headquarters on state business, reimbursement for subsistence allowance during such vacation or CTO may not be claimed. The provisions of this section may be waived by an agency for employees claiming other than short-term allowances who are (1) authorized time off on CTO, or (2) employees in seasonal agricultural work authorized time off on vacation.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.633.1. Travel Reimbursements While on Sick Leave, Vacation, Other Paid Leave, or Compensating Time Off (CTO)--Excluded Employees.
Note • History
(a) When a state officer or employee is granted sick leave while away from his/her headquarters for purposes of state business, the appointing authority may approve such office or employee to claim reimbursement for actual travel expenses not to exceed the maximums prescribed by these rules during such sick leave, for a period not to exceed three days. This time limitation may be extended in unusual cases approved by the appointing power, when either the employee is unable to travel, or when it is more economical for the state to maintain the employee on sick leave and travel status in order to complete the assignment.
(b) When a state officer or employee is authorized time off for vacation or CTO while away from his/her headquarters on state business, reimbursement for travel expenses during such vacation or CTO shall not be paid.
(c) The appointing power may make exceptions for employees on long term assignments for long term lodging expenses only that are incurred at the long term location and will continue during the employee's absence.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.634. Expenses of Applicants Who Are Called for Interview.
Note • History
Reimbursement may be allowed for expenses of professional and technically trained applicants for state employment who are called for employment interviews.
(a) Written approval of the Department of Personnel Administration must be obtained before the applicant is called for the interview.
(b) The applicant must have been called for the interview regarding a position in a classification for which it has been certified that such expenditure is necessary in order to recruit qualified persons needed by the State. Certification must be made by the appointing power and the Department of Personnel Administration.
(c) Reimbursement of actual transportation expenses will be allowed in an amount not to exceed ground transportation to and from the nearest airport and one round trip air coach fare, plus applicable tax, between the place from which the applicant was called and the place where the interview is held. However, if an applicant is called from outside the boundaries of the United States, reimbursement shall apply only to that portion of the fare for travel within the United States.
(d) The Department of Personnel Administration may authorize the reimbursement of all or part of lodging and meal expenses in the place where the interview is held, when the appointing power has demonstrated the following:
(1) Reasonable efforts were made to coordinate applicant's transportation and interview schedule;
(2) Available transportation options were explored with regard to timeliness and convenience;
(3) Resulting interview and transportation arrangements reasonably required the applicant to incur the cost for which reimbursement is being claimed.
Reimbursement for these expenses shall be limited to the time period that is directly related to the candidate's scheduled interview. Reimbursement shall not be authorized for time spent at the interview location resulting from the candidate's decision to remain for personal reasons.
Meals and lodging expenses will be reimbursed at a rate not to exceed those noted in Section 599.619.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 11030 and 19842, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 2-20-86; effective thirtieth day thereafter (Register 86, No. 8).
4. Editorial correction of paragraph following subsection (d)(3) (Register 95, No. 37).
§599.635. Attending Conventions, Conferences, or Business Meetings.
Note • History
(a) All regulations governing short-term travel and subsistence allowances will apply except employees may be reimbursed for actual subsistence expenses, supported by voucher, when the convention or conference is planned and arranged by a non-state agency if such expenses are beyond the control of the employees.
(b) Registration fees will be allowed except for conventions or conferences called by a state agency for the dissemination of information to its own employees. Reimbursement for registration fees exceeding $50 must be approved by the department head or delegated representative.
(c) Where more than two individuals (officers or employees) from the same department are attending the same convention or conference, each claim must be approved by the department head or delegated representative. This requirement does not apply to a convention or conference called by a state department for purposes of instruction or dissemination of information to its own officers or employees.
(d) Exceptions to these regulations may be approved in advance by the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Editorial correction of History 1 (Register 95, No. 37).
§599.635.1. Attending Conferences, Conventions--Excluded Employees.
Note • History
For the purposes of this rule a conference or convention is a meeting, with a formal agenda, of persons to discuss or consult on specific work related subjects with the purpose of exchanging views, providing lecture or dialogue or providing or gaining skills and/or information for the good of the State.
(a) Under the direction of the Appointing Power, a State Sponsored Conference or Convention is planned and arranged by one or more state agencies for the benefit of the state and/or outside parties for the purpose of conducting State business. Specifically excluded is any event, meeting or gathering initiated by a state agency for dissemination of information to its own departmental employees. Costs and reimbursements for State Sponsored conferences are subject to the exclusions in (c) below. Approval for any individual employee's attendance or participation in a State Sponsored conference is at the sole discretion of the appointing authority. In planning and contracting any State sponsored conference, consideration is to be given to State-owned facilities and interagency meeting facilities, responsible scheduling, cost effective lodging and meal expenses, awareness of the public perception of state employee activities, and the overall mission of the event.
(1) Meals. Meals that are determined to be an integral part of the conference may be provided if the conference continues to be conducted while the meal is served and consumed. Conference planners may contract for the conference meals at reasonable meal rates and such costs may be included in registration fees for the event. Meals not included in registration fees or not provided as part of the conference will be reimbursable in accordance with 599.619. Meals provided shall not be claimed or reimbursed.
(2) Lodging. Lodging may or may not be negotiated as a part of the conference package. When it is appropriate to contract for lodging, rates will be negotiated in the best interest of the State, at the lowest rate possible to a maximum of $110, and be based only on those individuals who would normally spend the night considering the distance and duration of their travel status as defined in section 599.619.
(b) Non-state sponsored conference or convention.
(1) At the discretion of the appointing power, and if not included in a registration fee or otherwise provided, and subject to the restrictions in item (c), employees may be reimbursed for actual meals and lodging expenses included in the conference, supported by receipts. Meals and lodging not contracted for the event shall be reimbursable at the rates set forth in 599.619.
(2) At the discretion of the appointing power, but in accordance with (c) below, registration fees may be reimbursed totally or in part, based on the State interest being served, the needs of the department and the costs incurred.
(c) Specifically excluded from this rule are:
(1) Meetings initiated by a department for employees of that same department.
(2) Conference meals that are secondary to the business being conducted, or that are optional, or that are organized for social purposes.
(3) Any activities or expenses related to recreation, sports, entertainment or tourism.
(4) Any expense for alcoholic beverages.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.636. Return of Deceased Employees.
Note • History
When a state officer or employee dies while travelling on official state business, reimbursement may be claimed for actual and reasonable expenses incurred in returning the remains to the place of burial, up to the amount necessary to return the remains to the official headquarters of the deceased. Claims for the reimbursement of such expenses shall be submitted to the State Controller by the person responsible for payment of the funeral expenses. Each claim shall bear a certification by the appointing power that the employee was travelling on official state business at the time of his/her death. Actual costs of the following will be considered necessary travel expenses for which reimbursement will be made.
(a) In all cases, regardless of mode of transportation:
(1) Telephone or telegraph charges for shipment arrangements.
(2) Transportation of the remains to the funeral home, preparing the remains for shipment, not in excess of $1 per 1.6 kilometers (mile) one way.
(b) When a portion of the shipment is by common carrier:
(1) Transportation by common carrier to the receiving point nearest the official headquarters or place of burial, whichever is less.
(2) Transportation not in excess of 50 cents per 1.6 kilometers (mile) one way from a funeral home to a shipping station and from the receiving station determined by paragraph (1) above to the headquarters location or place of burial, as applicable.
(3) Outside transportation case and casket or rental metal transfer case, not to exceed $100 plus taxes.
(c) When shipment is made by funeral coach alone, transportation costs not to exceed 50 cents per 1.6 kilometers (mile) one way, from the pick-up point to the city in which the official headquarters of the deceased was located, or to the place of burial, whichever is the shorter distance.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19849.3 and 19463, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.636.1. Return of Deceased Employees--Excluded.
Note • History
When a state officer or employee dies while travelling on official state business, reimbursement may be claimed for actual and reasonable expenses incurred in transporting, in state, the remains to the place of burial, (up to the amount necessary to return the remains) or to the official headquarters of the deceased. Claims for the reimbursement of such expenses shall be submitted to the State Controller by the person responsible for payment of the funeral expenses. Each claim shall bear a certification by the appointing power that the employee was travelling on official state business at the time of his/her death. Actual costs of the following will be considered necessary travel expenses for which reimbursement will be made.
(a) In all cases, regardless of mode of transportation:
(1) Telephone or telegraph charges for shipment arrangements.
(2) Transportation of the remains to the funeral home and preparing the remains for shipment.
(b) When a portion of the shipment is by common carrier.
(1) Transportation by common carrier to the receiving point nearest the official headquarters or place of burial in the state where headquartered.
(2) Transportation one way from a funeral home to a shipping station and from the receiving station determined by paragraph (1) above to the headquarters location or place of burial, as applicable.
(3) Outside transportation case or metal transfer case as required.
(c) When shipment is made by funeral coach alone, reasonable transportation costs for mileage one way, from the pick-up point to the city in which the official headquarters of the deceased was located, or to the place of burial in that state, whichever is designated by the surviving responsible party.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19849.3 and 19463, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.637. Nonsalaried Assistance; State Personnel Board.
Note • History
(a) When persons provide nonsalaried assistance to the State Personnel Board or to another state department delegated by the State Personnel Board, in the preparation or conduct of written or oral examinations for state civil service, he/she may be reimbursed for necessary travel expenses as prescribed by these regulations for nonsalaried board and commission members.
(b) Meal expenses may be paid by State Personnel Board staff or the staff of the delegated state department. The expense account shall show the name of each person for whom payments were made.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19820 and 19822.5, Government Code. Reference: Sections 19820 and 19822.5, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.638. Expense Account Form.
Note • History
(a) No travel expense account shall be paid unless submitted on a Travel Expense Claim, Standard Form 262 or some other form approved by the Controller. All expense accounts shall be itemized, accompanied by the necessary vouchers and approved by the authorized officer. It is the responsibility of the officer approving the claim to ascertain the necessity and reasonableness of incurring expenses for which reimbursement is claimed.
(b) Expense accounts shall be submitted at least once a month and not more than twice a month. If the amount claimable for any month does not exceed $10, the filing may be deferred until the total amount claimable exceeds $10 or until June 30, whichever occurs first. Travel expenses claimed for July 1 and beyond must be on a separate travel expense claim from those claimed for June 30 or earlier. Expense accounts totaling less than $1 shall not be submitted or paid.
(c) Each officer and employee making a claim for travel expenses must show the inclusive dates of each trip for which allowances are claimed and the times of departure and return. Time of departure and return means the time employee starts from or returns to his/her office or, when leaving on a trip or returning from a trip without going to the office, his/her home.
(d) Each officer and employee must state the purpose of each trip for which reimbursement is claimed, and for each meal for which reimbursement is claimed under Sections 599.622 or 599.623.
(e) Each state officer and employee must show his/her headquarters address and primary dwelling address on the Travel Expense Claim. Employees claiming subsistence expenses pursuant to Section 599.619(b)(1) or 599.621(b)(1), as appropriate, will show their headquarters address as the address of their primary dwelling.
(f) Each claim for the payment of travel expenses shall contain a certification as follows: I hereby certify that the above is a true statement of the travel expenses incurred by me in accordance with Department of Personnel Administration regulations in the service of the State of California, and that all items shown were for the official business of the State of California.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.638.1. Expense Claim Form--Excluded Employees.
Note • History
(a) No travel expense claim shall be paid unless submitted on a Travel Expense Claim, Standard Form 262 or some other form approved by the Controller. All expense claims shall be itemized, accompanied by the necessary receipts and supporting documentation and approved by the authorized officer(s). It is the responsibility of the officer approving the claim to ascertain the necessity and reasonableness of incurring expenses for which reimbursement is claimed and that the expenses claimed are in compliance with these regulations.
(b) Expense claims shall be submitted at least once a month and not more than twice a month. If the amount claimable for any month does not exceed $10, the filing may be deferred until the total amount claimable exceeds $10 or until June 30, whichever occurs first. Travel expenses claimed for July 1 and beyond must be on a separate travel expense claim from those claimed for June 30 or earlier. Expense claims totaling less than $1 shall not be submitted or paid.
(c) Each officer and employee making a claim for travel expenses must show the inclusive dates of each trip for which allowances are claimed and the times of departure and return. Time of departure and return means the time employee starts from or returns to his/her office or, when leaving on a trip or returning from a trip without going to the office, his/her home.
(d) Each officer and employee must state the purpose of each trip for which reimbursement is claimed, and for each meal for which reimbursement is claimed under Sections 599.622.1, 599.623.1 or 599.635.1.
(e) Each state officer and employee must show his/her headquarters address and primary dwelling address on the Travel Expense Claim. Employees claiming subsistence expenses pursuant to Section 599.619.1(b)(1) will show their headquarters address as the address of their primary dwelling.
(f) Each claim for the payment of travel expenses shall contain a certification as follows: I hereby certify that the above is a true statement of the travel expenses incurred by me in accordance with Department of Personnel Administration regulations in the service of the State of California, and that all items shown were for the official business of the State of California.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
2. Editorial correction of subsection (a) (Register 96, No. 38).
Article 3. Valuation of Employee Housing and Services
Note • History
This article shall apply to all housing accommodations provided by the State to its employees for residence except the following:
(a) Employees while in travel status.
(b) Employees whose pay and allowances are computed according to federal military pay regulations, provided such employees actually do not receive a quarters allowance when assigned to state-owned employee housing.
(c) Employees entitled to receive housing as compensation for services.
(d) Accommodations acquired by the State for eventual disposal which are rented to employees on the same basis as to private tenants and are not primarily provided for employee housing.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
HISTORY
1. New Article 3 (Sections 599.640-599.652, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Chapter 1, Sections 850-868.
Note
(a) Housekeeping accommodations are those units of 501 or more square feet which contain regular cooking facilities. Non-housekeeping accommodations are those which do not contain regular cooking facilities, and all units of 500 or less square feet.
(b) Square feet encompasses the entire building area except porches, garages, basements, and attics unless they have been converted to usable living area.
(c) Square footage is calculated by multiplying the interior living area length times the width.
(d) Areas officially set aside as state offices will not be included in the calculation of square feet to compute rental charges.
(e) Housing is in Location Class 1 when it is within 25 miles and not more than 40 minutes travel time, one way, of a community with 2,500 or more year-round population. All other housing is in Location Class 2.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
Note
(a) The monthly rates for housing units are shown in the following table in accordance with the unit's housekeeping or non-housekeeping arrangement, age, location, and square footage. For the purposes of this section, housing is one year old when constructed and becomes one year older each January 1st.
Embedded Graphic 02.0009
(b) If one or more utilities are not paid directly by the employee, increase the monthly charge as follows:
Water Fuel Electricity Total
LOCATION Housekeeping 3.50 9.00 9.00 21.50
CLASS 1 Non-Housekeeping 1.75 4.50 4.50 10.75
LOCATION Housekeeping 5.50 15.00 15.00 35.50
CLASS 2 Non-Housekeeping 2.75 7.50 7.50 17.75
(c) When essential housing is substandard, the Department of Personnel Administration may reduce the rental rate to a lower category.
(1) Housing is essential if an employee is required to live in the unit for the protection of state property or a closely related purpose.
(2) Essential housing is substandard when at least one of the following conditions exists:
(A) Privacy: the normal household routine is repeatedly interrupted.
(B) Reliability and adequacy of utility service: light, heat and/or water are not available in sufficient quantities throughout the year to permit a normal household routine.
(C) Overall size: residence is inadequate for or far exceeds employee's needs.
(D) Disturbing noises or offensive odors: the normal household routine is repeatedly interrupted.
(E) Overall design: inconvenient arrangement of living quarters.
(F) Seasonal inaccessibility: the employee may leave the premises only if willing to travel under dangerous conditions during a typical season.
(G) Extreme isolation: the residence is located at least 50 miles or one hour travel time from the nearest community of at least 2,500 population.
(d) Notwithstanding the other provisions of this section, the monthly charge for a housing unit shall be at least $16.00. This does not apply to dormitory accommodations.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.643. Dormitory Accommodations.
Note
(a) A dormitory is a housing unit:
(1) Occupied by two or more unrelated employees, or
(2) Which must be vacated monthly to accommodate a relief employee, or
(3) Unsuitable for housing dependents of employees, or
(4) Which provides sleeping accommodations for more than one employee in a single room.
(b) The monthly rate for each available accommodation shall be:
(1) $18 per month in Location Class 1
(2) $12 per month in Location Class 2
(c) The following are exceptions to this rule:
(1) Forest fire lookout stations shall have no rental charge.
(2) Employees occupying dormitory accommodations for any day, or any portion thereof, when occupancy of the dormitory is required by the job and is necessary for availability and/or reduced response time to maintain public safety will not be required to pay rent for that day.
(3) Employees occupying dormitory accommodations for less than a complete pay period shall pay $.75 per day to a maximum of $18 per month in Location Class 1 or $.50 per day to a maximum of $12 per month in Location Class 2.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.644. Monthly Rental and Utility Rates-- Nonrepresented Employees.
Note • History
(a) State-owned housing units consist of: houses, apartments, dormitories, mobile homes, trailers, mobile home pads and trailer spaces. The Department of Personnel Administration shall be the final authority for determining the monthly rental and utility rates for all state-owned housing. However, the Department of Personnel Administration may delegate the rate setting authority to appointing powers that possess state-owned housing units.
(b) The Department of Personnel Administration may review and adjust the monthly rate of any state-owned housing unit when there is evidence presented that the prescribed monthly rate is inequitable.
(c) At the direction of the Department of Personnel Administration, and pursuant to its delegation of such statutory authority, the appointing powers shall review the monthly rental and utility rates every year and report the rates to the Department of Personnel Administration.
(d) When essential housing is substandard, the appointing power may reduce the rental rate.
(1) Housing is essential if an employee is required to live in the unit for the protection of state property or a closely related purpose.
(2) Essential housing is substandard when at least one of the following conditions exists:
(A) Privacy: the normal household routine is repeatedly interrupted.
(B) Reliability and adequacy of utility service: light, heat and/or water are not available in sufficient quantities throughout the year to permit a normal household routine.
(C) Overall size: residence is inadequate for or far exceeds employee's needs.
(D) Disturbing noises or offensive odors: the normal household routine is repeatedly interrupted.
(E) Overall design: inconvenient arrangement of living quarters.
(F) Seasonal inaccessibility: the employee may leave the premises only if willing to travel under dangerous conditions during a typical season.
(G) Extreme isolation: the residence is located at least 50 miles or one hour travel time from the nearest community of at least 2,500 population.
(e) Monthly space rental for a privately-owned trailer or mobile home shall be at least $12.00 per month.
(f) Notwithstanding the other provisions of this section, the monthly charge for a housing unit shall be at least $20.00. This does not apply to dormitory accommodations.
(g) If utilities are not purchased directly by the employee, utility charges will be added to the monthly rental rate.
NOTE
Authority cited: Sections 35178.8, 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
HISTORY
1. Amendment filed 11-5-87; operative 11-5-87 (Register 87, No. 46).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 12-7-88; operative 12-7-88. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 89, No. 4).
3. Editorial correction of subsection (a) (Register 95, No. 37).
§599.645. Trailer and Mobile Home Charges.
Note
(a) The monthly rates and utility charges for trailers or mobile homes, including basic furnishings are shown in the following table in accordance with the unit's age, location, and total floor space. For the purposes of this rule, a trailer is one year old when constructed and becomes one year older each January 1st. The total floor space shall be determined by multiplying the trailer length times the width using the outside wall dimensions of the full expanded unit.
Embedded Graphic 02.0010
(b) Monthly space rental charge for a privately owned trailer is $9.00 per month.
(c) When an essential mobile home or trailer is substandard, the Department of Personnel Administration may reduce the rental rate to a lower square foot category. Space rental charge for a privately owned mobile home may be reduced by 25 percent.
(1) A mobile home or trailer is essential if an employee is required to live in the unit for the protection of state property or a closely related purpose.
(2) Essential mobile home or trailer is substandard when at least one of the following conditions exists:
(A) Privacy: the normal household routine is repeatedly interrupted.
(B) Reliability and adequacy of utility service: lights, heat and/or water are not available in sufficient quantities throughout the year to permit a normal household routine.
(C) Overall size: residence is inadequate for or far exceeds employee's needs. (Applicable only to state-owned units.)
(D) Overall design: inconvenient arrangement of living quarters.
(E) Disturbing noises or offensive odors: the normal household routine is repeatedly interrupted.
(F) Seasonal inaccessibility: the employee may leave the premises only if willing to travel under dangerous conditions during a typical season.
(G) Extreme isolation: the residence is located at least 50 miles or one hour travel time from the nearest community of at least 2,500 population.
(d) If utilities are not purchased directly by the employee, utility charges will be added to the monthly rent according to the table in Section 599.645(a).
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.645.1. Trailer and Mobile Home Rental and Utility Rates--Nonrepresented Employees.
Note • History
NOTE
Authority cited: Section 3517.8, Government Code. Reference: Section 19822, Government Code.
HISTORY
1. New section filed 11-5-87; operative 11-5-87 (Register 87, No. 46).
2. Repealer filed by the Department of Personnel Administration with the Secretary of State on 12-7-88; operative 12-7-88. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 89, No. 4).
§599.646. Responsibility of State Agencies for Administering Rental Schedule for Employee Housing.
Note
(a) Each state agency which provides housing accommodations for employees is delegated the authority and responsibility to:
(1) apply rental rates in accordance with these regulations and to adjust rates as required by changes in age and other factors;
(2) economically maintain housing in good repair;
(3) dispose of housing which cannot be economically maintained.
(b) Agency heads may further delegate this authority and responsibility at their discretion to institution superintendents, wardens, district officers and other subordinates, subject to the basic responsibility of the agency head for compliance with these regulations. In any instance where the rental rate for an accommodation is computed by the employee to whom it is assigned, or by a subordinate of such employee, the rate must be reviewed and approved by a supervisor of the occupant.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.647. Responsibility of the Department of Personnel Administration.
Note
The Department of Personnel Administration shall be responsible for reviewing any special rental problems referred by operating departments and for adjusting regulations when these regulations cannot be reasonably or equitably applied.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.648. State Policy on Possessory Interest Taxes.
Note
Employees occupying state-owned housing will not be reimbursed for possessory interest taxes levied by, and paid by them to, local government jurisdictions. The Department of Personnel Administration will consider the effect of such taxes in its periodic reviews and adjustments will be made in the rental rates prescribed by these regulations, as required, with the objective of maintaining equality between state employees renting state-owned housing and individuals renting privately-owned housing.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.649. Household Furnishings.
Note
No articles of household furnishings not included in the “Maximum List of Basic Furnishings for Housekeeping Quarters to be Provided by the State” prepared by the Department of Finance may be supplied with housekeeping apartments and homes.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
Note
Certain state institutions operate laundries. Services of these facilities may be furnished to state employees in accordance with the conditions and restrictions prescribed herein.
(a) A department operating state institutions may authorize any of its institutions to furnish “duty” laundry free of charge to employees. Duty laundry is defined as uniforms required to be worn by employees as a condition of employment.
(b) A department operating state institutions may authorize any of its institutions to furnish free of charge household laundry to occupants of employee non-housekeeping rooms and suites of rooms at the institution. Household laundry is defined as bedding, bed linens, and towels. Employees and their families renting state-owned housekeeping quarters on institutional grounds may be furnished household laundry service on a piece-rate charge basis sufficient to cover the costs of all supplies, materials, delivery, and labor incident to the furnishing of such service, provided the employees are living on the grounds of an institution which operates a laundry of adequate capacity or which receives laundry service from another state institution operating such a laundry. The Department of Corrections may additionally authorize such service to employees living outside of the institutional grounds, as stipulated in paragraph (c) below.
(c) Personal laundry includes clothing and all other household textile items not defined above which are commonly sent out of a household for periodic washing. A department operating state institutions may authorize any of its institutions which operates a laundry of adequate capacity or which receives laundry service from another state institution operating such a laundry to furnish personal laundry service to occupants of state-owned employee non-housekeeping rooms and suites of rooms on institutional grounds. The charges for this service will be on a piece-rate basis sufficient to cover the costs of all supplies, materials, delivery, and labor incident to the furnishing of such service. The Department of Corrections may additionally authorize any institution under its supervision which has an institutional laundry of adequate capacity to provide household and personal laundry service to employees and their families who do not live on the institutional grounds. Charges for personal laundry service to employees living off the grounds will be the same as for employees living on the grounds; pick-up or delivery service will not be furnished by the State to employees at any location off the institutional grounds.
(d) Articles of laundry belonging to state employees which are lost or damaged in institutional laundry operations will not be replaced or paid for from state funds. Employees who take advantage of the state-operated laundry service facilities will accept the risk of such loss or damage.
(e) A department which may authorize the furnishing of laundry service to some of its employees may discontinue such service at any time; it may limit the types or quantity of articles which will be laundered; and in any other manner not in conflict with these rules, it may set such conditions as it may deem advisable upon laundry service to employees. There is no requirement for similarity of service, charges, or authorization for laundry service at institutions within a department.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.651. Dry Cleaning Service.
Note
(a) The Department of Corrections may authorize prisons under its supervision with institutional dry cleaning plants of adequate capacity to furnish dry cleaning service to prison employees at piece rates sufficient to cover the costs of all supplies, materials, and labor incident to the furnishing of such services. Pick-up or delivery service will not be furnished by the State to employees at any location off the institutional grounds.
(b) Articles belonging to state employees which are lost or damaged in prison-operated dry cleaning facilities will not be replaced or paid for from state funds. Employees who take advantage of the prison-operated dry cleaning service will accept the risk of such loss or damage.
(c) The Department of Corrections may discontinue dry cleaning service to employees at any of its institutions at any time; it may limit the types or quantity of articles which will be cleaned; and in any other manner not in conflict with these regulations, it may set such conditions as it may deem advisable upon dry cleaning service to employees. There is no requirement for similarity of service, charges, or authorization for dry cleaning service between any two institutions in the department.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
§599.652. Meals at State Agencies.
Note
(a) Some state agencies operate kitchens and eating facilities, generally to provide meals for prisoners, wards, students, or inmates at institutions or for personnel working at isolated sites. State employees, their dependents, and official visitors may utilize the services of these facilities in accordance with the conditions and restrictions prescribed herein. In cases where employees of a federal or local government agency rendered services to the State at the request of the State, they may also utilize the facilities. Excluded from the provisions of this section are facilities operated in connection with the State Colleges and the University, and those facilities managed by blind personnel under the supervision of the Department of Rehabilitation and located in buildings occupied by other agencies.
(b) With the exceptions listed below, all state employees, their dependents, federal and local government employees, and official visitors who receive meals prepared in state-operated kitchens will pay for each meal in accordance with the established rates. Exceptions are personnel in the following categories, who will receive meals free of charge:
(1) State employees receiving maintenance as part of their compensation.
(2) State employees receiving meals in accordance with Sections 599.622 and 599.623.
(3) Persons receiving meals as part of an activity in which they are performing a non-compensated, volunteer service for the State.
(4) Official Guests. An official guest of a facility is a person not otherwise employed by the State who:
(A) renders a service to the State and is present at the facility by express invitation of an official of the facility or its parent department or agency.
(B) is present at the facility by request of another state, the Federal Government, or a foreign country, with the approval of the parent department or agency, or
(C) is a judge or law enforcement officer and is present at the facility for the purpose of appraising the program, with the approval of the parent department or agency.
(5) State employees while away from their headquarters and not in a subsistence reimbursement status, who may be furnished meals at any institution, camp or facility maintained by their own department.
(6) Employees receiving meals while participating in an approved supplemental education program which must be conducted during mealtime.
(c) The rates to be charged for meals at any location shall be established by the agency which prepares the meals. Rates will be determined in accordance with the following regulations:
(1) Rates will be sufficient to cover the pro-rata cost per meal for food and beverages plus the labor involved in preparing and serving the meal. Where a certain amount of labor is already required to furnish meals to students, prisoners, wards, etc., only the cost of any additional labor required will be considered. At work camp facilities the cost of labor need not be considered. In addition to the charges for meals, each agency will collect sales taxes on meals as applicable.
(2) Within an agency, a single rate may be established for several locations, where the combined cost per meal of food and labor is substantially the same at each location.
(3) No distinction will be made in rates for breakfast, lunch, and dinner.
(4) No distinction will be made in rates for different age groups.
(5) At work camp facilities where subsistence is furnished, reimbursement to the State for meal charges may be made by payroll deductions.
(6) Rates will be reviewed at least once every two years and revised if necessary to compensate for changes in applicable costs.
(d) Each agency shall maintain records showing:
(1) The value of all supplies issued to officers and employees of the agency for their maintenance.
(2) The numbers of meals served to officers and employees, their dependents, official guests, and all other persons.
(3) The amounts collected in payment for food and lodging.
(e) All sums collected by an agency for meals and lodging shall be remitted to the State Treasurer for credit to the current support appropriation.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19822, Government Code.
Article 4. Employee Merit Award Board
Note • History
(a) Employee Suggestion. A proposal by one or more employees which will reduce or eliminate State expenditures, or improve operations, procedures, or safety.
(b) Special Act. An extraordinary act of heroism by a State employee extending far above and beyond the normal call of duty or service performed at great risk to his/her own life in an effort to save human life.
(c) Special Service. An act of heroism by a State employee extending above and beyond the normal call of duty or service performed at personal risk to his/her safety to save human life or State property.
(d) Superior Accomplishment. Performance by an individual employee, or team of employees, which results in an exceptional contribution to improving California State Government.
(e) Merit Award Program. The statewide program, administered by the Department of Personnel Administration (DPA), responsible for establishing policy and guidelines for the administration of the State's Merit Award Program.
(f) State Agency. State departments, boards, and commissions responsible for the review and disposition of suggestions submitted by State employees under the regulations applicable to the State's Merit Award Program.
(g) Director. State department director, agency head, executive officer of boards/commissions, chancellor of community colleges or their designee.
(h) Merit Award Administrator. Person designated by the State department director, agency head, executive officer of boards/commissions, or chancellor of community colleges to be responsible for the administration of the State's Merit Award Program within his/her respective department.
(i) Merit Award. An award for an adopted suggestion which results in an intangible benefit and/or identifiable tangible benefit shall be a certificate of award and a payment of cash. An award for an approved special act, special service, or superior accomplishment shall be a scroll, ribbon, medal, pin, gift, or other appropriate token of esteem, and may include a payment of cash.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
4. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.656. State Merit Award Board.
Note • History
(a) The State Merit Award Board, referred to as the Board, will consist of five members.
(b) Membership. A representative of DPA, to be designated by the Director, shall be ex officio a voting member of the Board and shall serve as chair. The Director shall appoint the four other members including a public member.
(c) Term of Office. Members of the Board shall hold office until their resignation or until their successors are appointed.
(d) Meetings. Board meetings shall be held on a regular basis with dates and time to be determined by the chair. Meetings shall be public and interested persons shall be given reasonable opportunity to be heard.
(e) Quorum. A majority of the members of the Board constitutes a quorum. A majority vote is required to carry an official action.
(f) Minutes. A record of the Board's official actions.
(g) The Board shall be responsible for the review of all award recommendations for suggestions adopted by multiple State agencies, and for adopted suggestions which were submitted prior to January 1, 1993.
(h) The Board shall review and recommend to the Director of DPA all employee suggestions which justify total cash awards greater than $5,000. Upon the approval of the Director of DPA, an award of $5,000 shall be made to the suggester and the remaining portion shall be submitted for subsequent approval by concurrence of the Legislature.
(i) The Board shall be responsible for the review of suggestions referred to DPA by the State agency or suggester when a disagreement exists which cannot be resolved by the agency director or designee or by the Merit Award Program. In these cases, the Board shall review and recommend to the Director of DPA its resolution to the disagreement, and the decision by the Director of DPA will be considered final.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment of subsection (c) filed 3-24-86; effective thirtieth day thereafter (Register 86, No. 13).
4. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
5. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.657. Merit Award Program Administration.
Note • History
(a) The director or designee shall be authorized to approve or deny suggestions, special acts, special service, or superior accomplishments in accordance with these rules, which may impact the administration of the respective agency, provided the total award is not greater than $5,000. The director shall designate an employee to be responsible for the Merit Award Program activities of the State agency. This employee's name and title shall be reported to Merit Award Program staff.
(b) The director or designee may authorize approval of awards, provided the total award is not greater than $5,000.
(c) The director or designee may grant Certificates of Commendation, Medals, gifts, or other tokens of esteem, in accordance with these rules, without reference to DPA.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 3-24-86; effective thirtieth day thereafter (Register 86, No. 13).
4. Amendment of section heading and text filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
5. Amendment of subsections (a) and (c) filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.658. Eligibility for Participation.
Note • History
(a) Every active and/or retired State employee is eligible to participate in the employee suggestion program, except officers and employees of the Universities of California and California State Universities.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.659. Eligibility of a Suggestion.
Note • History
(a) A suggestion which describes a specific problem, offers a workable solution, and is intended to be of benefit to the operations or safety of the State of California will be accepted for evaluation except for those suggestions which:
(1) Are currently being evaluated or have been evaluated within the last year through the employee suggestion program.
(2) Recommend new or increased taxes or fees.
(3) Recommend additional revenues at the expense of a segment of taxpayers and which can be classified as unjust or inequitable.
(4) Recommend a change in the pay or classification of a position or a class, or the establishment of new positions. This area is held to be the continuing responsibility of the agency and DPA.
(5) Recommend a “study,” “survey,” or “review” with the course of action to be taken in accordance with the findings.
(6) Involve a personal grievance.
(7) Involve terms and conditions of employment, which are subject to the collective bargaining process under the Ralph C. Dills Act.
(8) Recommend corrections in spelling, punctuation, grammar, or mathematical calculations. These changes should be communicated through established departmental channels.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 3-24-86; effective thirtieth day thereafter (Register 86, No. 13).
4. Amendment of subsection (a)(7) filed 11-13-90; operative 12-13-90 (Register 90, No. 52).
5. Amendment of subsection (a)(4) and new subsection (a)(8) filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
6. Amendment of subsections (a), (a)(2) and (a)(4) filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.660. Eligibility for Awards.
Note • History
(a) Employee eligibility for awards will be measured in terms of assigned or expected job responsibilities. Eligibility shall be initially determined by the State agency that employed the suggester at the time the suggestion was submitted. An employee is not eligible for an award for a suggestion pertaining to a subject assigned to him/her for research, development or solution for which he/she has a clear and specific responsibility to offer as part of his/her normal job requirements. In determining normal job responsibilities, the State agency and/or Board will consider the job description/duty statement, performance requirements, supervisors' interpretations, authority to place suggestions into effect, expectations of the classification job specification, and other factors, such as customary practice, which may have a bearing on the duties expected of the suggester.
(b) Employees appointed to Career Executive Assignments (CEA), or Exempt classifications with a collective bargaining designation of “managerial”, are not considered eligible to receive cash awards under the employee suggestion program. These classifications are distinguished from others in the State civil service in that the duties and responsibilities are of a high administrative and top managerial nature. It is an inherent part of the job expectations and duties of employees appointed to such classifications to find efficient ways to improve the operation of State Government.
(c) In cases where a dispute may arise between the adopting and/or employing State agency and the suggester as to his/her eligibility to receive an award, the suggestion shall be forwarded to the Merit Award Program for review. Facts and opinions on the eligibility of the suggester may be solicited from the employing agency for review by the Board in formulating an official recommendation to the Director of DPA.
(d) To be eligible for an award, an employee must propose a change that has a direct effect on the reduction or elimination of State expenditure or improvement in the operation or safety of State Government. An award will not be granted in instances where a suggestion has been adopted as a result of an action which is not occasioned by nor resulting from the suggestion.
(e) As a condition of eligibility for an award, each suggester shall execute the following agreement:
“The use by the State of California of my suggestion shall not form the basis of a further claim of any nature upon the State of California by me, my heirs or assigns.”
(f) To be considered eligible for an award, suggesters whose proposals are implemented prior to the submission of an Employee Suggestion form (Std 645 Rev 12-95) must submit a form with appropriate verification within six months following the date the suggestion was first put into effect.
NOTE
Authority cited: Sections 19815(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
4. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.661. Employee Suggestion Procedures.
Note • History
(a) Suggestions must be submitted in writing to the State agency responsible for making the changes recommended in the suggestion(s). Suggesters will be responsible for submitting the suggestion to the appropriate agency for review when the idea affects only one agency, or to DPA when multiple agency review is required. All suggestions must be submitted on an Employee Suggestion form (STD 645 Rev 9-89).
(b) Suggestions must be signed but the suggester's name may, as designated by the employee on the Employee Suggestion form (STD 645 Rev 9-89), remain confidential during the evaluation process. The identity will be revealed when the idea has been adopted, as the suggester's job responsibility must be assessed in relation to the suggestion before an award can be made.
(c) Suggestions which do not meet eligibility requirements shall be disallowed. If there is controversy regarding eligibility of a suggestion, it shall be referred to the director or designee for review of the decision which disallowed the suggestion.
(d) The State agency's Merit Award Administrator or Merit Award Program staff if the suggestion affects multiple agencies, shall receive, record and acknowledge receipt of suggestions in writing to the suggester within 10 working days of receiving the suggestion, and shall notify suggesters of any undue delay in the consideration of their suggestions. Each new suggestion will be assigned a number for reference during the evaluation process, and such number shall be included in the acknowledgement to the suggester.
(e) Suggestions shall be referred for evaluation within 10 working days of receipt of the suggestion. The suggester shall be provided with a status report on the progress of the evaluation at least once every quarter until a final decision is made.
(f) The findings and recommendations of the evaluating agency shall indicate whether a suggestion has been adopted; the date on which it was placed in effect, or estimated date of implementation; any actual or estimated reduction, elimination, or avoidance of expenditures or improvement in operations made possible by the suggestion; the availability of funds for payment of proposed awards of $1,000 and over; or the reasons, in detail, why the suggestion could not be adopted.
(g) The Merit Award Administrator, or DPA if the suggestion affects multiple agencies, shall review the evaluating agency's findings and recommendations and may obtain additional information or take such other action as needed for prompt, thorough, and impartial consideration of each suggestion.
(h) For each suggestion eligible for an award, the Merit Award Administrator, after taking into consideration staff recommendations, and the objectives of the Merit Award Program, shall formulate an official recommendation to the agency's director describing describing the merits of the suggestion, and the amount of the recommended award, in accordance with these rules. DPA shall review suggestions evaluated and adopted by multiple agencies, or awards exceeding $5,000, and shall formulate an official cash award recommendation to the Merit Award Board.
(i) The State agency director of the employing agency shall, upon approval of a suggestion, authorize a cash award, in accordance with these rules.
(j) DPA shall, upon approval of a suggestion by the Board, authorize a cash award, in accordance with these rules.
(k) The Merit Award Administrator, or DPA if the suggestion affects multiple agencies, shall notify the suggester of the action taken as soon as a suggestion has received final consideration.
(l) Final reports on all suggestions shall be processed as follows:
(1) Reports of nonadoption shall be sent directly to the suggester by the evaluating agency, or DPA if the suggestion affects multiple agencies.
(2) Reports of adoption and recommended award shall be sent directly to the suggester by the evaluating agency, or DPA if the suggestion affects multiple agencies. If the suggestion is adopted by an agency other than the one where the suggester is employed, a copy of the report shall also be transmitted to the employing agency's Merit Award Administrator for processing the recommended award, in accordance with these rules. The adopting agency(s) shall reimburse the employing agency for the amount of the award if the award is $55 or over.
(m) The Merit Award Administrator shall provide a report on the number of suggestions received, denied and/or adopted, including total amount of awards and savings, to the Merit Award Program staff on a yearly basis.
(n) The Merit Award Program staff shall be responsible for conducting periodic audits of the Merit Award Program within each State agency to ensure that:
(1) eligibility requirements, in accordance with these rules, are being uniformly applied.
(2) cost analyses provide sufficient documentation in support of one-time or on-going savings.
(3) intangible suggestions are being awarded under the applicable intangible benefits scales for improved procedures or safety.
(4) cash awards granted for suggestions with tangible and/or intangible benefits are comparable with similar suggestions awarded by other departments.
The findings and/or recommendations resulting from an audit shall be reported to the director of the respective State agency.
(o) The Board may establish such additional standards for submission of suggestions as it deems proper.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
4. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.662. Appeal and Reconsideration.
Note • History
A suggester may request, in writing, that his/her suggestion be reconsidered for merit award purposes:
(a) By the State agency or DPA within one year following the date of the State agency's or DPA's decision, when an employee disagrees with the decision and provides additional or supplemental information with the request.
(b) By the State agency or DPA within three years following the date of the State agency's or DPA's decision not to adopt a suggestion that was subsequently accepted and put into effect.
(c) By the DPA Merit Award Program, within one year following the State agency's decision, when a disagreement exists and is unresolvable between the suggester and the employing State agency and/or the evaluating agency. The “employing State agency” refers to the agency that employed the suggester at the time the suggestion was submitted.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84; effective thirtieth day thereafter (Register 84, No. 8).
2. New section refiled 2-27-84 to correct inadvertent omission of text from 2-9-84 order; designated effective 3-10-84 (Register 84, No. 8).
3. Editorial correction of HISTORY NOTE No. 2 filed 3-9-84 (Register 84, No. 12).
4. Amendment of subsection (a) filed 3-24-86; effective thirtieth day thereafter (Register 86, No. 13).
5. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
6. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
§599.663. Recommendations of Awards for Special Acts, Special Services, or Superior Accomplishments.
Note • History
(a) A recommendation for an award for these categories must originate with the management of the State agency where the employee or team of employees are employed. Each recommendation shall be approved by the head of the State agency.
(b) Each recommendation for an award for special acts, special services or superior accomplishments shall be made in accordance with procedures and standards established by DPA in the State Administrative Manual, Sections 4760 through 4782.9.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
4. Amendment of subsection (a) filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
Note • History
The following criteria shall apply to cash awards:
(a) Cash awards for adopted suggestions shall not be less than $50, or more than $50,000. Where the provisions of this rule would otherwise result in an award of greater than $50,000, the award shall be $50,000. Awards of more than $5,000 will be granted only upon approval by concurrent resolution of the Legislature.
(b) Cash awards will be calculated in the following manner:
(1) Where annual net savings or increased revenues cannot be determined, or are calculated as less than $500, a cash award may be recommended in accordance with the Improved Procedures or Improved Safety Scales.
(2) Where annual net savings or increased revenues are calculated as at least $500, but not more than $1,000, the recommended cash award shall be $100.
(3) Where annual net savings or increased revenues exceed $1,000, the recommended cash award shall be 20 percent of the net savings or increased earnings realized by the State agency during the first year following adoption of the suggestion, subject to subsection (c) below.
(c) Awards computed under subsection (b)(3) will be calculated at 5 percent of the net savings or increased earnings realized during the first year following adoption of the suggestion where the proposal required substantial refinement for implementation, and/or where an alternative solution was adopted as a result of the proposal, and/or where the proposal results in one-time savings or benefits.
(d) If savings or benefits during the first year following adoption do not equitably measure the merits of a suggestion, savings or benefits over a different period of time may be used as an award standard.
(e) The decision of DPA as to the amount of awards shall be final except for those awards requiring approval of the Legislature.
(f) If more than one State agency benefits from the adoption of an employee suggestion, the award shall be prorated between the State agencies receiving the benefit. DPA shall be responsible for prorating the award amount. The agency that currently employs the suggester will be responsible for requesting reimbursement from the other State agencies. In cases where an Improved Safety or Improved Procedure award is recommended, DPA shall arrive at one award amount based upon the evaluating agencies' recommendations. If a dispute arises between agencies regarding prorating or reimbursement, the Board shall act as mediator.
(g) Awards to employees for adopted suggestions shall be paid from the funds or appropriations available to the State agency(s) benefiting from the adopted suggestion unless payment from some other source is authorized by the Department of Finance.
(h) Except for awards for Improved Safety, a cash award of $1,000 or more shall require the respective State agency(s) to identify such savings (reduced expenditures or increased revenues) and submit to DPA an Identification and Recovery of Savings form (DPA-134 New 8/87) reflecting how the recovery will be accomplished. A copy of this form shall be transmitted to the Department of Finance by the state agency for appropriate action. For awards requiring Board approval, the Identification and Recovery of Savings form shall be forwarded to DPA.
(i) Awards for a Special Act, Special Service or Superior Accomplishment shall be:
(1) Special Act and Special Service awards are honorary and consist of a certificate, a citation, medal and lapel pin. The certificate, medal and lapel pin are available from the Merit Award Program. The Merit Award Program shall be reimbursed for the cost of the medal and lapel pin. Citations shall be the responsibility of the awarding agency.
(2) Superior Accomplishment awards consist of an engraved walnut plaque or a certificate, and/or a cash or gift award. This award includes two levels of cash awards: Gold/from $50 to $500 per individual or team, and Silver/from $25 to $250 per individual or team. Departments have the option of providing cash or equivalent gift awards.
(3) Superior Accomplishment awards for sustained superior performance over a period of twenty-four months consist of a framed certificate and/or a gift or cash award of up to $250 per individual or team. Departments have the option of providing cash or equivalent gift awards.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19823, Government Code. Reference: Section 19823, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Amendment of subsections (a) and (b) and repealer of subsection (j) filed 11-13-90; operative 12-13-90 (Register 90, No. 52).
4. Amendment filed 12-2-92; operative 1-2-93 (Register 94, No. 8).
5. Amendment filed 9-19-96; operative 10-19-96 (Register 96, No. 38).
6. Amendment of subsection (b)(3) filed 5-14-2007; operative 6-13-2007 (Register 2007, No. 20).
Article 5. Compensation
Note • History
Each appointing power shall keep complete and accurate time and attendance records for each employee and officer employed within the agency over which it has jurisdiction. Such records shall be kept in the form and manner prescribed by the Department of Finance in connection with its powers to devise, install and supervise a modern and complete accounting system for state agencies.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19849, Government Code.
HISTORY
1. New Article 5 (Sections 599.665-599.691) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 9-112.
Note • History
The pay plan for the state civil service consists of the salary ranges and steps established by the Department of Personnel Administration and the rules contained in this article.
As used in this article, terms are defined as follows:
(a) “salary range” is the minimum and maximum rate currently authorized for the class;
(b) “step” is the difference between two salary rates one full salary range number apart;
(c) “rate” is any one of the salary rates in the resolution by the Department of Personnel Administration which establishes the salary ranges and steps of the Pay Plan;
(d) “range differential” is the difference established by resolution of the Department of Personnel Administration between two consecutive salary ranges of the Pay Plan;
(e) “substantially the same salary range” is a salary range with the maximum salary rate the same as or less than two steps higher or lower than the maximum salary rate of another salary range;
(f) “higher salary range” is a salary range with the maximum salary rate at least two steps higher than the maximum salary rate of another salary range;
(g) “lower salary range” is a salary range with the maximum salary rate at least two steps lower than the maximum salary rate of another salary range. Any rate falling within the salary range for a class may be used to accomplish appropriate step differentials in movements between classes and salary ranges.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19829, Government Code.
HISTORY
1. Amendment of subsection (g) filed 11-17-87; operative 12-17-87 (Register 87, No. 48).
§599.666.1. The Pay Plan--Nonrepresented Employees.
Note • History
The pay plan for State civil service employees designated supervisory under Section 3522.1 or excluded from the definition of State employee under Section 3513 (c) or managerial under Section 3513 (e) of the Ralph C. Dills Act consists of the salary ranges and rates established by the Department of Personnel Administration and the rules contained in this article. As used in this article, terms are defined as follows:
(a) “salary range” is the minimum and maximum rate currently authorized for the class;
(b) “step” for employees compensated on a monthly basis is a 5% differential above or below a salary rate rounded to the nearest dollar and for employees compensated on a daily or hourly basis is a 5% differential above or below a rate rounded to the nearest dollar and cents amount.
(c) “rate” for employees compensated on a monthly basis is any one of the full dollar amounts found within the salary range and for employees compensated on a daily or hourly basis any one of the dollar and cents amounts found within the salary range.
(d) “range differential” is the difference between the maximum rate of two salary ranges of the Pay Plan.
(e) “substantially the same salary range” is a salary range with the maximum salary rate less than 2 steps higher or lower than the maximum salary rate of another salary range.
(f) “higher salary range” is a salary range with the maximum salary range at least 2 steps higher than the maximum salary rate of another salary range.
(g) “lower salary range” is a salary range with the maximum salary rate at least 2 steps lower than the maximum salary rate of another salary range.
Under paragraph (b) one step higher is calculated by multiplying the rate by 1.05. One step lower is calculated by dividing the rate by 1.05 (e.g., $2,300 x 1.05 = $2,415, one step higher; $2,415 ÷ 1.05 = $2,300, one step lower).
Unless otherwise provided by the State Personnel Board, the lowest salary range currently authorized for the class is used to make salary comparisons between classes. Any rate falling within the salary range for a class may be used to accomplish appropriate step differentials in movements between classes and salary ranges.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 3517.8, Government Code. Reference: Section 19829, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 2-22-89; operative 3-2-89. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 89, No. 18).
Note
A “10-month employee” as used in this section means a person who is employed: full time in a civil service position in the Special Education Program Support Unit of the Department of Education; or full time in a position at the California Maritime Academy; or full time in a civil service position requiring teacher certification qualifications and performance of teaching duties for ten consecutive pay periods as designated by the appointing power on State workdays as defined in State Board of Control Regulations or on days in lieu thereof, and who elects with approval of the appointing power to be employed and paid on an annual salary basis under the provisions of this section. “Annual salary” as used in this section means the sum of the monthly salary rates which the employee could have earned during the 10 designated pay periods had the employee not elected to be employed and paid under the provisions of this section.
(a) Pay for the Entire 10 Months. A 10-month employee who completes all the service required for the designated 10-month period beginning on the first day of the first State pay period of the designated 10-month period, shall for such service be paid the annual salary in 12 installments payable on State pay days of each of the subsequent 12 pay periods, covering the period of one year. The first installment shall be paid on the first State pay day following the effective date of appointment, reinstatement or election for the year. Authorized time worked in excess of the employee's regularly scheduled workweek shall be compensated for in accordance with the provisions of Sections 599.700-599.711 at the monthly rate which the employee could have earned had the employee not elected to be employed and paid under the provisions of this section. If such employee serves in excess of 10 designated monthly pay periods during any 12-month period, such excess service shall be under separate appointment and shall be compensated at the monthly rate appropriate for that appointment and position.
(b) Interim Adjustment in Pay Due to Noncompensable Absence. If, because a 10-month employee reports for duty after the first day of the first pay period of the designated 10-month period or because the employee has had noncompensable absence, it is necessary to reduce the salary payment for any State pay period, the interim reduction for that period shall be at the rate of 1/210 of the annual salary of the employee for each workday the employee was in a nonpay status, except that if such computation in any one pay period would result in zero or minus pay, the employee shall be paid at the rate of 1/210 of such annual salary for each day actually worked during such State pay period.
(c) Settlements Payments. A 10-month employee who serves less than the designated 10-month period, or whose pay has been adjusted because of reporting for duty after the first day of the first pay period of the designated 10-month period or because of a noncompensable absence, or who has had a change in rate of pay or in time base shall, on the State pay day on which the employee is to receive the final installment of the annual salary, or at the time of separation or transfer from the 10-month position, receive a final settlement computed in accordance with the following formula:
(First step)
Total salary earned = total days worked x annual salary
number of workdays in 10-month period
(Second step)
Amount of settlement payment = total salary earned - salary
received for current 10-month period.
(d) Report to Controller. The final settlement payment shall be computed by appointing power and a copy of such computation furnished to the Controller's Disbursing Office.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19829, Government Code.
§599.668. Correction of Salary Rate.
Note
The effective date of correction of any salary rate to which an employee is entitled under Sections 599.676, 599.679, 599.681, 599.683, 599.685, 599.688, or 599.689 shall be as of the time earned except that it shall not be prior to one year from the date the corrective action was initiated.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19829, Government Code.
§599.669. Full-Time and Less Than Full-Time Rates.
Note
The salary range for each class represents the rate of pay for full-time monthly employment unless the pay plan specifically states otherwise. Monthly employment shall consist of a pay period prescribed by the Department of Finance and containing either 21 or 22 work days. Where there is part-time or irregular employment in a position for which a monthly salary range is established, the employee shall normally be paid the proportionate part of the monthly rate or on an hourly basis for the time actually employed:
(a) Where the part-time employment is regularly scheduled and is a fixed proportion of the established work week, the employee shall be paid that proportionate part of the monthly rate (e.g. one-half time, one-quarter time).
(b) Where employment is intermittent and irregular, the monthly rate shall be converted to an hourly rate in accordance with these rules and an employee shall be paid at such rate.
(c) Where the employee works on a part-time, irregular, and indeterminate basis, and it is not practicable to ascertain the number of working hours to be devoted to the service of the state, the local compensation for such service shall be fixed by the Director of the Department of Personnel Administration after considering the recommendation of the appointing power. Such recommendation shall include an estimate of the average amount of time to be devoted by the employee to the performance of duties and an appraisal of the value of such services.
(d) When an employee in a professional class works for the state on a part-time or intermittent basis incidental to the employee's private practice, and such practice has overhead expenses that continue regardless of the employment with the state, the Director of the Department of Personnel Administration may permit compensation for time worked in accordance with a schedule of hourly compensation established by the Department of Personnel Administration that may exceed the hourly equivalent of the monthly salary.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19829, Government Code.
§599.670. Conversion of Rates.
Note
Monthly or hourly rates of pay may be converted from one to the other when the Director of the Department of Personnel Administration considers it advisable. In such conversion a 40-hour week is equivalent to a 173.33-hour month; a 44-hour week is equivalent to a 191-hour month; a 48-hour week is equivalent to a 208-hour month. Rates resulting from such conversions shall be rounded to the nearest cent.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19829 and 19851, Government Code.
§599.671. Entire Compensation.
Note
Unless otherwise indicated in the pay plan, the rates of pay set forth represent the total compensation in every form except for overtime compensation. Each employee shall be paid at one of the established rates in the salary range for the class, unless the Department of Personnel Administration or the Director of the Department of Personnel Administration in accordance with the provisions of Section 19837 authorizes a rate above the maximum of the class.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19837, Government Code.
§599.672. Duplicate Compensation Prohibited.
Note
When work is performed during an employee's regular working hours for which the employee is paid from a source other than the regular compensation source, the employee's regular compensation shall not include any payment for the time spent in the other work. No deductions shall be made from the salary of an employee while on jury duty if the fee for jury duty is remitted to the State. If the fee for jury duty is not remitted to the state, the employee shall be paid only for the time actually worked in the state position.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.3, Government Code.
§599.672.1. Duplicate Compensation Prohibited--Excluded Employees.
Note • History
For the purposes of this section an excluded employee is defined in Section 3527(b) of the Government Code.
(a) In addition to Section 599.672, when night jury service is required of an excluded employee, the excluded employee shall be allowed time off without loss of compensation for such portion of the required time that coincides with the excluded employee's normal work schedule. This includes any necessary travel time.
NOTE
Authority cited: Sections 3539.5, 19815.4(d) and 19816, Government Code. Reference: Sections 19826 and 19991.3, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with Secretary of State on 12-30-87; operative 12-30-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 7).
2. Change without regulatory effect amending section heading, section and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
Note
The minimum limit in the salary range for each class is the entrance rate except as otherwise provided in the act or in these rules. When there is more than one salary range for a class, the Department of Personnel Administration shall provide criteria to determine:
(a) The range to which a position shall be assigned or the range which an employee shall receive,
(b) Which step in the range shall be received upon movement between ranges in the class, and
(c) The conditions under which movement may be made from one range to another.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19829, Government Code.
§599.674. Rate on Movement Between Classes with Substantially the Same Salary Range.
Note
Such movement may be in the same or to another department and by transfer, appointment from an employment list, temporary appointment, or reinstatement other than mandatory and, in addition, under Paragraph (c), by either voluntary or disciplinary demotion. The provisions of this section do not apply to demotion in lieu of layoff or demotion under Section 19253.5 after medical examination.
Except as provided in Section 59.690 for trade rate classes the salary rate payable to a permanent or probationary employee upon movement without a break in service between classes with substantially the same salary range shall be established as follows:
(a) When moving to a class with the same salary range or a range not to exceed one step higher at the maximum, the employee may, as recommended by the appointing power, receive any rate in the salary range not to exceed the total of the range differential between the maximum salary rates.
(b) When moving, other than from a promotional employment list, to a class with a salary range more than one step higher at the maximum, the employee may, as recommended by the appointing power, receive any rate in the salary range not to exceed one step above the rate last received. When moving to this class by an appointment from a promotional employment list, the employee shall be entitled to the rate in the salary range one step above the rate last received.
(c) In all other instances the employee may, as recommended by the appointing power, receive any rate in the salary range not above that last received.
If the employee receives an increase, a new salary adjustment anniversary date is established subject to the provisions of Sections 599.683 and 599.685; otherwise the salary adjustment anniversary date is retained.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19253.5 and 19829, Government Code.
§599.675. Rate on Movement to Class with Lower Salary Range.
Note
Except as provided in Section 599.690 for trade rate classes, a permanent or probationary employee who without a break in service moves to a class with a lower salary range may receive, if recommended by the appointing power, and approved by the Director of the Department of Personnel Administration, a rate above the minimum provided it does not exceed the rate the employee last received.
Such movement may be in the same or to another department and may be by appointment from an employment list, temporary appointment, voluntary demotion, disciplinary demotion, or reinstatement under Government Code Section 19140. The provisions of this section do not apply to demotion in lieu of layoff or demotion under Section 19253.5 after medical examination.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19253.5 and 19829, Government Code.
§599.676. Rate on Movement to Class with Higher Salary Range.
Note
Such movement may be in the same or to another department and by appointment from an employment list, by temporary appointment, or by reinstatement.
Except as provided in Section 599.690 for trade rate classes, a permanent or probationary employee who, without a break in service, moves to another class with a higher salary range shall be entitled to the rate in the salary range one step above the rate last received. If the movement is between two classes, one of which has an established rate of compensation other than a monthly rate, and the increase resulting from such adjustment amounts to less than one step in the salary range for the higher class, the employee shall be entitled to the next higher rate in the salary range which provides a one-step increase.
A new salary adjustment anniversary date is established subject to the provisions of Sections 599.683 and 599.685.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19829, Government Code.
§599.676.1. Rate on Movement to a Class with a Higher Salary Range--Managerial Employees.
Note • History
The provisions of this section apply only to State civil service employees designated managerial under Section 3513(e) of the Ralph C. Dills Act.
A permanent or probationary employee who, without a break in service, moves to another class with a higher salary range shall be entitled to the rate in the salary range one step above the rate last received. When such movement requires a change in geographic location the employee may, as recommended by the appointing power, receive up to two steps above the rate last received provided the rate does not exceed the maximum rate of the higher salary range.
Such movement may be in the same or to another department and by appointment from an employment list, by temporary appointment, or by reinstatement. A new salary anniversary date is established subject to the provisions of Sections 599.683 and 599.685.
NOTE
Authority cited: Sections 3517.8, 19815.4(d) and 19816, Government Code. Reference: Section 19829, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 8-31-89; operative 8-31-89. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 89, No. 40).
§599.677. Rate on Reappointment or Reinstatement After Permanent Separation.
Note
Re-entry into state service may be in the same or to another department and by appointment from an employment list, by temporary appointment, or reinstatement.
Upon the determination of the appointing power that it is in the best interest of the state, a former employee who re-enters the service within the period of reinstatement or reemployment list eligibility or within three years after other permanent separations may, if not entitled thereto under Sections 19141, 19253.5, 19997.9, 19997.12 and 19775.6 of the act, receive a salary above the minimum limit provided that if the reinstatement or appointment is:
(a) To the same class, the salary rate shall not exceed the rate in the salary range received at the time of separation adjusted for the salary range changes for the class since separation.
(b) To a different class with substantially the same salary range as that of the class from which separated, the salary rate shall not exceed the rate the employee could receive if reinstated or reappointed to the same class from which separated.
(c) To a different class with a lower salary range than the class from which separated, the employee may receive any rate in the salary range not to exceed the salary rate last received in the class from which separated, adjusted for the salary range changes of the latter class since the separation.
The rate in the salary range an employee receives on reappointment or reinstatement should be related to the employee's value to the state.
The Director of the Department of Personnel Administration may establish guides to be used in the application of this rule.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19141, 19253.5, 19775.6, 19829, 19836, 19997.9 and 19997.12, Government Code.
§599.678. Rate on Reappointment or Reinstatement After Temporary Separation.
Note
Re-entry into state service may be in the same or another department and by appointment from a reemployment employment list or reinstatement.
A person who is reappointed or reinstated within the period of reinstatement or reemployment list eligibility after temporary separation shall, if not entitled to a higher rate under Sections 19141, 19253.5, 19997.9, 19997.12 and 19775.6 of the act, receive a salary rate as follows:
(a) To the same class, the salary rate received at the time of separation adjusted for the salary range changes for the class since the separation.
(b) To another class with substantially the same salary range as the class from which separated, the salary rate may be either the same salary rate the employee would receive if appointed to such former class or the rate in the salary range which does not exceed the total number of range differentials above or below the rate the employee would receive if appointed to such former class.
(c) To a different class which has a lower salary range than the class from which separated, a salary rate not to exceed the salary rate last received in the class from which separated, adjusted for the salary range changes of the latter class since separation.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19141, 19253.5, 19829, 19836, 19775.6, 19997.9 and 19997.12, Government Code.
§599.679. Retention of Salary Above the Maximum upon Movement Between Classes.
Note
Upon movement without a break in service to a class with a higher salary range, an employee receiving a salary above the maximum shall be entitled to a promotional adjustment as provided by these regulations unless such rate exceeds the maximum of the new class. In this event, the employee shall be entitled to the same rate as was received in the class the employee left until such time as the maximum of the new class equals or exceeds this rate.
Upon movement without a break in service to a class with substantially the same salary range, an employee shall be entitled to the same rate received in the class left until such time as the maximum of the new class equals or exceeds this rate. Such movement may be in the same or to another department and by transfer, appointment from an employment list, temporary appointment, voluntary demotion, or reinstatement under Government Code Section 19140.
Upon movement without a break in service to a class with a lower salary range, an employee shall be entitled to the same dollar differential above the step to which entitled in the lower class as received in the higher class, until such time as the maximum of the new class equals or exceeds this rate. Such movement may be in the same or to another department and may be by appointment from an employment list, temporary appointment, voluntary demotion, disciplinary demotion, or reinstatement under Government Code Section 19140.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19140 and 19837, Government Code.
§599.680. Termination of a Salary Above the Maximum.
Note • History
Authorization to compensate an employee at a rate above the maximum shall be terminated when:
(a) An employee leaves the state service by resignation or separation for cause;
(b) The employee refuses a bona fide offer of permanent employment in a class in the same line of work two or more steps higher at the maximum or is unavailable for such employment, unless the Director of the Department of Personnel Administration finds the refusal to accept employment was reasonable under the circumstances.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19837, Government Code.
HISTORY
1. Change without regulatory effect amending subsection (b) filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
§599.681. Movement Between Alternate Ranges.
Note • History
Unless otherwise authorized by the Director of the Department of Personnel Admnistration when an employee qualifies under established criteria and moves from one alternate range to another alternate range of a class, the employee shall receive an increase or a decrease equivalent to the total of the range differential between the maximum salary rates of the alternate ranges and shall retain the salary adjustment anniversary date.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19826 and 19836, Government Code.
HISTORY
1. Editorial correction of printing error (Register 89, No. 11).
§599.682. Qualifying Service for Merit and Special In-Grade Salary Adjustment.
Note
Except as provided in Section 599.687 one month of qualifying service for merit and special in-grade salary adjustments shall be counted for each monthly pay period which meets the conditions of Section 599.608 and has been:
(a) In the state civil service or in an exempt appointment or office as provided in Government Code Section 19141; and
(b) In the same class or in another class with substantially the same or higher salary range; and
(c) Under any of the following types of appointments:
(1) A permanent appointment.
(2) A Career Executive Assignment appointment.
(3) A temporary, emergency, or limited-term appointment preceding a mandatory reinstatement.
(4) At the discretion of the appointing authority, credit may also be given for: a temporary appointment in a seasonal class; or, a temporary or special limited-term appointment when filling a permanent position; or, a temporary, emergency or limited-term appointment not covered by (3) above when followed by a permanent appointment without a break in continuity of service.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19141, 19832 and 19834, Government Code.
§599.683. Merit Salary Adjustment.
Note • History
If the appointing authority certifies in the manner prescribed by the Director of the Department of Personnel Administration that the employee has met the standards of efficiency required for the position, the employee who is not paid at the maximum step of the salary range shall receive a merit salary adjustment equivalent to one step in the salary range provided that rate does not exceed the maximum salary rate effective on the first of the monthly pay period next following completion of:
(a) Twelve months of qualifying service after:
(1) appointment; or
(2) last merit salary adjustment; or
(3) last special in-grade salary adjustment; or
(4) movement between classes which resulted in a salary increase of one or more steps; or
(b) The number of months of qualifying service as provided by Department of Personnel Administration after movement between classes which resulted in a salary increase of less than one step. The Department of Personnel Administration shall provide that the number of months of qualifying service be proportionately reduced from 12 to the number of months that will permit the employee to receive approximately the same annual salary the employee would have received with a one-step increase.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19832 and 19834, Government Code.
HISTORY
1. Editorial correction of opening sentence (Register 95, No. 37).
§599.684. Appeal from Merit Salary Adjustment Action.
Note
When an employee has not met the standards of efficiency required for the position, the supervisor shall so certify in the manner prescribed by the Director of the Department of Personnel Administration or the Department of Personnel Administration and shall recommend that the merit salary adjustment not be granted. In such cases, the adjustment shall not normally be considered again in less than three months. An employee whose merit salary adjustment will not be recommended by the supervisor shall be informed of the reasons for such action before the certification is made by the supervisor. Within 10 days after the employee is informed that the merit salary adjustment will not be recommended, the employee may file a written request with the appointing power for reconsideration under the agency's Grievance Procedure. The employee may appeal to the Department of Personnel Administration within 15 days after having exhausted the departmental remedy as herein specified. In such appeal the determination of the appointing power to withhold a merit salary adjustment shall be sustained if supported by substantial evidence.
NOTE
Authority cited: Sections 19815.4(d) 19816 and 19826, Government Code. Reference: Sections 19832 and 19834, Government Code.
§599.685. Special In-Grade Salary Adjustment.
Note
If the appointing authority certifies in the manner prescribed by the Director of the Department of Personnel Administration that the employee has met the standards of efficiency required for the position, the employee who is paid at the minimum step of the salary range in a class designated by the Department of Personnel Administration may receive a special in-grade salary adjustment to the second step of the salary range effective on the first of the monthly pay period next following completion of:
(a) six months of qualifying service after the appointment; or
(b) as otherwise may be provided by the Department of Personnel Administration. When movement between classes to the minimum step results in a salary increase of less than one step, the Department of Personnel Administration shall provide that the months of qualifying service be proportionately reduced from 6 to the number of months of qualifying service that will permit the employee to receive approximately the same annual salary the employee would have received upon appointment to the minimum step with a one-step increase.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19834 and 19836, Government Code.
§599.686. Apprenticeship Increases.
Note
In lieu of merit or special in-grade salary adjustments, apprenticeship increases shall be made to conform to the applicable standards established for the apprenticeship and approved by the Division of Apprenticeship Standards as authorized by the Shelley-Maloney Apprenticeship Labor Standards Act of 1939.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 19832, 19834 and 19836, Government Code.
§599.687. Effects of Breaks in State Service on Merit and Special In-Grade Salary Adjustments.
Note • History
(a) Periods of absence from State service resulting from a permanent separation shall not be counted as qualifying service for merit salary adjustments and special in-grade salary adjustments.
(b) Any monthly pay period in which an employee has been absent as a result of a temporary separation of 11 working days or less, may be disqualified for merit salary adjustment or special in-grade salary adjustment if the supervisor certifies that the absence had affected the employee's ability to meet the standard of efficiency required for the position during the month.
(c) Periods of absence from State service for the following reasons shall be counted as qualifying service for merit and special in-grade salary adjustments:
(1) Military leave and periods of rehabilitation provided by Section 19780 of the Government Code.
(2) Time during which the employee is receiving temporary disability for injury or disease as provided in Section 19991.4 of the Government Code.
(3) Time during which the employee is receiving paid educational leave as provided in Section 19991.7 of the Government Code.
(d) Monthly pay periods of qualifying service which immediately precede and follow a return from a temporary separation from service shall be added together for merit and special in-grade salary adjustments. At the discretion of the appointing authority monthly pay periods of qualifying service which immediately precede and follow a return from a permanent separation from service may be added together for merit salary adjustment only.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 18538.1, 19832, 19834 and 19996, Government Code.
HISTORY
1. Editorial correction of subsection (c) (Register 95, No. 37).
§599.688. Effect of Reallocation of Positions.
Note
When the State Personnel Board divides a class into two or more separate classes, or consolidates two or more classes into a single class and grants status to incumbents, the Department of Personnel Administration shall determine salary eligibility based on the following:
(a) If the maximum salary rate of the new class to which an employee's position is allocated is the same or higher than the former class, the employee shall receive a salary increase equivalent to the total of the range differentials between the maximum salary rates as of the date of board action and retain the salary adjustment anniversary date.
(b) If the maximum salary rate of the new class to which the position is allocated is lower at the maximum, the employee shall continue to receive the same rate received in the former class but not to exceed the maximum rate of the salary range of the new class, unless the Department of Personnel Administration in accordance with the provisions of Section 19837 authorizes a rate above the maximum of the class. The employee shall retain the salary adjustment anniversary date.
When the State Personnel Board divides a class, an employee whose position is allocated to other than the highest of the resulting classes, and who is later assigned to a position in the higher of these classes, shall receive such salary as is provided in these rules governing movement between classes.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Sections 18802, 19826 through 19837, Government Code.
§599.689. Effect of Salary Range Changes.
Note
Unless otherwise provided by the Department of Personnel Administration, whenever the salary range for a class is changed, the salary of each incumbent in the class on the date the range change was made effective shall be adjusted by the total of the range differentials between the maximum salary rates and shall retain the same salary adjustment anniversary date. When range changes are made effective retroactively, incumbents in the class between the effective date of the range change and the date of Department of Personnel Administration action, inclusive, shall also receive the same adjustment.
When salary range changes become effective the same date as an employee's salary adjustment anniversary date, the employee shall first receive any salary adjustment to which entitled and then receive the range differential adjustment.
When salary range changes become effective the same date as an employee's promotion, the salary adjustments shall be made in such order that the employee shall gain the maximum benefit from the adjustments.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19826, Government Code. Reference: Section 19826, Government Code.
Note
(a) For each class for which the salary range is designated by the Department of Personnel Administration as trade rate, the Director of the Department of Personnel Administration shall determine and promulgate, as often as conditions require, a trade rate range in which:
(1) The minimum salary limit shall be the prevailing rate paid in each locality for the type of work in question;
(2) There shall be one intermediate step which shall be either 5 cents an hour or 40 cents a day higher than the minimum salary limit; and
(3) The maximum salary limit shall be 10 cents an hour or 80 cents a day above the minimum salary limit.
(b) In establishing a trade rate range, the Director of the Department of Personnel Administration shall confer with and take into account the findings of state, county, municipal, and other official public bodies engaged in determining the prevailing rate in connection with the awarding of contracts for public works and shall consider such other sources of pertinent information as may be available.
(c) Whenever the trade rate range for a class is revised, the salary of each incumbent in a position to which the revised range applies shall be adjusted to the step in the revised range that corresponds to the step received in the previous range; and such salary adjustment shall not affect the date of eligibility for a merit salary adjustment.
(d) The salary which an employee shall receive upon appointment to a trade rate apprenticeship class shall conform to the wage rate provisions found to be prevailing for the apprenticeship.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19830, Government Code. Reference: Section 19830, Government Code.
§599.691. Health and Welfare Plans.
Note
(a) For each class compensated in accordance with the provisions of Section 19830 and for which the salary range is designated by the Department of Personnel Administration as trade rate, the appointing power shall ascertain and report to the Department the prevailing practice in comparable employment for payments by employers under private plans to provide health and welfare benefits to employees.
(b) The Director of the Department of Personnel Administration shall only authorize payments into plans which meet the following standards:
(1) The plan is jointly administered by labor and management.
(2) A plan office is located within the State of California.
(3) Any fund connected with the plan is required to be audited at least annually by an independent, licensed certified public accountant.
(4) Each trustee or administrator of the fund or plan authorized to receive, handle, deal with or draw upon the assets of the fund or plan is required to be bonded.
(c) The Director of Personnel Administration shall report to the State Controller the name of the agency or individual authorized to receive contributions to such fund or funds.
(d) For the purposes of this rule, “nonpermanent employees” are defined as employees whose appointments are of less than six months' duration.
(e) Nonpermanent employees in classes compensated in accordance with the provisions of Section 19830 for whom payments are made by the State into private health and welfare funds may not, during the period of such nonpermanent employment, receive any credits for vacation, retirement, sick leave, or any other related benefits as provided for other state employees for service rendered during the period of such nonpermanent employment.
(f) Any permanent or probationary employee who accepts an appointment on a nonpermanent basis to a class compensated in accordance with the provisions of Section 19830 may elect not to have payments under health and welfare plans as provided in Section 19831 made, in which event the employee will continue to receive credits for benefits which are now or may hereafter be granted directly by the State.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19830, Government Code. Reference: Sections 19830 and 19831, Government Code.
Article 6. Overtime
Note • History
“Overtime” is authorized time worked in excess of regularly scheduled workweek.
“Compensable” overtime is ordered overtime on work which is in addition to the regular work and which meets the standards set forth in Section 599.704 for which cash compensation or compensating time off is provided.
“Noncompensable” overtime is occasional and casual overtime necessary to meet normal job requirements, for which cash compensation or compensating time off is not provided.
NOTE
Authority cited: Sections 19815.4(d) 19816 and 19843, Government Code. Reference: Sections 19843, 19848 and 19851, Government Code.
HISTORY
1. New Article 6 (Sections 599.700-599.711) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 130-139.1.
§599.701. Work Week Group Definitions.
Note
Each position or class in the state service for which a monthly or annual salary range is fixed, whether or not the position or class is subject to state civil service, shall be assigned or reassigned to one the following groups:
(a) Classes and positions with a work week of 40 hours to be known as Work Week Group 1.
(b) Classes and positions for which special provisions are made by rule because of the varying needs of different state agencies and prevailing overtime compensation practice to be known as Work Week Group 4.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19819.1, 19843 and 19849, Government Code. Reference: Sections 19819.1, 19843, 19849 and 19851, Government Code.
§599.702. Authorization Required.
Note
In order to be compensable by cash or compensating time off, overtime in Work Week Group 1 and Subgroups 4A, 4B, and 4D must be authorized in advance, except in an emergency, by the appointing authority or its designated representative. This authorization must also be confirmed in writing not later than 10 days after the end of the pay period during which the overtime was worked. Each state agency shall maintain complete and accurate records of all compensable overtime worked by its employees.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19843, 19844 and 19849, Government Code. Reference: Sections 19844 and 19851, Government Code.
Note • History
Classes and positions required the establishment of special provisions governing hours of work and methods of compensation for overtime, shall be assigned to one of the following subgroups of Work Week Group 4, which are hereby established.
4A. Classes and positions with a minimum work week of 40 hours. Required work in excess of the minimum work week is compensable as overtime in accordance with the provisions of Section 599.704. Compensable overtime may be liquidated by compensating time off. When compensating time off is not practicable, the appointing authority may authorize cash compensation.
4B. Classes and positions with a five-day work week with a minimum average of 40 hours a week during any 12 consecutive pay periods, but no specified maximum number of hours per day. Overtime does not accrue for work performed on a normal work day except as provided by Section 599.710. Subject to the provisions of Section 599.708, ordered work on a normal day off is compensable by compensating time off on an hour-for-hour basis not to exceed eight hours. Cash payment for ordered work on a normal day off is not permitted except upon authorization by the Department of Personnel Administration prior to the time the work is performed except as provided by Section 599.710.
4C. Classes and positions with a minimum average work week of 40 hours. The regular rate of pay is full compensation for all time that is required for the employee to perform the duties of the position. Except as otherwise provided in Government Code Section 19853, hours of work in excess of the minimum average work week are not compensable, and shall not be deemed overtime for which compensating time off is provided within the meaning of Government Code Section 19839. If an employee in this subgroup is not required by the appointing power to work a normal workday or part thereof, the employee nevertheless shall receive the regular rate of pay without deduction if the absence does not reduce the employee's average work week below 40 hours within the 12 pay periods ending with the pay period in which the absence occurred.
4D. Classes and positions having conditions or hours of work which do not fall within the above subgroups. The Department of Personnel Administration shall establish such special provisions governing hours of work and overtime compensation as the needs of the service shall require.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19819.1, 19843, 19844 and 19849, Government Code. Reference: Section 19851, Government Code.
HISTORY
1. Editorial correction of classification 4C. (Register 2004, No. 20).
§599.703.1. Salary Assurance--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) Excluded employees in Work Week Group 4C and those excluded employees in Work Week Group 4D who are not compensated for overtime at 1 1/2 times their hourly salary rate, shall not have their salary reduced (docked) for absences of less than an entire day.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816, 19819.1, 19843 and 19849, Government Code. Reference: Section 19851, Government Code.
HISTORY
1. New section filed 10-29-90 by the Department of Personnel Administration with the Secretary of State; operative 10-31-90 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8. (Register 91, No. 3).
2. Change without regulatory effect amending section heading, section, Note and History 1. filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
§599.704. Compensable Overtime.
Note
Overtime is compensable by cash or compensating time off if it meets the following criteria:
(a) Work Week Group 1: Ordered overtime of at least one-quarter hour at any one time.
(b) Work Week Subgroup 4A: Ordered overtime of at least one hour at any one time.
(c) Work Week Subgroup 4B: Ordered overtime of at least one hour on any normal day off.
Overtime will be credited on a one-quarter of an hour basis with a full quarter hour credit to be granted if half or more of the period is worked. Smaller fractional units will not be accumulated.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19843, 19844, 19845, 19846, 19847, 19848, 19849 and 19849.1, Government Code. Reference: Sections 19848 and 19851, Government Code.
§599.705. Compensating Time Off.
Note
The time when compensating time off may be taken shall be at the discretion of the appointing power. If the employee fails to take compensating time off at the time designated by the appointing power, the employee shall have waived the right to compensation for such overtime. When compensating time off is ordered, reasonable advance notice (at least 24 hours) should be provided the employee.
Compensation time off may be taken only in units of time of one-eighth hour or multiple thereof.
(a) Compensating time off for employees in Work Week Group 1 shall be earned on a time and one-half basis and may be authorized in lieu of cash compensation. If an employee in Work Week Group 1 is not allowed compensating time off within 12 pay periods following the pay period in which the overtime was worked payment shall be made for such overtime on the next payroll. Normally, an employee in Work Week Group 1 who has an accumulation of 240 hours or 30 days of authorized overtime shall not be required to work additional overtime.
(b) Compensating time off, when authorized for employees in Work Week Group 4, shall be earned on an hour-for-hour basis unless otherwise specified in the work week subgroup. All compensating time off must be granted by the appointing power within the 12 pay periods next following the pay period during which the overtime is worked. Upon failure of the appointing power to grant this compensating time off within the period provided, the employee may appeal to the Department of Personnel Administration. After hearing such appeal, the Department may order the appointing power to arrange for this time to be taken off before expiration of the nine pay periods from the end of said 12 pay periods and report such arrangement to the Department. At no time may an employee's accumulated overtime exceed 240 hours or 30 days excluding overtime concerning which an appeal is pending. Normally an employee who has an accumulation of 240 hours or 30 days of authorized overtime shall not be required to work additional overtime except in cases of emergency, as such overtime is not compensable.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19843, 19844, 19845, 19846, 19847, 19849 and 19849.1, Government Code. Reference: Sections 19848 and 19851, Government Code.
§599.705.1. Compensating Time Off (CTO)--Excluded Employees.
Note • History
An excluded employee is defined in Section 599.615(b).
(a) Notwithstanding rule 599.705, for excluded employees in Work Week Group 1 and 4, the appointing power may, on a case by case basis, extend the period in which CTO may be granted by six (6) pay periods. If the CTO balance is not granted within the six (6) pay periods, the provisions of Section 599.705 shall apply.
(b) Compensating time off for excluded employees in Work Week Group 4A shall be earned on a time and one-half basis and may be authorized in lieu of cash compensation.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816, 19843, 19844, 19845, 19846, 19847, 19849 and 19849.1, Government Code. Reference: Sections 19848 and 19851, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with Secretary of State on 12-30-87; operative 12-30-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 7).
2. Amendment filed by Department of Personnel Administration with the Secretary of State on 9-9-88; operative 9-9-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 41).
3. Change without regulatory effect amending section heading, section, and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
Note
Employees in Work Week Group 1 or Work Week Subgroup 4A may be compensated for compensable overtime by cash compensation. Employees in Work Week Subgroups 4B and 4D, except upon movement between departments may not receive cash compensation for compensable overtime unless authorized in advance by the Department of Personnel Administration or Sections 599.703 and 599.710. Unless otherwise specified by the Department pursuant to Section 599.703, the rate of cash compensation paid for compensable overtime shall be time and one-half the hourly equivalent of the employee's monthly salary as of the time the overtime was worked, which shall be determined as provided in Section 599.670, except that in no event shall the rate of compensation for Group 4 employees exceed the hourly rate established by the Director or designee of the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19843, 19844, 19845, 19846, 19847, 19849 and 19849.1, Government Code. Reference: Sections 19848 and 19851, Government Code.
Note • History
When an employee leaves the employment of one state agency and enters the employment of another state agency, without a separation from service within the meaning of Government Code Section 19839, the state agency the employee is leaving shall compensate or allow compensating time off for all compensable overtime to the employee's credit prior to transfer. The rate of compensation for compensable overtime in such cases shall be the same as that provided under Section 599.706.
When the movement of an employee is the result of the transfer of a function or the administration of a law from one state agency to another state agency, the provisions of this section are not applicable.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19843, 19844, 19845, 19846, 19847, 19849 and 19849.1, Government Code. Reference: Sections 19839, 19848 and 19851, Government Code.
HISTORY
1. Editorial correction of opening sentence (Register 95, No. 40).
Note
An employee in Work Week Group 1 or Work Week Subgroup 4A who has completed a normal work shift, or an employee in Work Week Subgroups 4B or 4D on an authorized day off, when ordered back to work, shall be credited with a minimum of four hours' work time provided the call back to work is without having been notified prior to completion of the work shift, or the notification is prior to completion of the work shift and the work begins more than three hours after the completion of the work shift.
When such an employee is called back under these conditions within four hours of the beginning of a previous call or an additional call is received while still working on an earlier call back, the employee shall not receive an additional four hours' credit for the new call back.
When such an employee is called back within four hours of the beginning of the employee's next shift, call back credit shall be received only for the hours remaining before the beginning of the employee's next shift.
When staff meetings, training sessions, or work assignments are regularly scheduled on an employee's authorized day off, the employee shall receive call back compensation; when staff meetings and training sessions are regularly scheduled on an employee's normal work day and outside the employee's normal work shift, overtime compensation shall be received in accordance with the regulations governing overtime.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19849.1, Government Code. Reference: Sections 19843, 19844, 19845, 19846, 19847, 19848, 19849 and 19851, Government Code.
Note • History
Each time an intermittent employee is ordered to work, the employee shall be credited with a minimum of four hours' work time.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19100, Government Code.
HISTORY
1. Editorial correction of text (Register 95, No. 40).
Note
Employees in Work Week Subgroups 4A and 4B required and authorized in advance by the appointing power to work overtime as a result of an emergency situation, shall be compensated for overtime worked in accordance with the provisions of Work Week Group 1 for the duration of the emergency without prior approval of Department of Personnel Administration.
For the purposes of this section, an emergency situation is one declared by the Governor or the appointing power and is defined as a situation where there is extreme peril to persons and property caused by such conditions as fire, flood, storm, epidemic, riot, or earthquake.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19844 and 19849, Government Code. Reference: Sections 19843 and 19851, Government Code.
§599.711. Overtime Compensation During Job Actions.
Note
With the approval of the Director of Department of Personnel Administration, Work Week Group 4A, 4B and 4C employees who are assigned to work overtime because of strike or other job action by State employees may be temporarily reassigned to Work Week Group 1 for purpose of providing overtime compensation during such job actions; and Work Week Group 4D employees who are assigned to work overtime or are moved to a different assignment because of a strike or other job action by State employees may be temporarily reassigned to another work week group or subgroup when such action is needed to provide equitable overtime compensation.
Employees so reassigned shall not be subject to the maximum overtime rate prescribed for Work Week Group 4 employees.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19844 and 19849, Government Code. Reference: Sections 19843 and 19851, Government Code.
Article 7. Moving and Relocation Expenses
Note • History
(a) Whenever a state officer or employee is required by any appointing power because of a change in assignment, promotion or other reason related to his/her duties, to change his/her place of residence, such officer, agent or employee shall receive his/her actual and necessary moving and relocation expenses incurred by him/her both before and after and by reason of such change of residence, subject to the provisions of this article.
(b) For the purposes of this article, a move occurs on the official reporting date to the new headquarters, and a change in residence is reasonably to be required when the following conditions are met:
(1) The officer's or employee's officially designated headquarters is changed for the advantage of the State, which includes the following:
(A) A promotion offered by any appointing authority; or
(B) A non-promotional transfer deemed to be in the best interests of the State by the officer's or employee's appointing authority; or
(C) A transfer of an officer or employee by his/her or another appointing authority in lieu of a layoff of the officer or employee.
(2) The normal commute distance must be as designated between all the following locations:
(A) At least 56 kilometers (35 miles) between the old headquarters and the new headquarters; and
(B) At least 56 kilometers (35 miles) between the old residence and the new residence; and
(C) At least 56 kilometers (35 miles) between the old residence and the new headquarters; and
(D) The new residence shall not be farther from the new headquarters than the old residence is from the new headquarters.
(c) A change of residence is not deemed reasonably to be required for voluntary non-promotional transfers in response to general requests which specify that moving and relocation expenses will not be paid, or for any non-promotional transfer which is primarily for the benefit of the officer or employee.
(d) Reimbursement for moves that do not conform to the established criteria may be granted when the Director of the Department of Personnel Administration has determined in advance that the officer or employee will be subject to unusual and unavoidable hardship by reason of the change of residence.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New Article 7 (Sections 599.714-599.724, not consecutive), including redesignation of Section 599.722 to Article 7 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history of Section 599.722, see Registers 83, No. 17; and 82, No. 42.
. CROSS REFERENCE: See Title 2, Division 2, Chapter 1, Sections 732-739.
2. Editorial correction of subsections (a) and (c) (Register 95, No. 40).
§599.714.1. Scope--Excluded Employees.
Note • History
(a) Whenever a permanent state officer or employee is required by any appointing power because of a change in assignment, promotion or other reason related to his/her duties, to change his/her place of residence, such officer, agent or employee shall receive reimbursement of his/her actual and necessary moving and relocation expenses incurred by him/her both before and after and by reason of such change of residence, subject to the provisions and limitations of this article.
(b) For the purposes of this article, a move occurs on the official reporting date to the new headquarters, and when a change in residence is reasonably to be required. Relocation shall be paid, when the following conditions are met:
(1) The officer's or employee's officially designated headquarters is changed for the advantage of the State, which includes the following:
(A) A promotion offered by any appointing authority, not including those movements that the employee could make through transfer, reinstatement or reemployment eligibility; or
(B) An involuntary transfer initiated by and at the discretion of the appointing authority,
(C) An involuntary transfer required to affect a mandatory reinstatement following:
(I) termination of a career executive or exempt appointment
(II) leave of absence
(III) rejection from probation
(D) any involuntary transfer required to affect a mandatory reinstatement following the expiration or involuntary termination of a temporary appointment, limited term appointment or training and development assignment when:
(I) the employee did not relocate to accept the appointment or assignment, or
(II) the employee did relocate, at State expense, to accept the appointment or assignment.
(2) The move must be a minimum of 50 miles plus the number of miles between the old residence and the old headquarters.
(3) Relocations that meet the above criteria will be fully reimbursed to the extent and limitations in this article.
(c) A change of residence is not deemed reasonably to be required for voluntary transfers or permissive reinstatements, with or without a salary increase, in response to general requests which specify that moving and relocation expenses will not be paid, or for any non-promotional transfer which is primarily for the benefit of the officer or employee.
(d) When an appointment does not meet the criteria in (a) and (b) the appointing power may, at his/her discretion, determine in advance that it is in the best interest of the State to reimburse all or part of the actual reasonable and necessary relocation expenses provided in this article as an incentive to recruit employees to positions that are designated by the appointing power as difficult to fill or because of outstanding qualifications of the appointee, or due to unusual and unavoidable hardship to the employee by reason of the change of residence.
(1) Relocations that meet this criteria shall be reimbursed only for the items in this article specifically authorized by the appointing power and may be subject to further limitations designated by the appointing power.
(2) Upon determination that any reimbursement will be made, the appointing power shall:
(A) Determine which provisions will apply to the relocation and establish any additional limitations to those provisions such as dollar limits, weight limits or time limits.
(B) Notify the employee, in writing, of specific allowable reimbursements prior to the move.
(e) Requirements and limitations specified in this article may not be waived or exceeded by the appointing power.
(f) Unauthorized relocation expenses and relocation expenses incurred prior to receipt of a written notice of allowable relocation expenses are the responsibility of the employee.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.715. Allowance for Miscellaneous Expenses.
Note
An officer or employee who is required to change his/her place of residence according to Section 599.714 may receive up to $100 for miscellaneous expenses upon certification that such expenses were incurred because of the relocation and were not otherwise reimbursed. Up to $200 for miscellaneous expenses may be authorized upon submittal of documentation of the payment of all such expenses and certification that the expenses were related to dissolution of the old household and/or the establishment of a new household.
(a) Reimbursement for the installation and/or connection of appliances or antennas purchased after the change of residence shall be allowed provided no claim is made for dismantling, disconnecting, or shipment of a similar item, and
(b) Installation and/or connection occurs within ten days of the establishment of a new residence.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
§599.715.1. Reimbursement for Miscellaneous Expenses--Excluded Employees.
Note • History
An officer or employee who is required to change his/her place of residence according to Section 599.714.1 may receive reimbursement for up to $200 for miscellaneous expenses upon submittal of documentation of the payment of all such expenses and certification that the expenses were related to dissolution of the old household and/or the establishment of a new household and were not otherwise reimbursed.
(a) Reimbursement for the installation and/or connection of appliances or antennas purchased after the change of residence shall be allowed provided no claim is made for installation and/or connection of a similar item in the movement of household goods, and installation and/or connection occurs within sixty days of the establishment of a new residence.
(b) Deposits are not reimbursable.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.716. Reimbursement for Sale of a Residence.
Note • History
(a) Whenever a state officer or employee is required, as defined in Section 599.714 to change his/her officially designated headquarters which requires the sale of his/her residence the officer or employee shall be reimbursed only for actual and necessary selling costs as determined by prevailing practices within the area of sale. Claims for reimbursement must be substantiated by the seller's closing escrow statement and other pertinent supportive documents. Seller's points are not eligible for reimbursement and claims will include only those items which are listed in the following subsection.
(b) Actual and necessary selling costs are:
(1) Brokerage commission; and
(2) Title insurance; and
(3) Escrow fees; and
(4) Prepayment penalties; and
(5) Taxes, charges or fees fixed by local authority required to consummate the sale of the residence; and
(6) Miscellaneous sellers costs customary to the area, not to exceed $200.
(c) Actual and necessary selling costs will be reimbursed for that portion of the dwelling the employee actually occupies if the employee or officer owns and resides in a multi-family dwelling.
(d) Except as provided in subsection (e), claims for the sale of a residence must be submitted within one year following the date the officer or employee reports to the new official headquarters. An extension of not more than six months may be granted by the Director of the Department of Personnel Administration upon receipt of evidence warranting such extension prior to the expiration of the one year period.
(e) For nonrepresented employees as defined in Section 599.619 of these regulations, claims for the sale of a residence must be submitted within two years following the date the officer or employee reports to the new official headquarters. No extensions will be allowed thereafter.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. Amendment of subsection (d) and new subsection (e) filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 18).
2. Editorial correction of subsection (a) (Register 95, No. 40).
§599.716.1. Reimbursement for Sale of a Residence--Excluded Employee.
Note • History
(a) Whenever a state officer or employee is required, as defined in Section 599.714.1 to change his/her officially designated headquarters and this requires the sale of his/her residence the officer or employee shall be reimbursed only for actual and necessary selling costs as determined by prevailing practices within the area of sale. Claims for reimbursement must be substantiated by the seller's closing escrow statement and other pertinent supportive documents. Seller's points are not eligible for reimbursement. Claims will include only those items which are listed in the following subsection.
(b) Actual and necessary selling costs are:
(1) Brokerage commission; and
(2) Title insurance; and
(3) Escrow fees; and
(4) Prepayment penalties; and
(5) Taxes, charges or fees fixed by local authority required to consummate the sale of the residence; and
(6) Miscellaneous sellers costs customary to the area, not to exceed $200.
(c) Actual and necessary selling costs will be reimbursed for that portion of the dwelling the employee actually occupies if the employee or officer owns and resides in a multi-family dwelling.
(d) Commissions and fees will not be reimbursed if paid to the employee, the employee's spouse or the spouse's employer, or to any member of the household.
(e) Claims for the sale of a residence must be submitted within two years following the date the officer or employee reports to the new official headquarters. No extensions will be allowed thereafter.
(f) Rebates to employees will be deducted from the claim prior to reimbursement.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
2. Editorial correction of Note (Register 96, No. 38).
§599.717. Settlement of a Lease.
Note • History
(a) Whenever an officer or employee is required, as defined by Section 599.714, to change his/her officially designated headquarters and such change requires the settlement of a lease on the employee's old residence, the officer or employee shall receive the actual and necessary cost of settlement of the unexpired lease to a maximum of one year.
(b) Reimbursement shall not be allowed if it is determined that the officer or employee knew or reasonably should have known that a transfer according to Section 599.714 was imminent before entering into a lease agreement.
(c) Claims for settlement of a lease shall be documented and itemized and submitted within six months following the new reporting date except that the Director of the Department of Personnel Administration may grant an extension of not more than three months upon receipt of evidence warranting such extension prior to the expiration of the six-month period.
(1) The claim may be a signed agreement between the officer or employee and the lessor or it may be made unilaterally by the officer or employee.
(2) In no event shall the final settlement by the State exceed one year's rent nor shall it include any costs, deposits or fees.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. Editorial correction of subsection (b) (Register 95, No. 40).
§599.717.1. Settlement of a Lease--Excluded Employee.
Note • History
(a) Whenever an officer or employee is required, as defined by Section 599.714.1(a) to change his/her place of residence and such change requires the settlement of a lease on the employee's old residence, the officer or employee shall receive the actual and necessary cost of settlement of the unexpired lease to a maximum of one year. In no event shall the lease settlement include any costs, deposits or fees.
(1) Reimbursement shall not be allowed if it is determined that the officer or employee knew or reasonably should have known that a transfer according to Section 599.714.1 was imminent before entering into a lease agreement.
(2) Claims for settlement of a lease shall include a lease agreement signed by both the employee and the lessor, and shall be itemized and submitted within nine months following the new reporting date.
(b) If an employee is required under 599.714.1(a) to change his/her place of residence and such notice to the employee is insufficient to provide the employee the notice period required by a month to month rental agreement, reimbursement may be claimed for the number of days penalty paid by the employee to a maximum of 30 calendar days.
(1) Reimbursement shall not be allowed for days that the employee failed to notify the landlord after notification by the employer of the reassignment.
(2) Claims shall be accompanied by a copy of the rental agreement, an itemized receipt for the penalty and the name and address of the individual or company to which the rental penalty has been paid.
(c) No reimbursement shall be made for forfeiture of cleaning or security deposits, or for repair, replacement or damages of rental property.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.718. Expenses for Moving Household Effects.
Note • History
For the purpose of these regulations, household or personal effects include items such as furniture, clothing, musical instruments, household appliances, foods, and other items which are usual or necessary for the maintenance of a household. Household effects shall not include automobiles; other motor vehicles; farm tractors, implements, and equipment; trailers with or without other property; boats; all animals, livestock or pets; belongings which are not the property of the immediate family of the officer or employee; belongings related to commercial enterprises engaged in by the officer or employee; firewood; fuels; bricks, sand, ceramic wall tile, wire fence or other building materials; or wastepaper and rags.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. Editorial correction of second sentence (Register 95, No. 40).
§599.718.1. Expenses for Moving Household Effects--Excluded Employees.
Note • History
(a) For the purpose of these regulations, household or personal effects include items such as furniture, clothing, musical instruments, household appliances, food, and other items which are usual or necessary for the maintenance of one household.
(b) Household effects shall not include items connected to a for profit business, items from another household, items that are permanently affixed to the property being vacated or items that would normally be discarded or recycled.
(c) At the discretion of the appointing power, other items may be considered household effects based on a consideration of the estimated cost of the move and a review of the items listed on the inventory. Expenses related to moving items other than those described in (a) that have not been approved by the appointing power shall be the responsibility of the employee.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.719. Reimbursement for Moving Household Effects.
Note • History
Reimbursement shall be allowed for the cost of moving an employee's effects either via commercial household goods carrier or by the employee. No reimbursement will be allowed for the hiring of casual labor.
(a) Either reimbursement for actual and necessary expenses incurred under this article for the packing, insurance, transportation, storage-in-transit (not including warehouse handling charges except when required by interstate tariffs), unpacking, and installation at the new location of an employee's household effects shall be allowed subject to the following limits:
(1) Weight of household effects for which expenses may be reimbursed shall not exceed 5,000 kilograms (11,000 pounds).
(2) Duration of storage-in-transit for which charges may be reimbursed shall not exceed 60 calendar days.
(3) Rates at which reimbursement is allowed shall not exceed the minimum rates, at the minimum declared valuation, established by the California Public Utilities Commission for household goods carriers, unless a higher rate is approved by the Department of General Services.
(4) Cost of insurance for which reimbursement is allowed shall not exceed the cost of insurance coverage at $1.50 valuation for each pound of household effects shipped by household goods carrier.
(b) Or reimbursement shall be allowed as follows for expenses related to the movement by the employee of his/her household effects in a truck or trailer.
(1) Rental of a truck or trailer from a commercial establishment. When not included in the truck rental rate, the cost of gasoline will be reimbursed. If the total costs exceed $300, the claim must be accompanied by at least three written commercial rate quotes. Reimbursement will be made at the rates (including gasoline) which result in the lowest cost;
(2) Distance at the rates provided in Section 599.630(b) or 599.631(b) for noncommercial privately-owned motor vehicles used in transporting the employee's household effects.
(c) Reimbursement for more than one trip may be allowed if the employee's agency has determined that the total cost would be less than the cost of movement by a commercial household goods carrier.
(d) The maximum allowances prescribed by this section may be exceeded in cases where the Director of the Department of Personnel Administration has determined in advance that the change of residence will result in an unusual and unavoidable hardship for the officer or employee and has determined the maximum allowances to be received by said officer or employee. Claims for exceptions to the 5,000 kilograms (11,000 pounds) statutory limit will be considered only when it has been determined that every reasonable effort had been made to conform to statute.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. Editorial correction of subsection (d) (Register 95, No. 40).
§599.719.1. Reimbursement for Moving Household Effects--Excluded Employees.
Note • History
Reimbursement shall be allowed for the cost of moving an employee's effects either via commercial household goods carrier or by the employee. Reimbursements under this rule shall not exceed the cost of moving the employee's household goods from the old residence to the new headquarters plus 50 miles unless the appointing authority determines that a longer move is in the best interest of the State. Any additional expense associated with an interstate or intercountry move shall be approved in advance by the appointing power. No reimbursement will be allowed for the hiring of casual labor.
(a) When the employee retains a commercial mover, reimbursement for actual and necessary expenses incurred by a commercial mover under this article for the packing, insurance, one pickup, transportation, storage-in-transit (not including warehouse handling charges except when required by interstate tarriffs), one delivery, unpacking, and installation at the new location of an employee's household effects shall be allowed subject to the following:
(1) Weight of household effects for which expenses may be reimbursed shall not exceed 5,000 kilograms (11,000 pounds).
(2) Duration of storage-in-transit for which charges may be reimbursed shall not exceed 60 calendar days unless a longer period of storage is approved in advance by the appointing authority based on hardship to the employee.
(3) Rates at which reimbursement is allowed shall not exceed the minimum rates, at the minimum declared valuation, established by the California Public Utilities Commission for household goods carriers, unless a higher rate is approved by the Department of General Services.
(4) Cost of insurance for which reimbursement is allowed shall not exceed the cost of insurance coverage at $2.00 valuation for each pound of household effects shipped by household goods carrier.
(5) Claims for exceptions to the 11,000 pounds statutory limit will be considered by the appointing authority, up to a maximum of 23,000 pounds, only when it has been determined that every reasonable effort had been made to conform to the limit. Exceptions to the number of pick-ups and deliveries may be made by the appointing power when it is reasonably necessary and in the best interest of the state.
(b) When the employee does not retain a commercial mover, reimbursement shall be allowed as follows for expenses related to the movement by the employee of his/her household effects in a truck or trailer.
(1) Rental of a truck or trailer from a commercial establishment. When not included in the truck rental rate, the cost of gasoline, rental of a furniture dolly, packing cartons and protective pads will be reimbursed. If the total costs exceed $1,000 the claim must be accompanied by at least one written commercial rate quote. Reimbursement will be made at the rate (including gasoline) which results in the lowest cost; or
(2) Mileage reimbursement at the rates provided in Section or 599.631.1(b) for noncommercial privately-owned motor vehicles used in transporting the employee's household effects.
(3) Reimbursement for more than one trip by the method described in (b)(1) or (2) above may be allowed if the employee's agency has determined that the total cost would be less than the cost of movement by a commercial household goods carrier.
(c) If household goods are moved exclusively in the employee's personal vehicle, reimbursement for mileage may be claimed at the State mileage rate. No other mileage or moving expense shall be allowed.
(d) All claims for the reimbursement of the movement of household goods require receipts. Unless an exception is granted by the appointing authority, claims shall be submitted no later than 2 years and 60 days from the effective date of appointment or 15 days prior to voluntary separation, whichever is first.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.720. Reimbursement for Movement of a Trailer Coach.
Note
For the movement of a trailer coach which contains the household effects of an officer or employee, and has served as the employee's residence at the previous location at the time of notification of relocation, reimbursement will be allowed as follows:
(a) For tolls, taxes, charges, fees or permits fixed by the State or local authority required for the transportation or assembly of trailer coaches actually incurred by the employe.
(b) Where transportation of the trailer coach is by the employee distance may be claimed for a one-way trip at the rates specified in Section 599.630(b) or 599.631(b).
(c) For charges not to exceed $2,000 for disassembly and assembly of the trailer, including but not limited to, disassembly and assembly of trailer, skirts, awnings, porch, the trailer coach itself and other miscellaneous documented, itemized expenses related to the dissolution of the old household and/or the establishment of the new household.
(1) Three competitive bids shall be obtained and reimbursement up to the maximum, allowed at the lowest bid.
(2) Reimbursement received under this section precludes any additional reimbursement under Section 599.715.
(3) Exceptions to this section may be granted by the Director of the Department of Personnel Administration if it has been documented that the movement of the trailer coach was conducted in the most economical fashion available and that the total cost of said movement did not exceed the probable cost of moving and relocation expenses incurred by a comparable conventional move.
(d) Where transportation of the trailer coach is by a commercial mobile home transporter:
(1) Movement of the trailer coach at rates not exceeding the minimum rates established by the California Public Utilities Commission for mobile home transporters;
(2) Charges at P.U.C. minimum rates to obtain permits identified above;
(3) Storage-in-transit not in excess of 60 calendar days at P.U.C. minimum rates.
(e) Reimbursement will not be allowed for:
(1) Purchase of parts and materials except for those items necessary to comply with minimum requirements of the California Administrative Code, Title 25, Chapter 5.
(2) Repairs including tires and tubes, and breakdown in transit.
(3) Costs associated with maintenance of the trailer coach or for separate shipment of household effects by a household goods carrier which cannot be transported in the trailer coach.
(f) Reimbursement will be allowed for the actual cost supported by voucher of rental and installation of axles necessary to comply with the requirements of Chapter 5, Article 1 of the California Vehicle Code.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
§599.720.1. Reimbursement for Movement of a Mobile Home--Excluded Employees.
Note • History
For the movement of a mobile home which contains the household effects of an officer or employee, and has served as the employee's residence at the previous location at the time of notification of relocation, reimbursement will be allowed as follows:
(a) Where transportation of the trailer coach is by a commercial mobile home transporter and receipts are submitted:
(1) For tolls, taxes, charges, fees or permits fixed by the State or local authority required for the transportation or assembly of trailer coaches actually incurred by the employee.
(2) Charges for disassembly and assembly of the trailer, including but not limited to, disassembly and assembly of trailer, skirts, awnings, porch, the trailer coach itself and other miscellaneous documented, itemized expenses related to the dissolution of the old household and/or the establishment of the new household, up to $2,500 unless an exception is approved by the appointing power.
(3) Reimbursement will be allowed for the actual cost supported by voucher of rental and installation of wheels and axles necessary to comply with the requirements of Chapter 5, Article 1 of the California Vehicle Code.
(4) Three competitive bids shall be obtained and reimbursement will be approved at the lowest bid. Based on information documenting the attempt to obtain three bids as provided by the employee, the appointing power may waive the three bid requirement.
(5) Reimbursement received under this section precludes any additional reimbursement for miscellaneous expenses under Section 599.715.1.
(6) Movement of the trailer coach at rates not exceeding the minimum rates established by the California Public Utilities Commission for mobile home transporters:
(7) Charges at P.U.C. minimum rates to obtain permits identified above;
(8) Storage-in-transit for up to 60 calendar days at P.U.C. minimum rates, unless an extension is approved by the appointing authority.
(b) Where transportation of the coach is by the employee, expense may be claimed for a one-way trip by submitting gasoline receipts.
(c) Reimbursement will not be allowed for:
(1) Purchase of parts and materials except for those items necessary to comply with minimum requirements of the California Administrative Code, Title 25, Chapter 5.
(2) Repairs including tires and tubes, and breakdown in transit.
(3) Costs associated with maintenance or repair of the trailer coach.
(4) Costs for separate shipment of household effects by a household goods carrier unless that is determined to be the most economical method of transport.
(5) Costs associated with the movement or handling of permanent structures.
(d) All claims related to the movement of a trailer coach and the household goods therein require receipts and shall be submitted no later than 2 years and 60 days from the effective date of appointment, or 15 days prior to voluntary separation, whichever is first. No extensions will be granted.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
§599.721. Relocation Allowance--Represented Employees.
Note • History
A represented employee is defined in Section 599.621.
(a) When eligibility exists in accordance with Section 599.714, a represented employee shall be reimbursed for actual lodging expense, supported by voucher, plus meal and incidental expenses in accordance with the applicable provisions of a Memorandum of Understanding while locating a permanent residence at the new location.
(1) The daily allowance shall not exceed the maximum subsistence authorized by the applicable provisions of a Memorandum of Understanding.
(2) The allowance shall not be paid for more than 60 days however this period may be exceeded in cases where the Department of Personnel Administration has determined in advance that the change of residence will result in an unusual and unavoidable hardship for the represented employee and has determined the maximum allowances to be received by said employee.
(3) Represented employees who do not furnish receipts for lodging when claiming lodging expenses will be reimbursed in accordance with Section 599.621(c)(1).
(4) The represented employee may exclude at his/her option interruptions caused by sick leave, vacation or other authorized leave of absence.
(5) The relocation allowance shall terminate immediately upon establishment of a permanent residence. The department shall determine when a permanent residence has been established.
(b) Meal expenses arising from one day trips to the new location for the sole purpose of locating housing shall be reimbursed in accordance with the applicable provisions of a Memorandum of Understanding. The period claimed shall be included in the computation of the 60-day relocation period.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19820 and 19841, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.722. Relocation Subsistence Reimbursement and Mileage--Excluded Employees.
Note • History
An excluded employee is defined in Section 599.619.
(a) If eligible under Section 599.714(a), an officer or employee shall be reimbursed for actual lodging, supported by a receipt, and meal and incidental expenses in accordance with and not to exceed the rates established in Section 599.619(a)(1) and (2) while locating a permanent residence at the new location. Employees who do not furnish receipts for lodging may be reimbursed for meals only in accordance with 599.619(a). A permanent residence is typically an abode that is purchased or rented on a monthly basis, of a type that provides long-term living accommodations, where any utilities are hooked up (gas, electric, cable, phone), and mail is delivered.
(1) Reimbursement may be claimed for up to 60 days, except an extension of up to 30 days may be granted when the Appointing power has determined in advance that the delay of change of residence is a result of unusual and unavoidable circumstances that are beyond the control of the officer or employee. The maximum reimbursement to be received by said officer or employee shall not exceed the equivalent dollar amount of 60 days of full meals, incidentals, and receipted lodging.
(2) Interruptions in relocation caused by sick leave, vacation or other authorized leaves of absence shall be reimbursable at the option of the employee providing the employee remains at the new location and is actively seeking permanent residence.
(3) The relocation subsistence claim shall terminate immediately upon establishment of a permanent residence. The appointing power shall determine when a permanent residence has been established.
(4) Partial days shall count as full days for the purpose of computing the 60-day period.
(b) Upon approval of the Appointing Power, meals and/or lodging expenses, for up to fourteen days, arising from trips to the new location for the sole purpose of locating housing shall be reimbursed in accordance with Section 599.619(a)(1) and (2), or 599.619(c)(1), or 599.619(d). Claims for reimbursement of meals/lodging expenses in this item are limited to those incurred after receipt of formal written authorization for relocation and prior to the effective date of appointment. The period claimed shall be included in the computation of the 60-day relocation period.
(c) Reimbursement for travel from the old residence to the new headquarters may be claimed one way one time and shall not exceed the mileage rate allowed in 599.631(a).
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 19841, Government Code.
HISTORY
1. Redesignation of Section 599.722 to Article 7 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history, see Registers 83, No. 17 and 82, No. 42.
2. Amendment filed by Department of Personnel Administration with the Secretary of State on 8-27-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 39).
3. Amendment filed by Department of Personnel Administration with the Secretary of State on 6-27-88 pursuant to Government Code Section 3517.8. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 88, No. 31).
4. Amendment of section heading, subsections (a) and (b) and Note filed 12-24-93; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 4).
5. Amendment of section heading and section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
6. Editorial correction of subsection (a)(2) (Register 96, No. 38).
7. Amendment of subsection (a) filed 7-1-97; operative 7-1-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 27).
§599.723. Travel and Moving Expenses of Persons Who Change Their Place of Residence to Accept Employment with the State.
Note
Reimbursement will be allowed for a part of the travel and moving expenses of professional and technically trained persons who change their place of residence to accept employment with the State under the following conditions:
(a) In the case of an applicant for employment by the Trustees of the California State University, the employee must have been appointed to a position or class for which the Trustees have certified that such expenditure is necessary in order to recruit qualified persons needed by the California State University. In the case of any other applicant, the employee must have been appointed to a position or class for which the Department of Personnel Administration and the appointing power have certified that such expenditure is necessary in order to recruit qualified persons needed by the State.
(b) The employee must have changed his/her place of residence for the purpose of accepting employment with the State.
(c) Reimbursement for travel from the old residence to the new residence shall be at the rate of 6 cents per mile. Reimbursement for travel expenses of members of the employee's family will not be allowed.
(d) Reimbursement for moving expenses will be allowed in accordance with Sections 599.718 and 599.724(a). Approval of the Department of Finance is required on any claim under this subsection in excess of $1000.
(e) If an employee whose travel and moving expenses have been so paid does not continue his/her employment with that State department for a period of two years (unless the discontinuance of his/her employment was the result of death, prolonged illness, disability, unacceptability of the employee to that state department, or similar eventualities beyond the control of the employee as determined by the appointing power), he/she shall repay the following percentage of the amount received as reimbursement for such travel and moving expenses:
100 percent if employed less than 6 months.
75 percent if employed 6 months but less than 12 months.
50 percent if employed 12 months but less than 18 months.
25 percent if employed 18 months but less than 2 years.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19842, Government Code.
§599.723.1. Travel and Moving Expenses of Persons Who Are Required to Change Their Place of Residence in Order to Accept Employment With the State - Excluded Employees.
History
(a) Reimbursement may be allowed for all or part of the travel and moving expenses of professional and technically trained persons who are required to change their place of residence to accept employment with the State under the following conditions:
(1) The employee must have been appointed to a position or class for which the appointing power has certified that such expenditure is necessary in order to recruit qualified persons needed by the State.
(2) The employee must have changed his/her place of residence for the purpose of accepting employment with the State.
(3) The employee is new to State employment or reinstating to State employment after a permanent separation.
(4) The established headquarters is more than 75 miles from the employee's primary residence.
(b) An employee who meets the criteria established in (a) above may, at the discretion of the appointing power, be reimbursed for relocation expenses as follows:
(1) Reimbursement for the expenses for the movement and storage of household goods in accordance with 599.718.1, 599.719 and 599.724.1 to a maximum of $1,000.
(2) Reimbursement for travel from the old residence to the new residence at the rate of 9 cents per mile. Reimbursement for travel expenses of members of the employee's family will not be allowed.
(c) With advance approval from the Director, Department of Personnel Administration, an employee who meets the criteria in (a) may, at the discretion of the appointing power be reimbursed for relocation expenses, in addition to those in (b)(1) and (b) above, for all or part of the following:
(1) Reimbursement for a maximum of 30 days of temporary lodging and meals at the new headquarters location, limited to the conditions, maximums and receipt requirements applicable to state employees travel reimbursement as set forth in 599.619(a) and (b). Up to 14 of the 30 days may be used for pre-move house hunting at the new headquarters location, reimbursable after the report date.
(2) As described in 599.715.1, reimbursement for up to $200 of receipted expenses for installation, connection, or assembly of appliances, antennas or utilities that are related to the establishment of the new household. Deposits are not reimbursable.
(d) Advance approval of the Appointing Power and the Department of Finance is required for any reimbursement or combination of reimbursements under this rule that exceeds $1,000. Claims for reimbursement of relocation expenses under this rule must be submitted no later than 6 months from the reporting date. No reimbursement will be issued prior to the employee reporting to the new headquarters.
(e) If an employee whose travel and moving expenses have been so paid does not continue his/her employment with the State department for a period of two year (unless the discontinuance of his/her employment was the result of death, prolonged illness, disability, unacceptable assessment of the employee by that state department, or similar eventualities beyond the control of the employee as determined by the appointing power), he/she repay the following percentage of the amount received as reimbursement for such travel and moving expenses:
100 percent if employed less than 6 months.
75 percent if employed 6 months but less than 12 months.
50 percent if employed 12 months but less than 18 months.
25 percent if employed 18 months but less than 2 years.
HISTORY
1. New section filed 5-3-96; operative 6-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 96, No. 18).
2. Amendment of subsections (b) and (d) filed 10-1-2001; operative 10-1-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 46).
§599.723.2. Relocation of New Hire--International Trade Office Director--Excluded.
History
Reimbursement for relocation expenses for any new hire is at the discretion of the appointing authority. Other approvals may be required as noted. Application of this rule precludes application of any part of rule 599.723.1.
(a) Reimbursement may be allowed for all or part of the travel and moving expenses of persons who change their place of residence to accept employment with the state in an appointment to the position of International Trade Office Director at a foreign location under the following conditions:
(1) Appointee must be changing the place of residence in order to accept employment with the state, and
(2) Appointment is to be a position that is headquartered in a foreign country and more than 75 miles from the appointee's primary residence, and
(3) The appointee is new to State employment or is being re-appointed to State employment after a permanent separation.
(b) Appointees who meet the criteria in (a) may be approved to receive the following reimbursement of relocation expenses
(1) Reimbursement for the expenses for the movement and storage of household goods in accordance with 599.718.1, 599.719 and 599.724.1 to a maximum of $10,000.
(2) Reimbursement for one coach airfare to the new headquarters location for the appointee only
(c) With advance approval from the Director, Department of Personnel Administration, an appointee who meets the criteria in (a) may, at the discretion of the appointing power be reimbursed for relocation expenses, in addition to those in (b)(1) and (2) above, for all or part of the following:
(1) Reimbursement for a maximum of 90 days of actual expense for temporary lodging and meals at the new headquarters location, limited to the conditions, and receipt requirements applicable to state employee travel reimbursements as set forth in 599.619(a), not to exceed the lodging, meal and incidental rates as set forth by the U.S. Department of State Section 925, Maximum Travel Per Diem Allowances for foreign Areas and Federal Travel Regulation Chapter 301, Appendix B, and as noted below. Reimbursement rates will be as follows:
A. For the first 30 days, 100% of the employee's actual meal and lodging expenses; Up to 14 of the 30 days may be used for pre-move house hunting at the new headquarters location, reimbursable after the report date.
B. If permanent housing has not been acquired within 30 days, reimbursement for an additional 30 days may be granted at 65% of actual expenses for meals and lodging.
C. If permanent housing has not been acquired within 60 days, an additional 30 days may be granted at 55% of the actual expenses for meals and lodging. Reimbursement for temporary lodging will be terminated on the 91st day after arrival at the new headquarters or on the date permanent housing is acquired, whichever is first.
(2) Reimbursement for up to $200 of receipted miscellaneous expenses at the new location for installation, connection or assembly of appliances, antennas or utilities that are related to the establishment of the new household. Deposits are not reimburseable.
(d) Advance approval of the appointing power and the Department of Finance is required on any reimbursement or combination of reimbursements under (b) and or (c) above which exceed a total of $10,000. Claims for reimbursement of appointment relocation expenses under this rule must be submitted no later than 6 months from the report date. No reimbursement will be issued prior to the appointee reporting to the new headquarters, or for expenses not approved, or not incurred, or for non-substantiated expenses, or for expenses provided or reimbursed in another way.
(e) If an appointee whose travel and moving expenses have been so paid does not continue his/her employment with that State department for a period of two years (unless the discontinuance of his/her employment was the result of death, prolonged illness, disability, change of administration, unacceptable assessment of the appointee by that state department, or similar eventualities beyond the control of the appointee as determined by the appointing power), he/she shall repay the following percentage of the amount received as reimbursement for such travel and moving expenses:
100% if employed less than 6 months,
75% if employed 6 months but less than 12 months,
50% if employed 12 months but less than 18 months,
25% if employed 18 months but less than 2 years.
(f) Upon completion of two years of satisfactory service in the position of International Trade Office Director, and immediately prior to a no fault termination of appointment or termination as a result of a change in administration, the appointee shall, upon approval of the appointing power, receive a one-time repatriation differential as follows:
(1) Repatriation Differential payment will be equal to the total of the amounts reimbursed, upon appointment, for the movement of household goods and the one one-way coach air fare as provided in (b)(1) and (2) above to a maximum of $5,000.
(2) Should the appointment be terminated by the state before two years as a result of a change of administration, the repatriation differential shall be approved up to the amount in (f)(1) above.
(3) No other or additional repatriation relocation differential or reimbursement will be made.
(g) Items of expense not specifically provided for in this rule shall not be reimbursed.
HISTORY
1. New section filed 10-31-2002; operative 11-1-2002. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2002, No. 51).
§599.724. Payment of Claims for Moving and Relocation Expenses.
Note
(a) The Department of Personnel Administration shall be responsible for prescribing any specific procedures necessary for effective and economical operation of this article. Claims shall be made on forms prescribed by the Department of General Services scheduled in the normal manner and submitted through regular channels to the State Controller for payment. All claims must be substantiated by invoices or other evidence for each item claimed.
(b) Agencies may contract directly with the carrier for movement of household effects of officers and employees at state expense, subject to the same allowances and restrictions as if the shipment was arranged by the officer or employee and reimbursed by the State.
(c) If the change in residence results in the salary of the officer or employee being paid by a different appointing power, all allowable moving and relocation expenses shall be paid by the new appointing power except where the old appointing power agrees to pay all or part of the expenses allowable under this Article.
(d) Each department shall be responsible for insuring that upon notice to the employee of an impending move, a copy of these rules shall be given to the officer or employee.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19841 and 19842, Government Code.
§599.724.1. Payment of Claims for Moving and Relocation Expenses--Excluded Employees.
Note • History
(a) The Department of Personnel Administration shall be responsible for prescribing any specific procedures necessary for effective and economical operation of this article. Claims shall be made on authorized forms, scheduled in the normal manner and submitted through regular channels to the State Controller for payment. All claims must be substantiated by invoices, receipts or other evidence for each item claimed.
(b) Agencies may contract directly with the carrier for movement of household effects of officers and employees at state expense, subject to the same restrictions as if the shipment were arranged by the officer or employee and reimbursed by the State.
(c) If the change in residence results in the salary of the officer or employee being paid by a different appointing power, all allowable moving and relocation expenses shall be paid by the new appointing power except where the old appointing power agrees to pay all or part of the expenses allowable under this Article.
(d) Each department shall be responsible for insuring that upon notice to the employee of an impending move, a copy of these rules shall be given to the officer or employee.
(e) When exceptions have been granted by an appointing authority, the written justification of those exceptions shall be maintained with the applicable claims.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19841 and 19842, Government Code.
HISTORY
1. New section filed 12-27-95; operative 1-1-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 95, No. 52).
Article 8. Miscellaneous Reimbursement
§599.725. Stolen Personal Property.
Note • History
When tools, equipment an employee is required to use in the performance of his/her assigned work is stolen, the employee's department may reimburse him/her for his/her loss or provide him/her with an exact duplicate, provided that:
(a) The item is required in the employee's work.
(b) The loss occurred at the work site, the work base, or enroute between the two locations.
(c) The loss was not caused by carelessness or negligence on the part of the employee.
Employees required to use their personal tools or equipment as a condition of employment shall provide their employing unit with an inventory of all personal property used on the job.
Personal property stolen from a work site or base shall be reported to the local police having jurisdiction over the area in which the theft occurs. A copy of the police report of the theft shall accompany the claim for reimbursement.
The employee's department shall verify the value of the property by original records, current price lists or other appropriate methods. Claims for replacement value of $500 and above require prior approval by the Department of Personnel Administration.
The choice of reimbursement or replacement rests with the employee's department, but the employee's preference must be considered before a decision is made.
NOTE
Authority cited: Section 19815.4(d) and 19816, Government Code. Reference: Section 19850.6, Government Code.
HISTORY
1. New Article 8 (Sections 599.725-599.734, not consecutive) including redesignation of Section 599.733 to Article 8 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history of Section 599.733, see Registers 83, No. 17; and 82, No. 42.
. CROSS REFERENCE: See Title 2, Chapter 1, Sections 895-897.6.
§599.726. Clothing Allowances.
Note
It is the purpose of this section to provide for an allowance to state employees for the replacement of distinctive uniforms. Each concerned state department is charged with the responsibility of annually reviewing uniform requirements and submitting recommendation to the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19850, 19850.1, 19850.2 and 19850.3, Government Code.
Note
For the purposes of this Article, the following definitions will apply.
(a) “Uniform” means outer garments, excluding shoes, which are required to be worn exclusively while carrying out the duties and responsibilities of the position and which are different from the design or fashion of the general population. This definition includes items that serve to identify the person, agency, functions performed, rank or time in service.
(b) “Part-time” employees are those employed in positions which are less than full-time.
(c) “Replacement allowance” means the amount established by the Department of Personnel Administration as the cost of replacing uniform components following the equivalent of one year's service in a given uniform classification.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19850, 19850.1 and 19850.3, Government Code.
Note
The following requirements must be met in order for an employee to qualify to receive the uniform allowance:
(a) The uniform is clearly necessary for ready visual identification by the public for law enforcement, public safety, or other closely related purposes; and
(b) The employee must be required by his/her appointing power to wear the uniform for the performance of his/her duties; and
(c) The uniform is authorized for wear only in an official capacity.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19850.2, Government Code.
§599.729. Annual Review of Requirements.
Note
On an annual basis, all concerned departments will review uniform requirements using Government Code Sections 19850 and 19850.2 as guidelines. The review will cover, but not necessarily be limited to, justification, need, new fabrics, new designs, outdated requirements, new requirements, up-to-date costs, and average life of articles. All recommendations will be forwarded to the Department of Personnel Administration no later than May 1 each year.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19850, 19850.2 and 19850.3, Government Code.
§599.730. Employee Eligibility.
Note
State employees will be responsible for the purchase of uniforms as are required as a condition of employment. Employees become eligible for the uniform replacement allowance upon completion of the equivalent of one full year (including any probationary period) in the same uniform classification for which the allowance is claimed. Employees who are separated from state service or who are transferred to a classification which does not require a uniform will not be required to repay any portion of the allowance received. Employees transferred to a different uniform classification may claim the allowance applicable to the new classification only when they have completed the equivalent of one full year in such new classification.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19850.1, 19850.2 and 19850.3, Government Code.
§599.731. Annual Uniform Replacement Allowance--Represented Employees.
Note • History
A represented employee is defined in Section 599.621.
Employees in the following job classifications will be responsible for the purchase of uniforms required as a condition of employment and receive the indicated amount for the replacement of uniforms. Departments should note that in some cases not all employees in particular classifications are required to wear uniforms. Departments will ensure that these employees are not included in the uniform allowance. All figures are for an employee's uniform complement. A uniform complement being an entire uniform from full dress to, and including, work clothes (footwear excluded).
(a) California Conservation Corps
(1) Conservationist uniform 204.00
(b) California Museum of Science and Industry
(1) Watchman, Guard and Security Officer uniform 344.00
(c) Department of Corrections
(1) Correctional Officer uniform 300.00
(d) Department of Developmental Services
(1) Firefighter uniform 350.00
(2) Hospital Peace Officer uniform 350.00
(e) Department of Education
(1) California Maritime Academy Officer and Instructor
uniform 244.00
(f) Department of Fish and Game
(1) Warden uniform 350.00
(2) Fish and Wildlife Field uniform 169.00
(3) Conservation Aide uniform 250.00
(g) Department of Food and Agriculture
(1) Agricultural Inspector uniform 250.00
(2) Quality Control Inspector uniform 175.00
(h) Department of Forestry
(1) Forestry uniform 380.00
(2) Firefighter uniform 380.00
(i) Department of General Services
(1) State Police Officer and State Security Officer uniform 350.00
(2) State Security Guard uniform 126.00
(j) Department of Health Services
(1) Security Guard uniform 207.00
(k) California Highway Patrol
(1) State Traffic Officer uniform 350.00
(l) Department of Justice
(1) Security Officer uniform 262.00
(m) Department of Mental Health
(1) Firefighter uniform 350.00
(2) Hospital Peace Officer uniform 350.00
(n) Military Department
(1) Firefighter and Guard uniform 291.00
(o) Department of Parks and Recreation
(1) State Park Ranger uniform 350.00
(2) Maintenance Worker uniform 173.00
(3) Guide uniform (Hearst San Simeon State Historical
Monument) 206.00
(4) Lifeguard uniform 263.00
(5) State Fair Police uniform 300.00
Security Guard uniform 200.00
(6) Clerical Workers uniform (Bargaining Unit 4, San Simeon) 165.00
(p) Department of Transportation
(1) Toll Collector uniform 250.00
(q) Department of Veterans Affairs
(1) Security Officer uniform 320.00
(r) Department of Water Resources
(1) Guide uniform 166.00
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19850.3, Government Code. Reference: Section 19850.1, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.732. Part-Time Uniform Allowance--Represented Employees.
Note • History
A represented employee is defined in Section 599.621.
Full-time represented employees in an established uniform classification who are required to wear a uniform on less than a full-time basis will annually receive $150 or the amount authorized for that uniform classification, or the amount defined in a Memorandum of Understanding for that Bargaining Unit, whichever is less.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19850.3, Government Code. Reference: Section 19850.1, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.733. Annual Uniform Replacement Allowance--Non-Represented Employees.
Note • History
A non-represented employee is defined in Section 599.619.
Non-represented employees in job classifications which require the purchase and regular, continuing wear of uniforms as a condition of employment will receive an annual uniform replacement allowance consistent with the allowance received by subordinate, represented employees in related classifications. The amount of such allowance shall be determined annually by the Director of the Department of Personnel Administration. Non-represented employees in an established uniform classification who are not required to wear a uniform on a regular, continuing basis will receive an amount determined annually by the Director of the Department of Personnel Administration. Such amount shall not exceed the full amount for that uniform classification.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19850.3, Government Code. Reference: Section 19850.1, Government Code.
HISTORY
1. Redesignation of Section 599.733 to Article 8 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history, see Registers 83, No. 17; and 82, No. 42.
2. Editorial correction of second paragraph (Register 95, No. 40).
§599.734. Payment Date and Procedures.
Note • History
Payment of uniform replacement allowances will be effective on the uniform allowance anniversary date for those eligible employees who have such date already established. For all other eligible employees, the payment will be effective on the date they complete the equivalent of one year's service in the same uniform classification.
Uniform replacement allowance claims shall be submitted on forms, and in accordance with procedures, approved by the State Controller. The departmental personnel officer or chief administrative officer will certify that all employees shown on the claim have served the required time for eligibility for the allowance payments.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19850.1, 19850.2 and 19850.3, Government Code.
HISTORY
1. Editorial correction of second paragraph (Register 95, No. 40).
Article 9. Vacations
Note • History
The appointing power shall keep proper records and schedules of vacations accumulated and granted and shall make such reports thereof to the Director of the Department of Personnel Administration as may from time to time be required.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19856, Government Code. Reference: Sections 19856.1, 19857, 19858.1 and 19858.2, Government Code.
HISTORY
1. New Article 9 (Sections 599.736-599.743), including redesignation of Section 599.738 to Article 9, filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history of Section 599.738, see Registers 83, No. 17; and 82, No. 42.
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 385-387.
§599.737. Accumulation--Represented Employees.
Note
If an employee is not permitted to take all of the vacation to which he or she is entitled in a calendar year, the employee may accumulate the unused portion, provided that on January 1st of a calendar year, the employee shall not have more than 30 vacation days for 10 or less years of service or 40 vacation days for more than 10 years of service.
The appointing power may permit an employee to carry over more vacation credits than the prescribed maximum when the employee is prevented from taking vacation because the employee is (1) required to work as a result of fire, flood or other emergency, (2) assigned work of priority or critical nature over an extended period of time, (3) absent on full salary for compensable injury, or (4) prevented by department regulations from taking vacation until December and is then unable to take vacation because of sick leave usage. The carry-over of vacation credits in successive years may only be approved by the appointing power in extenuating circumstances.
When verification of prior state service requires revisions in vacation credit, the employee's current accumulation shall be adjusted. Additional credit exceeding the maximum carry-over limitation shall be used within one year following the qualifying monthly pay period in which credited.
An employee separated from service without fault shall be paid for all accumulated vacation credit. Accumulation of vacation credit shall continue through the last working day for which the employee is entitled to pay or through the date to which lump-sum payment is projected as required by Section 19839 of the Government Code. If the employee has sufficient paid working days to qualify the monthly pay period, vacation with pay shall be given for that monthly pay period.
An employee separated from service through fault shall accumulate vacation credit only through the date of separation. If the employee has sufficient paid working days to qualify the monthly pay period, vacation with pay shall be given for that monthly pay period.
NOTE
Authority cited: Sections 19815.4(d), 19856 and 19857, Government Code. Reference: Sections 19839 and 19857, Government Code.
§599.737.5. Voluntary Personal Leave Program--Excluded Employees.
History
The following Voluntary Personal Leave Program (VPLP) shall be effective for all excluded employees [as defined in Section 3527(b) of the Government Code] who have permanent status and work full time. As specified below, the VPLP allows eligible employees to receive additional leave time in return for a corresponding reduction in pay.
(a) Each department shall decide whether it will offer the VPLP. Participating departments will notify employees of any program conditions and procedures that they may establish (e.g., eligibility criteria, maximum carryover credits, operational limitations) for program participation. Employee participation in the program shall be on a voluntary basis, subject to their departments' approval.
(b) Except for (k) below, only permanent full time employees are eligible to participate in the VPLP. Interested employees may only request either one day (8 hours) or two days (16 hours) Personal Leave per month with an equal reduction in pay. Approval or denial of the request shall be at the general discretion of the department and may vary within a department. A department may only approve either one day (8 hours) or two days (16 hours) personal leave. Salary ranges and rates shall not be affected because of VPLP participation.
(c) Participating employees shall be credited with eight (8) or sixteen (16) hours of Personal Leave on the first day of the monthly pay period following each month of participation in the VPLP.
(d) Once approved, employees must remain in the Program for twelve (12) months unless a department establishes a lesser time period. Once approved for the VPLP, an employee agrees to remain in the program for that time period. In the case of a financial hardship, an employee's request to cancel participation may be approved by a department on a case-by-case basis. The State reserves the right to cancel the program on a departmental, subdivisional, or individual basis at any time with thirty (30) days notice to the employee.
(e) Personal Leave shall be requested and used by the employee in the same manner as vacation or annual leave. Requests to use Personal Leave must be submitted in accordance with departmental policies on vacation or annual leave. Employees may not be required to use Personal Leave credits.
(f) At the discretion of the State, all or a portion of unused VPLP credits may be cashed out at the employee's salary rate at the time the VPLP payment is made. The application of this cash out provision may differ from department to department and from employee to employee. Upon termination from State employment, the employee shall be paid for unused Personal Leave credits in the same manner as vacation or annual leave. Cash out or lump sum payment for any Personal Leave credits shall not be considered as “compensation” for purposes of retirement.
(g) Participating employees shall be entitled to the same level of State employer contributions for health, vision, dental, flex-elect cash option, and enhanced survivors benefits he or she would have received had they not participated in the VPLP.
(h) The VPLP shall not cause a break in State service, a reduction in the employee's accumulation of service credit for the purposes of seniority and retirement, leave accumulation, or a merit salary adjustment.
(i) The VPLP shall neither affect the employee's final compensation used in calculating State retirement benefits nor reduce the level of state death or disability benefits the employee would otherwise receive or be entitled to receive nor shall it affect the employee`s ability to supplement those benefits with paid leave.
(j) The VPLP shall be administered consistent with the existing payroll system and the policies and practices of the State Controller's Office.
(k) Employees on EIDL, NDI, IDL, or Worker's Compensation for the entire monthly pay period shall be excluded from the VPLP.
(l) Continued participation in the program when an employee transfers to another department shall be at the discretion of the new department.
(m) If any dispute arises about this VPLP, an employee may file a grievance under DPA Rule 599.859.
HISTORY
1. New section filed 5-4-94; operative 5-4-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 18).
§599.738. Accumulation--Excluded Employees.
Note • History
An excluded employee is defined in Section 599.615(b).
(a) The excluded employee may accumulate the unused portion of vacation credit, provided that on January 1st of a calendar year, the excluded employee shall not have more than 80 vacation days.
(b) The appointing power may permit an excluded employee to carry over more vacation credits than the prescribed maximum when the excluded employee is prevented from taking vacation because the excluded employee is: (1) required to work as a result of fire, flood or other emergency, (2) assigned work of priority or critical nature over an extended period, (3) absent on full salary for compensable injury, or (4) prevented by department regulations from taking vacation until December and is then unable to take vacation because of sick leave usage. The carry-over of vacation credits in successive years may only be approved by the appointing power in extenuating circumstances.
(c) When verification of prior state service requires revisions in vacation credits the excluded employee's current accumulation shall be adjusted. Additional credit exceeding the maximum carry-over shall be used within one year following the qualifying monthly pay period in which credited.
(d) An excluded employee separated from service without fault, shall be paid for all accumulated vacation credit. Accumulation of vacation credit shall continue through the last working day for which the excluded employee is entitled to pay or through the date to which lump-sum payment is projected as required by section 19839 of the Government Code. If the excluded employee has sufficient paid working days to qualify the monthly pay period, vacation with pay shall be given for that monthly pay period.
(e) An excluded employee separated from service through fault shall accumulate vacation credit only through the date of separation. If the excluded employee has sufficient paid working days to qualify the monthly pay period, vacation pay shall be given for that monthly pay period.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816, 19856 and 19857, Government Code. Reference: Section 19839, Government Code.
HISTORY
1. Redesignation of section 599.738 to Article 9 filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history, see Registers 83, No. 17; and 82, No. 42.
2. Change without regulatory effect amending section heading, section, and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
3. Amendment of subsection (a) filed 11-30-99; operative 11-30-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 99, No. 49).
§599.739. Credit for Full-Time Employment.
Note
On the first day of the monthly pay period following completion of six monthly pay periods of continuous service as defined in Section 588.608, each full-time employee in the state civil service shall be allowed five days of credit for vacation with pay. Thereafter, for each additional quali-- fying monthly pay period as defined in Section 599.608 the employee shall be allowed credit for vacation with pay on the first day of the following monthly pay period as follows:
Length of Service Vacation Allowance
7 months through 36 months (3 years) 5/6 day per month
37 months through 120 months (10 years) 1 1/4 days per month
121 months through 180 months (15 years) 1 5/12 days per month
181 months through 288 months (24 years) 1 7/12 days per month
289 months and over 1 2/3 days per month
When computing months of total state service to determine a change in the monthly credit for vacation with pay, only qualifying monthly pay periods of service before and after breaks in service shall be counted. Portions of nonqualifying monthly pay periods of service shall not be counted nor accumulated.
An employee who returns to state service after an absence caused by a temporary or permanent separation of less than six months, or an absence of six months or longer caused by a temporary separation other than temporary military leave shall commence to receive vacation credit on the first day of the monthly pay period following completion of one qualifying monthly pay period of service after return. Credit shall be allowed in accordance with the schedule of vacation allowance as determined by total service before and after the absence. The period of military leave shall be counted as state service toward additional vacation allowance for those employees who exercise reinstatement under Government Code Section 19780, 19782 or 19783.
An employee who returns to state service after an absence of six months or longer caused by a permanent separation shall be allowed vacation credit on the first day of the monthly pay period following completion of six monthly pay periods of continuous service as defined in Section 599.608 after return. The credit received for these six monthly pay periods and for each additional qualifying monthly pay period of service thereafter shall be in accordance with the schedule of vacation allowance as determined by the total service before and after the absence.
NOTE
Authority cited: Sections 19143, 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Sections 19856.1, 19858.1, 19780, 19782, 19783 and 19996, Government Code.
§599.739.1. Credit for Full-Time Employment--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) On the first day of the monthly pay period following completion of six monthly pay periods of continuous service as defined in section 588.608, each full-time excluded employee in the state civil service shall be allowed 42 hours of credit for vacation with pay. Thereafter, for each additional qualifying monthly pay period as defined in section 599.608, the employee shall be allowed credit for vacation with pay on the first day of the following monthly pay period as follows:
Length of Service Vacation Allowance
7 months through 36 months (3 years) 7/8 days per month (7 hours)
37 months through 120 months (10 years) 1 3/8 days per month (11 hours)
121 months through 180 months (15 years) 1 5/8 days per month (13 hours)
181 months through 240 months (20 years) 1 3/4 days per month (14 hours)
241 months through 300 months (25 years) 1 7/8 days per month (15 hours)
301 months and over 2 days per month (16 hours)
(b) When computing months of total state service to determine a change in the monthly credit for vacation with pay, only qualifying monthly pay periods of service before and after breaks in service shall be counted. Portions of nonqualifying monthly pay periods of service shall not be counted nor accumulated.
(c) An excluded employee who returns to state service after an absence caused by a temporary or permanent separation of less than six months, or an absence of six months or longer caused by a temporary separation other than temporary military leave shall commence to receive vacation credit on the first day of the monthly pay period following completion of one qualifying monthly pay period of service after return. Credit shall be allowed in accordance with the schedule of vacation allowance as determined by total service before and after the absence. The period of military leave shall be counted as state service toward additional vacation allowance for those employees who exercise reinstatement under section 19780, 19782 or 19783 of the Government Code.
(d) An excluded employee who returns to state service after an absence of six months or longer caused by a permanent separation shall be allowed vacation credit on the first day of the monthly pay period following completion of six monthly pay periods of continuous service as defined in section 599.608 after return. The credit received for these six monthly pay periods and for each additional qualifying monthly pay period of service thereafter shall be in accordance with the schedule of vacation allowance as determined by the total service before and after the absence.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Sections 19856.1, 19858.1, 19780, 19782, 19783 and 19996, Government Code.
HISTORY
1. New section filed 8-31-90 by the Department of Personnel Administration with the Secretary of State; operative 8-31-90 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 91, No. 3).
2. Change without regulatory effect amending section heading, text and History 1. and designating subsections (a)-(d) filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.739.2. Accrual of Vacation Credit upon Movement from a Represented to an Excluded Position.
Note • History
(a) Notwithstanding the provisions of Government Code section 19858.1, when the movement of an employee from a represented to a nonpresented position would result in a reduction of the employee's rate of vacation credit accrual, the employee shall continue to receive credit for vacation at his/her former rate, until the employee qualifies for an accrual rate under Government Code section 19858.1(c) that equals or exceeds that rate.
(b) For the purpose of this section, a represented position is one that is within a bargaining unit established under section 3521 of the California Government Code (Ralph C. Dills Act).
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Section 19858.1(c), Government Code.
HISTORY
1. New section filed 8-31-90 by the Department of Personnel Administration with the Secretary of State; operative 8-31-90 pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 91, No. 3).
2. Change without regulatory effect amending section heading and History 1., and designating subsections (a) and (b) filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.740. Credit for Less Than Full-Time Employment.
Note • History
(a) Intermittent Employees. On the first day of the monthly pay period following completion of 960 hours or 120 days of paid employment, each intermittent employee in the state civil service shall be allowed six qualifying monthly pay periods credit for vacation with pay in accordance with the schedule in Section 599.739. Thereafter, on the first day of the monthly pay period following additional service of 160 hours or 20 days, the employee shall be allowed days of vacation credit in accordance with the schedule in Section 599.739. The hours or days worked in excess of 160 hours or 20 days in a monthly period shall not be counted or accumulated.
(b) Part-Time Employees. On the first day of the monthly pay period following completion of six monthly pay periods of continuous service as defined in Sectio 599.608 each part-time employee in the state civil service shall be allowed on a pro rata basis the fractional part of six qualifying monthly pay periods credit for vacation with pay in accordance with the schedule in Section 599.739 except that fractions of hours which do not equal one-third hour shall be adjusted to the next higher one-third hour. Thereafter, on the first day of the monthly pay period following accumulated service equal to one qualifying monthly pay period of full-time service, the employees shall be allowed vacation credit on a pro rata basis which corresponds to the employee's time base in accordance with the schedule in Section 599.739.
c) Computing Service. When computing months of total state service to determine a change in the days of credit for vacation with pay, part-time service shall be accumulated until it is equal to one month of full-time service (e.g., 1/2 time--2 months equal one month; 1/8 time--8 months equal one month) and intermittent service shall be converted with 160 hours or 20 days equal to one qualifying monthly pay period but any hours or days worked in excess of 160 hours or 20 days in a monthly pay period shall not be accumulated. When any employee changes time base to other than full-time, service under each time base shall be accumulated until it equals one month of full-time service. When an employee has a break in service or changes to full time, any time worked which does not equal one month of full-time service shall not be accumulated or counted.
To determine when an employee qualifies for vacation credits after a break in service as provided in Section 599.739 the one qualifying monthly pay period and six qualifying monthly pay periods shall be computed using the same method and approach set forth in subsections (a) and (b) of this rule.
(d) Multiple Positions. Under this rule:
(1) An employee holding a position in addition to other full-time employment with the state shall not receive credit for vacation with pay for service in the additional position.
(2) Where an employee holds two or more less than full-time positions, the time worked in each position shall be combined for purposes of computing credits for vacation with pay but such credits shall not exceed full-time employment credit.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Section 19856.1, Government Code.
HISTORY
1. Editorial correction of subsection (c) (Register 95, No. 40).
§599.741. Transfer of Vacation.
Note • History
When an employee leaves the employment of one state agency and enters the employment of another state agency, the employee's accumulated vacation credit becomes a charge against the latter state agency.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Sections: 19856, 19856.1 and 19858.1, Government Code.
HISTORY
1. Editorial correction of Authority cite (Register 95, No. 5).
Note
In the event the appointment power does not provide vacation for an employee sufficient to reduce accumulated vacation to the amount permitted by Sections 599.737 and 599.738 as of January 1, the employee may take, as a matter of right, immediately preceding January 1 the number of days of accumulated vacation required to reduce such accumulation to the amount permitted by that rule. The balance of accumulated vacation shall remain to the employee's credit.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Section 19858.1, Government Code.
§599.742.1. Right to Vacation--Nonrepresented Employees.
Note • History
It is the intent of the State to allow employees to utilize credited vacation or annual leave each year for relaxation and recreation. It is the employee's responsibility to plan vacations well in advance to minimize conflicts with the operational needs of the department. It is the appointing power's responsibility to provide reasonable opportunity for all employees to take an annual vacation commensurate with their annual accrual rate of vacation or annual leave.
If it appears an employee designated confidential, excluded, supervisory, or managerial under the Ralph C. Dills Act will have a vacation or annual leave balance that will be above the maximum amount permitted by Sections 599.737 and 599.738 as of January 1 of each year the appointing power shall require the supervisor to notify and meet with each employee so affected, by the preceding July 1, to allow the employee to plan time off, consistent with operational needs, sufficient to reduce their balance to the amount permitted by the applicable rule prior to January 1.
The employee shall also be notified by July 1 that if the employee fails to take off the required number of hours by January 1 for reasons other than those listed in Sections 599.737 and 599.738 the appointing power shall require the employee to take off the excess hours over the maximum permitted by the applicable rule at the convenience of the department during the following calendar year.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857, 19858.2, 19858.3 and 3517.8, Government Code. Reference: Section 19858.1 and 19858.4, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 8-31-88; operative 8-31-88. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 88, No. 39).
§599.743. Computing State Service to Initiate Graduated Vacation Schedule.
Note • History
For the purpose of initiating the additional vacation allowance for an employee in state civil service on December 31, 1963, or whose lump sum payment for vacation extends through February 1, 1964, the months of total state service shall be computed irrespective of the duration of any break in the continuity of service. The period of military leave shall be counted as state service toward additional vacation allowance for those employees who exercise reinstatement under Section 19390 or 19406. For full-time employment only complete months of service before and after breaks in service shall be counted and portions of months of service shall not be counted nor accumulated. To determine a month of service for less than full-time employment the fractional part-time shall be accumulated until it is equal to one month of service. For service compensated on an hourly basis a month of service is 160 hours of paid employment. Time or hours worked in excess of full time or 160 hours in any calendar month shall not be counted nor accumulated. When an employee working less than full time has a break in service or changes to full-time, any time worked which does not equal one month of service shall not be accumulated and counted.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19856, 19857 and 19858.2, Government Code. Reference: Sections 19143 and 19858.1, Government Code.
HISTORY
1. Editorial correction of fourth sentence (Register 95, No. 40).
§599.744. Paid Leave Buy-Back--Managerial, Supervisory, Confidential, Excluded, and Related Employees.
Note • History
(a) Upon the annual determination by the Department of Personnel Administration whether or not a buy-back will be offered, an employee designated managerial by the Department in accordance with the provisions of Government Code sections 3513 (e) and 18801.1; or a nonelected officer of the executive branch of government exempt from civil service designated by the Department as eligible to receive managerial benefits may annually elect to be paid at their regular rate of pay for up to 80 hours of unused leave credit. Unused leave credit for which an employee may be paid shall be in 8-hour increments. For the purposes of buy-back, eligible leave may be a combination of vacation leave, annual leave, personal leave, personal holiday, or holiday credit.
A nonmanagerial employee designated supervisory, confidential, or excluded by the Department in accordance with the provisions of Government Code section 3513(c), 3513(f) and 3513(g); or a nonelected employee of the executive branch of government exempt from civil service may annually elect to be paid at their regular rate of pay for up to 40 hours of unused leave credit.
(b) Under this section, employees may cash out only one time in a fiscal year regardless of department or collective bargaining identification designation (CBID) changes.
(c) The Department shall determine the date of eligibility and conditions for buy-back and the period during which application for buy-back shall be accepted.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19849.13, 19856 and 19857, Government Code. Reference: Sections 19856 and 19857, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with Secretary of State on 12-7-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
2. Repealer and new section filed by the Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-1-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 47).
4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 10-25-89; operative 11-1-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 49).
5. Amendment filed by the Department of Personnel Administration with the Secretary of State on 10-22-90; operative 10-31-90. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 90, No. 49).
6. Amendment of section filed 8-29-91; operative 8-29-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 51).
7. Amendment of section heading and section filed 11-30-99; operative 11-1-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2000, No. 2).
§599.744.1. Paid Leave Buy-Back--Supervisory, Confidential, Excluded, and Related Employees.
Note • History
NOTE
Authority cited: Sections 3517.8, 3539.5, 19815.4(d), 19849.13, 19856 and 19857, Government Code. Reference: Sections 19856 and 19857, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-25-89; operative 11-1-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 49).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 6-15-90; operative 7-1-90. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 90, No. 35).
3. Amendment of section filed 8-29-91; operative 8-29-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 51).
4. Repealer filed 11-30-99; operative 11-1-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2000, No. 2).
Article 10. Sick Leave
§599.745. Definitions--Represented Employees.
Note • History
“Sick leave” means the necessary absence from duty of an employee because of:
(a) Illness or injury.
(b) Exposure to contagious disease.
(c) Dental, eye, and other physical or medical examination or treatment by a licensed practitioner.
(d) Required attendance, not to exceed five days in any calendar year, upon the employee's ill or injured mother, father, husband, wife, son, daughter, brother, or sister, or any person residing in the immediate household of the employee except servants, roomers, or roommates.
(e) The five day limit on the use of family sick leave in subsection (d) shall not apply to non-represented employees as defined in Section 599.733 of these regulations.
(f) the death of a person related by blood, by adoption, or by marriage or any person residing in the immediate household of the employee. Each absence shall not exceed five days.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19859 and 19860, Government Code. Reference: Section 19859, Government Code.
HISTORY
1. New Article 10 (Sections 599.746-599.751), including redesignation of Section 599.745 to Article 10, filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37). For prior history of Section 599.745, see Registers 83, No. 17; and 82, No. 42.
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 401-409.
2. Amendment of section heading filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 41).
§599.745.1. Definitions--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) “Sick leave” means the necessary absence from duty of an excluded employee because of:
(1) Illness or injury.
(2) Exposure to contagious disease.
(3) Dental, eye, and other physical or medical examination or treatment by a licensed practitioner.
(4) Required attendance, upon the excluded employee's ill or injured mother, father, husband, wife, son, daughter, brother, or sister, or any person residing in the immediate household of the excluded employee.
(b) “Absence for sick leave” means the time the excluded employee is absent from work due for a valid sick leave reason and may be for a minimum of thirty minutes.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816, 19859 and 19860, Government Code. Reference: Section 19859, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-1-88; operative 11-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 52).
3. Change without regulatory effect amending section heading, section, and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
4. Editorial correction of opening sentence (Register 95, No. 21).
§599.746. Credit for Full-Time Employment.
Note
On the first day of the monthly pay period following completion of each monthly pay period of continuous service as defined in Section 599.608, each full-time employee in the state civil service shall be allowed one day of credit for sick leave with pay.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19859, Government Code.
§599.747. Credit for Less Than Full-Time Employment.
Note
(a) Intermittent Employees. On the first day of the monthly pay period following completion of each period of 160 hours or 20 days of paid employment, each intermittent employee in the state civil service shall be allowed one day of credit for sick leave with pay. The hours or days worked in excess of 160 hours or 20 days in a monthly pay period shall not be counted or accumulated.
(b) Part-time Employees. On the first day of the monthly pay period following completion of each monthly pay period of continuous service as defined in Section 599.608 each part-time employee in the state civil service shall be allowed on a pro rata basis the fractional part of one day of credit for sick leave with pay.
(c) Multiple Positions. Under this rule:
(1) An employee holding a position in addition to other full-time employment with the state shall not receive credit for sick leave with pay for service in the additional position.
(2) Where an employee holds two or more less than full-time positions, the time worked in each position shall be combined for purposes of computing credits for sick leave with pay but such credits shall not exceed full-time employment credit.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19859, 19860 and 19861, Government Code. Reference: Section 19862, Government Code.
§599.748. Sick Leave Credit for Prior Service Under Civil Service or Exempt Appointment.
Note
A state employee who earns sick leave credit and is charged for sick leave absences in the same manner as civil service employees, and who reenters state service within six months after separation shall be credited with any unused sick leave held at the time of such separation.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19859, 19860, 19861 and 19862.1, Government Code. Reference: Sections 19143 and 19996, Government Code.
§599.749. Evidence of Need for Sick Leave.
Note
The appointing power shall approve sick leave only after having ascertained that the absence was for an authorized reason and may require the employee to submit substantiating evidence including, but not limited to, a physician's certificate. If the appointing power does not consider the evidence adequate, the request for sick leave shall be disapproved.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19859, Government Code.
Note
Sick leave shall be certified by the appointing power upon forms prescribed by the Director of the Department of Personnel Administration.
The appointing power shall maintain complete and accurate sick leave records.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19859, Government Code.
Note
An employee may appeal to the Department of Personnel Administration for the failure or refusal of the appointing power to approve a request for sick leave.
NOTE
Authority cited: Sections 19815.4(d), 19816, 19859, 19860, 19861 and 19862.1, Government Code. Reference: Section 19862, Government Code.
Article 10.25. Annual Leave Program
§599.752. Annual Leave Program.
Note • History
(a) Pursuant to Government Code section 19858.3, eligible employees may elect to enroll in the Annual Leave Program to receive annual leave credit in lieu of sick leave and vacation benefits. Employees may elect to enroll in the Sick/Vacation Leave Program or the Annual Leave Program at any time except that once an employee voluntarily elects to enroll in either the Annual Leave Program or Sick/Vacation Leave Program, the employee may not elect to enroll in the other program until 24 months has elapsed from date of enrollment.
Current employees who enroll in annual leave shall have accumulated vacation hours converted to annual leave credits on an hour for hour basis and begin accruing annual leave in accordance with the leave accrual schedule specified in subsection (c). Sick leave credits accumulated in accordance with Rule 599.746 shall continue to be available for approved sick leave purposes.
(b) Employees newly appointed to a class with a designation which is excluded from the definition of State employee under section 3513(c) shall be eligible to enroll in the Annual Leave Program or the vacation program irrespective of the date the employee last elected to change from either program.
(c) On the first day following a qualifying monthly pay period, as defined in Rule 599.608, employees identified in part (a), (b), or (c) of Government Code section 19858.3 or subsection (a) above, as it applies to employees excluded from the definition of State employee under section 3513(c), and appointees of the Governor as designated by the Department of Personnel Administration and not subject to section 599.752.1 shall be allowed credit for annual leave with pay as follows:
Length of Service Annual Leave Allowance
1 month through 120 months (10 yrs) 15 hours per month
121 months through 180 months (15 yrs) 17 hours per month
181 months through 240 months (20 yrs) 18 hours per month
241 months through 300 months (25 yrs) 19 hours per month
301 months and over 20 hours per month
Other participating employees will accrue leave based on the scheduled provided in Government Code section 19858.4.
(d) The employee may accumulate the unused portion of annual leave credit, provided that on January 1st of a calendar year, the employee shall not have more than 80 annual leave days.
Except as provided for in section 599.742.1, exceptions to carry over more than the prescribed maximum will be allowed only when the employee is prevented from taking annual leave because the employee is (1) required to work as a result of fire, flood or other emergency, or (2) absent on full salary for compensable injury. Such exceptions must be approved in advance by the Director of the Department of Personnel Administration.
When verification of prior State service requires revisions in annual leave credits the employee's current accumulation shall be adjusted. Additional credit exceeding the maximum carry-over shall be used within one year following the qualifying monthly pay period in which credited.
(e) Annual leave credits may be used for any approved absence. When annual leave is used for sick leave purposes, the appointing power may require the employee to submit substantiating evidence including, but not limited to, a physician's certificate. If the appointing power does not consider the evidence adequate, the request for the use of annual leave for sick leave may be disapproved. Denials of use of annual leave for sick leave may be appealed to the appointing power. Use of annual leave shall be in 30 minute increments for approved absences.
(f) In the event the appointing power does not approve annual leave for an employee sufficient to reduce accumulated annual leave to the amount permitted by this section as of January 1, the employee may take, as a matter of right, immediately preceding January 1, the number of days of accumulated annual leave required to reduce such accumulation to the amount permitted by that rule.
(g) Except as herein provided, vacation regulations 599.738-599.741 governing separation from State service without fault; credit for part-time and intermittent employment; credit for employees returning to State service after absence by temporary or permanent separation; computing State service for full-time, part-time, intermittent and employees holding multiple positions; and transfers of accumulated credit shall apply to annual leave.
NOTE
Authority cited: Sections 3517.8, 19143, 19815.4(d) and 19816, Government Code. Reference: Sections 19780, 19782, 19783, 19839, 19858.3, 19858.4 and 19996, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-30-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 6).
2. Amendment of subsections (a) and (e) filed by the Department of Personnel Administration with the Secretary of State on 11-10-87; operative 11-10-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 52).
3. Amendment of subsections (b)-(d) filed by the Department of Personnel Administration with the Secretary of State on 11-1-88; operative 11-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 52).
4. Amendment of subsections (b) and (d) filed by the Department of Personnel Administration with the Secretary of State on 12-15-88; operative 1-1-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 4).
5. Amendment of subsection (a) filed by the Department of Personnel Administration with the Secretary of State on 2-22-89; operative on filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 18).
6. Amendment of subsections (a) and (b) filed by the Department of Personnel Administration with the Secretary of State on 12-28-90, effective on filing; operative 1-1-91 pursuant to Department of Personnel Administration. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 91, No. 7).
7. Amendment of subsections (a) and (b) filed 2-7-91 with Secretary of State by Department of Personnel Administration; operative 2-7-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 17).
8. Amendment of subsection (b) filed 3-7-91 with Secretary of State by Department of Personnel Administration; operative 3-7-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 17).
9. New subsection (b) and subsection relettering and amendment of subsection (a) and newly-designated subsections (c), (f) and (g) filed 8-10-92 with the Secretary of State by Department of Personnel Administration; operative 8-15-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 33).
10. Amendment of subsection (e) filed 10-15-93; operative 10-1-93. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 93, No. 42).
11. Amendment of subsections (a)-(b) and (e) filed 11-30-99; operative 11-30-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 99, No. 49).
§599.752.1. Annual Paid Leave - Board and Commission Members.
Note • History
(a) Pursuant to Government Code section 19849.16 and effective July 2, 1991, nonelected members of State boards and commissions, whose annual salaries are fixed by law as designated in subsection (g) shall choose and accrue annual leave or vacation and sick credits in accordance with the leave accrual schedules specified in subsection (b). Employees accruing paid leave under vacation or annual leave programs established by Government Code sections 19856 or 19858.3 are not eligible under this section.
(b) On the first day following a qualifying monthly pay period, as defined in Rule 599.608, the employee shall be allowed credit for paid leave with pay as follows:
Length of Service Annual Leave Allowance
1 month through 120 months (10 yrs) 15 hours per month
121 months through 180 months (15 yrs) 17 hours per month
181 months through 240 months (20 yrs) 18 hours per month
241 months through 300 months (25 yrs) 19 hours per month
301 months and over 20 hours per month
Employees choosing annual leave receive a nonindustrial disability benefit as provided in section 599.776.
Length of Service Vacation Allowance
1 month to 3 years 7 hours per month
37 months to 10 years 11 hours per month
121 months to 15 years 13 hours per month
181 months to 20 years 14 hours per month
241 months to 25 years 15 hours per month
301 months and over 16 hours per month
Employees choosing vacation credit in lieu of annual leave shall receive sick leave credit as provided in Government Code section 19859, and a nonindustrial disability benefit as provided in sections 599.777 and 599.778.
(c) Effective July 2, 1991, or upon appointment, whichever is later, eligible employees may be credited in advance with one year's accrual at the appropriate rate. No further credit will be earned during the first twelve months of service. Annual leave or vacation credit advanced may not be used for lump-sum payment or buy back under section 599.752.3. Sick leave credit advanced may not be converted to service credit for retirement purposes.
(d) When computing months of total service to determine the monthly credit for leave with pay, only qualifying monthly pay periods of service before and after breaks in service shall be counted. Portions of nonqualifying monthly pay periods of service shall not be counted or accumulated.
(e) Vacation, annual leave, and sick leave credits previously earned in accordance with applicable Department of Personnel Administration rules shall continue to be available for leave purposes.
(f) Employees subject to this section receive a nonindustrial disability benefit as provided in section 599.776. The selection of either of the paid leave programs by the employee is irrevocable during their term(s) of office under this section.
(g) Eligible members of the following boards and commissions are subject to the provisions of this section: Agricultural Labor Relations Board, Board of Prison Terms, Energy Resources Commission, Fair Political Practices Commission (Chairperson only), Integrated Waste Management Board, Occupational Safety and Health Act Appeals Board, Public Employment Relations Board, Public Utilities Commission, Unemployment Insurance Appeals Board, Water Resources Control Board, Worker's Compensation Appeals Board, and the Youthful Offender Parole Board.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), 19849.13 and 19849.16, Government Code. Reference: Sections 19849.13 and 19849.16, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-28-90, effective on filing; operative 7-2-91 pursuant to Department of Personnel Administration. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 91, No. 7).
2. Amendment of section submitted to OAL for printing only pursuant to Government Code section 3539.5; operative 7-2-91 (Register 91, No. 43).
3. Amendment of subsections (c) and (g) filed 3-30-95; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 3559.5 (Register 95, No. 13).
§599.752.2. Absence Reports - Board and Commission Members.
Note • History
(a) Each pay period an employee accruing paid leave under section 599.752.1 shall submit a Standard Form 634 to the appointing authority providing personnel and payroll processing services. All absences during the pay period must be reported. If no absences occurred, a statement so indicating must be made on the form. Annual leave or vacation credits may be used for any absence. Sick leave credits may only be used as provided by Department of Personnel Administration regulations.
(b) If sufficient leave credit is not available to offset an employee's absences the appointing authority shall reduce the employee's salary for any absence of a full day or more in an amount equal to the time absent.
(c) The appointing authority providing personnel and payroll processing service shall keep proper records and schedules of leave accumulated and used and shall make reports thereof to the Director of the Department of Personnel Administration upon request.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), and 19849.16, Government Code. Reference: Section 19849.16, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-28-90, effective on filing; operative 7-2-91 pursuant to Department of Personnel Administration. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 91, No. 7).
2. Amendment of section submitted to OAL for printing only pursuant to Government Code section 3539.5; operative 7-2-91 (Register 91, No. 43).
§599.752.3. Lump-Sum and Partial Salary Payments--Board and Commission Members.
Note • History
(a) Upon separation from service an employee accruing paid leave under Rule 599.752.1 is entitled to a lump-sum payment for any unused annual leave or vacation accumulated. The computation of the sum shall be based on actual accumulated time on the date of separation.
(b) The employee may annually elect to be paid at their regular rate of pay for unused annual leave or vacation credits subject to the provisions of Rule 599.744.
(c) Effective January 1, 1994 an employee separating from service shall receive lump-sum payment of their accumulated annual leave, vacation, and personal leave credits based on monthly employment as defined in Rule 599.669.
(d) Partial month salary payments shall be calculated based on monthly employment as defined in Rule 599.669.
(e) Lump-sum payment for unused annual leave, vacation, or personal leave credits earned by the employee in civil service and/or exempt positions prior to appointment as a board or commission member shall be at the regular rate of pay for the position and classification in which paid leave was last earned prior to appointment to the board or commission.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), 19849.13 and 19849.16, Government Code. Reference: Sections 19849.13 and 19849.16, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-28-90, effective on filing; operative 7-2-91 pursuant to Department of Personnel Administration. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 91, No. 7).
2. Amendment of section submitted to OAL for printing only pursuant to Government Code section 3539.5; operative 7-2-91 (Register 91, No. 43).
3. New subsection (c) filed 12-31-93; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 4).
4. New subsection (d) filed 6-30-94; operative 7-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 26).
5. Amendment of subsection (c) filed 3-30-95; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 3559.5 (Register 95, No. 13).
6. Amendment of section heading and subsection (c), new subsection (d), subsection relettering, and amendment of newly designated subsection (e) filed 3-2-99; operative 3-2-99. Submitted to OAL for printing only (Register 99, No. 10). At the request of DPA pursuant to Government Code section 3539.5, OAL is directing the printing of this regulation in the CCR. Title 1, CCR, section 6(b)(2)(F)1 defines “print only” regulations as “regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review . . .” (Emphasis added.) In complying with DPA's request, OAL makes no determination concerning whether or not DPA has met the statutory requirements for adoption of regulations set forth in Government Code sections 11346-11347.3, including but not limited to public notice and comment. See 1998 OAL Determination No. 40 (Department of Personnel Administration, 96-008, December 9, 1998), California Regulatory Notice Register 99, No. 3-Z, January 15, 1999, p. 139, at p. 145; typewritten version, p. 18.
7. Editorial correction of History 6 (Register 99, No. 16).
§599.753. Annual Leave--Enrollment.
Note • History
(a) Employees who move into an eligible category as defined in Government Code section 19858.3 will be allowed to elect annual leave without being required to satisfy the waiting period for nonindustrial disability insurance prescribed in section 599.776.
(b) Annual leave shall be certified by the appointing power upon forms prescribed by the Director of the Department of Personnel Administration.
The appointing power shall keep proper records and schedules of annual leave accumulated and granted and shall make such reports thereof to the Director of the Department of Personnel Administration as may from time to time be required.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19858.3, and 19858.4, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-30-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 6).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 12-15-88; operative 1-1-89. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 89, No. 4).
3. Amendment of subsection (a) filed 8-10-92 with the Secretary of State by Department of Personnel Administration; operative 8-15-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 33).
4. Amendment of subsection (a) filed 11-30-99; operative 11-30-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 99, No. 49).
Article 10.5. Holidays
Note • History
When a non-represented employee is denied use of a personal holiday, the Department head or designee may allow the employee to reschedule the personal holiday; or shall, at the department's discretion allow the employee to either carry the personal holiday to the next fiscal year or, cash out the holiday on a straight time (hour for hour) basis. Employees shall not be allowed to carry over or cash out more than two (2) personal holidays in any fiscal year.
NOTE
Authority cited: Section 3517.8, Government Code. Reference: Section 19854, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 6-27-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 on 7-9-85 (Register 85, No. 32).
Article 11. Industrial Disability Leave
Note • History
State employees, as designated in Government Code Section 19869, who become disabled due to accident or illness arising out of or in the course of State employment, within the meaning of Government Code Section 19870, shall be eligible to receive Industrial Disability Leave benefits beginning January 1, 1975. Eligibility shall be contingent upon appropriate medical determination and the agreement of the employee to cooperate and participate in a reasonable vocational rehabilitation plan when furnished by the State.
Any eligible employee on that date who is receiving Workers' Compensation temporary disability benefits due to work-related injuries or illness occurring since July 1, 1974, shall have 30 calendar days to elect Industrial Disability Leave in place of Workers' Compensation. Employees who do not elect Industrial Disability Leave shall continue to receive Workers' Compensation benefits. Failure to respond shall be construed as rejection of the option.
Industrial Disability Leave benefits under this section shall not be retroactive. For qualifying disabilities occurring prior to January 1, 1975, the 52-week eligibility period for receipt of benefits shall begin on January 1, 1975, as if the disability had occurred on that date. Work-related disabilities occurring prior to July 1, 1974, shall not be covered by Industrial Disability Leaves.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19871, 19876 and 19877.1, Government Code.
HISTORY
1. New Article 11 (Sections 599.755-599.768, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: Title 2, Division 1, Chapter 1, Subchapter 1, Sections 410-418.
§599.756. Computation of Benefit.
Note
The employee's salary rate and the number of days and hours for which payment would have been made had the disability not occurred shall be used to compute Industrial Disability Leave payments in accordance with Sections 19870(b) and 19871 of the Government Code at the time of disability. Thereafter payments shall be adjusted to reflect any salary adjustment the employee would have received had the disability not occurred.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19870 and 19871, Government Code.
Note
For the purpose of administering the Industrial Disability Leave benefit, the 52-week eligibility period shall be equivalent to 365 calendar days.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19871 and 19872, Government Code.
§599.758. Medical Eligibility Determination.
Note
The State Compensation Insurance Fund shall make all temporary disability determinations based on medical evidence in accordance wit its authority under Sections 11870 and 11871 of the Insurance Code. Eligibility for benefits shall be contingent upon the certification of disability by State Compensation Insurance Fund. Upon expiration of Industrial Disability Leave benefits, State Compensation Insurance Fund shall determine whether disability continues to exist and shall further determine the disabled employee's eligibility to receive Workers' Compensation temporary disability benefits.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 11870 and 11872, Insurance Code; and Sections 19871, 19872, 19874, and 19876, Government Code.
Note
For the first 22 working days of disability, all disabled employees shall receive Industrial Disability Leave (IDL) unless the gross amount of the IDL benefit is less than that which would be provided by Workers' Compensation Temporary Disability (WCTD) payments without supplementation, in which case the employee shall receive WCTD payments without supplementation rather than IDL payments. This initial benefit placement is subject to one opportunity to effect a retroactive change in accordance with a subsequent employee benefit choice provided by this Section. Upon failure of the employee to make a selection of benefits, the employee shall remain on IDL or WCTD without supplementation as initially placed. If, at any time, the status of an employee on IDL changes such that the gross amount of IDL benefits becomes less than his/her WCTD benefits without supplementation, then the employee shall be automatically changed to WCTD without supplementation.
The following sets forth the disabled employee's benefit choices:
(1) Employees whose disabilities are resolved within 22 working days may elect that their initial benefit placement be changed to WCTD with supplementation retroactive to the first day of disability.
(2) All employees may make an election of those benefits they will receive effective beginning with the 23d working day of disability should their disability last that long. Employees may elect to receive either IDL or WCTD with or without supplementation. At employee election, this same choice may also be retroactive to the first day of disability. Disabled employees shall not be placed on IDL for any period of time during which the gross amount of IDL payments is less than WCTD without supplementation.
The disabled employee shall notify the appointing power of his choice of benefits within 15 calendar days after the disability has been verified and departmental liability for the disability has been determined. Prior to the expiration of the 15-day period, the appointing power shall contact the disabled employee to determine the need for making a benefit choice and to explain the benefit options avalable.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19870, 19871 and 19872, Government Code.
Note
At any time during the first 90 calendar days of absence, the disabled employee may notify the appointing power regarding a change in the choice of benefits from Industrial Disability Leave to workers' compensation disability benefits with or without the option of supplementation of leave credits or from workers' compensation temporary disability benefits to Industrial Disability Leave. Such change in benefits shall be a one-time opportunity and shall be effective on the 90th calendar day of absence. The amount of benefit shall be that which the employee would have received on the 90th calendar day had the benefit been initially elected.
A failure of the employee to exercise the option by that date shall result in no further opportunity for an employee to change benefits.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19871 and 19872, Government Code.
§599.761. Return to Work Coordinator.
Note • History
A return to work coordinator shall be designated in each State department. The duties and responsibilities of the coordinator shall include but not be limited to insuring that the disabled employee is informed of the benefits which are provided and to facilitate his/her early return to work.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19871.1 and 19876, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.762. Offset to Other Payments.
Note
In accordance with Government Code Section 19871, Industrial Disability Leave benefit payments shall be adjusted to offset disability benefits, excluding those disability benefits payable from the State Teachers' Retirement System, the employee may receive from other employer subsidized programs. A disabled employee shall be required to inform the appointing power in writing that such benefits are being received. Failure to do so shall result in termination of Industrial Disability Leave benefits.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Section 19871, Government Code.
§599.763. Guardian or Trustee for Industrial Disability Leave.
Note
If a disabled employee is incapable of making decisions, the appointing power or the disabled employee's spouse or representative shall request through the State Compensation Insurance Fund that the Worker's Compensation Appeals Board appoint a guardian or trustee in accordance with Section 5408 of the Labor Code. In such cases, the time limitations on the benefit choice provisions of Section 599.759 shall be waived.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Section 5408, Labor Code; and Sections 19870, 19871 and 19872, Government Code.
§599.764. Vocational Rehabilitation.
Note
Vocational rehabilitation means a system for providing necessary and appropriate services to a disabled employee leading to a vocational goal.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19871.1 and 19876, Government Code.
§599.765. Participation in Vocational Rehabilitation.
Note
In order to continue receiving Industrial Disability Leave, the disabled employee shall be required to participate in a vocational rehabilitation plan when offered by the State, provided that the requirements for participation are met as set forth in Labor Code Section 139.5 and the regulations of the Division of Industrial Accidents.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Section 139.5, Labor Code; and Sections 19871.1 and 19876, Government Code.
Note
The appointing power shall take at least one of the following actions at such time as the employee has successfully completed the vocational rehabilitation program initiated while under Industrial Disability Leave:
(a) Restore the employee to the former position;
(b) Demote or transfer to another position, if the employee is able to perform such duties;
(c) Request the State Personnel Board to assist in placing the employee in another position in State service;
(d) Place the employee on a training and development assignment in another line of work with intent to transfer at a later date;
(e) Place the name of the employee on all appropriate reemployment lists as determined by the State Personnel Board at such time as no immediate placement is available.
If the employee is medically unable to undergo or successfully complete the vocational rehabilitation program, or if the employee has successfully completed vocational rehabilitation but suitable employment is not available with the State, the appointing power may medically terminate the employee or request a disability retirement from the position to which the employee holds a permanent appointment. Such actions shall be effective after expiration of Industrial Disability Leave benefits and leave credits the employee may have, and shall be consistent with the provisions of the Worker's Compensation Act under the Labor Code and Government Code Section 19253.5.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19877, Government Code. Reference: Sections 19253.5, 19871.1 and 19876, Government Code.
§599.767. Medical Officer's Responsibilities.
Note
Where there is disagreement concerning the medical suitability of placement of the disabled employee who has completed the vocational rehabilitation program, the State Personnel Board Medical Officer shall determine the appropriateness of the placement based upon the medical evidence submitted.
NOTE
Authority cited: Sections 19815.4(d) and 19877, Government Code. Reference: Sections 19253.5 and 19876, Government Code.
Note
The employee shall first seek departmental administrative remedy for complaints arising out of Industrial Disability Leave. Thereafter, the employee shall have the right of appeal to:
(a) The Division of Industrial Accidents on matters within the jurisdiction of the Worker's Compensation Act of the Labor Code. Such matters include but are not limited to determination of liability for provision of medical care, temporary disability payments, vocational rehabilitation, and related items.
(b) The Department of Personnel Administration on employee benefit matters as provided by the Government Code. Such matters include, but are not limited to, issues involving Industrial Disability Leave payments, leave administration, and related matters.
(c) The Department of Rehabilitation on matters within the rehabilitation provisions of the Welfare and Institutions Code. Such matters include, but are not limited to, issues relating to the provision of services by the Department of Rehabilitation.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19877, Government Code.
§599.769. Enhanced Industrial Disability Leave--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) An excluded employee who is temporarily disabled as the result of an injury which was incurred in the official performance of his/her duties shall be eligible for an enhanced industrial disability leave benefit as provided in section 19871.2 of the Government Code.
(b) Definition of Injury. Such injury must be a physical injury which has been directly and specifically caused by:
(1) An assault by an inmate, ward, or parolee under the jurisdiction of the California Department of Corrections or the Department of Youth Authority; or
(2) Responding to, returning from, or fighting an “active fire” as defined in sections 4103, 4104, 4170 and 4170.5 of the Public Resources Code; or
(3) A “criminal act of violence” against a peace officer who was performing in the line of duty. For purposes of this Article, “criminal act of violence” means an act which would constitute a misdemeanor or felony if pursued to conviction; or
(4) An assault by a resident, inmate, patient or client under the jurisdiction of the Department of Developmental Services or the Department of Mental Health or the Department of Veterans Affairs.
(c) Exclusion. Enhanced Industrial Disability Leave benefits will only apply to physical injuries and any medical complications directly related medically and attributable to the circumstances enumerated in subsection (a), above, as determined by the appointing power or his/her designee. The enhanced benefit shall not be applied to either presumptive, stress related disabilities or a physical disability having mental origins.
(d) Eligibility. An excluded employee shall be eligible for enhanced Industrial Disability Leave benefits if:
(1) The excluded employee's temporary disability arises from one of the circumstances enumerated in subsection (b) above; and
(2) The excluded employee is in a classification having responsibility for the supervision of represented employees who are eligible for such enhanced benefits as provided in the Memoranda of Understanding for Unit 3 (Institutional Education), Unit 4 (Office and Allied), Unit 6 (Corrections), Unit 7 (Protective Services and Public Safety), Unit 8 (Firefighters), Unit 15 (Custodial Services), Unit 17 (Registered Nurse), Unit 18 (Psychiatric Technician), and Unit 20 (Medical and Social Services Support).
(e) Administration. Except as otherwise provided in this section and section 19871.2, the existing regulations governing the administration of Industrial Disability Leave shall also apply to the administration of Enhanced Industrial Disability Leave.
NOTE
Authority cited: Sections 3539.5, 19815.4(d) and 19877, Government Code. Reference: Sections 19870(c) and 19871.2, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 11-21-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
2. Amendment filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
3. Change without regulatory effect amending section heading, section, and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
4. Editorial correction of History 2 (Register 95, No. 40).
Article 12. Nonindustrial Disability Insurance
Note • History
State employees, as designated in Government Code Section 19878, who become disabled due to injury, illness, or pregnancy, within the meaning of Government Code Section 19878, while in compensated employment, shall be eligible to receive Nonindustrial Disability Insurance benefits. In order to receive Nonindustrial Disability Insurance benefits, an employee shall meet the following eligibility requirements:
(a) Be a current active Public Employees' Retirement System member or State Teachers' Retirement System member; or a full-time State Officer or employee of the Legislature.
(b) Be a full-time permanent or probationary State employee; or a part-time or intermittent permanent or probationary State officer or employee with at least the equivalent of six monthly compensated pay periods of service in the 18 pay periods immediately preceding the pay period in which the disability begins.
(c) Serve a seven consecutive calendar day waiting period for each spell of disability. The waiting period may be waived commencing with the first full day of confinement in a hospital or nursing home.
(d) Exhaust all accrued sick leave.
(e) Submit to an independent medical examination as the Employment Development Department may require.
(f) File the appropriate certificate as described in Unemployment Insurance Code Sections 2708 and 2709.
(g) Meet all other eligibility requirements as provided in Part 2 of the Unemployment Insurance Code.
An employee may elect to use vacation leave credits prior to receiving Nonindustrial Disability Insurance benefits; however, Nonindustrial Disability Insurance benefits shall not commence thereafter until the employee totally exhausts the accrued vacation leave balance. An employee may at any time switch from Nonindustrial Disability Insurance benefits to vacation leave.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Govrnment Code. Reference: Sections 19878, 19880 and 19880.1, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Note • History
For the purpose of administering the Nonindustrial Disability Insurance benefit program, the 26-week benefit eligibility period shall be equivalent to 182 calendar days.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Sections 19878 and 19879, Government Code.
HISTORY
1. New Article 12 (Sections 599.771-599.775, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 419-423.
§599.772. Calculation of Benefit.
Note
The employee's salary rate on the day of the monthly pay period in which Nonindustrial Disability Insurance benefits are compensable shall be used to compute Nonindustrial Disability Insurance payments. Thereafter payment shall not be modified to reflect any salary adjustments which the employee would have received had the disability not occurred.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Sections 19878, 19879, 19883 and 19884, Government Code.
§599.773. Investigations and Appeals.
Note
The Employment Development Department shall have the authority to investigate Nonindustrial Disability Insurance claims filed by employees in all State agencies. All fraudulent claims shall be subject to both criminal and civil prosecution by appropriate authorities. Nonindustrial Disability Insurance benefits may be immediately suspended upon the filing of a criminal complaint concerning such fraudulent activity. The Employment Development Department shall be responsible for appeals arising out of the Nonindustrial Disability Insurance Program.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Sections 19880, 19881 and 19884, Government Code.
§599.774. Cessation of Benefits.
Note • History
Nonindustrial Disability Insurance benefits shall not be payable for any day on or after death, separation, leave of absence, or retirement from State service. An employee shall not have an application for Nonindustrial Disability Insurance benefits approved for payment while on suspension due to a disciplinary action.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Section 19878, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Note
Once an employee totally or partially exhausts Nonindustrial Disability Insurance benefits, the appointing power may return the employee to the employee's former position or take any of the actions provided by Government Code Section 19253.5.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Sections 19253.5, 19879 and 19880, Government Code.
§599.776. Nonindustrial Disability--Annual Leave.
Note • History
(a) A non-industrial disability benefit level of 50% of gross pay shall be provided to employees who elect annual leave. Annual leave, sick leave or partial employment may be used to supplement non-industrial disability insurance (NDI) benefits to provide 75% or 100% of gross pay. Employees must continue the same benefit level throughout the disability period. Employees may select the NDI benefit rate or supplementation during subsequent disability periods. Employees shall not be required to exhaust leave credits prior to receiving non-industrial disability benefits.
(b) Employees who enroll in the Annual Leave Program while on NDI leave shall continue to receive the current level of benefits for their prior CBID throughout the disability period.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Sections 19858.3 and 19858.4, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 12-30-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 6).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-10-87; operative 11-10-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 52).
3. Amendment and designation of subsections (a) and (b) and new subsections (c) and (d) filed 8-10-92 with the Secretary of State by Department of Personnel Administration; operative 8-15-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 33).
4. Repealer of subsections (c)-(d) filed 11-30-99; operative 11-30-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 99, No. 49).
§599.776.1. Nonindustrial Disability--Annual Leave--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) A non-industrial disability benefit level of 50% of gross pay shall be provided to exclude employees who elect annual leave. Annual leave, sick leave or partial employment may be used to supplement non-industrial disability insurance (NDI) benefits to provide 75% or 100% of gross pay. Once benefit payments have begun, the benefit level initially selected by an excluded employee must continue throughout the disability period; however, the 50% NDI benefit level will be payable to any excluded employee who no longer has leave credits for supplementation or is no longer partially employed. The NDI benefit rate or a different level of supplementation may be selected during subsequent disability periods. Excluded employees shall not be required to exhaust leave credits prior to receiving non-industrial disability benefits.
(b) Effective July 1, 1994, excluded employees who supplement their NDI benefits, as provided in paragraph (a) of this section, shall be considered to have served a qualifying monthly pay period for any of the rights or benefits dependent on having worked a complete month, as prescribed in Section 599.608. These rights or benefits include, but are not limited to, those prescribed in Sections 599.682, 599.687, 599.752, 599.752.1, 599.787, and 599.840. Excluded employees who supplement their NDI at the 75% level shall receive service and annual leave credits at one-half the rate granted to those who supplement at 100%. If a holiday falls during the period of supplementation, an excluded employee will not have to charge the day against the leave supplementation amount.
(c) Excluded employees who enroll in the Annual Leave Program while on NDI leave shall continue to receive the current level of benefits for their prior CBID throughout the disability period.
(d) Current excluded employees who elect to enroll in the Annual Leave Program on or after November 1, 1992 must be enrolled in the program for 90 days prior to becoming eligible for the 50% NDI benefit provided for under this regulation. This waiting period will not apply to any excluded employee who elects to enroll within 60 days of employment in an eligible position.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19885, Government Code. Reference: Sections 19858.3 and 19858.4, Government Code.
HISTORY
1. New section filed 12-16-94; operative 7-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 50).
§599.777. Exhausting of Leave Credits--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) As of August 15,1987, a disabled excluded employee who elects to use sick leave or other elective credits prior to receiving Nonindustrial Disability Insurance benefits is not required to exhaust the leave.
NOTE
Authority cited: Sections 3539.5, 19815.4(d) and 19816, Government Code. Reference: Section 19880, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 12-11-87, operative 12-11-87. submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 4).
2. Change without regulatory effect amending section heading, section, and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
3. Editorial correction of Authority cite (Register 95, No. 5).
§599.778. Disability Benefits--Excluded Employees Effective January 1, 1989.
Note • History
An excluded employee is defined in section 599.615(b).
(a) Eligible excluded employees are entitled to receive Nonindustrial Disability Insurance benefits in an amount equal to one-half full pay, but not to exceed one hundred thirty-five dollars ($135) per week.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19878, Government Code. Reference: Section 19879, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-15-88; operative 1-1-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 4).
2. Change without regulatory effect amending section heading, section, and Note filed 6-29-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 27).
Article 12.5. Industrial Disability Retirement
Note • History
Pursuant to Government Code Sections 19876.5, 19877, 21021.5, 21020.6, 21292.4 and Labor Code Section 139.5(g), an employee in Bargaining Units 1, 4, 15, 18, and 20 who suffers a qualifying industrial injury or illness and who is permanently unable to perform the duties of his/her current position is eligible to participate in this program.
NOTE
Authority cited: Section 21021.5, Government Code. Reference: Sections 19876.5, 19877, 21020.6 and 21292.4, Government Code; and Section 139.5, Labor Code.
HISTORY
1. New article 12.5 and section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
Note • History
For the purposes of this Article, the following definitions apply:
(a) Industrially Disabled. Disabled from performing any job in State service as a result of a work related illness or injury.
(b) Permanent and Stationary. A disability is considered permanent after the employee has reached maximum improvement or his/her condition has been stable for a reasonable period of time. A physician determines the date that a medical condition becomes permanent and stationary.
(c) Qualified Injured Worker. An employee who (1) has an injury which permanently precludes, or is likely to preclude, him or her from engaging in his or her usual occupation or the position in which he or she was engaged, and (2) can reasonably be expected to return to gainful employment through vocational rehabilitation services.
(d) Same or Similar Salary. The maximum salary of a classification that is at least 85% of the maximum salary of the job classification the employee was in at the time of the qualifying injury. It is further defined to include classifications with higher salaries to which the employee may transfer according to State Personnel Board rules.
(e) Same or Similar Location. Any work location to which the employee could be reassigned which would not require the employee to relocate according to the standards defined in a memoranda of understanding, or the Department of Personnel Administration rules, whichever is controlling for the purpose of relocation.
(f) Originating Department. The department where the employee was working when the injury occurred.
(g) Receiving Department. A department, other than the originating department, that hires an employee covered by the provisions of this Article.
NOTE
Authority cited: Section 21021.5, Government Code. Reference: Section 19876 and 19877; and Section 139.5, Labor Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§599.779.2. Selection of an Appropriate Position.
Note • History
When an eligible employee is medically incapable of performing the essential functions of his/her current job, or any other position in his/her current classification, the originating department must make every reasonable effort to place the qualified injured worker in a vacant position in another classification within the department or find the employee suitable employment with another State department. Efforts to accommodate the employee within the department should include, but not be limited to, altering the employee's work environment, providing specialized equipment, restructuring job duties, and training and development assignments. The originating department's efforts to find the employee a suitable position in another department shall include, but not be limited to, identifying vacant positions in other departments within the same or similar location and at the same or similar salary, contacting the hiring departments to arrange interviews and assisting the employee to prepare for the employment interview.
The originating department shall begin the placement process as soon as the employee is determined to be a qualified injured worker, but no later than the date the employee is determined to be permanent and stationary. Such placement efforts must continue for a minimum of 90 calendar days from the date that the employee is permanent and stationary. The department shall make every effort to assign the qualified injured worker to a vacant position that is equivalent to the former position in terms of pay and status and to work with the employee to provide the best job match. However, the department may reassign the employee to a lower position if there are no equivalent positions for which the individual is qualified, with or without reasonable accommodation, as long as that position meets the criteria of “same or similar” salary and location. Factors such as the nature of the employee's disability and the cost of retraining the employee for the new job shall be taken into consideration when making this decision. If the employee refuses the job offer proposed by any department, the employee shall be denied his/her rights to Industrial Disability Leave, Enhanced Industrial Disability Leave, Industrial Disability Retirement and Vocational Rehabilitation.
NOTE
Authority cited: Section 21021.5, Government Code. Reference: Sections 19876.5 and 19877, Government Code; and Section 139.5, Labor Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§599.779.3. Injured State Worker Placement.
Note • History
If the appointing power is unable to place the qualified injured worker within 90 days from the date the employee is medically certified as permanent and stationary and able to return to work, the Department of Personnel Administration shall take measures to place the employee in an appropriate position in another State agency by restricting other methods of appointment, including appointments under the State Restriction of Appointments Process (SROA). An employee's name may remain on one or more SROA lists for up to one year. When the Department of Personnel Administration determines that placement on a reemployment list would provide significant, additional opportunity to place the employee, it shall request that the State Personnel Board place the employee's name on appropriate reemployment lists.
NOTE
Authority cited: Section 21020.5, Government Code. Reference: Sections 19876.5, 19877 and 19998.1, Government Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§599.779.4. Employment Costs for the Injured Employees.
Note • History
It is the intent of this Article that qualified injured workers will be accommodated, whenever possible, in the department where the employee worked at the time of the injury. However, it is possible that some employees will be placed in other departments. If a qualified injured worker receives an appointment to a new position in a department other than his/her originating department, the originating department is responsible for the following costs, in addition to any permanent disability settlement and ongoing medical costs:
(a) all necessary and reasonable expenses for the cost of training the employee in the required job duties of the new classification.
(b) all relocations costs, in accordance with the Department of Personnel Administration rules, for any employee who relocates in order to accept a position which is not in the same or similar location.
(c) any overtime, holiday credit, excess hours, or personal leave credits that are due to the employee on the date of transfer.
(d) any special equipment that may be required because of the employee's disability.
NOTE
Authority cited: Section 21020.5, Government Code. Reference: Sections 19876.5 and 19877, Government Code; and Section 139.5, Labor Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§599.779.5. Denial of Benefits for Failure to Participate.
Note • History
Employee benefits will be denied to a qualified worker who does not participate in a reasonable and appropriate vocational rehabilitation plan necessary to continue State employment. Participation in a rehabilitation plan may include some or all of the following activities: skill assessment, vocational counseling, additional medical testing, job interviews and training. Benefits include, but are not limited to Industrial Disability Leave, Enhanced Industrial Disability Leave, Industrial Disability Retirement, and other Vocational Rehabilitation Training.
NOTE
Authority cited: Section 21020.5. Reference: Sections 19876.5 and 19877, Government Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
§599.779.6. Post Retirement Job Opportunities.
Note • History
If a suitable position cannot be found for a qualified injured worker, the employee may be offered an alternate vocational rehabilitation plan or he/she may be placed on Industrial Disability Retirement. However, if the employee is retired under these circumstances and a job subsequently becomes available, within twelve months of the effective date of retirement, that meets the tests of “same or similar salary” and “same or similar location,” then the employee will be required to reinstate into State service and the IDR benefits will be terminated effective on the date the job offer is made.
NOTE
Authority cited: Section 21100.55, Government Code. Reference: Sections 21020.5 and 21292.4, Government Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
Note • History
Employees may appeal to the Director of the Department of Personnel Administration if he/she believes either (1) that he/she should not be required to participate in the program, or (2) that he/she should not be excluded from this program. An employee must submit the appeal in writing stating the grounds for the protest. The appeal shall be filed within thirty (30) days of the date the originating department notifies the employee in writing that he/she either must participate in, or is excluded from, this program.
NOTE
Authority cited: Section 21020.5, Government Code. Reference: Section 21020.5, Government Code.
HISTORY
1. New section filed 10-20-94; operative 11-21-94 (Register 94, No. 42).
Article 13. Absences
Note • History
Every employee may be granted a rest period of not to exceed 15 minutes during each four hours or major fraction thereof of a working period but the total for any day shall not exceed 25 minutes. The appointing power or its designated representative shall determine the time when the rest period is to be taken and to whom it applies. Insofar as practicable, the rest period shall be granted in the middle of each work period. A rest period shall not be granted during the first or last hour of a work period nor shall rest period time be accumulated. Except with the consent of the appointing power an employee shall not leave the building where employed. No obligation is upon the appointing power to provide time or facilities for refreshments during the rest period or for the procurement thereof. No wage deduction or time off shall be made or charged for an authorized rest period, nor shall any rights accrue for overtime if the rest period is not taken. Rest periods shall not be authorized where granting them would in any instance result in an increase in the budget for salaries and wages of any state agency.
NOTE
Authority cited: Section 19815.4(d) and 19816, Government Code. Reference: Section 19849, Government Code.
HISTORY
1. New Article 13 (Sections 599.780-599.791) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 360-374.
Note
A leave of absence shall not be granted under this section to any employee who is accepting some other position in the State service; or who is leaving the State service to enter other employment except as hereto in provided; or who does not intend to nor can reasonably be expected to return to State service on or before the expiration of the leave.
An appointing power may grant a leave of absence without pay:
(a) To any employee for a period not to exceed 30 calendar days;
(b) To an employee who has permanent status and since that permanent status has had no break in continuity of State service due to permanent separation or a probationer who has completed six months or service in a class having a longer probationary period, or a probationer who was prevented from completing the probationary period because of entry into the military service of the United States.
The reason for the leave may be
(1) to attend school or college or to enter training to improve the quality of employee's service,
(2) temporary incapacity due to illness or injury,
(3) loaned to another governmental agency for performance of a specific assignment,
(4) to seek or accept other employment during a layoff situation or otherwise lessen the impact of an impending layoff, or
(5) for some other reason equally satisfactory as determined by the appointing power.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19991.2, 19991.5, 19991.7 and 19991.9, Government Code.
Note
A leave of absence is terminated by:
(a) expiration of the term thereof;
(b) the sooner revocation thereof by the appointing power with the approval of the Director of the Department of Personnel Administration or by the Director with the approval of the appointing power and by receipt by the employee of written notice of such revocation at least 15 days prior to the effective day of the revocation; or
(c) the sooner cancellation thereof by the employee with the approval of the appointing power.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19991.1, Government Code. Reference: Sections 19991.2, 19991.6, 19991.7, 19991.8 and 19991.9, Government Code.
Note
An employee shall not be entitled to a leave of absence as a matter of right except for service in the recognized military service or education for which eligible because of military service or for pregnancy, childbirth or the recovery therefrom. Upon receipt of a request for leave of absence for any other reason signed by the employee and stating with particularity the reason for the leave, the appointing power may either approve or disapprove the request. The appointing power shall obtain the approval of the Director prior to the effective date of the leave of absence if the request for leave of absence is for service in a foreign county in a technical cooperation program.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19991.1, 19991.2, 19991.3, 19991.5, 19991.6, 19991.7, 19991.8 and 19991.9, Government Code.
Note
A report of the reinstatement of an employee upon return from a leave of absence shall be made immediately by the appointing power to the Director of the Department of Personnel Administration. At the same time, the appointing power shall file with the Department a notice of the separation of the employee who filled the position during the absence of the employee on leave.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19991.1, Government Code. Reference: Sections 19991.2, 19991.3, 19991.5, 19991.6, 19991.7, 19991.8 and 19991.9, Government Code.
§599.785. Informal Leave of Absence (Dock).
Note
The appointing power may grant an informal leave of absence without pay for a period not to exceed 11 working days in a 22-day pay period or 10 working days in a 21-day pay period or 11 consecutive working days between pay periods. A holiday is counted as a working day. The appointing power shall not grant paid absences to break the continuity of a leave of absence without pay.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.1, Government Code.
§599.785.5. Administrative Time Off--During State of Emergency.
Note • History
(a) Employees may be granted a paid leave of absence of up to five days by their appointing power when the employee works or resides in a county where a state of emergency has been proclaimed by the Governor and the appointing power determines that at least one of the following conditions exist:
(1) The employee's normal place of business is closed temporarily, during the employee's normal work shift, due to the effects of the emergency.
(2) The emergency effectively precludes the employee's ability to find reasonable routes of transportation from the employee's normal residence to the work place.
(3) The emergency presents an immediate and grave peril to the employee's own safety, that of an employee's immediate family member, or the employee's principal residence.
(4) The employee is actively involved in a formal, organized effort to protect the health and safety of the general public; such as, the employee is a member of the auxiliary fire or police department or the employee is asked by local authorities to assist with sandbagging efforts.
(5) The employee needs to take time off to apply for disaster assistance from the Federal Emergency Management Agency (FEMA) because the employee is unable to apply for assistance before or after the employee's normal work shift.
(b) An employee may be granted a paid leave of absence up to five days by the employee's appointing power regardless of the location of the disaster when the employee is preregistered with, and providing volunteer service to, a State agency carrying out its responsibilities under the Governor's Executive Order D-25-83. The employees providing volunteer service are required to notify their appointing power of their affiliation with the volunteer services and to establish prior arrangements regarding the notification of the appointing power in the event the employee is asked to participate in the State disaster response. The appointing power shall release the employee to provide volunteer service when an emergency occurs unless there is a critical departmental operating reason to prevent such a release.
(c) No paid leave of absence shall exceed five working days without the prior approval of the appointing power and the prior approval of the Department of Personnel Administration. The Department of Personnel Administration shall grant approval of a paid leave of absence in excess of five working days based on its finding that one of the criteria above continues to be met.
(d) State employees called into service as specified in Government Code 19844.5 are excluded from the above standards.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.10, Government Code.
HISTORY
1. New section filed 4-12-89; operative 5-12-89 (Register 89, No. 15).
Note
The appointing power may grant a leave of absence
(a) for not to exceed 75 calendar days during the summer vacation period to permanent or probationary civil service employees in the Special Education Program Support Unit of the Department of Education in positions which have a work period coinciding with the school year,
(b) for not to exceed 75 calendar days to permanent or probationary civil service employees or exempt employees of the California Maritime Academy in positions which have a work period coinciding with the academic year, or
(c) for not to exceed two consecutive pay periods during the period designated by the appointing power for release from performance of teaching duties to full-time permanent or probationary employees in positions requiring teacher certification qualifications. Such leaves do not require approval of the Director of the Department of Personnel Administration. Such leaves shall be without pay for persons employed and paid under the provisions of Section 599.666 and with deferred pay for persons employed and paid under the provisions of Section 599.667.
Leaves of absence granted under the provisions of this section shall be counted as qualifying service for merit and special in-grade salary adjustments, for seniority, and for computation of months of total State service to determine a change in the monthly credit for vacation with pay. For all other purposes, leaves of absence granted under the provisions of this rule shall not be counted as qualifying service.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19991.1, Government Code. Reference: Sections 19829, 19832, 19858.1, 19991.7 and 19997.3, Government Code.
§599.787. Paid Educational Leave--Accumulation and Retention.
Note
Following completion of 12 months of continuous service from November 8, 1967, each full time employee in the State civil service employed in a position requiring teaching certification qualifications shall be allowed 15 days of credit for educational leave with pay. Thereafter, for each additional pay period of service, 1 1/4 day credit shall be allowed for educational leave with pay on the first of the following month. Portions of pay periods of service shall not be counted or accumulated.
An employee may earn or use educational leave only while in a position requiring teacher certification qualifications. An employee who leaves a position requiring teacher certification qualifications and enters a position not requiring teacher certification qualifications within 36 months without break in service returns to a position requiring teacher certification qualifications will be credited with the prior unused educational leave.
Following temporary separation or permanent separation of less than six months an employee who returns to State service in a position requiring teaching certification qualifications shall retain any unused portion of previously accrued educational leave and shall commence to receive educational leave credit on the first of the month following completion of one month of service.
Following permanent separation of six months or longer an employee who returns to State service in a position requiring teaching certification qualifications loses any unused portion of previously accrued educational leave. The employee is granted education leave credit following completion of 12 months of continuous service, in accordance with the above schedule.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.7, Government Code.
§599.788. Paid Educational Leave--Approval.
Note
(a) The candidate for educational leave shall:
(1) Possess a valid credential required for employment in the civil service position held.
(2) File with the appointing power an application for educational leave specifying the name and location of the educational institution or program to be attended, dates of attendance, and courses and/or units to be taken. In addition, the employee shall file with the department, a statement of need in terms of educational goals of value to the professional growth of the candidate and value to the State service.
(b) The appointing power in granting or denying educational leave may consider institutional administrative needs, the educational program, work schedules, and the nature and availability of courses as well as the desire of the employee.
(c) Educational leave shall not be granted to an eligible employee who is accepting some other position in the State service not requiring teacher certification qualifications or who is leaving the State service.
(d) An employee whose request for educational leave is denied shall be informed of the reasons for such action in writing.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.7, Government Code.
§599.789. Paid Educational Leave--Transfer.
Note
When an employee leaves the employment of one State agency and enters the employment of another State agency, and both positions require teacher certification qualifications, the accumulated educational leave credit becomes a charge against the latter State agency.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.7, Government Code.
§599.790. Paid Educational Leave--Department of Personnel Administration Review.
Note
An employee who believes denial of educational leave was for purposes of harassment or discipline may appeal to the Department of Personnel Administration. An employee who has been denied education leave on three separate occasions by the appointing authority and has a total accumulation of 75 days or more of unused educational leave may request a review by the Department if the employee feels the request has been unreasonably denied.
Upon receiving a request for such an appeal or review the Department shall investigate the reasons for the denial and may make such recommendations to the appointing authority as it deems appropriate or take any other action permitted by law.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.7, Government Code.
§599.791. Paid Educational Leave--Determining Eligibility of Current Employees.
Note
For the purpose of initiating educational leave credits for State employees in positions requiring teaching certification qualifications, on November 8, 1967:
(a) An employee who had completed 12 months of continuous service on or before November 8, 1967, earns the first credit on December 1, 1967.
(b) An employee who completes 12 months of continuous service prior to November 8, 1968, shall be allowed one and one-quarter days credit for each complete monthly pay period of service from November 1, 1967, to such qualifying date.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19991.7, Government Code.
§599.792. Paid Educational Leave--Excluded Employees.
Note • History
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 19991.7, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Change without regulatory effect repealing text and amending section heading and Note filed 6-25-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 26).
§599.792.5. Paid Educational Leave -- Senior Laboratory Technologists and Senior Radiologic Technologists.
Note • History
Employees in the classifications of Senior Clinical Laboratory Technologist and Senior Clinical Laboratory Technologist (Correctional Facility) will be entitled to 12 hours of educational leave on an annual basis effective January 1, 1994 to obtain continuing education units. Employees in the classification of Senior Radiologic Technologist (Supervisor) and Senior Radiologic Technologist, Correctional Facility (Supervisor) will be entitled to 24 hours of educational leave every two calendar years effective January 1, 1995 to obtain continuing education units. The leave time can be taken at the employee's discretion subject to the operational needs of the department and reasonable advance notice. In-service training courses for which continuing education unit credit is provided may be counted at the State's option towards the hours of education leave. This leave is non-cumulative.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New section filed 8-3-94; operative 8-3-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 31).
2. Amendment of section heading, section and Note filed 5-4-95; operative 5-4-95. Submitted to OAL for printing only pursuant to Government Code section 3559.5 (Register 95, No. 18).
§599.793. Reimbursable Paid Leave of Absence-- Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) An appointing power may grant a reimbursable paid leave of absence to a State employee as defined in section 3513(c) of the Government Code and to a supervisory employee as defined in section 3513(g) to work as a temporary employee of an employee organization as defined in section 3513(a) and 3527(d) in accordance with the following:
(1) The appointing power shall be reimbursed by the organization for the full amount of the excluded employee's salary, plus an additional mount equal to the full cost of State-provided employee benefits, as determined by the Department of Personnel Administration, for all time the excluded employee is off on a reimbursable paid leave of absence. Full reimbursement shall be made by the organization no later than six months after the leave terminates.
(2) An excluded employee granted a reimbursable paid leave of absence shall have no right to return earlier than the agreed-upon date without prior approval of the appointing power.
(3) A reimbursable paid leave of absence may be terminated at any time by the appointing power. The appointing power shall endeavor to give 14 calendar days' advance notice before terminating the leave.
(4) An excluded employee granted a reimbursable paid leave of absence shall have the right to return to his/her former position upon termination of the leave. The term “former position” is defined in section 18522 of the Government Code.
(5) An excluded employee granted a reimbursable paid leave of absence shall experience no loss of compensation or benefits.
(6) Whether time on a reimbursable paid leave of absence is to be credited for merit purposes shall be determined by the State Personnel Board.
(7) Excluded employees granted a reimbursable paid leave of absence shall waive any and all claims against the State for workers' compensation and industrial disability leave benefits for injuries sustained while on leave. The organization shall indemnify and hold the State harmless from any workers' compensation liability and cost of legal defense incurred in the course of such proceedings.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 19991.10, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with Secretary of State on 12-30-87; operative 12-30-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 7).
2. Change without regulatory effect amending section heading and text, and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
§599.794. Personal Leave--Excluded, Special Schools Employees.
Note • History
The Department of Personnel Administration, upon request of the Department of Education, may implement and/or modify personal leave programs for excluded employees at the Department of Education's Special Schools. Such leave shall be comparable to Personal Leave granted for the Special Schools' represented employees.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Change without regulatory effect amending section heading and text, and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
Article 14. Performance
§599.795. Performance Appraisal of Probationers.
Note • History
A report of the probationer's performance shall be made to the employee at sufficiently frequent intervals to keep the employee adequately informed of progress on the job. A written appraisal of performance shall be made to the Director of the Department of Personnel Administration within 10 days after the end of each one-third portion of the probationary period. If the employee is rejected during the probationary period, a final report may be filed for the period not covered by previous reports. The foregoing provisions shall be construed as directory.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19172, Government Code. Reference: Sections 19172 and 19992.2, Government Code.
HISTORY
1. New Article 14 (Sections 599.795 and 599.798) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 323-340.
2. Editorial correction of third sentence (Register 95, No. 40).
§599.796. Managerial Performance Appraisal System Bonuses.
Note • History
The managerial bonus program prescribed below is suspended for the 1990-1991, 1991-1992, 1992-1993, 1993-1994, and 1994-1995 fiscal years for agencies that award bonuses on a fiscal year basis and for the 1991, 1992, 1993, 1994, and 1995 calendar years for agencies that award bonuses on a calendar year basis. No bonuses shall be paid based on managerial performance occurring during these years, or in any subsequent years as authorized by the Department. For other years, the managerial bonus program is governed as follows:
(a) As prescribed in this rule, State agencies may award bonuses to employees who have been designated managerial pursuant to Government Code Section 18801.1 in lieu of considering them for awards under the Merit Award Board superior accomplishment award programs. With the approval of the Department of Personnel Administration, agencies that have civil service managers in the bonus program may also include exempt appointees who perform similar managerial duties. Employees shall receive these awards based on the level of their job performance, as ascertained through the Managerial Performance Appraisal System (MPAS) described in Rule 599.796.1.
(b) Unless otherwise approved by the Department, bonuses shall be awarded by October 1 of each year for job performance during the fiscal year ending on the preceding June 30.
(c) To be eligible to participate in the bonus program, an employee must have at least 180 calendar days during the performance rating year during which he or she:
(1) Was appointed to one or more managerial or approved exempt positions; and,
(2) Performed managerial duties covered by one or more MPAS work plans. Unless otherwise approved by the Department, a State agency electing to participate in the bonus program shall include all of its eligible managers in the program.
(d) For State agencies with ten or more eligible managers, the bonus program is funded at the rate of $500 per eligible manager. Bonuses shall range from a minimum of $1,250 to a maximum of $5,000.
State agencies with fewer than ten participating managers shall follow the schedule below
Number of
Eligible Bonus Number Minimum
Managers Fund of Bonuses Bonus Size
1 2,500 1 750
2 2,500 2 750
3 2,500 3 750
4 2,500 3 750
5 2,500 3 750
6 3,000 3 1,000
7 3,500 3 1,000
8 4,000 3 1,250
9 4,500 3 1,250
(e) Bonuses paid as a result of outstanding performance as documented in any Statewide appraisal system for employees designated managerial pursuant to Government Code 18801.1 will not be considered compensation for the purpose of contributions to retirement.
(f) Bonus awards may be appealed to the eligible employee's appointing power or his/her designee within 30 days of the award date. Denials of these appeals may be appealed to the Department only on the basis of fraud. These appeals must be submitted within 30 days of their denial by the appointing power.
NOTE
Authority cited: Sections 3539.5 and 20022.05(a), Government Code. Reference: Sections 3539.5, 19829 and 20022.05(a), Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 1-31-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86, No. 7).
2. Amendment filed by Department of Personnel Administration with the Secretary of State on 4-4-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86 No. 19).
3. Amendment filed by Department of Personnel Administration with the Secretary of State on 6-3-88; operative 6-3-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 25).
4. Amendment of section filed 6-17-91; operative 6-17-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 43).
5. Amendment of first paragraph filed 6-16-92 with Secretary of State by Department of Personnel Administration; operative 6-16-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 25).
6. Amendment of first paragraph filed 3-30-94; operative 3-30-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 13).
7. Amendment of first paragraph and subsections (d)-(f) filed 5-4-95; operative 7-1-95. Submitted to OAL for printing only pursuant to Government Code section 3559.5 (Register 95, No. 18).
§599.796.1. Managerial Merit Salary Increases.
Note • History
Government Code Section 19992.14 requires that merit salary increases for managerial employees be awarded based on a system of performance appraisal reports. State agencies may meet this requirement by implementing the Managerial Performance Appraisal System (MPAS) under which:
(a) Each manager has an individual work plan specifying key performance objectives, or critical elements, that are to be accomplished by the manager during the rating year; and
(b) managers are rated outstanding, exceeds fully successful, fully successful, minimally successful, or unsatisfactory based on their accomplishment of their critical elements and their overall managerial performance; and
(c) managerial performance ratings are given at least at the midpoint and end of the rating year using forms and procedures prescribed or approved by the Department of Personnel Administration; and
(d) managers have the opportunity to review and sign their performance rating and discuss it with their appointing power, or his or her designated representative before it is filed; and
(e) merit salary increases are awarded to only those managers whose performance is at or above the fully successful level.
NOTE
Authority cited: Section 3517.8, Government Code. Reference: Sections 19992.10 and 19992.14, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 6-3-88; operative 6-3-88. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 88, No. 25).
§599.797. Supervisor Performance Awards.
Note • History
The following award program shall be available to agencies that have not included their supervisors in the superior accomplishment award program administered by the Merit Award Board:
(a) Employees designated supervisory under section 3513(g) of the Government Code, and those, who except for being in an agency that is excluded from the definition of State employee in section 3513(c), would also be so designated, may receive an award of at least $250 but not more than $750 for outstanding job performance. Such performance must clearly exceed the standard of performance reasonably expected of the supervisory employee and represent an exceptional contribution to State government.
(b) The maximum number of $750 awards that may be made by each appointing power per fiscal year shall be determined by dividing the number of designated supervisors under the appointing power by fifty. When the result includes a fraction, the immediately higher whole number shall be the maximum.
When awards of less than $750 are made, the total dollar amount of all the awards shall not exceed the dollar amount that would have resulted from granting the maximum number of $750 awards.
(c) In the same fiscal year, no supervisory employee may receive more than one award under this rule.
(d) Appointing powers shall make these awards based on their assessment of job performance. They shall also document, in writing, the job performance supporting each award. This documentation shall be made available to the Department of Personnel Administration upon request.
(e) Bonuses paid under this rule will not be considered compensation for the purpose of contributions for retirement.
NOTE
Authority cited: Sections 3539.5, 19815.4(d) and 20022.05(a), Government Code. Reference: Sections 3539.5 and 20022.05, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 10-26-87; operative 10-26-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 48).
2. Amendment filed by Department of Personnel Administration with the Secretary of State on 1-24-89; operative 1-24-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 10).
3. Change without regulatory effect amending subsections (a) and (c) and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
4. Editorial correction of Reference cite (Register 95, No. 5).
§599.798. Performance Appraisal.
Note • History
Performance appraisal shall be governed by the following:
(a) The appraisal of work performance provides recognition for effective performance and identifies aspects of performance which could be improved.
(b) Performance appraisal is a continuing responsibility of all supervisors, and supervisors shall discuss performance informally with each employee as often as necessary to ensure effective performance throughout the year.
(c) Each supervisor, as designated by the appointing power, shall make an appraisal in writing and shall discuss with the employee overall work performance at least once in each twelve calendar months following the end of the employee's probationary period for the purpose of informing the employee of the caliber of the employee's work, helping the employee recognize areas where performance could be improved and developing with the employee a plan for accomplishing such improvement.
(d) Performance appraisals shall be prepared and recorded in the manner prescribed by the Director of the Department of Personnel Administration and may be appealed to the Department only on the basis that they have been used to abuse, harass, or discriminate against an employee.
(e) Each employee shall be given a copy of the written appraisal covering the employee's own performance and is privileged to discuss it with the appointing power before it is filed.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19992.1 and 19992.2, Government Code.
HISTORY
1. Change without regulatory effect of subsection (d) filed 7-7-86; effective thirtieth day thereafter (Register 86, No. 28).
§599.799.
Note • History
NOTE
Authority cited: Sections 3539.5, 19815.4(d) and 19816, Government Code. Reference: Sections 3539.5 and 19829, Government Code.
HISTORY
1. New section filed 1-13-94; operative 1-13-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 4).
2. Repealer filed 5-18-94; operative 5-18-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 20).
§599.799.1. Managerial Performance Appraisal and Compensation.
Note • History
NOTE
Authority cited: Sections 19815.4(d) and 19820, Government Code. Reference: Sections 19826, 19829, 19832, 19992 through 19992.3 and 19992.8 through 19992.14, Government Code.
HISTORY
1. New section filed 12-6-94; operative 12-6-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 49).
2. Repealer filed 1-18-2000 by the State Personnel Board (Register 2000, No. 23).
3. Memo from the State Personnel Board filed 1-25-2000 stating that the 1-18-2000 filing was made in error and that it has no legal effect (Register 2000, No. 23).
4. Repealer filed 6-6-2000; operative 7-6-2000 (Register 2000, No. 23).
§599.799.2. Supervisory Performance Appraisal and Compensation.
Note • History
NOTE
Authority cited: Sections 19815.4(d) and 19820, Government Code. Reference: Sections 19826, 19829, 19832 and 19992 through 19992.3, Government Code.
HISTORY
1. New section filed 12-6-94; operative 12-6-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 49).
2. Repealer filed 1-18-2000 by the State Personnel Board (Register 2000, No. 23).
3. Memo from the State Personnel Board filed 1-25-2000 stating that the 1-18-2000 filing was made in error and that it has no legal effect (Register 2000, No. 23).
4. Repealer filed 6-6-2000; operative 7-6-2000 (Register 2000, No. 23).
Note • History
Unless the context otherwise requires, the definitions hereinafter set forth shall govern the construction of these rules.
(a) State-owned Motor Vehicle. “State-owned motor vehicle” is any motor vehicle as defined by Section 415 of the Vehicle Code, owned by the State, or any state agency.
(b) Employee. “Employee” includes all state officers and employees except: (1) incumbents of elected state offices, (2) members of the California Highway Patrol as defined in Section 2250 of the Vehicle Code.
(c) Head of Agency. “Head of the agency” or “agency head” means the head of the department or the person, board, commission, or other governing body having the appointing authority for the agency. Provided, however, that where an agency head or any member thereof is involved in a misuse, the powers and duties of that agency head or any member thereof under these regulations shall be exercised by the Director of General Services.
(d) Home. “Home” is any temporary or permanent living accommodation occupied by an employee during the course of his employment at his/her assigned headquarters.
(e) Use in Conduct of State Business. The “use of a state-owned motor vehicle in the conduct of state business” is use when driven in the performance of or necessary to or in the course of the duties of state employment and shall include the operation of state-owned or leased vehicles as commute vehicles in a carpool or vanpool program authorized by a state agency.
(f) Misappropriation for Private Us. “Misappropriation for private use” is synonymous with “misuse of a state-owned vehicle” and “misuse” as those terms are used in this article.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Sections 19993.1-19993.7, Government Code.
HISTORY
1. New Article 15 (Sections 599.800-599.809) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 841-848.
2. Editorial correction of opening sentence (Register 95, No. 40).
§599.801. State-Owned Vehicles Operated in a Commute Program.
Note
(a) State-owned or leased automobiles and passenger vans may be used to provide commute transportation to state employees if such use does not interfere with the prescribed use of the vehicles.
(b) Commute operation of the vehicles used in the program shall be fully reimbursed.
(1) Each agency shall determine the cost of operation of its commute vehicles.
(2) Participating employees shall be charged a monthly fee which will reimburse the agency for the cost of operating the vehicle in the commute program.
(A) Fees may be collected in advance by payroll deduction in accordance with Section 1156(e) of the Payroll Procedures Manual.
(B) Agencies may adopt fee collection methods that best meet their needs.
(3) Each agency shall maintain records to demonstrate that the commute program is self-supporting.
(c) Employees may be authorized to participate in the commute program when the following criteria are met:
(1) Participants shall be selected from volunteers who will most effectively contribute to the goals of the program: conservation of fuel, improvement of air quality and more effective use of existing streets, highways and parking facilities.
(2) Drivers shall be assigned by the agency.
(A) All drivers must possess a valid non-probationary California license appropriate for the size of the vehicle which they will operate.
(B) All drivers shall have a history of safe driving verified by an analysis of their driving records by the Department of Motor Vehicles.
1. Employees with a negligent operator point count or 2 point conviction in the past 12 months as defined in the C.V.C. Section 12810 shall not be allowed to drive in this program.
(C) All drivers will have participated in the Department of General Services, Insurance Office, defensive driver training program within a period of three years previous to operating vehicles in this program.
(D) No one other than the assigned or back-up drivers shall operate the commute vehicles except in an emergency.
(3) Agencies may institute whatever additional controls they deem necessary that do not conflict with these rules.
(d) The agency shall be responsible for all maintenance, including gasoline.
(1) Emergency repairs and purchases paid for by the driver or passengers may be allowed if substantiated by voucher or receipt.
(e) The vehicle shall be parked overnight and on weekends at the home of the driver.
(1) Accurate mileage shall be determined for the most direct route that reasonably accommodates all passengers.
(2) The mileage of each commute trip shall be recorded in the vehicle's log.
(3) All definitions and provisions of Article 15 shall apply.
(f) Insurance coverage of the state-owned or leased vehicles used in the commute program will be provided by the state in accordance with Government Code Section 11007.4.
(1) Individual coverage to drivers and passengers will be provided by an extension of workers' compensation which includes payment of medical treatment for employees; no special automobile medical payments insurance will be provided by the state.
(2) Accidents and claims involving pool vehicles will be reported and administered in accordance with established procedures.
(g) An annual accounting will be made to the Department of Personnel Administration by each state agency participating in this program on a fiscal year basis.
(1) Complete information including the number of vehicles, number of participating employees, cost of operation, total fees received, accidents, savings in parking charges and any other data requested by the Department or deemed pertinent by the agency shall be submitted.
(2) All reports shall be submitted by September 1 of each year to the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Sections 19993.1-19993.6, Government Code.
Note
Misuse of a state-owned vehicle includes:
(a) When driven or used otherwise than in the conduct of state business.
(b) When driven to or from the employee's home or the vicinity thereof after completion of the employee's workday, unless:
(1) departing upon or returning from an official trip away from the employee's headquarters under circumstances which make it impracticable for the employee to use other means of transportation, or where the employee's home is reasonably enroute to or from his headquarters or other place where his/her is to commence work the following workday.
(2) the vehicle is to be used by him/her in the conduct of state business on the same day or before his/her usual working hours on his/her next succeeding work day and where such later use has been authorized in writing in advance by his/her agency head or his/her duly authorized representative. The mere possibility that vehicle may be used outside of business hours by an employee “on call” does not qualify under this subsection.
(3) no state garage facility is available.
(4) the employee is required to respond to urgency or emergency calls outside of his/her regular working hours, reasonably requiring the use of a state-owned vehicle.
(5) the employee is required to work unplanned overtime with the result that no other practical means of getting home is available to the employee.
(c) Carrying in the vehicle any persons other than those directly involved with official state business, except with the approval of the employee's immediate supervisor for each trip.
(d) Using the vehicle for other than those personal needs directly essential to carrying out the official business such as obtaining food and lodging.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Section 19993.2(a), Government Code.
§599.803. Actual Costs and Liability Therefore.
Note
(a) Liability for Actual Costs. An employee shall be liable to the State for the actual costs to the State attributable to his/her misuse of a state-owned motor vehicle. Where, however, and to the extent that a superior directs the misuse, the superior and not the subordinate shall be liable.
(b) Elements of Actual Costs. Actual costs shall include:
(1) Expense of Operation. Expense of operation of a state-owned vehicle for the distance traveled during such misuse. Where the misuse amounts to an unreasonable deviation from the shortest practical route the operating expense shall be computed on a mileage basis for the distance traveled in excess of the shortest practical route.
(2) Property Damage. Any and all property damage to the state-owned motor vehicle, and other state property, proximately resulting from such misuse. Provided further, that a credit shall be allowed the employee equal to any amount paid to the State by a third party.
(3) Reimbursement to State. The amount of any judgment or claim not covered by insurance that the State pays by reason of the death, injury, or damage to persons or property arising out of misuse of a state-owned vehicle, including interest at the legal rate accruing from the time of payment by the State.
(c) Right of Subrogation. In no event shall these regulations be construed as conferring a right of subrogation on the part of insurance carriers for state vehicles where no such right existed at the time of the adoption of these rules.
(d) Third Parties. These regulations are intended to provide rules of use for state-owned vehicles as between the State and its officers and employees only, and shall not affect in any way rights and obligations of third parties, including insurance carriers for the state-owned vehicles.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Section 19993.2(b), Government Code.
§599.804. Determination of Misuse and Actual Costs.
Note
(a) Determination of Costs. The head of each agency shall determine under the provisions of these regulations the amount and enforce the collection of actual costs to the State attributable to misuse of state-owned motor vehicles by employees of his/her agency. Money collected from the employee shall be deposited to the credit of the fund supporting operation of the vehicle improperly used.
(b) Investigation of Misuse and Actual Costs. Within thirty (30) calendar days after an agency has reasonable cause to believe that misuse of a state-owned motor vehicle by one of its employees has occurred or has been notified by the Department of General Services of such alleged misuse, a representative designated by the agency head shall, without a formal hearing, initiate and complete a preliminary investigation with a view to determining the following:
(1) Whether a misuse occurred.
(2) The employee responsible for such misuse.
(3) Whether punitive action should be taken and if so the action recommended.
(4) The actual costs to the state attributable to such misuse, unless the same are not reasonably ascertainable at the time of the completion of the preliminary investigation in which event they shall be determined in accordance with Section 599.805.
(c) Rights of Employee During Investigation. Any employee involved in the reported misuse, shall, during the course of the investigation, be given an opportunity to give an explanation, and shall be fully advised of the allegations and of the facts developed by the investigation.
(d) Notice to Employee of Agency's Preliminary Decision. Within five (5) days after concluding the investigation, the representative designated by the agency head shall set down his preliminary decision on a form to be furnished by the Department of General Services, together with a report of his investigation, and serve a copy thereof on the employee, and shall at the same time send a copy thereof to the agency head and to the Department of General Services. Where the employee named in the decision is exempt from civil service, the Department of Personnel Administration shall also be sent a copy of the decision and report of investigation.
(e) Appeal to Head of Agency. The employee shall have ten (10) days from service within which to file a written request with the head of the agency to review the decision except that if punitive action is taken the ten (10) day appeal period and the time for review provided in Section 599.804(f) below shall not commence until the punitive action is final.
(f) Review by Head of Agency. Where such a request is filed, the agency head shall review the preliminary decision or, in the absence of any request, he may upon his own motion review it. The review may be conducted either with or without a hearing. The agency head shall either approve, reverse, or modify the preliminary decision. The action of the head of the agency shall be set forth in writing and a copy served on the employee. This shall constitute the final decision of the agency and become effective thirty (30) days after it is served upon the employee.
(g) Effective Date When Preliminary Decision is Not Reviewed. Where the preliminary decision is not reviewed under the foregoing sections and no punitive action is taken, it shall constitute the final decision of the agency and become effective thirty (30) days after it is served upon the employee.
(h) Service of Final Decision of the Agency. The Department of General Services shall be sent a copy of the decision within ten (10) days after it becomes final. Where the employee named in the decision is exempt from civil service, the Department of Personnel Administration shall also be sent a copy of the decision. A copy of the final decision shall be served on the employee.
(i) Consolidation of Separate Charges of Misuse. Where there are two or more independent charges of misuse involving the same employee, such charges may be consolidated under this section at any time prior to the rendition of the agency's final decision.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Sections 19993.1-19993.7, Government Code.
§599.805. Supplemental Determination of Actual Costs. Procedure for Supplemental Determination of Actual Costs.
Note
Where the actual costs are for any reason not ascertained by the preliminary investigation the amount thereof shall be ascertained in a new proceeding following the same procedure, including the right of redress to the agency head as provided herein, unless there has been a final determination that no misuse occurred.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Section 19993.2(a), Government Code.
Note
(a) Reimbursement made to the state by an employee for the actual costs to the state attributable to misuse of a state-owned vehicle shall not be considered a penalty for such misuse.
(b) Appropriate punitive action for misuse of a state-owned vehicle should be taken by the employee's appointing power in accordance with Title 2, Division 5, Part 2, Chapter 8, Article 3 of the Government Code. When punitive action is taken collection of actual costs for misuse as required in Section 599.804 shall not be made until the punitive action is final.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19993.2, Government Code. Reference: Section 19993.2(b), Government Code.
§599.807. Automobile Travel Logs.
Note
Each state agency shall maintain the following records for state-owned automobiles under its control. The term “automobile” for the purpose of Sections 599.807 and 599.808 includes automobiles as defined by the Department of General Services in the State Administrative Manual:
(a) An automobile travel log for each automobile in a form approved by the Department of General Services. Such form shall include, among other information, a record of daily mileage traveled, date and time of travel, itinerary, and information regarding overnight storage and shall identify the driver. The record shall be completed on a daily basis.
(b) Such logs shall be retained by the agencies owning automobiles and shall be available for review by the Department of General Services on request. The retention period for such logs shall be the current fiscal year and the preceding fiscal year.
(c) Anything to the contrary notwithstanding, the Department of General Services, in order that misuse may be discovered with a minimum of record keeping, may from time to time determine that such reports or portions thereof are unnecessary as to certain vehicles, or vehicles subject to specialized uses, and may permit elimination or simplification of such records or portions thereof.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19993.2, Government Code.
§599.808. Storage of State-Owned Motor Vehicles.
Note
(a) The Director of General Services shall allocate available storage space and shall notify, at what intervals he/she deems necessary, each state agency of the number and location of Department of General Services garage and parking facilities allocated to that agency.
(b) Each state agency shall assign to the state-owned vehicles under its control all vehicle storage or parking space under its jurisdiction, or allocated to it by the Department of General Services. Each agency will report on all passenger vehicle storage space under its jurisdiction to the Department of General Services following procedures prescribed by General Services.
(c) Garage charges may be allowed for rental space for monthly storage of a state-owned vehicle in the vicinity of an employee's home. Garage charges shall not be allowed where state-owned vehicles are kept at the home of a state officer or employee, unless the officer or employee incurs a separate charge for storage.
(d) When a state-owned vehicle is to be stored frequently at or in the vicinity of an employee's home, regardless of the reason, a permit must be obtained in advance from his/her department. The permit must be signed by the department head, a deputy, or the chief administrative officer. The Department of General Services will prescribe the form and procedures relating to such permits. Permits will be available for review by the Department of General Services. At the discretion of General Services, any agency may be required to submit permits to it for final approval. For the purpose of enforcing this rule, “frequently” is defined as storing a state-owned vehicle at an employee's home, or in the vicinity thereof, for more than 72 nights over a 12-month period or more than 36 nights over any three-month period.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19993.2, Government Code.
§599.809. Definition of Passenger Type Motor Vehicles of the Light Class.
Note
A passenger type motor vehicle is defined as being of the light class provided it has less than 3.1 cubic meters (110 cubic feet) of passenger and luggage volume.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 22, Budget Act.
Article 16. Classification
§599.810. Out-of-Class Assignments--Excluded Employees.
Note • History
(a) For the purposes of this section:
(1) “Excluded employee” means an employee as defined in section 3527(b) of the Government Code (Ralph C. Dills Act) except those excluded employees who are designated managerial pursuant to section 18801.1 of the Government Code.
(2) “Out-of-class work” is defined as, more than 50 percent of the time, performing the full range of duties and responsibilities allocated to an existing class and not allocated to the class in which the person has a current, legal appointment.
(3) A higher classification is one with a salary range maximum that is any amount higher than the salary range maximum of the classification to which the employee is appointed.
(b) As specified in (d), excluded employees may be compensated for performing duties of a higher classification provided that:
(1) The assignment is made in advance in writing and the excluded employee is given a copy of the assignment; and,
(2) The appointing power certifies that funds are available within its current budget; and,
(3) The duties performed by the excluded employee are not described in a training and development assignment or by the specification for the class to which the excluded employee is appointed and, further, taken as a whole are fully consistent with the types of jobs described in the specification for the higher classification; and
(4) The excluded employee does not perform such duties for more than 120 calendar days in a fiscal year, except as provided in (e).
(c) There shall be no compensation under this rule for assignments that last for 15 consecutive working days or less.
(d) An excluded employee performing in a higher class for more than 15 consecutive working days shall receive the rate of pay the excluded employee would receive if appointed to the higher class for the entire duration of the assignment, not to exceed one year.
(e) An excluded employee may be assigned out-of-class work for more than 120 calendar days during any 12-month period only if the appointing power or his or her designee files a written statement with the Department of Personnel Administration certifying that the additional out-of-class work is required to meet a need that cannot be met through other administrative or civil service alternatives. Such assignments shall be subject to termination by the Director upon his or her finding that reasonable alternatives do exist.
(f) Pay differentials received under the rule shall not be part of an excluded employee's base pay for the purpose of merit salary adjustments or other salary transactions related to subsequent appointments and separations.
(g) Paid time off shall not break the continuity of work in a higher class for the purposes of this rule.
NOTE
Authority cited: Sections 3539.5, 19815.4(d), 19816 and 19820, Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 5-23-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86, No. 26).
2. Change without regulatory effect amending section heading and text, and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
3. Amendment filed 5-12-98; operative 5-12-98. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 98, No. 20).
Article 17. Training
Note • History
This article provides the basic structure for a State training program to promote a capable, efficient and service-oriented workforce by developing employees' skills and abilities through effective, quality training programs. If the provisions of this article are in conflict with the provisions of a memorandum of understanding, the memorandum of understanding shall be controlling.
NOTE
Authority cited: Sections 19815.4(d) and 19995.1, Government Code. Reference: Sections 19995 and 19995.1, Government Code.
HISTORY
1. New Article 17 (Sections 599.815-599.821, not consecutive) filed 6-28-84; designated effective 7-1-84 pursuant to Government Code Section 11346.2(d) (Register 84, No. 26).
2. Amendment of section heading and section filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
Note • History
(a) Training. Training is the process whereby State employees, either individually or in groups, participate in a program of instruction (with lesson plan, instructor, or instructional device) to acquire skills and knowledge for their current or future job performance.
(b) Job-Required Training. Job-required training is designed to assure adequate performance in a current assignment. This includes orientation training, training made necessary by new assignments or new technology, refresher training for the maintenance of ongoing programs, safety training, and training mandated by law or other State authority.
(c) Job-Related Training. Job-related training is designed to increase efficiency or effectiveness and improve performance above the acceptable level of competency established for a specific job assignment.
(d) Upward Mobility Training. Upward mobility training is designed to provide career movement opportunity for employees within classifications designated as upward mobility per Government Code Sections 19400 and 19401.
(e) Career-Related Training. Career-related training is designed to assist in the development of career potential and is intended to help provide an opportunity for self-development while also assisting in the achievement of a department's or the State's mission. Career-related training may be unrelated to a current job assignment.
(f) Individual Development Plan. An Individual Development Plan is any written plan describing training or development programs in which the employee intends to participate and which is approved by the employee's supervisor.
NOTE
Authority cited: Sections 19815.4(d) and 19995.1, Government Code. Reference: Sections 19404(c), 19995 and 19995.1, Government Code.
HISTORY
1. Amendment of subsection (b)(3) filed 7-8-87; operative 8-7-87 (Register 87, No.29).
2. Amendment of subsection (c) and new subsection (d) filed 8-28-89; operative 9-27-89 (Register 89, No. 36).
3. Editorial correction of subsection (c)(1) (Register 95, No. 40).
4. Amendment filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
§599.818. Training Policy, Plan and Evaluation.
Note • History
(a) To ensure that training resources are utilized effectively, the appointing power shall establish a training policy, which shall include all categories of training as defined in Section 599.817, and shall specify the amount of payment and release time allowed for training.
(b) The appointing power shall develop an annual training plan which identifies organizational problems and goals that should be resolved or accomplished through training, appropriate training methods to assure program effectiveness and efficiency, and training target populations to be served by training programs. The training plan should also estimate training costs and establish criteria for evaluating training programs.
(c) The appointing power shall evaluate training programs to determine if training activities are meeting the needs of the organization and its employees and training resources are properly allocated. In addition, each specific training program shall be evaluated to ensure that the course content supports the course objectives and that the training is appropriate for the intended purpose.
(d) Training policies, plans and evaluation methods may be reviewed by the Department to provide assistance and guidance to our customers and to resolve conflicts which may occur.
NOTE
Authority cited: Sections 19815.4(d) and 19995.1, Government Code. Reference: Sections 19995 and 19995.1, Government Code.
HISTORY
1. Repealer and new section filed 4-24-98; operative 5-24-98 (Register 98, No. 17). For prior history, see Register 89, No. 36.
§599.819. Reimbursement for Training Expenses.
Note • History
(a) In assigning individuals to attend training, the appointing power shall establish policies regarding reimbursement for training expenses. Such policies must provide for the following:
(1) When participation is identified by the appointing power as job-required, full reimbursement shall be provided for tuition and other necessary expenses, including the allocation of time with pay.
(2) When participation is identified by the appointing power as job-related, full reimbursement may be provided for tuition and other necessary expenses, including the allocation of time with pay.
(3) When an employee participates in career-related or upward mobility training, with the approval of the appointing power, reimbursement may be for tuition, books, and supplies. Reimbursement for travel and per diem shall not be allowed. Reimbursement for such training may be made only if the employee has successfully completed all course requirements as specified by the training provider.
(4) For full-time training of more than 60 days, the appointing power may require the employee to agree in writing to reimburse the State for tuition and other expenses paid by the State if, after completion of the training assignment, the employee does not continue employment in State service for a period of six months or twice the period of training, whichever is greater. Such reimbursement shall be made within two years after separation from State service and shall be for an amount proportionate to the specified period of service not completed.
(b) If the provisions of this rule are in conflict with specific training reimbursement provisions contained in a memorandum of understanding, the memorandum of understanding shall be controlling.
NOTE
Authority cited: Sections 19815.4(d) and 19995.1, Government Code. Reference: Sections 19995 and 19995.1, Government Code.
HISTORY
1. Repealer of former section 599.819 and renumbering of former section 599.823 as new section 599.819, including amendment of subsections (a)(4) and (b), filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
§599.821. Training Evaluation.
Note • History
NOTE
Authority cited. Sections 19815.4(d) and 19995.1, Government Code. Reference: Sections 19995 and 19995.1, Government Code.
HISTORY
1. Repealer filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
§599.822. Allocation of Resources.
Note • History
NOTE
Authority cited: Section 19815.4(d), Government Code. Reference: Sections 19995 and 19995.1, Government Code.
HISTORY
1. New section filed 7-8-87; operative 8-7-87 (Register 87, No. 29).
2. Repealer filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
§599.823. Reimbursement for Training Expenses.
Note • History
NOTE
Authority cited: Section 19815.4(d) and 19995.1, Government Code. Reference: Sections 19404(c), 19995 and 19995.1, Government Code.
HISTORY
1. New section filed 8-28-89; operative 9-27-89 (Register 89, No. 36).
2. Editorial correction of subsection (a)(3) (Register 95, No. 5).
3. Renumbering and amendment of former section 599.823 as new section 599.819 filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
§599.824. Conditions and Restrictions. Out-Service Training.
Note • History
NOTE
Authority cited: Section 19815.4(d) and 19995.1, Government Code. Reference: Sections 19995 and 19995.1, Government Code.
HISTORY
1. New section filed 7-8-87; operative 8-7-87 (Register 87, No. 29).
2. Repealer filed 4-24-98; operative 5-24-98 (Register 98, No. 17).
Article 18. Separations from Service
§599.825. Resignation from State Service.
Note • History
An employee may resign from state service by submitting a written resignation to the appointing power. A copy of such resignation shall immediately be filed by the appointing power in a manner prescribed by the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.1, Government Code. Reference: Sections 19996, 19996.1 and 19996.2, Government Code.
HISTORY
1. New Article 18 (Sections 599.825 and 599.827) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 445-448.
§599.826. Temporary and Permanent Separations.
Note • History
Temporary separations from state service shall include all types of leave of absence including leave under Section 599.785, military leave, suspension, termination for medical reasons, termination of permanent or probationary employee by layoff, termination by displacement, and disability retirement. Permanent separations from state service shall include dismissal; resignation; automatic resignation (AWOL); rejection during probationary period; termination for failure to meet conditions of employment; termination of limited-term, temporary authorization, emergency, Career Executive Assignment, or exempt appointment; and service retirement.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.1, Government Code. Reference: Sections 19991.1, 19991.8 and 19996, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.827. Continuity of Intermittent Employment.
Note
An intermittent employee whose continuity of employment in the State service is interrupted by a nonwork period that is not covered by paid absence or formal leave of absence without pay, or other temporary separation immediately following the work period and that extends longer than one year shall be paid a lump sum payment for all accumulated vacation or overtime credits as though separated from State service and shall lose all accumulated sick leave and seniority credits.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.1, Government Code. Reference: Section 19100, Government Code.
§599.828. Automatic Resignation of Intermittent Employees.
Note • History
In addition to the provisions of Government Code Section 19996.2, an intermittent employee who waives three requests by the employing department to report for work may be automatically searated from the intermittent appointment, provided that no waiver shall be counted if the employee was unable to come to work due to illness or other good reason (i.e., a reason that is acceptable to the appointing power).
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.1, Government Code. Reference: Section 19100, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Article 19. Reduced Worktime
Note • History
This article shall apply to the Reduced Worktime Act. Reduced worktime arrangements include:
(a) Job sharing;
(b) Fewer hours of work per day;
(c) Fewer days of work per week;
(d) Supplemental time off as defined in Section 599.831;
(e) Other arrangements as agreed between the employee and appointing power, and approved by the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Section 19996.20, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.831. Supplemental Time Off.
Note • History
(a) A full-time civil service employee may request supplemental time off, during a term not to exceed 12 consecutive monthly pay periods in exchange for a commensurate reduction in pay. If the appointing power determines the request is feasible pursuant to Section 599.833 the employee and appointing power shall enter into an agreement, stating the specific time or times that the supplemental time off may be used. The 12 monthly pay period term shall take effect at the beginning of a pay period.
(b) During the term of agreement, the participating employee's pay shall be reduced by a means of a fractional time base. Pay for hours worked, which are in excess of those required for the fractional time base elected but not in excess of those specified in the work week group for the position or classification, shall purchase supplemental time off credit. The Director of the Department of Personnel Administration shall approve which fractional time base options shall be made available for employee request.
(c) Supplemental time off credit may accumulate from month to month during the term of the agreement.
(d) Supplemental time off may be utilized in the pay period in which it is accrued.
(e) All supplemental time off shall be used as agreed. If supplemental time off cannot be used during the term of the agreement, then payment shall be made at straight time during the pay period immediately following the termination of the agreement, or the employee shall be credited with an equivalent amount of compensating time off, according to the discretion of the appointing power. When payment is by cash it shall constitute payment in full for services rendered and no retroactive adjustment of pro rata benefits or service credit shall be made. An employee who separates from service without fault is entitled to a lump sum payment as of the time of separation for any accumulated supplemental time off. Such sum shall be computed by projecting the accumulated time on a calendar basis as provided in Government Code Section 19839(a). An employee who separates from service with fault is entitled to a lump sum payment as of the time of separation at straight time for any accumulated supplemental time off. The computation of such sum shall be based on actual accumulated time without projection as provided in Government Code Section 19839(b).
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.832. Rights of Employees.
Note • History
An employee shall not be coerced by the appointing power, a supervisor or another employee to reduce his or her worktime involuntarily; and an employee shall not be excluded from participation in reduced worktime when the conditions outlined in Government Code Section 19996.21 and Section 599.833 are met. Employees who have reduced their worktime shall not be assigned workload or mandatory overtime that is excessive in comparison to that assigned to other employees performing similar work under the same appointing power. Violation of any of the provisions of this Rule may be the basis for a grievance under Department of Personnel Administration Rules 599.855-599.872 or the applicable provisions of a Memorandum of Understanding.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Sections 19996.22 and 19996.25, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.833. Feasibility Determination.
Note • History
When an employee requests reduced worktime, the appointing power shall determine if it is feasible for the new position to be a reduced worktime position.
Feasibility determination shall include consideration of, but not be limited to, cost, levels of service and the need to maintain adequate supervision.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Section 19996.21, Government Code.
HISTORY
1. New section filed 2-9-84; effective thirtieth day thereafter (Register 84, No. 8).
2. New section refiled 2-27-84 to correct inadvertent omission of text from 2-9-84 order; designated effective 3-10-84 (Register 84, No. 8).
3. Editorial correction of HISTORY NOTE No. 2 filed 3-9-84 (Register 84, No. 12).
§599.834. Personnel Reduction.
Note • History
(a) Whenever the appointing power of a State department anticipates a personnel reduction equivalent to one percent or more of the department's full-time equivalent positions, the department shall so inform the Director of the Department of Personnel Administration and provide the facts upon which such anticipation is based.
(b) The Director shall thereafter make a determination as to whether the anticipated reduction meets the requirements of Government Code Section 19996.21(b). If the Director so determines, he/she shall direct the department to conduct a survey of all of its permanent full-time employees to determine the extent of the desire of such employees to participate in a voluntary reduced worktime program. The Director may also direct a department to conduct such a survey if the Director independently determines that the department is likely to experience a one percent personnel reduction.
(c) All such surveys shall use forms prescribed by the Director and be completed within 45 days, unless the Director determines that a shorter time is required in order to preserve employment opportunities. The department shall transmit the results of the survey to the Director of the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Section 19996.21(b), Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.835. Layoff of Reduced Worktime Employees.
Note • History
When layoff occurs, reduced worktime employees shall not be routinely subject to layoff ahead of full-time employees. Layoff for such employees shall proceed as prescribed by Government Code Sections 19997-19997.14, Department of Personnel Administration Rules 599.840-599.850 and other related laws and Department rules.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Section 19996.24, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§599.836. Return to Full-Time Work.
Note • History
This section governs the return to full-time work of employees who have voluntarily reduced their worktime pursuant to Government Code Section 19996.21.
(a) Upon completion of the term of a supplemental time off agreement, the employee shall be returned to full-time employment unless the employee and appointing power mutually agree to begin a new term. Such return shall be provided irrespective of any waiver of return rights under subsection (b)(1).
(b) The following provisions apply to all reduced worktime employees returning to full-time work except for those employees covered by subsection (a). This includes employees returning to full-time work from a supplemental time off arrangement prior to completion of the term.
(1) When an employee requests return to full-time work, the employee must be offered full-time employment in available departmental vacancies in the class and location in which the employee is serving at the time of the request. Vacant positions in that class and location may not be filled by transfers from within or outside the department; appointments from employment lists, including reemployment lists; or by permissive reinstatement, unless such employees have refused the position. At the discretion of the employee and with the approval of the appointing power, positions in different locations and classes for which the employee is eligible may be offered in lieu of a position in the same class and location.
Employees who refuse three offers of full-time work, as described in the preceding paragraph, may be considered to have waived their right to full-time employment offers for six months. Within each class and location, return to full-time work requests shall be considered on a first-come, first-served basis, with the requests of employees who had previously refused three offers being considered as new requests. Exceptions to this order of return may be made where warranted by instances of extreme employee hardship.
As used in this section, the same location shall be any work location that the employee could reasonably accept without a change in residence.
(2) At any time the department makes a determination that it is not administratively feasible to continue a position as a reduced worktime position, the appointing power may require the employee to return to full-time work. In determining which of a group of employees to recall to full-time work, departments may consider seniority, program needs, affirmative action and/or individual employee hardship. The method used in each such instance shall be clearly identified and shall be uniformly applied to all affected employees.
The appointing power must provide the employee with written notice of the required return at least 30 days prior to the date the employee is to report to work full time; except that in an emergency, such as flood, fire, or other extreme emergency, the appointing power may require the employee to work full time without prior notice for the duration of such emergency.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Section 19996.24, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Editorial correction of printing error in History 2. (Register 92, No. 29).
Note • History
State agencies shall report to the Department of Personnel Administration on their reduced worktime programs from time to time as required by the Director.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19996.27, Government Code. Reference: Sections 19815.4(d) and 19996.27, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Article 20. Layoff and Demotion
Note • History
Service shall be accumulated by qualifying pay period as defined in Section 599.608.
(a) Seniority credit in a class that has been abolished, combined, divided or otherwise altered shall be granted at the rate of one point for each qualifying pay period.
(b) Service that is part time shall receive seniority credit at the fraction of the full-time rate that corresponds to the employee's time base. In order for a part-time month of service to qualify for fractional seniority credit an employee working in an agency in which the full-time workweek is 40 hours, must work at least that fraction of 88 hours that corresponds to the employee's time base. This standard shall be proportionately adjusted for service in agencies in which the full-time workweek is other than 40 hours.
(c) Only that service under emergency appointment which was followed by other service without a break shall receive seniority credit.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19997, 19997.3 and 19997.4, Government Code.
HISTORY
1. New Article 20 (Sections 599.840-599.849, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 254.1 and 450-460.
§599.841. Service Qualifying for Seniority.
Note
Service qualifying for seniority pursuant to Government Code Section 19997.4 shall be the types of compensated service described under Subsections a, b, c, d, e, f, g, h, i, k, l and m of Section 4, Article VII, of the State Constitution; provided that California State University system student employment that is not qualifying for benefits, or student employment in the University of California system that is less than one-half time, shall not be qualifying for seniority credit; and, provided further, that service under Subsection k shall be qualifying only when military service is in connection with employment by the State Military Department.
Unless otherwise provided by the Department of Personnel Administration, only that exempt service which can be fully verified for seniority purposes from official records shall be qualifying for seniority.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19997.4, Government Code.
§599.842. Crediting Services for Seniority.
Note
For the purposes of crediting service for seniority, full-time service shall be the work schedule required by the appointing power for compensation at a full-time rate. Where there is no established fulltime work schedule, the Director of the Department of Personnel Administration shall determine the amount of seniority credit to be granted.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19997, 19997.3 and 19997.4, Government Code.
§599.843. Non-Civil-Service Employees.
Note
No state civil service employee shall be laid off from any position while any employee serving under temporary or limited term appointment is retained in any position of the same class in the unit affected by the layoff.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19997.3, Government Code.
Note
No distinction shall be made between a probationer and a permanent employee when making layoffs.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19997.3, Government Code.
Note
In making layoffs, the appointing power shall first communicate with the Director of the Department of Personnel Administration regarding the designation of the subdivision, if any, to be considered and submit a list of employees in the unit of layoff who are in the class or classes of layoff. The Director shall compute in the manner prescribed by the Government Code a layoff list showing the score of each employee. After receiving this list the appointing power shall notify the employee or employees to be laid off. An employee compensated on a monthly basis shall be notified in writing at least 30 days prior to the date of layoff and the notice shall contain the reason therefor. The appointing power shall immediately thereafter render a written report to the Director on such form as may be prescribed, such report to state the name or names of the employees so laid off and the reasons therefor.
When the layoff is to be made in a class designated by the Director of the Department of Personnel Administration as a professional, scientific, administrative, management or executive class the appointing power shall also submit a report which rates the employees' current performance on the form and in the manner prescribed by the Director. Such form shall make provision for rating an employee in one of the following categories: entirely satisfactory, improvement needed, or unsatisfactory. In computing layoff scores an employee shall have deducted from the score twelve (12) points for a rating of improvement needed and thirty-six (36) points for a rating of unsatisfactory. The appointing power shall give the employee a copy of this report and inform the employee of the right to appeal this rating to the Department of Personnel Administration on the grounds that it was not made in good faith or was otherwise improper. Such an appeal shall be filed under the provisions of Section 599.903 within 10 days from the date the employee received a copy of the report. The filing of such an appeal shall not delay the effective date of the layoff. Ratings after they become final under this section shall not be reviewable on appeal under Section 19997.14 of the Government Code. Whenever a demotion in lieu of layoff requires a layoff in a lower class the points deducted from an employee's score in the higher class shall not be deducted from the score in the lower class.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19997.3 and 19997.13, Government Code.
§599.846. Order of Layoff When Combined Scores Are Equal.
Note
As between two or more employees having the same layoff score, the order of layoff shall be determined by giving preference for retention in the following sequence: (1) veteran; (2) employee with greatest amount of service in the class of layoff or in a class at substantially the same or higher salary level as the class of layoff; (3) employee who has served in the service class of layoff or in a class at substantially the same or higher salary level as the class of layoff with the highest maximum salary; (4) employee with the earliest appointment date for any service credit computed under the provisions of Section 19997.3 of the Government Code; (5) employee with the greatest total state service as computed under the provisions of Section 599.739; (6) employee with the earliest date of appointment to state service qualified under the provisions of Section 599.739; (7) employee whose name is drawn by lot.
As between two or more employees in a professional, scientific, administrative, management, or executive class having the same layoff score, the employee who has the lower rating for current performance shall be laid off first. If distinction cannot be made between two or more such employees with the same score by this means the other preferences provided in this section shall apply.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19997, 19997.3, 19997.4 and 19997.7, Government Code.
Note
If requested by the appointing authority and approved by the Director of the Department of Personnel Administration layoff of employees in any one of the following categories may be made before layoff of employees in the other categories: intermittent, part-time, full-time; provided that full-time employees laid off as a result of the application of this section may elect transfer to remaining intermittent and part-time positions in accordance with the provisions of the act governing demotion in lieu of layoff.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19997 and 19997.7, Government Code.
§599.849. Reemployment List Order.
Note
When the names of employees whose seniority scores were computed in accordance with the provisions of Government Code Section 19997.3 that became effective on April 21, 1980, are placed on reemployment lists containing the names of persons whose seniority scores were computed prior to that date, the order of names on the reemployment list shall be the same as if the seniority scores of all persons on the list had been computed in accordance with the provisions that became effective on April 21, 1980.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19997.3 and 19997.4, Government Code.
§599.850. Designation of Classes As Professional, Scientific, Administrative, Management or Executive.
Note • History
For the purpose of administering Section 19997.3 of the Government Code, classes designated as professional, scientific, administrative, management, or executive will include those classes assigned to Work Week Group 4C under Section 599.703 or those classes which are determined to meet the following criteria:
(a) The work performed either involves supervision of employees as a primary duty; or,
(b) The work is predominantly intellectual and varied in character and requires the consistent exercise of discretion and judgment.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19997.3, Government Code.
HISTORY
1. New section filed 2-9-84 (corrected copy refiled 2-27-84); effective thirtieth day thereafter (Register 84, No. 8).
2. Editorial correction of HISTORY NOTES printed in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Article 20.5. State Restriction of Appointments
§599.854. Scope--Excluded Employees.
Note • History
(a) This article shall govern the Department of Personnel Administrations' program under sections 19998 and 19998.1 of the Government Code to assist in the job placement of excluded employees who may be facing layoff or demotion-in-lieu of layoff as those terms are used in sections 19997 and 19997.8 of the Government Code. This program shall be known as the State Restriction of Appointments (SROA) Program. For the purposes of this article, an excluded employee is: an employee as defined in Section 3527(b) of the Government Code.
(b) It is the intent of the SROA Program, to the extent that it is administratively feasible, to prevent the layoff and separation of skilled and experienced employees from State service.
(c) The SROA Program assists in placing affected employees by temporarily restricting the methods of appointment available to appointing powers. Employees on SROA lists are granted preferential consideration over all other types of appointments except appointments from reemployment lists and mandatory reinstatements.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 3527(b), 19998 and 19998.1, Government Code.
HISTORY
1. New section filed 8-28-90; operative 9-27-90 (Register 90, No. 42).
2. Change without regulatory effect amending section heading, subsection (a) and NOTE filed 4-2-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).
§599.854.1. State Restriction of Appointments Program Eligibility--Excluded Employees.
Note • History
(a) To participate in the SROA Program the appointing power must first demonstrate to the Department of Personnel Administration, that for each class requested an employee surplus exists which, unless eliminated, would result in layoffs.
(b) After certification by the Department of Personnel Administration that the agency's employee surplus cannot be resolved through voluntary transfers, voluntary demotions, reduced worktime or other voluntary means, the Department of Personnel Administration shall authorize the use of the SROA Program for employees who are facing layoff or demotion in-lieu-of layoff. Employees in the class(es) of layoff will be placed on the SROA lists based on the following criteria:
(1) Employees who may be subject to layoff or demotion-in-lieu of layoff, will be considered as eligible for the SROA Program.
(2) Additional employees may be placed on SROA for the class(es) of layoff when the Department of Personnel Administration determines that their participation in the SROA Program will help to prevent the layoff of other employees.
(c) With the approval of the director, the appointing power may restrict the organizational subdivision and/or the geographical location of those employees eligible for the SROA Program, when the organizational and geographical parameters of the layoff have been similarly restricted.
(d) Initial SROA eligibility approval for employees facing layoff, demotion-in-lieu of layoff and involuntary transfer, shall be granted for 120 calendar days.
(e) The director may extend the initial SROA eligibility period up to an additional 120 calendar days when it has been determined that:
(1) A substantial number of the surplus employees have not been placed in other agencies, or;
(2) An extension of the SROA eligibility period would likely result in additional SROA placements.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19998 and 19998.1, Government Code.
HISTORY
1. New section filed 8-28-90; operative 9-27-90 (Register 90, No. 42).
2. Change without regulatory effect amending section heading and subsections (c) and(e)(1) filed 4-2-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).
§599.854.2. State Restriction of Appointments Program Lists--Excluded Employees.
Note • History
(a) Following approval by the Department of Personnel Administration for participation in the SROA Program, the appointing power may proceed with the enrollment of employees into the program.
(b) The appointing power shall be responsible for informing all affected employees about the SROA Program and how to apply for a SROA listing.
(c) Employee participation in the SROA Program is voluntary.
(d) Employees may not voluntarily place themselves on inactive status once their names are placed active on an SROA listing. However, employees may request that specific classes be removed from their SROA listing, if they do not wish to receive job inquiries for those classes.
(e) SROA eligible employees may exercise an unlimited number of waivers of appointment from SROA lists.
(f) Any employee on an eligible SROA list may be hired regardless of where they are placed on the list.
(g) Appointing powers that may be attempting to fill vacant limited-term positions which are projected for nine months or longer, will be required to use the SROA lists. Eligibles should be informed during the initial contact that the vacancy is being filled on a limited-term basis and the anticipated length of the assignment.
(h) Reemployment lists as defined in sections 18534 et seq; 18903 et seq; 19997.2 and 19997.11 of the Government Code take precedence over SROA lists.
(i) When an SROA list is established, all appointing powers must make appointments to a restricted class from a SROA list or meet the appointment exemption criteria as listed in section 599.854.4.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19998 and 19998.1, Government Code.
HISTORY
1. New section filed 8-28-90; operative 9-27-90 (Register 90, No. 42).
2. Change without regulatory effect amending section heading and subsections (g) and (h) filed 4-2-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).
§599.854.3. Inquiry and Clearance of State Restriction of Appointments Program Lists--Excluded Employees.
Note • History
(a) All job interest inquiries to fill a vacant position from an SROA listing should be made in writing. Telephone inquiries may be made if verified in writing.
(b) Employees shall be allowed a reasonable time to respond to inquiries as provided for in State Personnel Board rules 258 and 260, title 2, division 1, chapter 1 of the California Code of Regulations.
(c) A name may be cleared from SROA list for any of the following reasons.
(1) The employee has been hired by another agency.
(2) The employee waives eligibility for appointment.
(3) The employee does not respond to the inquiry.
(4) The employee does not appear for work or an interview as scheduled.
(5) The employee is hired from the SROA certification.
(6) The appointing power requests and is granted an SROA exemption pursuant to section 599.855.4.
(d) The appointing power must inform all SROA eligibles that failure to respond to the SROA inquiry, or to appear for a scheduled SROA interview, will result in automatic placement on inactive status for the class in all agencies (State Personnel Board rule 260).
NOTE
Authority Cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19998 and 19998.1, Government Code.
HISTORY
1. New section filed 8-28-90; operative 9-27-90 (Register 90, No. 42).
2. Change without regulatory effect amending section heading filed 4-2-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).
§599.854.4. State Restriction of Appointments Program Exemptions--Excluded Employees.
Note • History
(a) The following types of appointments are not subject to the SROA Program and require no prior SROA approval, providing the criteria set forth below are met.
(1) The appointment is from a reemployment list.
(2) The appointment is a mandatory reinstatement to the same class, same agency.
(3) The appointment is an intra-agency transfer to the same class.
(4) The appointee is a retired annuitant, pursuant to section 19144 of the Government Code.
(5) The appointment is to a full-time position from a reduced worktime position. This applies only to a permanent full-time employee who voluntarily reduced his/her time base under the reduced Worktime Act (section 19996.20 et seq.) and is returning to full-time work in the same class in the same agency.
(6) The appointment is a promotion in place; there is no true vacant position, there is no change of position, or supervisory/subordinate relationship; and the promotion is clearly identified as typical in cases where the employee has reached the next higher level within a class series. Promotions that do not meet this criteria are subject to the SROA Program.
(b) Special exemptions to the SROA Program must be requested in writing by the appointing power and approved in advance by the Department of Personnel Administration. Blanket exemptions will not be granted.
(c) The following types of appointments and extraordinary circumstances shall qualify for a special exemption to the SROA Program.
(1) Placement of a disabled worker to an appropriate class, as recommended and/or approved by a physician, for reasonable accommodation pursuant to section 19230(c) of the Government Code. The exemption request requires a written request with a full explanation of the situation and copy of the doctor's supporting statement.
(2) Voluntary employee transfers, between classes within an agency, are not restricted when they are made in conformance with a written plan, approved in advance by the Department of Personnel Administration.
(3) If an appointing power wishes to fill a vacancy in a SROA class, with an inter-agency transfer, the vacancy left in the other agency must be filled using the SROA program. Consideration will be given to the classes offered in the exchange, the salary relationship between the classes and the geographical location of the vacant position being offered. These transactions must be approved by the Department of Personnel Administration prior to the transfer actually taking place.
(4) Emergency and Limited-Term appointments of less than nine months duration when there is no possibility of a permanent appointments.
(5) Limited Examination Appointment Program (LEAP) appointments. Before a LEAP eligible can be initially hired the appointing power must first request and receive approval for a SROA exemption. When a LEAP eligible has successfully completed the Temporary Authorization (State Personnel Board rule 265) period the appointing power may make a permanent appointment for that person without requesting another SROA exemption.
(d) Requests for special exemptions based on critical hiring needs will be granted only when the appointing power has demonstrated that the SROA candidates do not have the knowledge, skills and background required for the position, or that the training period required to qualify the SROA candidate would be of such length that the effectiveness of a specific program would be jeopardized unless the exemption is granted.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Sections 19998 and 19998.1, Government Code.
HISTORY
1. New section filed 8-28-90; operative 9-27-90 (Register 90, No. 42).
2. Change without regulatory effect amending section heading and subsections (a), (c)(1), and (c)(3) filed 4-2-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 14).
Article 21. Employer-Employee Relations for Excluded Employees
Note • History
For the purpose of this article, the following definitions apply:
(a) “Excluded Employee” means an employee of the State excluded from or otherwise without exclusive representation under the Ralph C. Dills Act.
(b) “Excluded Employee Organization” means an organization which represents members who are “excluded employees” under section 3526 through 3539 of the Government Code.
(c) “Supervisory Organization” means an organization which represents members who are supervisory employees under sections 3513(g), 3527(e), 3529 through 3535 and 3538 of the Government Code.
NOTE
Authority cited: Sections 3536, 3535, 19815.4(d) and 19816, Government Code. Reference: Sections 3513(a), 3513(c), 3513(g), 3530, 3513(b) and 3527(b), Government Code.
HISTORY
1. New article 21 (sections 599.856-599.858) filed 6-28-84; designated effective 7-1-84 pursuant to Government Code section 11346.2(d) (Register 84, No. 26).
2. Change without regulatory effect amending section and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
§599.857. Registration of Supervisory and Excluded Employee Organizations.
Note • History
Supervisory organizations and excluded employee organizations shall submit an annual registration statement on or before July 1 of each calendar year to the Director, Department of Personnel Administration. The registration statement shall at least list the name of the organization, affiliations, headquarters and other business addresses, principal business telephone number, a list of principal officers and representatives, and a copy of its organization by-laws.
NOTE
Authority cited: Sections 3537 and 19815.4(d), Government Code. Reference: Sections 3532(b), 3535 and 3537, Government Code.
HISTORY
1. Change without regulatory effect amending section and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
§599.858. Standards and Procedures-- Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) A State employee who is an official representative of a supervisory or excluded employee organization and is recognized by the Director, Department of Personnel Administration, may use a reasonable amount of State time, as approved by the Director and the appointing power, for conferring with management on employment relations matters.
(b) During assigned working hours excluded employees shall not conduct or participate in supervisory or excluded employee organization business affairs including, but not limited to, meetings, dues collection, and membership campaigns.
(c) Reasonable access to work locations shall be provided to officers and representatives of supervisory organizations and excluded employee organizations. Access shall not interfere with State business or safety or security requirements. Officers and representatives of such organizations shall not enter a work location without the consent of an agency representative.
(d) Bulletin boards where they exist may be made available to supervisory or excluded employee organizations. Agency management may require its prior approval before material is posted.
NOTE
Authority cited: Sections 3535, 19815.4(d) and 19816, Government Code. Reference: Sections 3530 and 3535, Government Code.
HISTORY
1. Change without regulatory effect amending section heading, subsections (a) and (b) and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
§599.859. Grievance and Appeal Procedure-- Excluded Employees.
Note • History
For the purposes of this section an excluded employee is defined in section 3527(b) of the Government Code.
(a) The purpose of grievance and appeal procedures is to provide for the prompt review and resolution of issues either formally or informally at the lowest possible level.
(b) Definitions.
(1) “Grievance.” A grievance is a dispute of one or more excluded employees involving the application or interpretation of a statute, regulation, policy or practice which falls under the jurisdiction of the Director, Department of Personnel Administration.
(2) “Non-Merit Statutory Appeal.” A non-merit, statutory appeal is: an appeal of transfer in accordance with sections 19994.2-19994.4 of the Government Code; a petition to set aside resignation in accordance with section 19996.1; an appeal for reinstatement after automatic resignation (AWOL) in accordance with section 19996.2; or an appeal of layoff in accordance with section 19997.14.
(c) Grievance Procedures. Each appointing power may establish in writing a procedure for the resolution of grievances of its excluded employees and any such procedure shall be subject to the review and approval by the Director. However unless such a procedure is established, the appointing power shall follow the standard grievance procedure prescribed by the Director in subsection (d).
(d) Standard Grievance Procedure. Each party involved in a grievance shall attempt to resolve the grievance promptly. Every effort should be made to complete required actions within the time limits contained in the grievance procedure. However, with the mutual consent of the parties, the time limit for any step may be extended.
(1) A grievance procedure shall consist of as few levels of review as practicable; however, no procedure shall provide for more than four levels of review.
(2) Informal Discussion. The excluded employee or the excluded employee's representative shall discuss the grievance with the excluded employee's immediate supervisor. If the grievance is not settled within five (5) work days, a written grievance may be filed.
(3) Formal Grievance--Level 1. A formal grievance may be filed no later than ten (10 work days after the event or circumstances occasioning the grievance. The first level of review shall respond to the grievance in writing within ten (10) work days after the receipt of the formal grievance.
(4) Formal Grievance--Level 2. The grievant may appeal the decision of the first level within ten (10) work days after receipt of the response. Within fifteen (15) work days after receipt of the appealed grievance, the person designated by the appointing power as the second level of review shall respond in writing to the grievance.
(5) Formal Grievance--Level 3. The grievant may appeal the decision of the second level within ten (10) work days after receipt of the response to the appointing power or his/her designee. Within fifteen (15) work days after receipt of the appeal, the appointing power or his/her designee shall respond in writing to the grievance.
(6) Formal Grievance--Level 4. The grievant may appeal the decision of the third level within ten (10) work days after receipt of the response to the Director, Department of Personnel Administration or his/her designee. Within twenty (20) work days the Director, or his/her designee shall respond in writing to the grievance.
(e) Forms. The Director shall prescribe a standard excluded employee grievance form and any additional forms to be used in processing grievances.
(f) Representation. The excluded employee and his/her representative, recognized by the Director in accordance with the provisions of Section 599.857, may be authorized a reasonable amount of work time, as determined by the appointing power and approved by the Director, to prepare and present a grievance.
(g) Non-Merit Statutory Appeals.
(1) Disputes regarding appeals of layoff, appeals of transfer, petitions to set aside resignation, appeals for reinstatement after automatic resignation shall be filed in writing directly with the Director. Such appeals shall be filed in accordance with specific time limits proscribed by applicable statute.
(2) Such appeal may be assigned to a hearing officer for hearing or investigation. The hearing officer is the authorized representative of the Director and is fully authorized and empowered to grant or refuse extensions of time, to set such proceeding for hearing, to conduct a hearing or investigation in every such proceeding, and to perform any and all other acts in connection with such proceeding that may be authorized by law or by this article.
(3) Rehearing. Within thirty (30) days after service of a copy of the decision any party may file a written petition for rehearing with the Director. Within thirty (30) days after such filing, the Director shall serve a copy of the petition upon the other parties to the proceeding. Within sixty (60) days after service of the petition for rehearing, the Director shall either grant or deny the petition in whole or in part. Failure to act upon a petition for rehearing within the ninety (90) day period is a denial of the petition. If a rehearing is granted, the Director may rehear the case itself on all the pertinent parts of the record of the prior hearing and such additional evidence and argument as may be permitted by the Director.
(4) Decision Becomes Final When. Unless a proper application for rehearing is made in accordance with subsection (g)(3), every decision shall become final 30 days after service by the Director of a copy of such decision upon the parties to the proceeding in which the decision is rendered.
NOTE
Authority cited: Sections 3535 and 19815.4(d), Government Code. Reference: Sections 3535, 18714, 19994.4, 19996.1, 19996.2 and 19997.14, Government Code.
HISTORY
1. New section filed 8-28-84; designated effective 8-31-84 pursuant to Government Code section 11346.2(d) (Register 84, No. 35).
2. Change without regulatory effect amending section heading and text, and Note filed 7-17-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 29).
3. Editorial correction of Reference cite (Register 95, No. 40).
Article 21.1. Bona Fide Associations
Note • History
For the purpose of this article, the following definition shall be controlling:
(a) “Bona Fide Association” means an organization of employees and former employees of the State including affirmative action advocacy groups and professional organizations which do not have as one of their purposes the representing of employees in their relations with the State.
NOTE
Authority cited: Sections 3520.7(a) and 19815.4(d), Government Code. Reference: Sections 1150(d) and 3520.7(a), Government Code.
HISTORY
1. New Article 21.1 (Sections 599.866-599.868) filed 6-28-84; designated effective 7-1-84 pursuant to Government Code Section 11346.2(d) (Register 84, No. 26).
2. Editorial correction of Reference cite (Register 95, No. 5).
§599.867. Registration of Bona Fide Associations.
Note
Each bona fide association shall submit an annual registration statement on or about July 1 of each calendar year in a form prescribed by the Department of Personnel Administration. The registration statement shall include the following information: name of bona fide association, headquarter's address, telephone number, list of principal officers and their mailing addresses.
The statement shall also include a written certification that the bona fide association is observing the following practices before submitting a request for registration:
(a) The purpose of the association is not to represent State employees on matters within the scope of representation; and
(b) The association does not have an affiliation with an employee organization or a recognized employee organization; and
(c) The association is not acting as an employee organization by filing unfair labor practice charges or competing to be an exclusive bargaining agent in unit certification elections; and
The statement shall be accompanied by a copy of the association's by-laws.
NOTE
Authority cited: Sections 3520.7 and 19815.4(d), Government Code. Reference: Sections 1150(d) and 3520.7, Government Code.
§599.868. Removal of Bona Fide Association Registration.
Note • History
The registration of a bona fide association may be removed by the Department of Personnel Administration for the following reasons:
(a) Substantiation by the Department of Personnel Administration that the bona fide association has represented an employee in his or her employer-employee relations with the State, or is affiliated with an employee organization.
(b) Failure of the bona fide association to provide the annual registration statement.
(c) Substantiation by the State Controller that the bona fide association has interfered or failed to cooperate in an employee's request to decline membership or payroll dues deduction.
NOTE
Authority cited: Sections 3520.7 and 19815.4(d), Government Code. Reference: Sections 1153(a) and 3520.7, Government Code.
HISTORY
1. Editorial correction of subsection (c) (Register 95, No. 40).
Article 21.5. Employee Activities
§599.870. Incompatible Activities Statements.
Note • History
(a) To develop or revise an incompatible activities statement the appointing power shall:
(1) Publish the proposed statement or revision and a supporting statement of rationale for review and written comment by affected employees for at least 30 calendar days. The appointing power shall use a manner of publication which reasonably and likely assures the opportunity for affected employees to be informed of the proposed statement or revision. The published notice shall indicate how and by when comments are to be submitted.
(2) Respond in writing to concerns expressed by affected employees and their representatives about the statement during the review period by either making changes to the statement that are responsive to their concerns or informing them why such changes are not being made.
(3) File with the Department of Personnel Administration for approval a copy of the statement, the statement of rationale, a summary of the process followed in developing or revising the statement, a summary of the written comments received from employees and their representatives and the appointing power's response to the comments.
(b) The statement shall describe as specifically as possible the kinds of activities that are deemed incompatible.
(c) Except as provided by section (d) below, the statement shall be effective on the day it is approved by the Department.
(d) The statement or revision may take effect immediately for a period not to exceed 90 days, when the appointing power establishes and the director concurs that delaying adoption of the proposed statement or revision until the process outlined in subsection (a) is completed could significantly impair agency operations. Such statements or changes shall not remain in effect for longer than 90 calendar days unless they are approved by the Department after being publicized and submitted as specified in subsection (a).
(e) Each appointing power shall describe within the statement the process for employees to appeal the application of an incompatible activities statement to them. The final review level in the process shall be the appointing power or his or her designee.
(f) Each appointing power shall ensure that its incompatible activities statement is kept current and that employees are aware of and have access to it. New employees shall be given a copy of the statement upon appointment. The statement shall also be available for public review upon request.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19990, Government Code.
HISTORY
1. New section filed 11-4-87; operative 12-4-87 (Register 87, No. 49).
Article 22. Duration Service
§599.873. Conditions of Employment.
Note • History
Unless otherwise provided in this Article, the regulations governing the conditions of employment of employees in regular appointments shall govern the conditions of employment of duration employees. Such conditions of employment shall include the counting of service under duration appointment as regular service in the computation of seniority points and in determining eligibility for salary adjustment, sick leave, and vacation.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19200 and 19815.4(d), Government Code.
HISTORY
1. New section filed 2-9-84; effective thirtieth day thereafter (Register 84, No. 8). For history of Article 22, see Register 83, No. 37.
2. New section refiled 2-27-84 to correct inadvertent omission of text from 2-9-84 order; designated effective 3-10-84 (Register 84, No. 8).
3. Editorial correction of HISTORY NOTE No. 2 filed 3-9-84 (Register 84, No. 12).
§599.874. Reports of Performance.
Note • History
Probationary and annual reports of performance shall be filed for duration employees in the same manner and at the same time as is required for regular employees.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19172, Government Code.
HISTORY
1. New Article 22 (Sections 599.874-599.877, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 501-510.
Note
The order and procedure of layoff of duration employees shall be the same as is prescribed for regular employees, except that no regular limited-term employee, regular probationer, or regular permanent employee in the class in the layoff unit shall be laid off while a duration employee is retained in the same class and layoff unit. Only the names of duration employees shall be placed on duration re-employment lists.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19200, Government Code.
Note
Except as otherwise provided in these regulations, the regulations governing leaves of absence for regular employees shall govern leaves of absence for duration employees. On the date duration appointments are terminated, the right of a person on leave from a duration appointment to be reinstated to his/her duration appointment shall terminate also. Upon such termination, an employee who had permanent or probationary status in a regular position immediately preceding his/her duration employment, shall be granted such leave of absence rights as he/she would still retain if the leave had been from the position previously held under permanent appointment.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19200, Government Code.
Article 23. General Provisions
Note • History
Each section of these regulations is a section of the Department of Personnel Administration and may be cited as such. Thus, this section, whether appearing in the California Administrative Code or elsewhere, may be cited as “Department of Personnel Administration Section 599.880” or “2 Cal. Adm. Code 599.880.”
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4(d), Government Code.
HISTORY
1. New Article 23 (Sections 599.880-599.883) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Sections 21-24.
Note
Article and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning, or intent of the provisions of any article or section hereof.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4(d), Government Code.
§599.882. Continuing Provisions.
Note
The provisions of these regulations, insofar as they are substantially the same as regulations of the State Personnel Board superseded hereby and relating to the same subject matter, shall be construed as restatements and continuations and not as new enactments. Rights, privileges, and remedies accrued under any regulations superseded by these regulations are continued in full force and effect unless abolished by some contrary provision herein.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4(d), Government Code.
Note
In order that the work of the Department of Personnel Administration may be expedited, the appointing power of every state agency shall file with the Department such reports as the Department or the Director of the Department of Personnel Administration may require. Reports shall be submitted on such forms and filed at such times as may be prescribed by the Department or the Director.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4(a) and (b), Government Code.
Article 24. Administration
§599.885. Conflict of Interest Code.
The Political Reform Act (Government Code section 8100, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation (Title 2, Division 6, of the California Code of Regulations Section 18730) which contains the terms of a standard conflict of interest code, which can be incorporated by reference in an agency's code. After public notice and hearing it may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of Title 2, Division 6, of the California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendix designating officials and employees and establishing disclosure categories, shall constitute the conflict of interest code of the Department of Personnel Administration.
Designated employees shall file statements of economic interests with their agency. Upon receipt of the statement of the Director, the agency shall make and retain a copy and forward the original of this statement to the Fair Political Practices Commission. Statements for all other designated employees will be retained by the agency.
Appendix
Assigned
Designated Positions Disclosure Categories
Director 1,2,3,4,5
Chief Deputy Director 1,2,3,4,5
Deputy Director 1,2,3,4,5
Chief Counsel 1,2,3,4,5
All Division Chiefs 1,2,3,4,5
All Deputy/Assistant Division Chiefs 1,2,3,4,5
Administrative Law Judge 1,2,3,4,5
All department attorneys 1,2,3,4,5
Labor Relations Officer 4,5
Manager, State Training Center 1,2
Administrator, Deferred Compensation Program 3,4
Fiscal Officer 1
Budget Officer 1
Budget Analyst/Specialist 1
Contracts Manager* 1
Contracts Analyst* 1
Business Service Officer (Purchasing)* 1,2
Business Service Assistant (Purchasing)* 1,2
Consultants ***
---------
*Includes any program/project manager, or employee, with contracting or purchasing authority.
***Consultants shall disclose pursuant to the broadest disclosure category in the code subject to the following limitations: The Director may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this Section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Director's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
DISCLOSURE CATEGORIES:
Category 1
Designated officials or employees assigned to this category must report:
(1) Investments in any business entity and income, including gifts, loans, and travel payments from any source of the type which, within the last two years has contracted with the Department of Personnel Administration to provide services, supplies, materials, machinery or equipment.
(2) His or her status as a director, officer, partner, trustee, employee or holder of a position of management in any business entity to the type which, within the last two years, has contracted with the Department of Personnel Administration to provide services, supplies, materials, machinery or equipment.
Category 2
Designated officials or employees assigned to this category must report:
(1) Investments in any business entity and income, including gifts, loans, and travel payments from any source of the type which, within the last two years, has contracted with the Department of Personnel Administration to provide instructional or consultant services or facilities for training programs.
(2) His or her status as a director, officer, trustee, employee or holder of a position of management in any business entity of the type which, within the last two years, has contracted with the Department of Personnel Administration to provide instructional or consultant services or facilities for training programs;
Category 3
Designated officials or employees assigned to this category must report:
(1) Investments in any business entity and income, including gifts, loans, and travel payments from any source of the type which, within the last two years, has contracted with the Department of Personnel Administration as an investment plan included in the Deferred Compensation Program.
(2) His or her status as a director, officer, trustee, employee or holder of a position of management in any business entity of the type which, within the last two years, has contracted with the Department of Personnel Administration as an investment plan included in the Deferred Compensation Program.
Category 4
Designated officials or employees assigned to this category must report:
(1) Investments in any business entity and income, including gifts, loans, and travel payments from any source of the type which provides services, insurance, subsidies, or discounts as part of a benefit package for State employees.
(2) His or her status as a director, officer, partner, trustee, employee or holder of a position of management in any business entity of the type which provides services, subsidies, or discounts as part of a benefit package for State employees.
Category 5
Designated officials or employees assigned to this category must report:
(1) Income, including gifts, loans, and travel payments from any employee of the State of California who is covered by the provisions of the Ralph C. Dills Act.
(2) Income from any California State employee organization.
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New section and Appendix filed 2-26-87; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-13-87 (Register 87, No. 10).
2. Amendment of section and Appendix filed 12-5-90; operative 1-4-91. Submitted to OAL for printing only pursuant to Government Code section 11343.8. Approved by Fair Political Practices Commission 10-18-90 (Register 91, No. 5).
3. Amendment of section and Appendix filed 4-4-2003; operative 5-4-2003. Approved by Fair Political Practices Commission 2-3-2003 (Register 2003, No. 14).
Note • History
Whenever notice of hearing is required to be given of matters to be heard or considered by the Department of Personnel Administration and a different method is not provided, the Director shall cause a notice to be posted at the office of the Department at Sacramento at least six (6) days before the date of hearing giving the nature of the matter and giving notice that all persons interested may appear, at a time and place mentioned in the notice, in support or in opposition to the matter. In cases of emergency the Director may shorten the period of notice to not less than three (3) days.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 18575, Government Code.
HISTORY
1. New Article 24 (Section 599.888) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See Title 2, Division 1, Chapter 1, Subchapter 1, Section 34.5.
Article 25. Hearings
Note • History
The regulations in this article shall apply to all parties to appeal hearings conducted by the Department of Personnel Administration, its Director and his/her designees.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. New section filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
Unless the context requires otherwise, the definitions immediately hereinafter set forth govern the construction of this article.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. New Article 25 (Sections 599.894-599.910, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
2. Amendment of Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
“Appeal” means any written request for relief filed with the Department of Personnel Administration and includes “application,” “petition,” and “protest.”
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Amendment of Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
“Appellant” means the person or state agency filing any appeal with the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Amendment of Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
“Respondent” means the person or state agency whose interests are adverse to those of the appellant or who will be directly affected by the Department's decision.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Renumbering of former section 599.898 to new section 599.897, including amendment of Note, filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
§599.898. Administrative Adjudication Provisions.
Note • History
The following administrative adjudication provisions of the Administrative Procedure Act (APA), which are set forth in Chapters 4.5 and 5 of Part 1 of Division 3 of Title 2 of the Government Code are applicable to the Department of Personnel Administration's appeals hearings as follows:
(a) Articles 1, 2, 3, 4, 6, 7, 8, 10 and 16 of Chapter 4.5 are applicable.
(b) Article 9 of Chapter 4.5 is applicable, except Government Code Sections 11440.30 and 11440.50, which are not applicable.
(c) Article 12 of Chapter 4.5 is applicable except Section 11455.30. Any authority of the Director or a presiding officer is subject to the limitations of the Government Code Sections applicable to the Department of Personnel Administration.
(d) Article 5 of Chapter 4.5 is not applicable, except Government Code Section 11420.30, which is applicable.
(e) Articles 11, 13, 14, and 15 of Chapter 4.5 are not applicable.
(f) Chapter 5 is not applicable.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 11400-11415.60, 11420.30, 11425.10-11440.20, 11440.40, 11440.45, 11440.60, 11445.10-11445.60, 11455.10, 11455.20, 11475-11475.70 and 19815.4, Government Code.
HISTORY
1. Renumbering of former section 599.898 to section 599.897 and new section 599.898 filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
Every appeal filed with the Department of Personnel Administration shall state the facts upon which it is based and the relief requested in sufficient detail to enable the Department to understand the nature of the proceeding and the parties concerned. Unless the appeal names some other respondent, the appellant's appointing power shall be considered the only respondent. The Director shall mail or serve a copy of the appeal to or on the respondent.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Amendment of section heading, section and Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
§599.904. Time and Manner of Filing.
Note • History
Appeals filed with the Department of Personnel Administration shall be subject to the following requirements:
(a) All appeals shall be filed in writing directly with the Director in accordance with specific time limits prescribed by statute and regulation. An appeal is considered filed on the date it is mailed (postmarked) to the Department or the date it is received, whichever is earlier.
(b) Except as otherwise provided in the act or these regulations, every appeal shall:
(1) be filed with the Department of Personnel Administration within 30 days after the appellant has been served with the notice, report, or document from which the appeal is taken; or
(2) if there has been no such service and none is required, within 30 days after the event happened upon which the appeal is based; and
(c) Except as otherwise limited by statute or case law, the Department of Personnel Administration or the Director may allow such an appeal to be filed within 30 days after the end of the period in which the appeal should have been filed if the petitioner demonstrates good cause for a late filing.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code; Bidwell v. State of California (1985) 164 Cal.App.3d 213 and Gonzalez v. State Personnel Board (1977) 76 Cal.App.3d 364.
HISTORY
1. Amendment of section heading, section and Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
Unless required by law or these regulations, no answer to the appeal need be filed. If an answer is filed prior to the hearing, a copy thereof shall be mailed by the Director of the Department of Personnel Administration to the appellant. If no answer is filed and none is required, every material allegation of the appeal is in issue.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Amendment of Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
§599.906. Hearings and Decisions.
Note • History
(a) The following appeals shall be designated “nonmerit statutory appeals”:
(1) requests for reinstatement after automatic resignation;
(2) appeals from layoffs, demotions, and transfers in lieu of layoff;
(3) protests of transfer;
(4) petition to set aside resignation;
(5) denial of merit salary adjustment;
(6) appeals of performance appraisal;
(7) appeals from denial of sick leave; and
(8) appeals from denial of out-of-class claims.
(b) Except as otherwise provided by statute or excluded by an applicable memorandum of understanding, each nonmerit statutory appeal shall be assigned to a presiding officer for investigation or hearing. The presiding officer assigned shall be the authorized representative of the Director and, as such, will be fully authorized and empowered to set such matters for hearing, grant or refuse extensions of time, issue subpoenas for witnesses, administer oaths, hold hearings, conduct investigations, and perform any and all other acts in connection with such proceedings that may be authorized by law or this article, subject to the following restrictions:
(1) Any such hearing or investigation shall comply with the administrative procedures for handling subpoenas set forth in Government Code Sections 18672 through 18674, except that all references to the “Board” or “Executive Officer” therein shall be understood to refer to the Director of the Department of Personnel Administration.
(2) The Director and/or his/her designee shall retain authority to approve, modify, or reject the presiding officer's decision regarding any appeal except as otherwise provided or excluded by a memorandum of understanding.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 11440.10, 19815.4, 19818.8, 19818.16, 19832, 19836, 19842.5, 19859, 19992-19992.14, 19994.3, 19994.4, 19996.1, 19996.2 and 19997.14, Government Code; and Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218.
HISTORY
1. Renumbering of former section 599.906 to section 599.908 and new section 599.906 filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Note • History
Within 30 days after service of a copy of a decision following hearing, any party may file a petition for rehearing with the Director. The petition shall be in writing and shall contain all the grounds upon which a rehearing shall be granted.
Within 30 days after such filing, the Director shall serve a copy of the petition on the other parties to the proceeding. Within 60 days after service of the petition for rehearing on the nonrequesting parties, the Director shall either grant or deny the petition in whole or in part.
Failure to act upon a petition within this 90-day period shall be deemed a denial of the petition.
If a petition is granted, the Director may set the matter for rehearing before an authorized representative or may reconsider the appeal based solely upon the existing record and arguments provided by the parties.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. New section filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
§599.908. Dismissal of Appeals Not Brought to Hearing.
Note • History
Any appeal referred or assigned to the Director of the Department of Personnel Administration shall be dismissed unless it is brought to hearing within three years after such appeal was filed with the Department of Personnel Administration except where the parties have filed a written stipulation specifically extending said three-year period.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Renumbering of former section 599.906 to new section 599.908, including amendment of section and Note, filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
§599.910. Decision Becomes Final When.
Note • History
Unless a proper application for rehearing is made, every decision shall become final 30 days after service by the Department of Personnel Administration of a copy of such decision on the parties to the proceeding in which the decision is rendered.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19815.4, Government Code.
HISTORY
1. Amendment of section and Note filed 2-9-2004; operative 2-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 7).
Article 25.5. Work and Family Benefits--Excluded Employees
§599.911. Family Crisis Leave.
Note • History
The State recognizes that on occasion it may be necessary for employees to take time off to attend to family crisis situations, including, but not limited to, divorce counseling, family or parenting conflict management, family-care urgent matters and/or emergencies. Subject to departmental operational needs, excluded employees as defined in Section 599.615(b) of these regulations, shall be permitted to use eligible leave credits to attend to family crisis situations.
(a) Eligible leave credits include annual leave, vacation, compensating time off (CTO), personal leave, holiday credits, and/or sick leave. If the employee has exhausted available leave credits, he/she may request unpaid leave. Sick leave credits may be used consistent with sick leave policies.
(b) Family is defined as the parent, spouse, or domestic partner that has been certified with the Secretary of State's Office in accordance with AB 26 (Chapter 588, Statutes of 1999 et seq.), son, daughter, or any child the employee stands in loco parentis to, grandchild, grandparent, brother, sister, or any person residing in the household.
(c) Requests for family crisis leave shall be in accordance with departmental policies and, except in emergencies, shall be made with reasonable notice to the employee's immediate supervisor.
(d) The employee may be required to provide substantiation to support his/her request for family crisis leave. The appointing power shall maintain the confidentiality of any employee requesting accommodation under this section.
(e) The appointing power shall consider requests from employees to adjust work hours or schedules or consider other flexible arrangements to participate in such activities in accordance with departmental policies and consistent with operational needs.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New article 25.5 (sections 599.911-599.913) and section filed 10-15-2001; operative 10-15-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 42).
2. New section refiled with amendments 11-27-2001; operative 11-27-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 48).
§599.912. Family Activity Leave.
Note • History
The State recognizes that on occasion it may be necessary for employees to take time off to attend to family or school-related activities in which the employee's child is participating, including, but not limited to, plays, graduations, field trips, organized sports events, recitals, Scouts, 4-H, Junior Achievement, and Grange.
(a) Subject to departmental operational needs, and reasonable notice to the employee's supervisor, excluded employees as defined in Section 599.615(b) of these regulations, shall be permitted to use no less than twenty (20) hours per calendar year of accumulated eligible leave credits to attend family or school-related activities in which the employee's child is participating. Use of such leave shall not diminish the 40-hour leave entitlement provided under the Family School Partnership Act.
(b) Eligible leave credits include annual leave, vacation, compensating time off (CTO), personal leave, and/or holiday credits. They do not include sick leave. If the employee has exhausted available leave credits, he/she may request unpaid leave.
(c) Employee's child is defined as the employee's son, daughter, or any child the employee stands in loco parentis (to the child).
(d) Requests for family activity leave shall be in accordance with departmental policies. The employee may be required to provide substantiation to support the request to attend such activities.
(e) The appointing power shall consider requests from employees to adjust work hours or schedules or consider other flexible arrangements to participate in such activities, in accordance with departmental policies and consistent with operational needs.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New section filed 10-15-2001; operative 10-15-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 42).
2. New section refiled with amendments 11-27-2001; operative 11-27-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 48).
§599.913. Transfer of Leave Credits.
Note • History
At the discretion of the appointing power, excluded employees as defined in Section 599.615(b) of these regulations, shall be permitted to transfer eligible leave credits between family members to care for a family member or another person residing in the immediate household.
(a) Eligible leave credits include annual leave, vacation, compensating time off (CTO), personal leave, and/or holiday credits. They do no include sick leave.
(b) Eligible leave credits may be transferred by a child, parent, spouse, domestic partner that has been certified with the Secretary of State's Office in accordance with AB 26 (Chapter 588, Statutes of 1999 et seq.), brother, sister, or other person residing in the immediate household.
(c) Eligible leave credits may be transferred between family members to care for the family member's child, parent, spouse, or domestic partner that has been certified with the Secretary of State's Office in accordance with AB 26 (Chapter 588, Statutes of 1999 et seq.), brother, sister, or other person residing in the immediate household who has a serious health condition, for the employee's own serious health condition as defined by the Family Medical Leave Act (FMLA), or for parental leave to care for a newborn or adopted child.
(d) To be eligible to receive leave credits, the receiving employee must have exhausted all of his/her leave credits.
(e) The donating employee must maintain a minimum balance of 80 hours of paid leave time.
(f) Transfer of eligible leave credits may be interdepartmental in accordance with the policies of the receiving department.
(g) Donations must be in one-hour increments and will be reflected as an hour-for-hour addition to the vacation or annual leave balance of the receiving employee.
(h) Use of donated credits shall normally not exceed a maximum of three (3) months. However, if approved by the receiving department, the total leave credits received may be up to six (6) months.
(i) Donations shall be made on a form to be supplied by the employee's department, signed by the donating employee, and verified by the donating department. When donations are used, they will be processed based on date and time received (first in, first used). Unused donations shall be returned to the appropriate donor.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New section filed 10-15-2001; operative 10-15-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 42).
2. New section refiled with amendments 11-27-2001; operative 11-27-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 48).
Article 26. Employee Benefits-- Excluded Employees
§599.920. Health Benefit Contributions--Excluded Employees.
Note • History
NOTE
Authority cited: Sections 3539.5 and 19815.4, Government Code. Reference: Sections 19815.4(d) and 22825.1, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 8-20-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
2. Editorially corrects printing error of subsection (a)(2) (Register 85, No. 29).
3. Repealer filed by Department of Personnel Administration with the Secretary of State on 9-9-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
4. Change without regulatory effect amending article 26 heading filed 6-25-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 26).
5. Change without regulatory effect amending section heading and Note filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.920.5. Domestic Partner Coverage for Health, Dental and Vision Benefits -- Excluded Employees.
Note • History
(a) Effective January 1, 2000, an employee who is either (1) excluded from the definition of State employee in subdivision (c) of Section 3513; or (2) a nonelected officer or employee of the executive branch of government who is not a member of the civil service may enroll an eligible domestic partner as a family member in the employer sponsored health, dental and vision plans. To be eligible, the employee and the domestic partner must file a Declaration of Domestic Partnership with the Secretary of State's Office and present a copy of the approved declaration the personnel office.
(b) An excluded employee may enroll dependent children of the domestic partner provided those children meet the requirements of economic dependents as defined by the California Public Employees' Retirement System.
(c) Upon termination of such domestic partnership, the employee must file a Termination of Domestic Partnership and must also notify the personnel office and remove the domestic partner and economic dependents (unless they continue to be economic dependents of the employee) from the health, dental and vision plans.
NOTE
Authority cited: Sections 3539.5, 19849.1(a) and 19849.11, Government Code. Reference: Section 22875(d), Government Code.
HISTORY
1. New section filed 12-21-99; operative 1-1-2000. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2000, No. 5).
§599.920.6. Rural Health Care Equity Fund Eligibility -- Excluded Employees.
Note • History
(a) Effective January 1, 2000, an employee who is either (1) excluded from the definition of State employee in subdivision (c) of Section 3513; or (2) a nonelected officer or employee of the executive branch of government who is not a member of the civil service is eligible for the provisions of section 22825.01 of the Government Code.
(b) Such employees shall also be eligible for a secondary reimbursement each fiscal year as follows:
(1) Any monies remaining at the end of a fiscal year in any individual account shall revert to a pooled account by CBID. For excluded employees, the CBID pool shall be one pool of all eligible excluded employees.
(2) The secondary distribution shall be on a pro-tanto basis proportionate to the secondary reimbursements requested by members exceeding their annual monetary allotment.
(3) Any monies remaining in the CBID pool after the pro-tanto distribution shall “roll” into the following year CBID pool for subsequent pro-tanto distribution(s).
NOTE
Authority cited: Sections 3539.5, 19849.1(a) and 19849.11, Government Code. Reference: Section 22825.01, Government Code.
HISTORY
1. New section filed 12-21-99; operative 1-1-2000. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2000, No. 5).
§599.921. Reimbursement of Bar Fees--Nonrepresented Employees.
Note • History
A nonrepresented employee is defined in Section 599.619 of these regulations.
(a) Commencing with the 1984 calendar year, when the appointing power certifies that the actual practice of law is required for the performance of the duties of a specific position, the nonrepresented employee shall be reimbursed for the cost of the annual membership fee of the State Bar Association as set forth in Business and Professions Code Section 6140.
(b) Job-related local or specialty bar dues may be reimbursed at each appointing power's discretion for each employee for whom State Bar membership is required as a condition of employment. Any amount to be reimbursed shall be determined by each appointing power. If local or specialty bar dues are reimbursed for less than full-time employees, the reimbursed amount shall be prorated.
(c) Such reimbursement will be made after the employee has submitted a claim for reimbursement with substantiation that payment has been made. Substantiation of payment shall include a copy of the annual fee statement issued by the State Bar Association and a copy of the employee's membership card.
NOTE
Authority cited: Sections 3517.7, 19815.4(d), 19819.1 and 19995.1, Government Code. Reference: Sections 19815.2, 19819.1, 19829 and 19995.1, Government Code.
HISTORY
1. Repealer of former Section 599.921 and new Article 26 (Sections 599.921 and 599.922) filed 2-4-85; effective thirtieth day thereafter (Register 85, No. 6). For prior history, see Registers 84, No. 28 and 84, No. 6.
2. Editorial correction relocating Article 26 (Sections 599.921 and 599.922) to appear in numerical sequence (Register 85, No. 14).
3. Relettering of former subsection (b) to subsection (c) and new subsection (b) filed by Department of Personnel Administration with Secretary of State on 12-30-87; operative 12-30-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 88, No. 7).
§599.922. Reimbursement of Fees for Professional Licenses--Nonrepresented Employees.
Note • History
(a) Professional Engineering. Commencing with the 1983-84 fiscal year, when the appointing power determines that the possession of a current Professional License in occupational fields of engineering is required by the functions of a specific position or is beneficial to the performance of an employee's duties, a nonrepresented employee shall be reimbursed for the actual cost of the application or renewal fees and shall receive up to 8 hours of State time without loss of compensation for each examination day for such Professional Licenses. Such occupational fields include:
(1) Engineer;
(2) Architect;
(3) Landscape Architect;
(4) Engineering Geologist;
(5) Land Surveyor; and
(6) Engineer-in-training.
(b) Professional Scientist. Commencing with the 1984-85 fiscal year, when the possession of a current Professional License in classes within the professional scientific occupational field is required by State or Federal law, a permanent full-time nonrepresented employee shall be reimbursed for actual cost of the renewal fees for such Professional Licenses. Such classes within the occupational field of Professional Scientist include:
(1) Chief, Bureau of Animal Health
(2) Chief, Agricultural Veterinarian Laboratory Services
(3) Sanitarian IV
(4) Veterinary Medical Officer IV, Animal Health
(5) Veterinary Medical Officer IV, Pathology
(6) Chief Public Health Veterinarian
(7) Public Health Microbiologist II
(8) Senior Geologist (Supervisor)
(9) Supervising Geologist
(10) Principal Geologist
(11) State Geologist CEA
(c) Nursing. Commencing with the 1984-85 fiscal year, when the possession of a current Professional License in a class within the occupational field of nursing is required by State or Federal Law, a permanent full-time nonrepresented employee shall be reimbursed for the actual cost of the renewal fees for such Professional Licenses. Such classes within the occupational field of Nursing include:
(1) Coordinator, Nursing Services
(2) Supervising Nurse III
(3) Supervising Nurse II
(4) Nursing Coordinator
(5) Psychiatric Nursing Education Director
(6) Supervising Psychiatric Nurse
(7) Registered Nurse III
(8) Public Health Nurse IV
(9) Public Health Nurse III
(10) Supervising Nursing Education Consultant
(11) Nursing Education Consultant, Veterans Home
(12) Health Care Services Nurse III
(13) Nursing Consultant, Program Review Unit
(d) Medical and Social Services Support. Commencing with the 1984-85 fiscal year, when possession of a current Professional License in a class within the occupational field of medical and social services support is required by State or Federal law, a permanent full-time nonrepresented employee shall be reimbursed for the actual cost of the renewal fees for such Professional Licenses. This reimbursement shall apply to all appropriate employees in the class of Supervising Clinical Laboratory Technologist.
(e) Physician, Dentist and Podiatrist. Commencing with the 1984-85 fiscal year, when possession of a current Professional License in any of the occupational fields of medicine, dentistry or podiatry is required by State or Federal law as a condition of employment, a permanent full-time nonrepresented employee shall be reimbursed for the actual cost of the renewal fees for such Professional Licenses. For less than full-time employees, the amount of the renewal fee which is to be reimbursed shall be on a pro rata basis which corresponds to the employee's time base.
Such classes within the occupational fields of physician, dentist and podiatrist include:
(1) Chief, Medical Services Correctional Program, C.E.A.
(2) Chief Medical Officer, Veterans Home and Medical Center
(3) Program Director, General Medical and Surgical Program
(4) Chief Medical Officer, California Institution for Women
(5) Chief Medical Officer, Correctional Institution
(6) Chief of Medicine, Veterans Home and Medical Center
(7) Office of Program Review Consultant (Medical), State
Hospitals
(8) Chief Physician and Surgeon
(9) Director, Health Training Center, Department of Mental
Health
(10) Coordinator of Professional Education, Community Psychiatry Training Center, Department of Mental Health
(11) Executive Director, Hospital for the Mentally Disabled, C.E.A.
(12) Medical Director, State Hospital
(13) Medical Director (Chief Deputy), C.E.A.
(14) Deputy Superintendent, Clinical Services, Correctional Facility
(15) Program Director--Medical--
(16) Program Assistant--Medical--
(17) Executive Director, Hospital for the Developmentally Disabled, C.E.A.
(18) Chief of Professional Education, Mental Hospital
(19) Chief of Professional Education, Developmentally Disabled Hospital
(20) Chief, Laboratory Services Branch
(21) Assistant Superintendent, Psychiatric Services, Correctional Facility
(22) Chief Psychiatrist, Correctional Facility
(23) Pathologist
(24) Chief, Office of Long-Term Care and Aging
(25) Assistant Director (Medical), Department of Health Services, C.E.A.
(26) Deputy Director, Public and Environmental Health Division
(27) Chief, Office of County Health Services
(28) Chief, Preventive Medical Services Branch
(29) Chief, Bureau of Maternal and Child Health
(30) Chief, Crippled Children Services Section
(31) Chief, Infectious Disease Section
(32) Chief, Family Health Services Section
(33) Public Health Medical Officer III
(34) Public Health Medical Officer III--Epidemiology
(35) Public Health Medical Officer III--Maternal and Child Health
(36) Regional Medical Coordinator
(37) Chief, Viral and Rickettsial Diseases Laboratory
(38) Medical Officer, State Compensation Insurance Fund, C.E.A.
(39) Medical Program Consultant, Department of Health Services
(40) Medical Consultant II--Department of Health Services
(41) Medical Director, Employment Development Department, C.E.A.
(42) Medical Director, Division of Industrial Accidents, C.E.A.
(43) District Medical Director, Division of Industrial Accidents
(44) Medical Consultant, State Board of Medical Quality Assurance
(45) Medical Officer, State Personnel Board, C.E.A.
(46) Chief Medical Consultant, Board of Medical Quality Assurance
(47) Assistant Medical Officer, State Personnel Board
(48) Chief Medical Consultant, Department of Rehabilitation
(49) Chief Dentist
(50) Podiatrist
(f) Psychiatric, Health and Social Services. Commencing with the 1984-85 fiscal year, when the possession of a current Professional License in the occupational fields of psychiatric, health or social services is required by State or Federal law as a condition of employment, a permanent full-time nonrepresented employee shall be reimbursed for the actual cost of the renewal fees for such licenses. For less than full-time employees, the amount of the renewal fee which is to be reimbursed shall be on a pro rata basis which corresponds to the employee's time base.
Such classes within the occupational fields of psychiatric, health or social services include:
(1) Unit Supervisor
(2) Program Assistant--Medical
(3) Program Director--Medical
(4) Pharmaceutical Consultant II
(5) Pharmacist II
(6) Pharmacist Services Manager
(7) Quality Assurance Director
(8) Audiologist II
(9) Supervising Psychiatric Social Worker II
(10) Supervising Psychiatric Social Worker II (Mental Health)
(11) Supervising Psychiatric Social Worker I
(12) Supervising Psychiatric Social Worker I (Mental Health)
(13) Senior Psychologist
(14) Chief, Child Health and Disability Branch
(15) Chief, Radiological Health Section
(16) Chief, Microbial Health Section
(17) Chief, Laboratory Field Services
(18) Executive Secretary, Research Advisory Panel
(19) Assistant Executive Secretary, Board of Pharmacy
(20) Supervising Inspector, Board of Pharmacy
(g) Professional Foresters. Commencing with the 1985-86 fiscal year, when the possession of a current professional license in a class within the forestry occupational field is required as a condition of employment, a permanent full-time non-represented employee shall be reimbursed for actual cost of renewal fees for such professional license. Such classes within the occupation of professional forester include:
(1) Forester II
(2) Forester III
(3) Senior Forest Property Appraiser
(h) Education--Commencing with the 1985/86 fiscal year, when possession of a current credential in a class within the education occupational field is required as a condition of employment, a full time, permanent, non-represented employee shall be reimbursed the fee for renewal of such credential. Such classes within the occupational field of education include:
(1) Superintendent California School for the Deaf
(2) Superintendent California School for the Blind
(3) Superintendent Diagnostic School for the Neurologically Handicapped Children
(4) Principal Diagnostic School for the Neurologically Handicapped Children
(5) Principal School for the Deaf
(6) Principal School for the Blind
(7) Supervising Teacher--Fiscal Year Employees/School for the Deaf/Department of Education
(8) Supervising Teacher, Management/School for Deaf/Department of Education
(9) Supervising Teacher/Diagnostic School/Department of Education
(10) Supervising Teacher/School for the Blind/Department of Education
(11) Supervising Teacher/School for the Deaf/Department of Education
(12) Supervising Teacher, Management/School for Blind/Department of Education
(13) Adult Education Administrator II
(14) Assistant Superintendent of Public Instruction--Director of Vocational Education
(15) Assistant Director of Child Development
(16) Assistant Chief Bureau of Intergroup Relations
(17) Assistant Superintendent of Public Instruction for Child Development
(18) Assistant Superintendent of Public Instruction for Special Education
(19) Assistant Superintendent of Public Instruction for General Education
(20) Bilingual-Bicultural Education Administrator
(21) Chief of Program Evaluation Department of Education
(22) Chief, Bureau of Child Nutrition Services
(23) Chief, Bureau of Administrative Services
(24) Chief, Bureau of Intergroup Relations
(25) Education Administrator II
(26) Migrant Education Administrator I
(27) School Approvals Administrator I
(28) School Approvals Administrator II
(29) Secondary Education Administrator I
(30) Administrator of School Apportionments, Grants and Fiscal Assistance
(31) Vocational Education Administrator II
(32) Adult Education Administrator I
(33) Agriculture Education Administrator I
(34) Assistant Field Representative II School Administration
(35) Bilingual-Bicultural Education Administrator II
(36) Business Education Administrator I
(37) Child Development Administrator I
(38) Compensatory Education Administrator I
(39) Education Administrator I
(40) Field Representative School Administration
(41) Homemaking Education Administrator I
(42) Industrial Education Administrator I
(43) Migrant Education Administrator I
(44) Publications Consultant Department of Education
(45) Special Education Administrator I Regional Deaf-Blind Center
(46) Special Education Administrator I
(47) Supervising Field Representative School Administration
(48) Vocational Education Administrator I
(49) Chief of Education, Department of Corrections
(50) Assistant Chief of Education, Department of Corrections
(51) Supervisor of Compensatory Education Program
(52) Supervisors of Academic Instruction--Correctional Facility
(53) Supervisor of Correctional Education Programs
(54) Supervisor of Vocational Instruction
(55) Principal Librarian
(56) Education Administrator for Special Programs
(57) Education Program Supervisor, Youth Authority
(58) Supervisor of Compensatory Education Program
(59) Vocational Education Supervisor, Correctional Facility
(i) Dietetics--Commencing with the 1985/86 fiscal year, when current registration is required as a condition of employment in a class within the Dietetic occupational field, a full time, permanent, non-represented employee shall be reimbursed the fee for such registration. Such classes within the Dietetic occupational field include:
(1) Nutrition Education and Training Consultant (Supervisory)
(2) Supervising Child Nutrition Consultant
(3) Director of Dietetics
(4) Departmental Food Administrator, Special Schools
(5) Managers, Commodity Processing Programs
(j) Such reimbursement will be made after the employee has submitted a claim for reimbursement with substantiation that payment has been made. Substantiation of payment shall include:
(1) A copy of the receipt for employees renewing licenses; or,
(2) A copy of the application for examination and a copy of the notice admitting the employee to the examination for employees applying for licenses.
NOTE
Authority cited: Sections 3517.8, 19815.4(d) and 19819.1, Government Code. Reference: Sections 19815.2, 19819.1 and 19829, Government Code.
HISTORY
1. Repealer and new section filed 2-4-85; effective thirtieth day thereafter (Register 85, No. 6). For prior history, see Registers 84, No. 28 and 84, No. 6.
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-21-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
3. Amendment filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-15-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86, No. 2).
5. Amendment of subsection (e)(20) and Note and new subsection (g)(3) filed 11-10-92; operative 11-1-92 (Register 92, No. 46). Submitted for printing only pursuant to Government Code section 3539.5.
6. Editorial corrections (Register 95, No. 40).
§599.922.1. Reimbursement of Fees for Applicator Certificates.
Note • History
The appointing power may reimburse nonrepresented employees for filing, examination and renewal fees for qualified applicator certificates as defined in Food and Agriculture Code Section 12201 et seq. provided that the employee is authorized in advance by the appointing power to take the examination or renew the certificate because of their assigned duties and the employee successfully passes the required examination and is issued the certificate.
NOTE
Authority cited: Section 3517.8, Government Code. Reference: Section 3517.8, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 1-20-87; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No.10).
§599.922.2. Professional Society Dues License Fees--Nonrepresented Employees.
Note • History
A nonrepresented employee is defined in Section 599.619 of these regulations.
Commencing with the 1988 calendar year, with approval of the appointing power, nonrepresented employees may be reimbursed up to $100.00 annually for membership dues of a professional organization or for a job--related professional license fee (such as the Certified Public Accountant (CPA) license fee) which engages in activities directly related to the employee's scientific or professional discipline.
If the employee's job requires a professional license, upon appointing power approval, the employee may receive both professional dues and license fee reimbursement not to exceed $100.00 annually for each.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Sections 19829 and 19995.1, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with Secretary of State on 12-30-87; operative 12-30-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 88, No.7).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 8-1-89; operative 8-1-89. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 89, No. 37).
§599.922.3. Certified Public Accountant/Certified Internal Auditor Professional Competency Bonus--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b) of these regulations.
(a) Effective August 1, 1989, with the approval of the appointing power, and subject to the criteria listed in Section (b), an excluded employee may receive a bonus for passing the written portion of the Certified Public Accountant (CPA) examination or the Certified Internal Auditor (CIA) examination.
(b) The bonus criteria shall include:
(1) The bonus shall not exceed $4,800 regardless of the number of certifications received and shall be paid in three equal installments of $1,600 each at intervals of 12 qualifying pay periods. The first installment shall be paid 12 qualifying pay periods after the appointing power has verified the examination has been passed. The bonus will not be prorated for service of less than the full 12 qualifying pay periods.
(2) In order to be eligible for the bonus, the excluded employee's classification for each qualifying pay period must include, or the excluded employee must be responsible for the supervision of other excluded employees whose duties include, internal auditing or fiscal examination as a major duty and for which the minimum qualification requires professional accounting or auditing experience or successful completion of prescribed professional accounting courses given by an accredited college or university, including courses in elementary and advanced accounting, auditing and cost accounting.
(3) The excluded employee must have passed the examination after November 30, 1986. No excluded employee who has received compensation based on Government Code Section 19836 shall be eligible for this bonus.
(c) An excluded employee who transfers to another State department and otherwise continues to qualify for the bonus must request the new department to continue to qualify for the bonus must request the new department to continue the bonus on schedule. The new department may or may not agree to continuation of the bonus. If the new department agrees, it assumes responsibility for the remaining installments. In any case the bonus shall not exceed $4,800.
(d) An employee who is receiving a Professional Competency Bonus under the provision of the Bargaining Unit 01 Memorandum of Understanding, and then is appointed to an excluded classification but otherwise continues to qualify, may continue to receive the bonus on schedule with the approval of the appointing power. Each remaining installment amount shall be based on the excluded employee's collective bargaining identification designation as of the first day of the twelfth qualifying pay period for that twelve (12) pay period interval. In any case, the bonus shall consist of only three (3) installments.
(e) An excluded employee who is required to possess and maintain a California Certified Public Accountant license as a condition of employment, as specified in the appropriate class specification, is ineligible for the Professional Competency Bonus except that employees already receiving this bonus prior to September 8, 1992 will be allowed to continue the bonus to the maximum amount allowable.
(f) A Professional Competency Bonus shall not be considered “compensation” for the purposes of retirement.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 19829, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 8-1-89; operative 8-1-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 37).
2. Change without regulatory effect amending section heading, text and Note and redesignating subsections (a)-(e) filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
3. New subsection (f) filed 9-1-92; operative 9-8-92. Submitted to OAL for printing purposes only pursuant to Government Code section 3539.5 (Register 92, No. 36).
4. Amendment of subsection (d), relettering and amendment of subsection (f) to (e) and relettering subsection (e) to (f) filed 9-25-92; operative 9-8-92 pursuant to Government Code section 3539.5 (Register 92, No. 39).
§599.923. Bereavement Leave--Excluded Employees.
Note • History
An excluded, permanent employee is defined in section 599.615(b).
(a) An excluded, permanent employee shall receive bereavement leave with pay in accordance with the provisions of section 19859.3 of the Government Code.
NOTE
Authority cited: Sections 3539.5, 19815.4(d) and 19849.13, Government Code. Reference: Section 19859.3, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 8-30-84; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 18).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-15-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 86, No. 2).
4. Amendment filed by the Department of Personnel Administration with the Secretary of State on 7-31-87; operative 7-31-87. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 87, No. 35).
5. Change without regulatory effect amending section heading, text and Note and designating subsection (a) filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.924. Health and Safety Incentive Award Programs--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) Upon the request of appointing powers, the Department of Personnel Administration may establish, for excluded employees, health safety incentive award programs comparable to those negotiated for subordinate, represented employees. Such requests shall include a statement of the purpose of the program, the employees and/or classifications eligible for participation, the award criteria and the type and number of awards to be presented.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 19261, Government Code.
HISTORY
1. Amendment filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Change without regulatory effect amending section heading, text and Note and designating subsection (a) filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.924.5. Health and Welfare Agency Data Center Achievement Fund.
Note • History
Excluded employees, as defined in Section 3527(b) of the Government Code, who are serving in the Health and Welfare Agency Data Center (HWDC), shall be eligible to participate in group recognition activities funded by the HWDC Achievement Fund. In accordance with this rule, and applicable collective bargaining agreements covering HWDC's represented employees, this fund is established to recognize center-wide achievements as follows:
(a) The Achievement Fund will be in lieu of HWDC participation in the Superior Accomplishment Award authorized by Section 599.664(j), (2)-(3) and the Supervisor Performance Award authorized by Section 599.797.
(b) The Achievement Fund will be established in an amount equivalent to that which would otherwise be available to HWDC through the Superior Accomplishment Award and the Supervisor Performance Award programs, but shall not exceed one dollar per month per employee, or a total of $5000 per fiscal year, whichever is less.
(c) The Achievement Fund will be used to recognize center-wide achievements with group events, plaques or mementoes, or other appropriate forms of group recognition. The Achievement Fund shall not be used for individual bonuses or recognition.
(d) An Achievement Fund Committee will be established to recommend to the Director of the Health and Welfare Agency Data Center achievements for recognition and to propose the type of recognition. The Director or his or her designee shall authorize use of the Achievement Fund.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 3539.5.
HISTORY
1. New section filed 4-19-96; operative 4-19-96. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 96, No. 23).
§599.925. Catastrophic Leave--Excluded Employees.
Note • History
At the discretion of the appointing power, excluded employees as defined in section 3527(b) of the Government Code will be permitted to transfer eligible leave credits to an excluded employee when a catastrophic illness or injury occurs.
(a) The following definitions shall be used in the application of this rule:
(1) Catastrophic illness or injury is defined as an illness or injury which is expected to incapacitate the employee and which creates a financial hardship because the employee has exhausted all of his/her sick leave and other paid time off. Catastrophic illness or injury may also include an incapacitated family member if this results in the employee being required to take time off from work for an extended period of time to care for the family member and the employee has exhausted all of his/her sick leave and other paid time off.
(2) Eligible leave credits include annual leave, vacation, compensating time off (CTO) and/or holiday leave credits. They do not include sick leave.
(b) Eligible leave credits may be donated for a catastrophic illness or injury if all the following requirements are met:
(1) upon the request of an employee;
(2) upon determination by the department director (or his/her designee) that the employee in the department is unable to work due to the employee's or family member's catastrophic illness or injury; and,
(3) the employee has exhausted all paid leave credit.
(c) If the transfer of eligible leave credits is approved by the department's director or designee, any excluded employee in that agency may, upon written notice to the Personnel Office, donate eligible leave credits at a minimum of one hour. Donations thereafter must be in whole hour increments. Donations will be reflected as an hour for hour deduction from the leave balance of the donating employee. When transferring eligible leave credits, the agency should assure that only credits that may be needed are transferred. An excluded employee may donate eligible leave credits to a represented employee and may be the recipient of eligible leave credits donated by a represented employee. Transfer of eligible leave credits may be interdepartmental in accordance with the policies of the receiving department.
(d) In order to receive donated leave credits, an excluded employee must provide appropriate verification of illness or injury as determined by the agency. An excluded employee eligible for this program will have any time which is donated credited to his/her account in one hour increments. Donated credits will be reflected as an hour-for-hour addition to the vacation or annual leave balance of the receiving employee. Use of donated credits may not exceed a maximum of twelve (12) continuous months for any one catastrophic illness. The total amount of leave credits donated may not exceed an amount sufficient to insure the continuance of regular compensation. All such transfers are irrevocable. An excluded employee who receives time through this program shall use any leave credits he/she continues to accrue on a monthly basis prior to receiving time from this program.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), 19816 and 19991.13, Government Code. Reference: Section 3517.8, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 9-6-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Amendment filed by the Department of Personnel Administration with the Secretary of State on 11-1-88; operative 11-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 52).
3. Amendment filed by the Department of Personnel Administration with the Secretary of State on 4-5-89; operative 4-5-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 19).
4. Amendment of section filed 5-29-91; operative 5-29-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 43).
5. Amendment of section heading, opening paragraph and subsections (c)-(d) filed 5-12-93; operative 5-12-93. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 93, No. 20).
6. Amendment of subsections (c) and (d) filed 8-1-97; operative 8-1-97. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 31).
7. Editorial correction of History 3 (Register 2006, No. 3).
8. Amendment of subsections (b) and (c) and amendment of Note filed 12-30-2005; operative 12-30-2005. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2006, No. 3).
§599.925.1. Catastrophic Leave for Natural Disaster--Nonrepresented Employees.
Note • History
At the discretion of the appointing power, nonrepresented employees as defined in section 599.619 will be permitted to transfer eligible leave credits to an employee when a natural disaster occurs.
(a) The following conditions shall apply:
(1) Catastrophic leave for a natural disaster shall be leave for an employee who faces financial hardship because the employee has exhausted all of his/her eligible leave and is unable to work due to the effect of the natural disaster on the employee's principal residence.
(2) The employee resides in one of the counties where a State of Emergency exists as declared by the Governor.
(3) Eligible leave credits include annual leave, vacation, compensating time off (CTO) and/or holiday leave credits. They do not include sick leave.
(b) Eligible leave credits may be donated for catastrophic leave for a natural disaster:
(1) upon the request of an employee;
(2) upon determination by the department director or designee that the employee in the department is unable to work due to the effects of the natural disaster on the employee's principal residence; and
(3) the employee has exhausted all eligible leave credits.
(c) If the transfer of eligible leave credits is approved by the department's director or designee, any nonrepresented employee in that agency may, upon written notice to the Personnel Office, donate eligible leave credits at a minimum of one hour. Donations thereafter must be in whole hour increments. Donations will be reflected as an hour-for-hour deduction from the leave balance of the donating employee. When transferring eligible leave credits, the agency should assure that only credits that may be needed are transferred. A nonrepresented employee may donate eligible leave credits to a represented employee. A nonrepresented employee who is designated managerial as defined in Government Code section 3513(e) or supervisory as defined in Government Code section 3522.1 may not receive donated eligible leave credits from a represented employee except in cases of extreme hardship or other compelling circumstances as approved by the Director of the Department of Personnel Administration. Transfer of eligible leave credits may be interdepartmental in accordance with the policies of the receiving department.
(d) In order to receive donated leave credits, a nonrepresented employee must provide appropriate verification as determined by the agency. A nonrepresented employee eligible for this program will have any time which is donated credited to his/her account in one hour increments. Donated credits will be reflected as an hour-for-hour addition to the vacation or annual leave balance of the receiving employee. Use of donated credits may not exceed three (3) continuous months for any one occurrence; however, if approved by the appointing authority, use of donated credits may be for six (6) continuous months.
The total amount of leave credits donated may not exceed an amount sufficient to insure the continuance of regular compensation. All such transfers are irrevocable. A nonrepresented employee who receives time through this program shall use any leave credits he/she continues to accrue on a monthly basis prior to receiving time from this program.
NOTE
Authority cited: Sections 3517.8, 19815.4(d), 19816 and 19849,13, Government Code. Reference: Section 3517.8, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 11-3-89; Operative 11-3-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 49).
2. Amendment of section filed 5-29-91; operative 5-29-91. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 91, No. 43).
3. Amendment of subsections (c) and (d) filed 8-1-97; operative 8-1-97. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 97, No. 31).
§599.925.5. Contributory Time Bank--Excluded Employees.
Note • History
An excluded employee is defined in Section 599.615(b).
The Department of Personnel Administration may establish a contributory time bank for the classifications of Communications Supervisors I/II, California Highway Patrol. The purpose of this time bank is to allow excluded employees in these classifications to voluntarily contribute compensating time off (CTO) hours, holiday, annual leave, personal leave or vacation credits to be used by other excluded employees identified by their employee organization for purposes related to supervisory organization matters. These time banks shall be established and administered as follows:
(a) The appointing power shall establish the procedures governing the administration of the time bank.
(b) The use of the time bank shall not conflict with the operations of the State employer.
(c) Donations to the bank are irrevocable.
(d) Denial of bank time shall not be subject to appeal or subject to the excluded employee grievance procedure in Section 599.859.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New section filed 11-2-92; operative 11-2-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 45).
§599.926. Class I and Class II Driver's License Medical Examination Reimbursement-- Nonrepresented Employees.
Note • History
Upon the request of appointing powers, the Department of Personnel Administration may authorize the payment of the actual cost of medical examinations for non-represented employees required to possess either a Class I or Class II California Driver's License. To be eligible for such reimbursement, the employee must either (1) receive their exams from a contractor physician or clinic; or (2) receive advance approval to be examined by a personal physician for a reasonable cost.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 41).
§599.927. Vision Care Plan--Nonrepresented Employees.
Note • History
A Non-Represented Employee is defined in Section 599.619.
The Department may establish and provide funding for a Vision Care Insurance Program for eligible non-represented employees. Eligible employees are defined as:
(1) All permanent employees appointed half-time or more for over six months;
(2) Permanent Intermittent employees who work a minimum of 480 hours in each six month period ending each June 30th or December 31st; or
(3) Limited Term or TAU appointees with prior continuous permanent status.
The Vision Care Insurance Program shall be the State's plan and provide for annual eye examinations and other services including frames and lenses. The department shall determine employee co-payment amounts for eye examinations and for frames and lenses.
NOTE
Authority cited: Sections 3517.8, 19815.4(d) and 19849.11, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 41).
§599.928. Sick Leave Restoration. [Repealed]
Note • History
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 19849.13, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 9-20-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 41).
2. Change without regulatory effect repealing text and amending Note filed 6-25-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 26).
§599.929. Increased 1959 Survivor Benefit--Excluded Employees.
Note • History
Excluded employees as defined in section 599.615(b) who are eligible for the 1959 Survivor Benefit will be covered by the increased 1959 Survivor Benefit pursuant to section 21382.4 of the Government Code. This benefit will be payable to family members of an eligible excluded employee who dies on or after January 1, 1985.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Sections 3539.5 and 21382.4, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-8-85; effective upon filing. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 85, No. 45).
2. Change without regulatory effect amending section heading, text and Note, filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.930. Time-Off--Precinct Election Board--Excluded Employee.
Note • History
(a) An excluded employee who is appointed as a member of a Precinct Board, and takes time-off from State employment to serve as a member of that Precinct Board on election day, shall receive his or her regular wage or salary for that election day without forfeiting any compensation received for service as a Precinct Board Member.
(b) Excluded employee is defined in section 599.615(b), except for the purposes of this section, excluded employee shall not include any officer or employee appointed or employed by the Legislature, or any officer, deputy, or employee selected or appointed by an elected State officer.
(c) The eligibility of a State employee to receive time off to serve as a Precinct Board Member is subject to approval by the employee's manager or supervisor. Employees seeking Precinct Election Board release time shall provide sufficient notice to allow departments to ensure that adequate coverage can be maintained and that operational needs are met.
(d) Verification of service as a Precinct Board Member on election day may be required by the appointing authority by requiring the employee to provide written verification of service from the Registrar of Voters, including the name of the employee serving and the date of the election.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 19844.7, Government Code.
HISTORY
1. New section filed 2-1-2002; operative 2-1-2002. Submitted to OAL for printing only (Register 2002, No. 12).
§599.931. Employee Assistance Program--Excluded Employees.
Note • History
(a) An excluded employee is defined in Section 3527(b) of the Government Code (Ralph C. Dills Act).
(b) The Department will provide for an Employee Assistance Program for excluded employees. The Employee Assistance Program shall be the Department's plan and provide for problem assessment and referral services.
(c) Employee Assistance Program services shall be available to excluded employees and their eligible family members for a period of six months following the employee's actual date of separation from State service due to layoff, provided the number of visits allowed for that year have not been exhausted.
NOTE
Authority cited: Sections 3517.8, 19815.4(d) and 19816, Government Code. Reference: Section 3517.8, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State 3-17-86; effective upon filing. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 85, No. 45).
2. Amendment of section heading and section filed 2-28-2003; operative 2-28-2003. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2003, No. 9).
§599.933. Items Excluded from Compensation for Retirement Purposes--Excluded Employees.
Note • History
An excluded employee is defined in section 599.615(b).
(a) Pursuant to section 20022.05 of the Government Code, the Department of Personnel Administration has determined that the following payments and allowances will not be considered compensation for retirement purposes for excluded employees.
(1) Educational differential for excluded employees associated with Bargaining Unit 17.
(2) One time cash-out of eight hours of educational leave for all eligible excluded employees associated with Bargaining Unit 3.
(3) Safety incentive award, cash bonus pilot program, tool allowance, over time meal allowance payments, Class I and Class II driver's license medical examination payments, and health and safety incentive awards for excluded employees associated with Bargaining Unit 12.
(4) Sustained superior accomplishment awards.
(5) Flight pay, physical fitness incentive pay, housing stipends, and relocation incidental expense allocations for excluded employees associated with Bargaining Unit 6.
(6) Physical fitness incentive pay for excluded employees associated with Bargaining Unit 7.
(b) This section shall have an operative date of July 1, 1985. However, industrial disability leave and nonindustrial disability leave claims which are authorized for payment between July 1, 1985 and July 17, 1986, shall not be recalculated. Subsections 2, 3, 4, 5 and 6 shall not be applied to the retirement allowance of any person who retired between July 1, 1985 and July 17, 1986.
NOTE
Authority cited: Section 3539.5 and 20022.05, Government Code. Reference: Sections 3539.5 and 20022.05, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State 9-9-86; effective upon filing pursuant to Government Code section 3539.5. Submitted to OAL for printing only pursuant to Government Code section 11343.8. (Register 86. No. 39.).
2. Change without regulatory effect amending section heading, text, Note and History 1. and redesignating subsections filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
3. Editorial correction of Authority and Reference cites (Register 95, No. 5).
§599.934. Holiday in Lieu--Managerial and Supervisory Uniformed Employees, California Highway Patrol.
Note • History
A managerial employee is defined in section 3513(e) and a supervisory employee is defined in section 3513(g) of the Government Code.
(a) Effective January 1, 1989, managers who are full-time uniformed employees of the California Highway Patrol shall accrue holiday credits in lieu of the following holidays at the rate of eight (8) hours per month: January 1, third Monday in January, February 12, third Monday in February, last Monday in May, July 4, first Monday in September, second Monday in October, November 11, Thanksgiving Day, Day after Thanksgiving, December 25.
(b) Effective July 1, 1989, supervisors who are full-time uniformed employees of the California Highway Patrol shall accrue holiday credits in lieu of the following holidays at the rate of eight (8) hours per month: January 1, third Monday in January, February 12, third Monday in February, last Monday in May, July 4, first Monday in September, second Monday in October, November 11, Thanksgiving Day, Day after Thanksgiving, December 25.
(c) This accrued holiday-in-lieu credit shall be added to the monthly annual leave or vacation accrual rates of uniformed managerial and supervisory employees. In addition to the above, full-time uniformed managerial and supervisory employees of the California Highway Patrol who have completed six (6) months of the initial probationary period shall receive eight (8) hours of annual leave or vacation credit in lieu of personal holiday on July 1 of each fiscal year.
NOTE
Authority cited: Sections 18801.1, 3513(e), 3513(g), 3539.5 and 19815.4(d), Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 11-10-88; operative 11-10-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 88, No. 52).
2. Change without regulatory effect amending section heading, text and Note and designating subsections (a)-(c) filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.935. Wellness Program--Excluded Employees.
Note • History
Appointing powers are authorized to purchase, for the purpose of supporting wellness programs for excluded employees, wellness related items and/or services including blood pressure monitoring machines, cholesterol screenings, weight scales, wellness newsletters, health risk appraisals, instructional materials, speaker fees, and other related items.
NOTE
Authority cited: Sections 3539.5, 19815.4(a) and 19261, Government Code. Reference: Sections 3539.5 and 19261, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 12-1-88; operative 12-1-88. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 4).
2. Change without regulatory effect amending section heading, text and Note filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
§599.936. Transit and Vanpool Incentives--Excluded Employees.
Note • History
(a) This rule applies to excluded employees as defined in section 599.615.1(b).
(b) Excluded employees working in areas served by mass transit, including rail, bus, or other commercial transportation or licensed public conveyance shall be eligible for a 75 percent (75%) discount or reimbursement on monthly public transit passes up to a maximum of $65 per month. This shall not be considered compensation for purposes of retirement contributions.
(c) Excluded employees riding in vanpools shall be eligible for a 75 percent (75%) reimbursement of the monthly rider fee up to a maximum of $65 per month. In lieu of the van pool rider reimbursement, the State shall provide $100 per month to each excluded employee who is the primary driver of a vanpool and works in a facility served by one or more congested commute routes as identified by the State. This shall not be considered compensation for purposes of retirement contributions.
(d) For the purpose of this rule, a vanpool is defined as a group of seven to fifteen people, including the vanpool driver, who commute together in a vehicle (State or non-State), specifically designed to carry that number of passengers. The passengers may be either State or non-State employees.
(e) Excluded employees headquartered out of State are eligible for transit and vanpool reimbursements described in this rule.
NOTE
Authority cited: Sections 3539.5 and 19815.4(d), Government Code. Reference: Section 3539.5, Government Code.
HISTORY
1. New section filed by Department of Personnel Administration with the Secretary of State on 1-24-89; operative on 1-24-89. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 89, No. 10).
2. Change without regulatory effect amending section heading, text and Note and redesignating subsections filed 7-21-92; operative 7-21-92 pursuant to title 1, section 100, California Code of Regulations (Register 92, No. 30).
3. Amendment of subsection (a)(1) and repealer and new subsection (a)(2) filed 4-8-93 with Secretary of State by the Department of Personnel Administration; operative 4-8-93. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 93, No. 15).
4. Editorial correction of subsection (b) (Register 95, No. 40).
5. Amendment of subsections (a)(1) and (a)(3) filed 12-21-98; operative 12-21-98. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 98, No. 52).
6. Editorial correction of History 5 (Register 99, No. 6).
7. Amendment of subsections (a)-(a)(1), repealer of subsection (a)(2) and subsection renumbering filed 10-1-99; operative 10-1-99. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 99, No. 47).
8. Amendment filed 10-31-2001; operative 10-31-2001. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2001, No. 50).
§599.937. Personal Leave Program--Excluded Employees.
Note • History
(a) This Personal Leave program is being established to achieve savings in excluded and related exempt employee salary costs. Effective July 1, 1992, it shall apply to:
(1) all excluded employees, as defined in Section 3527(b) of the Government Code, except those in temporary employment classifications exempted by the department and those serving under emergency appointments with no right to return to a former position;
(2) all non-civil service (exempt) officers and employees, except those who are in temporary employment positions or whose salary is below the salary previously authorized for their position.
(b) Each full-time employee subject to this program shall be credited with eight (8) hours of personal leave on the first day of the following monthly pay period for each month in the Personal Leave program. The Personal Leave program shall not affect an employee's salary range or rate; however, each full-time employee shall continue to work his/her assigned work schedule and the employee shall have a reduction in pay equal to one day of pay (8 hours) for each monthly pay period the employee is in the Personal Leave program.
(c) Personal leave shall be requested and used by the employee in the same manner as vacation or annual leave. Requests to use personal leave must be submitted in accordance with departmental policies on vacation or annual leave.
(d) At the discretion of the State, all or a portion of unused personal leave credits may be cashed out at the employee's salary rate in effect when such payment is made; this may occur during or after the conclusion of this Personal Leave program. The application of this cash out provision may differ from department to department and from employee to employee. Upon termination from State employment, the employee shall be paid for unused personal leave credits in the same manner as vacation or annual leave. Cash out or lump sum payment for any personal leave credits shall not be considered as “compensation” for purposes of retirement.
(e) An employee may not use any kind of paid leave such as sick leave, vacation, or holiday time to avoid a reduction in pay resulting from the Personal Leave program.
(f) An employee in the Personal Leave program shall be entitled to the same level of State employer contributions for health, vision, dental, flex-elect cash option, and enhanced survivors benefits he or she would have received had the Personal Leave program not occurred.
(g) The Personal Leave program shall not cause a break in State service, or a reduction in the employee's accumulation of service credit for the purposes of seniority and retirement, leave accumulation, and merit salary adjustments.
(h) Reductions in pay resulting from the Personal Leave program shall neither affect the employee's final compensation used in calculating State retirement benefits nor reduce the level of State death or disability benefits the employee would otherwise receive or be entitled to receive nor shall it affect the employee's ability to supplement those benefits with paid leave.
(i) Part-time employees shall be subject to the same conditions as stated above, on a prorated basis regardless of the number of hours in the pay period consistent with the chart below:
Salary Reduction Personal Leave
Time Base in Hours Credits
1/10 1 1
1/8 1 1
1/5 2 2
1/4 2 2
3/10 3 3
3/8 3 3
2/5 3 3
1/2 4 4
3/5 5 5
5/8 5 5
7/10 6 6
3/4 6 6
4/5 7 7
7/8 7 7
9/10 8 8
(j) The reduction in pay for permanent intermittent employees shall be prorated based upon the number of hours worked in the monthly pay period as stated in the chart below.
Hours Worked Salary Reduction Personal Leave
During Pay Period in Hours Credit
0 - 10.99 0 0
11 - 30.99 1 1
31 - 50.99 2 2
51 - 70.99 3 3
71 - 90.99 4 4
91 - 110.99 5 5
111 - 130.99 6 6
131 - 150.99 7 7
151 or over 8 8
(k) The Personal Leave program shall be administered consistent with the existing payroll system and the policies and practices of the State Controller's office.
(l) Employees on Enhanced Industrial Disability Leave, Non-industrial Disability Insurance, Industrial Disability Leave, or Worker's Compensation Temporary Disability for the entire monthly pay period shall be excluded from the Personal Leave program for that month.
(m) Except as provided in (n), employees shall remain in the Personal Leave program until December 31, 1993 or until they have completed 18 months of salary reduction, whichever is sooner. Time during which the employee received a lower salary because of the 1991-92 salary range reduction for managerial and supervisory classifications, as well as time spent in any State personal leave program, shall count toward the 18 months of salary reduction. Personal leave credit for 1991-92 salary reduction time shall be granted to the employee on a month-for-month basis on the date the Personal Leave program becomes applicable to the employee. Employees whose 1991-92 salary rate reduction was less than the 1991-92 salary range reduction shall receive salary reduction and personal leave credit on a prorated basis for any such period.
(n) Regardless of the time limits specified in (m), employees who are designated managerial, except those on the staff of the schools under the jurisdiction of the state Department of Education or the Superintendent of Public Instruction, shall remain in the Personal Leave Program while they are covered by the criteria specified in (a)(2).
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 19996.3, Government Code.
HISTORY
1. New section filed 7-16-92 with Secretary of State by Department of Personnel Administration; operative 7-16-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 29).
2. Amendment of subsections (a) and (m) and new subsection (n) filed 12-29-92 with Secretary of State by the Department of Personnel Administration; operative 12-29-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 93, No. 1).
3. Repealer of subsection (a)(3) and amendment of subsections (b) and (n) filed 12-31-93; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 94, No. 5).
§599.937.1. Salary Rate Adjustments Related to Personal Leave Program--Excluded Employees.
Note • History
Effective July 1, 1992, the salary rates for employees in this Personal Leave program shall be determined as if the 1991-92 salary range reductions had not occurred.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 19996.3, Government Code.
HISTORY
1. New section filed 7-16-92 with Secretary of State by Department of Personnel Administration; operative 7-16-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 29).
§599.937.2. Personal Leave Credits--Excluded Employees.
Note • History
Any excluded employee or related exempt employee who was eligible for the State's 1991-92 exempt employee who was eligible for the State's 1991-92 excluded employee health benefit contribution shall receive an additional 8 hours of personal leave credit, effective July 1, 1992.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 19996.3, Government Code.
HISTORY
1. New section filed 7-16-92 with Secretary of State by Department of Personnel Administration; operative 7-16-92. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 92, No. 29).
§599.937.3. Extended Personal Leave -- Excluded Employees.
Note • History
(a) Notwithstanding the time limits described in Section 599.937, upon the determination of the Director, the department may implement a personal leave program. The Director shall determine the duration of each personal leave program.
(b) The definition of excluded employee as described in Section 599.937(a)(1) and (a)(2) shall be the same for each personal leave program.
(c) Each full-time employee identified by the department as eligible shall be required to participate in the program. Each full-time employee shall be credited with eight (8) hours of personal leave on the first day of the following monthly pay period for each month in a personal leave program. Participation in a personal leave program shall not affect an employee's salary range of rate; however, each full-time employee shall continue to work his/her assigned work schedule and the employee shall have a reduction in pay, approximately 5 percent (varies due to rounding purposes), for each pay period the employee is in a personal leave program.
(d) At the discretion of the appointing authority, with approval from the Department of Personnel Administration, all or a portion of unused personal leave credits may be cashed out at the employee's salary rate in effect when such payment is made. This may occur during or after the conclusion of a personal leave program, or upon termination from State employment. The application of this cash out provision may differ from department to department and from employee to employee. Upon termination, the employee shall be paid for unused personal leave credits in the same manner as vacation or annual leave. Cash out or lump sum payment for any personal leave credits shall not be considered as “compensation” for purposes of retirement.
(e) The provisions described in Section 599.937(c), (e), (f), (g), (h), (k), and (l) shall apply to excluded employees in a personal leave program.
(f) Part-time employees shall be subject to the same conditions as stated above and will receive credit on a prorated basis regardless of the number of hours in the pay period consistent with the chart below:
Part-Time or Fractional Chart
Personal Leave
Time Base Credits
1/10 1
1/8 1
1/5 2
1/4 2
3/10 3
3/8 3
2/5 4
1/2 4
3/5 5
5/8 5
7/10 6
3/4 6
4/5 7
7/8 7
9/10 8
(g) Intermittent or hourly paid employees shall be subject to the same conditions as stated above and will receive credit based upon the number of hours worked in the monthly pay period as stated in the chart below.
Hours Worked Personal Leave
During Pay Period Credit
11-30.99 1
31-50.99 2
51-70.99 3
71-90.99 4
91-110.99 5
111-130.99 6
131-150.99 7
151 or over 8
(h) Employees shall remain in a personal leave program until the Department of Personnel Administration terminates the program. Personal leave credit for the salary reduction shall be granted to the employee on a month-for-month basis on the date a personal leave program becomes applicable to the employee.
NOTE
Authority cited: Section 2539.5, Government Code. Reference: Section 19815(d), Government Code.
HISTORY
1. New section filed 10-1-2003; operative 10-1-2003. Submitted to OAL for printing only (Register 2003, No. 46).
§599.937.4. Mandatory Personal Leave -- Excluded Employees.
Note • History
(a) Notwithstanding the time limits described in Section 599.937, upon the determination of the Director, the department may implement a personal leave program. The Director shall determine the duration of each personal leave program.
(b) The definition of excluded employee as described in Section 599.937(a)(1) and (a)(2) shall be the same for each personal leave program.
(c) Each full-time employee identified by the department as eligible shall have a reduction in pay and will be credited with the proportionate number of hours of personal leave as designated by the department for each month in a personal leave program. Participation in a personal leave program shall not effect an employee's salary range or rate; however, each full-time employee shall continue to work his/her assigned work schedule and the employee shall have a reduction in pay, comparable to the personal leave hours of credit, for each pay period the employee is in a personal leave program. The reduction in salary shall not affect the employee's benefits, including retirement contributions.
(d) The personal leave program shall have no cash value and may not be cashed out. Employees have until separation from State service to use all personal leave hours.
(e) The provisions described in Section 599.937(c), (e), (f), (g), (h), (k), and (l) shall apply to excluded employees in a personal leave program.
(f) Part-time and intermittent employees shall be subject to the same conditions as stated above and will receive credit on a prorated basis. The department shall provide for each personal leave program the number of hours intermittent and part-time employees shall receive based on how many hours they work in a month.
(g) Employees shall remain in a personal leave program until the Department of Personnel Administration terminates the program. Personal leave credit for the salary reduction shall be granted to the employee on a month-for-month basis on the date a personal leave program becomes applicable to the employee.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Sections 3527(b) and 19815(d), Government Code.
HISTORY
1. New section filed 10-11-2010; operative 10-11-2010. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 2010, No. 42).
§599.939. Overseas Office Directors.
Note • History
(a) An employee appointed to work in an overseas trade office may be provided benefits equivalent to those of State employees excluded from collective bargaining. Where the laws of the host country require additional or different benefits, those benefits must be provided. However, a benefit not required by the host country does not have to provided if the approximate cost of that benefit is used to offset the cost of providing required benefits. In addition, an employee may choose, instead, to purchase benefits such as health and dental insurance available in the host country and receive reimbursement of the expense not to exceed the current State employer's contribution.
(b) The director of an overseas trade office may:
(1) receive an annual Home Leave benefit consisting of reimbursement for one round trip coach airfare for the employee only in each calendar year;
(2) receive reimbursement for housing and cost-of-living expenses in accordance with the indexes of overseas living expenses used by the U.S. Department for State of federal civilian employees;
(3) receive post hardship differentials in accordance with the U.S. Department of State Indexes of hardship differentials; and
(4) receive an educational allowance for dependent children in accordance with Section 920 of the U.S. Government Standardized Regulations.
NOTE
Authority cited: Section 3539.5, Government Code. Reference: Section 19815.4(d), Government Code.
HISTORY
1. New section filed 11-4-93; operative 11-4-93. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 93, No. 45).
2. Amendment filed 3-27-96; operative 4-1-96 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 96, No. 19).
Article 27. State Deferred Compensation Plan
Note • History
The Director shall adopt and provide for the Administration of the State of California's Deferred Compensation “Plan” as authorized and governed by the Internal Revenue Act, Code Section 457 and the Federal Regulations, Title 26, Chapter I, Subchapter A, Part I (State and Local Government Deferred Compensation Plans). The State Plan shall incorporate and comply with these Federal laws and regulations.
NOTE
Authority cited: Sections 19815.4 and 19993, Government Code. Reference: Sections 19815.2, 19815.4, 19815.6, 19819 and 19993, Government Code; and Section 457, United States Code, Internal Revenue.
HISTORY
1. New Article 27 (Sections 599.940-599.943) filed 1-9-86; effective thirtieth day thereafter (Register 86, No. 2).
§599.941. Administrative Costs.
Note
The Director shall determine the cost of Plan administration and shall collect fees as he/she deems equitable in order to assure that the Deferred Compensation Fund does not operate in a deficit. At such time that it is determined that the Deferred Compensation Fund surplus will exceed the amount of one year's program budget as authorized in the Annual Budget Act, the Director shall take action within his/her authority to reduce program revenue. Accounts or wage statements shall specify any amount de--
ducted by the State or any organization contracting with the State for costs pursuant to this Article.
NOTE
Authority cited: Sections 19815.4 and 19993, Government Code. Reference: Sections 19815.2, 19815.4, 19815.6, 19819 and 19993, Government Code.
Note
The State Deferred Compensation Plan shall consist of the following investment offerings: a savings plan; two annuity products, both fixed and variable; and one mutual fund provider. Nothing herein shall be construed to permit any type of investment prohibited by the State Constitution or to unduly limit the addition of new options.
NOTE
Authority cited: Sections 16431, 19815.4 and 19993, Government Code. Reference: Sections 19815.2, 19815.4, 19815.6, 19819, 19993, 53601 and 53602, Government Code.
Note
Prior to the conclusion of each contract period with investment firms, the Department shall comply with the State's competitive bid process which shall be used to select the firm to be awarded the new contract. Such process shall be undertaken at least every five calendar years.
NOTE
Authority cited: Sections 19815 and 19993, Government Code. Reference: Sections 11010.5, 19815.2, 19815.4, 19815.6, 19819, 19993, 53601 and 53602, Government Code; and Section 10340, Public Contract Code.
Article 27.5. PST Retirement Plan
History
All part-time, seasonal, or temporary (PST) employees who are ineligible for participation in the Public Employees' Retirement System shall be enrolled in the PST Retirement Plan.
In the event a dispute arises over enrollment eligibility, the final determination shall be made by the Director or his/her designee.
HISTORY
1. New article 27.5 (sections 599.945-599.945.3) filed 1-29-93. Submitted to OAL for printing only pursuant to Government Code section 19999.21 (Register 93, No. 5).
History
The Plan is an eligible deferred compensation plan that shall be administered by the Department of Personnel Administration in accordance with the Plan, as amended by the Department from time to time, regulations adopted by the Internal Revenue Service pursuant to the Omnibus Budget Reconciliation Act (OBRA) of 1990 (Internal Revenue Code Section 3121(b)(7)(F), as applicable, and Internal Revenue Code Section 457 and any and all regulations pertaining thereto.
HISTORY
1. New section filed 1-29-93. Submitted to OAL for printing only pursuant to Government Code section 19999.21 (Register 93, No. 5).
§599.945.2. Participant Contributions and Benefits.
History
An employee, subject to the Plan, shall contribute 7.5% of his or her gross pay into an account established for him or her in the Plan. These contributions shall be invested in an investment fund which shall insure preservation of principal. The employee's account shall be the sole source of funding his or her retirement benefits from the Plan.
HISTORY
1. New section filed 1-29-93. Submitted to OAL for printing only pursuant to Government Code section 19999.21 (Register 93, No. 5).
§599.945.3. Withdrawal of Funds.
History
A return of contributions and earnings thereon shall only be permitted upon a separation from State service. The Department shall issue payments at least quarterly.
HISTORY
1. New section filed 1-29-93. Submitted to OAL for printing only pursuant to Government Code section 19999.21 (Register 93, No. 5).
Article 28. Flexible Benefits
Note • History
As specified in this article, eligible excluded employees may enroll in FlexElect, which is a voluntary cafeteria benefit plan established under Internal Revenue Code Section 125. Benefit options within FlexElect may include but will not necessarily be limited to the following benefits paid for on a pre-tax basis with FlexElect cash option credits and/or pre-tax employee payroll deductions:
(1) Health Care Reimbursement Account
(2) Dependent Care Reimbursement Account
The FlexElect Program shall comply with the Internal Revenue Code as specified in the Department of Personnel Administration's Plan Document filed with the Internal Revenue Service.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Section 1156, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-23-87; operative 10-23-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 45).
2. Amendment filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
Note • History
(a) The Department shall provide for an annual open enrollment period for eligible employees during the month of September or as otherwise specified by the Director. Enrollment into the program shall become effective on the first day of the following calendar year. The plan year shall begin on January 1 and end December 31 of each calendar year.
(b) Eligible employees must reenroll during the annual open enrollment period of each year to maintain FlexElect benefits.
(c) Elections may not be revoked, rescinded or changed after the last date of the open enrollment period unless the employee has an allowable change in status event as specified by the Internal Revenue Code.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Section 1156, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-23-87; operative 10-23-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 45).
2. Amendment filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
Note • History
Employees must be designated as an excluded employee to enroll during the annual open enrollment period.
(a) To be eligible for FlexElect, an employee must be working half-time or more and be either:
(1) A permanent civil service employee who is designated managerial, supervisory or confidential for collective bargaining purposes; or,
(2) A permanent civil service or exempt employee who is serving in an agency, or part thereof, in which employees are excluded from collective bargaining by Government Code Section 3513(c); or,
(3) An exempt employee whose assignment has been designated managerial, supervisory or confidential by the department for benefit purposes.
(b) FlexElect participation is limited to employees whose benefits are administered by the Department of Personnel Administration.
(c) Employees who are on an approved leave of absence with return rights to an eligible excluded class will be eligible to enroll and participate in FlexElect during the September enrollment period.
(d) FlexElect participants who change from excluded status to represented status during the plan year will remain in the program for the plan year.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Section 1156, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-23-87; operative 10-23-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 45).
2. Amendment filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
§599.953. Benefits Options and Restrictions.
Note • History
(a) Health Care Reimbursement Account--employees may elect during the annual open enrollment period, to deposit from a cash payment and/or salary reduction, in an amount from $10 to $416.66 per month into a Health Care Reimbursement Account. The amounts deposited will be used to reimburse employees for qualified medical expenses as defined by the Internal Revenue Code Sections 105 and 213(d). If an employee has a change in status event during the coverage period he/she can start, cease, increase, or decrease contributions to the reimbursement account depending on the change in status event. An employee who ceases to make contributions to the account may continue to submit eligible expenses for reimbursement for the remainder of the coverage period. Employees may submit claims for expenses that have occurred during the plan year through June 30 of the following year.
(b) Dependent Care Reimbursement Account--employees may elect during the annual open enrollment period, to deposit from a cash payment and/or salary reduction, in an amount from $20 to 416.66 per month into a Dependent Care Reimbursement Account. The amounts deposited will be used to reimburse employees for qualified expenses as defined by the Internal Revenue Code sections 21 and 129. If an employee has a change in status event as defined by the IRS during the coverage period, he/she can start, cease, increase, or decrease contributions to the account. An employee who ceases to make contributions to the account may continue to submit eligible expenses for reimbursement for the remainder of the coverage period depending on the change in status event. Employees may submit claims for expenses that have occurred during the plan year through June 30 of the following year.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Section 1156, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-23-87; operative 10-23-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 45).
2. Amendment filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
§599.954. Change in Status Events.
Note • History
Benefit options may be changed or cancelled during the plan year if a change in status events as defined by IRS regulations occurs. The allowable change in status events include: marriage, divorce, legal separation, or annulment; the birth or adoption of a child; death of a spouse or dependent; or the loss or commencement of the employee's or spouse's employment or loss of employee's or spouse's medical or dental coverage; change in employee's or spouse's work schedule (e.g., NDI, IDL, time base change, commencement or return from an unpaid leave of absence); loss or commencement of dependent's eligibility for medical coverage under the employer's health insurance plan; or change in place of residence or worksite of the employee, spouse, or dependent.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Section 1156, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-23-87; operative 10-23-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 45).
2. Amendment filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
Note • History
A monthly administrative post-tax fee, to be determined by the Director, will be charged during the plan year to each employee who elects to participate in the Program.
NOTE
Authority cited: Sections 3517.8 and 19815.4(d), Government Code. Reference: Section 1156, Government Code.
HISTORY
1. New section filed by the Department of Personnel Administration with the Secretary of State on 10-23-87; operative 10-23-87. Submitted to OAL for printing only pursuant to Government Code Section 11343.8 (Register 87, No. 45).
Article 28.5. Consolidated Benefits Program
History
As specified in this article, excluded employees are covered by the Consolidated Benefits Program (CoBen) effective January 1, 1999. This is a cafeteria benefit program established under Internal Revenue Code Section 125. Benefit options within CoBen may include but will not necessarily be limited to the following benefits paid for on a pre-tax basis:
(1) Health Insurance
(2) Dental Insurance
(3) Vision Insurance (mandatory coverage)
The CoBen Program shall comply with the Internal Revenue Code as specified in the Department of Personnel Administration's Plan Document filed with the Internal Revenue Service.
HISTORY
1. New article 28.5 (sections 599.956-599.959) and section filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
History
Employee eligibility shall be the same as that specified under Section 599.952.
HISTORY
1. New section filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
§599.958. Benefit Options and Restrictions.
History
(a) A CoBen allowance will be paid each month to an excluded employee in lieu of separate contributions for health, dental and vision benefits. The department, each year prior to the open enrollment period, will determine the allowance amounts.
(b) If the employee is enrolled in both a health benefit and a dental plan, the health benefit enrollment party code will determine the amount of the contribution.
(c) If the employee elects not to enroll in both a health plan and a dental plan, the employee will receive an amount not to exceed $155 each month in taxable cash for calendar year 1999. In subsequent years, the department, prior to the annual open enrollment period, will fix the amount. Under CoBen, an employee will not be charged a monthly administrative fee for the cash option.
(d) If the employee declines a health benefit plan, the employees' dental benefit enrollment party code will determine the amount of the contribution. An employee must provide proof of coverage of other health insurance through his/her spouse or other present or former employer if health coverage is waived. If the employee elects not to enroll in a health plan but enrolls in a dental plan, the employee will receive the difference between the applicable CoBen allowance and the cost of the dental plan selected and vision benefits, not to exceed $130 per month in taxable cash. Under CoBen, an employee will not be charged a monthly administrative fee for the cash option.
(e) Cash payments resulting from medical and dental benefit elections will be paid to the employee in his/her monthly pay check in the form of additional cash compensation. FlexElect participants electing a Health Care Reimbursement or Dependent Care Reimbursement account will automatically have the cash payment applied to these accounts. If excess dollars remain or the employee does not sign up for a Health Care or Dependent Care Account, the cash payment will automatically be paid as cash. This additional cash compensation is subject to all applicable State and Federal taxes.
(f) An employee who elects dental coverage must maintain State-sponsored dental coverage for three years unless he/she experiences a valid change in status event. Employees who waive dental coverage cannot enroll in a State-sponsored dental plan for a period of three years. Employees must provide proof of other group dental insurance through his/her spouse or other present or former employer if dental coverage is waived. The employee will not receive a monthly cash payment if he/she waives dental coverage only.
HISTORY
1. New section filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
§599.959. Changes in Status Events.
History
Changes in status events shall be governed by Section 599.954.
HISTORY
1. New section filed 12-7-98; operative 1-1-99. Submitted to OAL for printing only pursuant to Government Code section 35395 (Register 98, No. 50).
Article 29. Substance Abuse
Note • History
(a) It is the purpose of this article to help ensure that the State workplace is free from the effects of drug and alcohol abuse. These provisions shall be in addition to and shall not be construed as a required prerequisite to or as replacing, limiting or setting standards for any other types of provisions available under law to serve this purpose, including employee assistance, adverse action and medical examination.
(b) Consistent with Government Code Section 19572 and Governor's Executive Order D-58-86, no State employee who is on duty or on standby for duty shall.
(1) Use, possess, or be under the influence of illegal or unauthorized drugs or other illegal mind-altering substances; or
(2) Use or be under the influence of alcohol to any extent that would impede the employee's ability to perform his or her duties safely and effectively.
(c) Employees serving in sensitive positions shall be subject to drug and alcohol testing, hereinafter referred to as substance testing, as provided in this Article when there is reasonable suspicion that the employee has violated subsection (b). In addition, when such an employee has already been found in violation of subsection (b) through the adverse action or medical examination processes under the Civil Service Act (Government Code Section 19253.5; Government Code Sections 19570-19593), as a result of substance testing under this article, or by the employee's own admission, the employee may be required to submit to periodic substance testing as a condition of remaining in or returning to State employment. Unless otherwise provided in the settlement of an adverse action the period for this testing shall not exceed one year.
(d) No employee shall perform duties which, because of drugs taken under a legal prescription, the employee cannot perform without posing a threat to the health or safety of the employee or others. Employees whose job performance is so restricted may be subject to reassignment, medical examination or other actions specified by applicable statutes and regulations.
(e) To protect the public and ensure the safety and security of its correctional institutions, the State must ensure that its peace officers do not use illegal drugs, or misuse prescription drugs, unauthorized or other illegal mind altering substances under any circumstances, and are not under the influence of alcohol while on the job. Consistent with a peace officer's sworn oath to uphold the laws of the State of California, all excluded and exempt State employees who are peace officers under Part 2, Title 3, Chapter 4.5, Section 830.2(d) and Section 830.5 of the Penal Code, will be subject to random drug and alcohol testing pursuant to this article.
(f) For purposes of this Article, an excluded State employee is an employee as defined in Section 3527(b) of the Government Code; an exempt State employee is an officer or employee of the executive branch of government who is not a member of the civil service.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
2. New subsections (e) and (f) filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c) (Register 2001, No. 4).
3. Amendment of subsection (e) filed 12-21-2005; operative 1-20-2006 (Register 2005, No. 51).
§599.961. Sensitive Positions.
Note • History
(a) For the purposes of this Article, sensitive positions are peace officer positions, as defined by Part 2, Title 3, Chapter 4.5, Section 830.2(d) and Section 830.5 of the Penal Code, and other positions in which drug or alcohol affected performance could clearly endanger the health and safety of others. These other positions have the following general characteristics:
(1) Their duties involve a greater than normal level of trust, responsibility for or impact on the health and safety of others; and
(2) errors in judgment, inattentiveness or diminished coordination, dexterity or composure while performing their duties could clearly result in mistakes that would endanger the health and safety of others; and
(3) employees in these positions work with such independence, or, perform such tasks that it cannot be safely assumed that mistakes such as those described in (2) could be prevented by a supervisor or another employee.
(b) Filled positions shall be identified as sensitive through the following process:
(1) Subject to Department of Personnel Administration approval, each appointing power shall identify the positions under his/her jurisdiction that meet the standards in (a).
(2) The employees serving in the identified positions and, where applicable, their union representatives, shall receive an initial notice that the position has been identified as sensitive and shall be given 30 days to respond.
(3) After considering responses to the initial notice and meeting with employee representatives as required by the Ralph C. Dills Act (Government Code Sections 3512-3524), the Department of Personnel Administration shall issue a final notice to the employees serving in the positions that have been identified as sensitive. This notice shall include a description of the provisions of this article. Existing practices in this area shall not change for any position until 60 days after the final notice concerning it is issued.
(c) Vacant positions shall be identified as sensitive through the procedures specified in (b), including those procedures involving employee organizations, except that the employee notification provisions as stated in (b)(2) and (b)(3) shall not apply.
(d) Once a position has been designated sensitive, the appointing power shall take measures to reasonably and likely ensure that future appointees to it are aware that it is sensitive and are informed of the provisions of this article.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
2. Amendment of subsection (a) filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c) (Register 2001, No. 4).
3. Amendment of subsection (a) filed 12-21-2005; operative 1-20-2006 (Register 2005, No. 51).
§599.962. Reasonable Suspicion.
Note • History
(a) Reasonable suspicion is the good faith belief based on specific articulable facts or evidence that an employee may have violated the policy prescribed in section 599.960(b) and that substance testing could reveal evidence related to that violation.
(b) For the purposes of this Article, reasonable suspicion will exist only after the appointing power or his/her designee has considered the facts and/or evidence in the particular case and agrees that they constitute a finding of reasonable suspicion. A designee shall be an individual other than the suspected employee's immediate supervisor and other than the person who made the initial observation leading to the question of reasonable suspicion. The designee shall be a person who is authorized to act for the appointing power in carrying out this Article and who is thoroughly familiar with its provisions and procedures.
(c) After it has been confirmed by the designee the facts and/or evidence upon which the reasonable suspicion is based shall be documented in writing. A copy of this shall be given to the affected employee.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
§599.963. Testing Process and Standards.
Note • History
Substance testing under this Article shall comply with the following standards and procedures:
(a) The drug testing process shall be one that is scientifically proven to be at least as accurate and valid as urinalysis using an immunoassay screening test, with all positive screening results being confirmed utilizing gas chromatography/mass spectrometry before a sample is considered positive. The alcohol testing process shall be one that is scientifically proven to be at least as accurate and valid as (1) urinalysis using an enzymatic assay screening test, with all positive screening results being confirmed using gas chromatography before a sample is considered positive or (2) breath sample testing using breath alcohol analyzing instruments which meet the State Department of Health Services standards specified in Title 17, Division 1, Chapter 2, Subchapter 1, Group 8, Article 7, Sections 1221.2 and 1221.3 of the California Code of Regulations.
(b) Substances to be tested for shall include the following:
(1) Amphetamines and Methamphetamines
(2) Cocaine
(3) Marijuana/Cannabinoids (THC)
(4) Opiates (narcotics)
(5) Phencyclidine (PCP)
(6) Barbiturates
(7) Benzodiazepines
(8) Methaqualone
(9) Alcohol
In addition, with the approval of the department testing may be conducted for other controlled substances when the appointing power reasonably suspects the use of other substances.
(c) After consulting with expert staff of the laboratory or laboratories selected to perform the testing under this Article, the department shall set test cutoff levels that will identify positive test samples while minimizing false positive test results.
(d) Notwithstanding (c), the Department shall use cutoff levels for substances listed in (b)(1) through (5) as established in SAMHSA, Mandatory Guidelines for Federal Workplace Drug Testing Programs, Subpart B, Section 2.4, Part (e) and Part (f), 59 FR 29916 dated June 9, 1994, and 62 FR 51118 dated September 30, 1997. For alcohol (b)(9) the Department shall use the Federal Motor Carrier Safety Administration alcohol concentration cutoff level as described in Part 382 -- Controlled Substances and Alcohol Use and Testing, Section 201, 49 CFR dated July 25, 1995.
(e) Test samples will be collected in a clinical setting such as a laboratory collection station, doctor's office, hospital or clinic or in another setting approved by the department on the basis that it provides for at least an equally secure and professional collection process. The department shall specify procedures to ensure that true samples are obtained.
(f) The Department shall use chain of custody procedures similar to those used by SAMHSA to ensure that a strict chain of custody is maintained for the sample from the time it is taken, through the testing process, to its final disposition. Chain of custody forms shall, at a minimum, include an entry documenting date and purpose each time a specimen or sample is handled or transferred and identifying every individual in the chain of custody.
(g) Drug tests shall be performed by a commercial laboratory that is certified by SAMHSA (pursuant to Mandatory Guidelines for Federal Workplace Drug Testing Program, Federal Register, Vol. 53, No. 69 or which meets the standards used by the College of American Pathologists (CAP) to accredit laboratories for forensic urine drug testing (Standards for Accreditation, Forensic Urine Drug Testing Laboratories, College of American Pathologists).
(h) For random substance testing under this article, the department will use a scientifically valid method such as a random number table or a computer based random number generator that is matched with Social Security numbers, payroll identification numbers, or other comparable identifying numbers. A number not to exceed thirty-five percent of managers, supervisors, and exempt employees who are subject to random substance testing will be randomly selected for substance testing annually.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
2. Amendment of subsection (a), new subsection (d), subsection relettering, amendment of newly designated subsections (f) and (g), and new subsection (h) filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c) (Register 2001, No. 4).
Note • History
(a) Employees subject to random testing shall be noticed at least thirty days prior to implementation of the testing program that they will be subject to random substance testing. The notice shall include information explaining the substance abuse testing procedures to be followed.
(b) Employees suspected of violating the policy prescribed in section 599.960 shall be entitled to representation during any interrogative interviews with the affected employee that could lead to a decision by the appointing power to take adverse action against the employee, regardless of whether these interviews occur before or after the sample is taken. Employees shall also be entitled to representation in any discussions with the Medical Review Officer that occur under section 599.965.
(c) The sample collection process shall include the opportunity for the employee to provide information about factors other than illegal drug use, such as taking legally prescribed medication, that could cause a positive test result. At the employee's option, this information may be submitted in a sealed envelope to be opened only by the Medical Review Officer if the test result is positive.
(d) The employee shall receive a full copy of any test results and related documentation of the testing process.
(e) All confirmed positive samples shall be retained by the testing laboratory in secure frozen storage for one year following the test or until the sample is no longer needed for appeal proceedings or litigation, whichever is longer. At the employee's request and expense the sample may be retested by that laboratory or another laboratory of the employee's choice.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
2. New subsection (a) and subsection relettering filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c) (Register 2001, No. 4).
§599.965. Medical Review Officer.
Note • History
Subject to the Department of Personnel Administration approval, each appointing power shall designate one or more Medical Review Officers who shall be licensed physicians who meet federal SAMHSA requirements as described in 59 FR 29908, Mandatory Guidelines For Federal Workplace Drug Testing Programs, Subpart A, Section 1.2 Definitions, dated June 9, 1994 to have the appropriate medical training to interpret and evaluate an individual's confirmed positive test result, to receive test results from the laboratory. Upon receiving results, the Medical Review Officer shall:
(a) Review the results and determine if the standards and procedures required by this Article have been followed.
(b) For positive results interview the affected employee to determine if factors other than illegal drug use may have caused the result.
(c) Consider any assertions by the affected employee of irregularities in the sample collection and testing process.
(d) Based on the above, provide a written explanation of the test results to the appointing power or his/her designee. The employee shall also receive a copy of this explanation.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
2. Amendment of first paragraph filed 1-25-2001; operative 1-25-2001 pursuant to Government Code section 11343.4(c) (Register 2001, No. 4).
§599.966. Records; Confidentiality.
Note • History
As prescribed by the director, each appointing power shall maintain records of the circumstances and results of any employee testing under this Article. These records, and any other information pertaining to an employee's drug or alcohol test, shall be considered confidential and shall be released only to:
(a) The employee who was tested or other individuals designated in writing by that employee.
(b) The appointing power's Medical Review Officer.
(c) The Department of Personnel Administration as needed for the effective Administration of the Article.
(d) Individuals who need the records or information to:
(1) Properly supervise or assign the employee.
(2) Determine, or assist in determining, what action the appointing power should take in response to the test results.
(3) Respond to appeals or litigation arising from the drug test or related actions.
NOTE
Authority cited: Sections 19815.4(d), 19816 and 19820, Government Code. Reference: Section 19261, Government Code.
HISTORY
1. New section filed 9-7-88; operative 10-7-88 (Register 88, No. 38).
Subchapter 2. Career Executive Assignment Rules
Article 1. Service--General
Note • History
The provisions of Section 19998.3 of the Government Code pertaining to breaks in service shall apply to persons serving in career executive assignments.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19889, Government Code.
HISTORY
1. New subchapter 2 (articles 1-4, sections 599.978-599.995, not consecutive) filed 9-6-83; effective thirtieth day thereafter (Register 83, No. 37).
. CROSS REFERENCE: See title 2, division 1, chapter 1, subchapter 2, sections 548.61-548.130 not consecutive, sections 548.22-548.25, sections 548.135-548.139, and section 548.145.
2. Change without regulatory effect amending section filed 6-25-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 26).
§599.979. Method of Appraisal.
Note
Performance appraisals of persons serving in career executive assignments shall be conducted in the manner prescribed by the Director of the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19889, Government Code.
Note
Leaves of absence for employees serving in career executive assignments shall be subject to the same provisions of law as those governing other civil service employees.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19889, Government Code.
Article 2. Compensation
§599.985. Flexibility in Form of Compensation.
Note
The Department of Personnel Administration shall set salaries within the career executive category in the form of salary ranges, single pay rates, or such other form as may be deemed appropriate. To encourage broader competition for the career executive category, the Department may utilize a salary range of more than five steps for levels within the category. The Department may authorize compensation at a rate beyond the salary range utilized for a level when necessary to meet prevailing practice.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19889, Government Code.
§599.986. Rate of Movement upon Promotion to a Career Executive Assignment Position.
Note
A permanent employee who, without a break in service, promotes from a general civil service class or a career executive assignment position to another career executive assignment position with a higher salary range will be entitled to one step and may receive two steps above the rate last received provided that rate does not exceed the maximum rate of the higher salary range unless authorized under Section 599.985.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19889, Government Code.
Note
To encourage high performance in career executive assignment positions and to better recognize managerial excellence in the state civil service, the board may establish a “bonus” compensation plan for career executive assignment positions. This system would operate separate and apart from level of salary range, steps or other parts of the salary program and would provide for a lump-sum payment. In such cases, the executive officer will describe guidelines including the amount of bonus possible within a given time period, the standards for eligibility for a bonus, and the procedures for administering such a system.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Section 19889, Government Code.
Note • History
An employee who has ten years of State service, one year of which is under C.E.A. appointment(s) and is terminated from a Career Executive Assignment, shall receive a red circle rate in accordance with standards set by the Department of Personnel Administration unless the termination was voluntary or based on unsatisfactory performance. If the termination was voluntary and performance satisfactory, a red circle is permissive.
The Department may, at the election of the employee, apply the provisions of this section to any employee who, prior to the effective date of this rule, was terminated from a Career Executive Assignment. The salaries of these employees may be adjusted on the effective date of this section for the remainder of the period of time the red circle rate could have been granted.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19837 and 19889.2, Government Code.
HISTORY
1. Amendment of first paragraph filed 6-5-98; operative 6-5-98. Submitted to OAL for printing only pursuant to Government Code section 3539.5 (Register 98, No. 29).
Article 3. Termination of Assignment
§599.990. Notice of Termination.
Note
In terminating a career executive assignment principles of good personnel management shall be observed through conforming to the following procedures:
(a) The appointing power, in advance of service of written notice of termination of assignment, shall indicate to the employee its intention to terminate the assignment and the employee shall be privileged to discuss the termination with the appointing power.
(b) The appointing power shall serve the employee with written notice of termination of the assignment at least 20 days prior to the effective date of termination and a copy of such notice shall be furnished to the Department of Personnel Administration.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19889 and 19997, Government Code.
§599.991. Appeal from Termination.
Note • History
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19889 and 19997, Government Code.
HISTORY
1. Repealer filed 11-17-87; operative 12-17-87 (Register 87, No. 48).
§599.992. Termination upon Request of Employee.
Note
An employee serving in a career executive assignment may request the appointing power to terminate that assignment at any time, and such termination shall be made.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19889 and 19997, Government Code.
Note
Whenever it is necessary or advisable to reduce the number of employees in positions where there are general civil service classes and career executive assignments, the appointing power may initiate either or both of the following:
(a) Terminate the assignment of one or more of the career executives as provided for in this Article without regard to the respective seniority of such incumbents as compared to general civil service employees, or
(b) Determine the relative seniority of employees in the general civil service classes. Lay off general civil service employees as provided by Government Code Sections 19997-19997.14 or terminate the career executives as provided for in this Article except that no general civil service employee shall be laid off as long as there is a career executive with less seniority.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19889 and 19997, Government Code.
Note
Service in a career executive assignment shall be credited for seniority credits as if the service had been under a general civil service appointment. Credit for service in the career executive assignment category shall be earned as if the entire category were one class; the rate shall be one point per qualifying pay period.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19889 and 19997, Government Code.
Article 4. Separations from State Service
§599.995. Separation of Employee.
Note
A person serving in a career executive assignment may be separated from state service through resignation, automatic resignation, dismissal, retirement, or for medical reasons under the provisions of Government Code Section 19253.5 in the same manner as is provided for other civil service employees. The career executive assignment of a person so separated shall be deemed to have been terminated, and the separation to have been from a position in the class in the general civil service in which the employee had permanent status.
NOTE
Authority cited: Sections 19815.4(d) and 19816, Government Code. Reference: Sections 19253.5, 19889 and 19997, Government Code.
Division 2. Financial Operations
(Originally Printed 3-22-45)
Chapter 1. Victim Compensation and Government Claims Board
Article 1. General Provisions
Note • History
NOTE
Authority cited for Chapter 1: Sections 13920 and 13921, Government Code, unless otherwise noted.
HISTORY
1. Amendment filed 9-13-57 as procedural; designated effective 10-1-57 (Register 57, No. 15).
2. Amendment of quoted Section 13920(a) filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
3. Change without regulatory effect repealing section filed 9-28-87; operative 10-28-87 (Register 87, No. 41).
4. Amendment of chapter 1 heading from the State Board of Control to the Victim Compensation and Government Claims Board filed 3-23-2004; operative 3-23-2004 (Register 2004, No. 13).
History
The State Board of Control has adopted the following rules and regulations effective October 1, 1957. These rules and regulations repeal all other previous rules and regulations hitherto in effect.
HISTORY
1. Amendment filed 1-6-56 as an emergency; effective upon filing (Register 56, No. 1).
2. Amendment filed 9-13-57 as procedural; designated effective 10-1-57 (Register 57, No. 15).
History
Nothing contained in the rules hereby fixed shall be construed to prohibit a state department or agency adopting rules governing its own employees or agents; provided, such rules do not conflict with these rules and regulations.
HISTORY
1. Amendment filed 5-19-67; designated effective 7-1-67 (Register 67, No. 20).
Article 1.1. State Board of Control--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical, and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
STATE BOARD OF CONTROL
926 J STREET, SUITE 300
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Article 1.1, Chapter 1, Division 2 of Title 2 of the California Code of Regulations and consists of sections numbered and titled as follows:
Article 1.1. Conflict of Interest Code
Section
604. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New Article 1.1 (Sections 604-609 and Appendixes A and B) filed 9-29-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 7-6-77 (Register 77, No. 40).
2. Repealer of Article 1.1 (Sections 604-609 and Appendices A and B) and new Article 1.1 (Section 604 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 31).
4. Amendment of section and Appendix filed 7-29-96; operative 8-28-96. Approved by Fair Political Practices Commission 6-20-96 (Register 96, No. 31).
5. Repealer of Appendix and new Appendix A and Appendix B filed 11-9-2009; operative 12-9-2009. Approved by Fair Political Practices Commission 9-17-2009 (Register 2009, No. 46).
Article 2. Appropriations
Note • History
(a) The State's fiscal year is from July 1st to and including June 30th of the following year.
(b) “Agreement or order” as used in this section means an agreement, contract, printing estimate, purchase order, subpurchase order, or Office of Procurement--Central Stores supply order.
(c) The date of an agreement or order for services, materials, supplies or equipment, determines the fiscal year appropriation for support or other current expenses, to which the expenditure shall be charged, except that:
(1) Expenditures pursuant to an agreement or order which stipulates that services or delivery be delayed until requested or until on or after a stated date in a subsequent fiscal year shall be charged to the fiscal year in which the services, materials, supplies or equipment are received. (However, the absence of a delivery date, or the specifying of a calendar date without qualifying instructions requesting delay in delivery, or the specifying of a delivery date as 10 days, 30 days, or the like, shall be construed to read “delivery as soon as possible,” and expenditures shall be charged to the fiscal year in which the agreement or order was issued.)
(2) Expenditures pursuant to an agreement or order which is not an order on a definite supplier for a definite object or quantity of definite objects shall be charged to the fiscal year in which the services, materials, supplies or equipment were received.
Invoices pursuant to an agreement or order included in claims filed after the end of the fiscal year in which the agreement or order was issued shall be marked to show the date of receipt of the services, materials, supplies or equipment.
This section shall not be interpreted to require the issuance of a new agreement or order to cover items which, because of this section, are chargeable to a fiscal year subsequent to that in which the agreement or order was issued.
(d) A capital outlay appropriation for construction, improvements, repairs or equipment, when the Architecture Revolving Fund is not used, is encumbered on the date of and to the extent of the agreement or order.
(e) Materials, supplies or equipment purchased and received in the months of May or June for use during the subsequent fiscal year may be paid for from the appropriation for such subsequent fiscal year. Invoices covering such purchases shall be marked as follows: Purchased in ________ F.Y. for use in ________ F.Y.
NOTE
Authority cited: Section 13920, Government Code.
HISTORY
1. Amendment filed 10-17-63 as procedural and organizational; effective upon filing (Register 63, No. 18). For prior history, see Register 61, No. 10.
2. Amendment of subsections (a), (b) and (d) and new NOTE filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
3. Editorial correction of Authority cite (Register 95, No. 6).
§611. Availability of Appropriations.
History
(See Section 16304, Government Code).
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Amendment filed 12-15-47 as an emergency (Register 10, No. 7).
§612. Reversion of Appropriation.
History
(See Section 16304, Government Code).
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Amendment filed 12-15-47 as an emergency (Register 10, No. 7).
§613. Purpose of Appropriations.
Appropriations are not interchangeable, and each shall be used only for the particular purpose defined in the act making the appropriation.
§614. Indebtedness in Excess of Appropriation.
Note • History
No indebtedness can be created by any state officer or employee unless the written consent of the Department of Finance has first been obtained.
NOTE
Authority cited: Section 11006, Government Code.
HISTORY
1. Amendment and new NOTE filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
Article 2.5. General Hearing Procedures
Subarticle 1. General Provisions
Note • History
(a) The formal hearing provisions of the Administrative Procedure Act (Gov. Code, §§ 11500-11529) do not apply.
(b) The alternative dispute procedures of the Administrative Procedure Act (Gov. Code, §§ 11420.10-11420.30) do not apply.
(c) The declaratory decision provisions of the Administrative Procedure Act (Gov. Code, §§ 11465.10-11465.70) do not apply.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a)(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11420.10(c), 11425.10(a)(2) and 11465.70(c), Government Code.
HISTORY
1. New article 2.5 (sections 615.1-619.7), subarticle 1 (sections 615.1-615.2) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) As used in this article:
(1) “Applicant” means a person submitting an application as defined in subsection (a)(2);
(2) “Application” means the following:
(A) an application for assistance or a supplemental claim in the Victims of Crime program under Government Code sections 13959-13969.4;
(B) a claim for indemnification by persons benefiting the public under Government Code sections 13970-13974.1; or
(C) a claim for compensation for erroneously-convicted felons under Penal Code sections 4900-4906.
(3) “Bid protest” means a challenge to an award of a contract under Public Contract Code section 10306 or 12102, subdivision (h).
(4) “Hearing” means an evidentiary proceeding for the determination of facts upon which the board makes its decision;
(5) “Hearing officer” means a person appointed by the Executive Officer under section 615.10 to preside at a hearing;
(6) “Informal hearing” means an informal proceeding in the nature of a conference during which the parties have an opportunity to be heard. The following are informal hearings:
(A) any hearing over which the board presides;
(B) any hearing limited to submission of written materials; and
(C) any hearing in which cross examination is not permitted;
(7) “May” means the action or conduct is permissive;
(8) “Mail delivery service” means a mail delivery company or organization other than the United States Postal Service;
(9) “Party” means a person or entity permitted by the board's regulations to participate in a hearing; and
(10) “Shall” means the action or conduct is mandatory.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11405.20, 11445.10(b)(2), 13968(a) and 13974, Government Code; and Section 4906, Penal Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Subarticle 2. Assignment to Board or Hearing Officer
§615.10. Assignment of Hearing.
Note • History
(a) The Executive Officer may refer a hearing to:
(1) the board; or
(2) a hearing officer.
(b) A hearing officer may be:
(1) a board member;
(2) an employee of the board;
(3) an Administrative Law Judge of the Office of Administrative Hearings; or
(4) any person appointed by the board.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 13907, 13908 and 13963, Government Code.
HISTORY
1. New subarticle 2 (sections 615.10-615.12) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§615.11. Separation of Functions.
Note • History
(a) A board member or hearing officer may not preside at a hearing if the board member or hearing officer:
(1) has functioned as an investigator or advocate concerning the application or bid protest that is the subject of the hearing; or
(2) is directly supervised by a person who has functioned as an investigator or advocate concerning the application or bid protest that is the subject of the hearing.
(b) A board member or hearing officer has functioned as an investigator or advocate concerning an application or bid protest if the person personally performed and was substantially involved with an application or bid protest, including:
(1) personally gathered facts or information upon which a staff recommendation was made about the final disposition of the application or bid protest; or
(2) personally participated in the development of a staff recommendation about the final disposition of the application or bid protest.
(c) A board member or hearing officer is directly supervised by a person who has functioned as an investigator or advocate concerning an application or bid protest if the work of the board member or hearing officer was assigned, evaluated, and directed, on a regular basis, by a person who engaged in the conduct listed in subdivision (b) of this section.
(d) A person is not substantially involved with an application or bid protest if the person:
(1) engaged in the conduct listed in subdivision (b) of this section only to a marginal or trivial extent; or
(2) has not developed a commitment to a particular outcome concerning the application or bid protest.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(4) and 11425.30, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§615.12. Disqualification of Board Member or Hearing Officer.
Note • History
(a) A board member or hearing officer shall disqualify himself or herself and withdraw from participating in any hearing if he or she:
(1) cannot provide a fair and impartial hearing;
(2) has bias;
(3) has prejudice; or
(4) has a personal or financial interest in the outcome of the hearing.
(b) A board member or hearing officer, who receives a communication in violation of section 618.1 may disqualify himself or herself from participating in the hearing.
(c) The parties may waive a disqualification of a board member or hearing officer in writing or on the record at the hearing.
(1) If the parties sign a written waiver of disqualification, it shall be included in the hearing record.
(d) A party may request the disqualification of a board member or hearing officer from participating in a hearing for any of the reasons listed in subdivisions (a) and (b) of this section.
(e) A request to disqualify a board member or hearing officer must:
(1) be filed prior to the taking of any evidence at a hearing; and
(2) include a declaration under penalty of perjury stating specific facts to prove that a basis to disqualify the person exists under subdivisions (a) or (b) of this section.
(f) When the board is conducting the hearing, the other board members or designees who are not being challenged shall determine if the request to disqualify shall be granted or denied.
(g) When a hearing officer is conducting the hearing, the hearing officer shall determine whether the request to disqualify shall be granted or denied.
(h) Notwithstanding subsections (f) and (g), the board or hearing officer may refer the request to disqualify to the Executive Officer for determination.
(i) Unless there is additional evidence of bias, prejudice or interest in the outcome of the hearing, it shall not be grounds for disqualification that the board member or hearing officer:
(1) is or is not a member of a racial, ethnic, religious, sexual, or similar group whose rights are involved in the hearing;
(2) has experience, technical competence, or specialized knowledge of, or has in any capacity expressed a view on, a legal, factual, or policy issue presented in the hearing; or
(3) has as a lawyer or public official participated in the drafting of laws or regulations, or attempted to pass or defeat laws or regulations that are to be applied, interpreted or implemented in the hearing.
(j) If a board member or hearing officer is disqualified for the reason stated in subsection (b), the disqualified board member or hearing officer may order that the part of the hearing record concerning the ex parte communication shall be sealed by a protective order.
(1) The sealed portion of the hearing record shall not be considered when deciding the matters at issue in the hearing.
(2) The sealed portion of the hearing record is part of the record for the purposes of subsequent judicial review.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(5), 11425.40 and 11430.60, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Subarticle 3. Pre-Hearing Procedure
§616.1. Copy of Hearing Procedure.
Note • History
A copy of the hearing procedures shall be provided at reasonable cost upon request.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Section 11425.10(a)(2), Government Code.
HISTORY
1. New subarticle 3 (sections 616.1-616.4) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§616.2. Duty to Furnish Correct Address.
Note • History
(a) A party shall inform the board and all other known parties of the party's correct address.
(b) A representative of a party shall inform the board and all other known parties of the representative's correct address.
(c) A party or representative of a party shall promptly inform the board and all other known parties of any change of address of the party or representative.
NOTE
Authority cited: Sections 11400.20, 11440.20(a), 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 13963 and 13973, Government Code; Section 4902, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§616.3. Manner of Service of Notice or Documents.
Note • History
(a) A written notice or document required to be given shall be delivered personally, by mail, or by facsimile transmission to a party or representative at the address provided by the party or representative under section 616.2.
(1) Documents that exceed ten pages, including attachments, shall not be served upon or filed with the board or hearing officer by facsimile transmission.
(b) Delivery by mail may include:
(1) first-class mail via the United States Postal Service;
(2) registered mai via the United States Postal Service;
(3) certified mail via the United States Postal Service; and
(4) mail delivery service.
(c) A notice or document delivered personally shall be considered filed, served and received on the date of delivery.
(d) A notice or document delivered by mail shall be considered filed or served on the mailing date if:
(1) the postage was prepaid; and
(2) the envelope containing the notice or document was addressed correctly.
(e) The mailing date shall be presumed to be the date of the postmark or the date the envelope containing the notice or document was accepted by a mail delivery service if the mailing complied with subsection (d)(1) and (2).
(f) A notice or document delivered by mail shall be presumed to be received five days after the mailing date if the mailing complied with subsection (d)(1) and (2).
(g) A notice or document delivered by facsimile shall be presumed to be filed, served and received upon completion of the facsimile transmission.
(1) Documents for which the facsimile transmission is not completed before 5:00 p.m. shall be presumed to be filed, served and received at 8:00 a.m. the next day.
(h) The party serving or filing the notice or document has the burden of proving that the party complied with this section.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11440.20, 13963 and 13973, Government Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) The Executive Officer shall send a notice to each party of the following:
(1) the date, time and location of the hearing;
(2) notice that the informal hearing procedures will be used, if applicable; and
(3) information about requesting a copy of the hearing procedures under section 616.1.
(b) A notice of hearing shall be sent at least ten days before the start of the hearing.
NOTE
Authority cited: Sections 11400.2, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11445.30(a), 13963(b) and 13973, Government Code; Section 4902, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Subarticle 4. Hearing Procedure
Note • History
(a) Hearings shall be open to public observation, unless otherwise provided by law.
(b) A hearing conducted by telephone, television, or other electronic means as provided in section 617.4 complies with subdivision (a) of this section if:
(1) members of the public may be physically present at the location where the board or hearing officer is conducting the hearing; and
(2) members of the public may inspect the hearing record and inspect any transcript obtained by the board or hearing officer.
(A) A request to inspect the hearing record or any transcript obtained by the board or hearing officer shall be in writing and is governed by the provisions of the Public Records Act, Government Code sections 6250-6270.
(B) The hearing record and any transcript obtained by the board or hearing officer shall be available for public inspection during regular business hours at the headquarters of the board.
(c) This section shall not apply to any prehearing conference or settlement conference.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(3) and 11425.20, Government Code.
HISTORY
1. New subarticle 4 (sections 617.1-617.9) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§617.2. Powers and Duties of Board or Hearing Officer.
Note • History
(a) The board or hearing officer shall have the following powers and duties:
(1) the power to regulate the course of the hearing, including the power to permit or limit:
(A) opening statements;
(B) re-direct examination;
(C) re-cross examination;
(D) presentation of rebuttal witnesses;
(E) allocation of time for each party to present its case, including the time allowed for cross examination of witnesses;
(F) oral or written closing arguments; and
(G) opening or closing briefs.
(2) the power to regulate the conduct of the parties and their representatives;
(3) the power to administer oaths and affirmations;
(4) the power to examine witnesses;
(5) the power to rule on evidentiary and procedural motions;
(6) the duty to conduct a fair and impartial hearing;
(7) the duty to maintain order;
(8) the duty to avoid unnecessary delay; and
(9) all powers and duties reasonably necessary to perform the functions contained in subsections (1) through (8).
(b) The board or hearing officer shall control the taking of evidence in any manner suited to learning the relevant facts and safeguarding the rights of the parties, including the limitation or exclusion of:
(1) repetitious evidence;
(2) irrelevant evidence;
(3) evidence that is tangential to the issues to be determined;
(4) evidence that is of limited probative value; or
(5) evidence that is unreliable.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(1), 13910, 13911, 13963 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§617.3. Representation of Parties.
Note • History
(a) A party may represent himself or herself, or be represented by an attorney or other person.
(b) Notwithstanding subsection (a), the board or hearing officer may refuse to allow any person to represent a party in any hearing if the person at any hearing before the board or hearing officer:
(1) engaged in unethical, disruptive or contemptuous conduct;
(2) intentionally failed to comply with the proper instructions or orders of the board or hearing officer; or
(3) engaged in conduct that provides a basis for contempt under section 618.3 or sanctions under section 618.4.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 13963 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§617.4. Hearing by Electronic Means.
Note • History
(a) The board or hearing officer may conduct all or part of a hearing by telephone, television, or other simultaneous electronic means if each participant:
(1) has an opportunity to participate;
(2) can hear the entire hearing while it is taking place; and
(3) may observe exhibits.
(A) This requirement shall be satisfied if each participant has an opportunity prior to the hearing to see each exhibit to be used during a hearing conducted by electronic means.
(b) For purposes of this section, a participant in a hearing includes:
(1) a party;
(2) a party's representative; and
(3) a witness whose testimony will be provided by telephone, television, or other electronic means.
(c) No part of a hearing shall be conducted by telephone, television or other electronic means if a party objects to it.
(d) The party that requested that all or part of a hearing be conducted by electronic means may be responsible for providing, operating, and paying for all equipment needed to comply with subdivision (a).
(1) The party shall consult with the board, hearing officer, or Executive Officer to arrange for the equipment to be set up and operated.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Section 11440.30, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) A party may object to having an informal hearing in writing within five days of receiving the hearing notice.
(b) The Executive Officer or hearing officer shall rule on an objection to an informal hearing before evidence is taken at a hearing.
(c) An objection to an informal hearing shall include:
(1) the specific facts and law upon which the objection is based; and
(2) specific facts and law relevant to the factors contained in subsection (f).
(d) An objection to an informal hearing that is limited to written materials shall include the following, to the extent relevant to the basis for the objection, or as required by the Executive Officer or hearing officer:
(1) the identity of the witnesses that the party wishes to present;
(2) a summary of the testimony that is anticipated from each witness; and
(3) the issues to which each witness will testify.
(e) An objection to an informal hearing that requests an opportunity to cross examine witnesses shall identify:
(1) the witnesses that the party wishes to cross examine; and
(2) the issues that the party wishes to explore during cross examination of each witness.
(f) If confidential facts or sources are relevant to the information required under subsections (d) or (e), a party shall:
(1) state that confidential facts or sources are involved; and
(2) provide information that can be given without disclosing the confidential facts or sources.
(g) The Executive Officer or hearing officer shall consider the following factors when ruling on an objection to an informal hearing:
(1) complexity of legal or factual issues;
(2) necessity to evaluate credibility of witnesses for a proper determination of issues;
(3) parties' representation by legal counsel;
(4) necessity of witnesses being subject to cross examination for the proper determination of issues; and
(5) any other factor likely to affect a just and proper determination of issues.
(h) If the objection to an informal hearing is sustained, the Executive Officer or hearing officer may permit:
(1) testimony from parties;
(2) testimony from witnesses who are not parties; or
(3) cross examination of witnesses.
(i) If the Executive Officer sustains an objection to an informal hearing over which the board was to preside, the Executive Officer shall assign the hearing to a hearing officer.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11445.20(c), 11445.30, 11445.40, 11445.50, 11445.60 and 11470.10, Government Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§617.6. Presentation Limited to Written Materials.
Note • History
(a) If the board, Executive Officer, or hearing officer determine that only written evidence or argument shall be permitted as provided by these regulations, all parties shall receive a reasonable opportunity to submit written materials to the board or hearing officer.
(b) Written materials may include:
(1) a statement of legal and factual issues;
(2) supporting documentation; and
(3) legal and factual arguments supporting the party's contentions.
(c) The board or hearing officer may request additional documentation or legal arguments from the parties if necessary in the board's or hearing officer's discretion.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(1), 11445.10, 11445.20(c), 11445.40, 11445.50, 13963 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§617.7. Presentation of Oral Evidence.
Note • History
(a) Oral evidence shall be taken under oath or affirmation in all hearings, except an informal hearing.
(b) Oral evidence may be taken under oath or affirmation in an informal hearing.
(c) An oath or affirmation may be administered by:
(1) a member of the board;
(2) the hearing officer;
(3) the hearing reporter;
(4) a staff member of the board, as directed by the board.
(d) If oral evidence is permitted, each party has the following rights:
(1) to examine witnesses called by the party;
(2) to introduce exhibits into the hearing record; and
(3) to rebut evidence.
(e) The board or hearing officer may question any party or witness.
(f) A party shall not be permitted to cross examine witnesses unless provided by regulation, or permitted by the discretion of the board, Executive Officer, or hearing officer.
(1) Cross examination of a witness may be permitted if it is necessary for a proper determination of the matter.
(2) In order to determine whether cross examination is necessary, the board, Executive Officer, or hearing officer may require a party to identify the issues that would be explored in cross examination.
(A) A party may be required to state that confidential facts or sources would be involved in the issues to be explored in cross examination, but may not be required to disclose the confidential facts or sources.
(3) If cross examination is permitted, a witness may be cross-examined on any relevant matter even though the matter was not covered during the direct examination.
(g) A party appearing at a hearing shall have the witnesses and evidence present and be ready to proceed when the matter is called.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(1), 11445.10, 11445.20(c), 11445.30, 11445.40, 11445.50, 11445.60, 13911, 13963 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) The board or hearing officer shall take official notice of those matters which must be judicially noticed by a court under Evidence Code section 451.
(b) The board or hearing officer may take official notice of those matters which may be judicially noticed by a court under Evidence Code section 452.
(c) Evidence Code sections 455 and 459, subdivisions (c) and (d) shall not apply.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(1), 11425.50(c), 13963 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§617.9. Failure to Appear or Proceed.
Note • History
The failure of a party to appear at a hearing, or to proceed with a hearing, shall constitute a withdrawal of the action or request for hearing, unless an extension of time for submission of documents or a continuance of the hearing has been granted.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 13963 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Subarticle 5. Prohibited Conduct
§618.1. Prohibited Communication.
Note • History
(a) If the board is a party to a pending proceeding, no board employee shall communicate about any issue in the proceeding to the board, a board member, or hearing officer.
(1) A communication is not prohibited by this subsection as long as all parties to the proceeding were given reasonable notice of, and an opportunity to participate in, the communication.
(b) No person or representative who has an interest in the outcome of a pending proceeding shall communicate about any issue in the proceeding with the board, a board member, or the hearing officer while the proceeding is pending before the board.
(1) A communication is not prohibited by this subsection as long as all parties to the proceeding were given reasonable notice of, and an opportunity to participate in, the communication.
(c) A hearing officer who is not a board member shall not communicate about any issue in the proceeding with the board or a board member while the proceeding is pending before the board.
(d) The following communications are not prohibited by subsection (a):
(1) a communication required to resolve an ex parte matter that is authorized by statute; or
(2) a communication concerning a matter of procedure or practice that is not in dispute.
(e) The following communications from a board employee are not prohibited by subsection (a):
(1) an employee who has not served as an investigator or advocate in the proceeding, as defined in section 615.11 may:
(A) provide assistance and advice about the issues to be resolved; or
(B) evaluate the evidence in the record;
(2) a communication about a settlement proposal that is advocated by the board employee.
(f) For the purpose of this section, a proceeding is pending before the board from the time an application or bid protest is submitted to the board until the board makes a final decision about it.
(1) For the purpose of this section, a final decision is made by the board upon adoption of a decision under sections 619.2 or 619.5.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(8), 11430.10, 11430.20, 11430.30, 11430.70 and 11430.80, Government Code.
HISTORY
1. New subarticle 5 (sections 618.1-618.4) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§618.2. Disclosure of Prohibited Communication.
Note • History
(a) A board member or hearing officer, who received a communication about a pending proceeding prior to serving as a board member or hearing officer that would violate section 618.1 if it had been received while presiding at a hearing, shall promptly:
(1) disclose the content of the communication on the record; and
(2) give all parties an opportunity to respond under subdivision (d).
(b) If the board, a board member, or hearing officer receives a communication in violation of section 618.1 the board or hearing officer shall include the following in the record of the hearing:
(1) a copy of any written communication;
(2) a copy of any written response to a written or oral communication;
(3) a memorandum about an oral communication that shall include:
(A) the substance of the oral communication;
(B) the substance of any oral response to the communication; and
(C) the identity of each person from whom the communication was received.
(c) The board or hearing officer shall notify all parties that:
(1) an impermissible ex parte communication was received; and
(2) that the materials required by subsection (b) have been included in the hearing record.
(d) A party may comment on the prohibited ex parte communication if the party requests to comment within ten days of receiving the notice required by this section.
(1) The board or hearing officer may allow a party who makes a timely request to present evidence about the subject of the communication.
(2) The board or hearing officer may reopen the record of a hearing that has been concluded in order to take evidence permitted by subsection (d)(1).
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11430.40 and 11430.50, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) A person is subject to a contempt sanction for any of the following:
(1) disobedience of or resistance to a lawful order;
(2) refusal to take the oath or affirmation as a witness;
(3) obstruction or interruption of a hearing by:
(A) disorderly, contemptuous, or insolent behavior during a hearing toward the board, a board member, or a hearing officer;
(B) breach of the peace, boisterous conduct or violent disturbance during a hearing; or
(C) other unlawful interference with the process or proceedings;
(4) violating the rules against ex parte communication in section 618.1; and
(5) failure or refusal, without substantial justification, to comply with an order of the board or hearing officer.
(b) The board or hearing officer may certify the facts that justify a contempt sanction to the superior court in the county where the hearing is held.
(c) Copies of the following shall be served on the person subject to the contempt sanction:
(1) the certified statement required by subsection (b); and
(2) the order to show cause issued by the superior court.
(d) A contempt proceeding is governed by Code of Civil Procedure, sections 1209-1222.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11455.10 and 11455.20, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) The board or hearing officer may order a party, the party's representative, or both, to pay reasonable expenses, including attorney's fees, as a result of:
(1) bad faith or frivolous actions or tactics; or
(2) actions or tactics solely intended to cause unnecessary delay.
(b) For the purpose of this section, actions include, but are not limited to:
(1) the making or opposing of motions, objections, or requests; and
(2) the failure to comply with a lawful order of the board or hearing officer.
(c) For the purpose of this section, frivolous means:
(1) totally without merit; or
(2) for the sole purpose of harassing another party or the board.
(d) Before imposing sanctions under this section, the board or hearing officer shall provide the party notice and an opportunity to be heard.
(1) The notice and opportunity to be heard may occur either at the time the issue of sanctions is raised, or at another time.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Section 11455.30, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Subarticle 6. Hearing Decisions
Note • History
(a) This section applies to decisions of the board and proposed decisions of hearing officers.
(b) All hearing decisions and proposed decisions shall:
(1) be written; and
(2) contain a statement of the factual and legal bases for the decision.
(c) If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the decision shall identify any specific evidence of the demeanor, manner or attitude of the witness that supports the credibility determination.
(d) The decision shall be based on evidence in the hearing record and on matters subject to official notice under section 617.8.
(e) The board members or hearing officer may use relevant experience, technical competence and specialized knowledge to evaluate the evidence.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(6), 11425.50(c) and 13969.1(a), Government Code.
HISTORY
1. New subarticle 6 (sections 619.1-619.7) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) A decision of the board about a hearing it conducted shall be made by the board.
(b) The board shall make its decision either at the conclusion of the hearing, or at another board meeting.
(c) The board may adopt in whole the written recommendation of board staff as its decision if the recommendation complies with section 619.1.
(d) If the board does not adopt in whole the staff recommendation:
(1) the board shall make a statement of decision that includes:
(A) the decision made about the application; and
(B) the reasons for the decision; and
(2) board staff shall prepare a written decision consistent with the board's statement of decision.
(e) The decision of the board is effective upon its vote.
(f) The board shall send a copy of its written decision to the parties.
(1) The board need not send a copy of its written decision under subsection (c) to the parties if the parties received, prior to the hearing, a copy of the staff recommendation that was adopted in whole as the board decision.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(6), 11425.50, 13908 and 13969.1(a), Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§619.3. Proposed Decision by Hearing Officer.
Note • History
(a) The hearing officer may take the matter under submission at the conclusion of the hearing.
(b) The hearing officer shall prepare a proposed decision for the board that complies with section 619.1.
(c) The proposed decision shall be submitted to the Executive Officer.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 11425.10(a)(6) and 11425.50, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§619.4. Notice and Public Comment on Proposed Decision.
Note • History
(a) Copies of the proposed decision and notice of the board meeting at which consideration of the proposed decision is scheduled shall be mailed or delivered to all parties.
(b) A party may submit written argument concerning whether or not the board should adopt the proposed decision.
(1) A written argument shall not exceed ten pages, including any attachments.
(c) The Executive Officer may establish a schedule for the submission of written argument concerning the proposed decision.
(d) Written argument concerning the proposed decision may address the following issues, or any issue identified by the Executive Officer:
(1) are the facts stated in the proposed decision supported by the evidence in the hearing record?
(2) does the proposed decision contains an accurate statement of the applicable law?
(3) does the proposed decision correctly apply the applicable law?
(4) is there additional evidence that the board should consider?
(5) if the board should consider additional evidence, why was it not presented at the hearing?
(6) if the board rejects the proposed decision, what further actions should the board take to resolve the matter?
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Section 11125.7, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§619.5. Action on Proposed Decision by Board.
Note • History
(a) The Executive Officer shall schedule consideration of a hearing officer's proposed decision on the agenda of a board meeting.
(b) The board may take any of the following actions concerning the proposed decision:
(1) adopt the proposed decision in whole or in part;
(2) reject the proposed decision in whole or in part; or
(3) defer decision and request the hearing officer to address specific issues or provide additional information.
(c) If the board rejects the proposed decision in whole or in part, it may take any of the following actions:
(1) decide the case itself after reviewing the record, including a transcript of the hearing;
(2) decide the case itself based upon a statement of facts agreed to by the parties;
(3) decide the case itself by conducting a hearing to take additional evidence or argument;
(4) order the hearing officer to take additional evidence or argument; or
(5) order the hearing officer to address specific issues in the proposed decision.
(d) If the board rejects the proposed decision in whole or in part and orders a hearing officer to take additional evidence under subsection (c)(4), or respond to specific issues under subsection (c)(5), the hearing officer:
(1) may take additional evidence as directed by the board or as necessary in the hearing officer's discretion; and
(2) shall prepare a proposed decision as required by section 619.3.
(e) If the board remands the matter to a hearing officer under subsection (c)(4) or (c)(5), it shall be returned to the hearing officer who prepared the proposed decision, if practicable.
(1) If the hearing officer who prepared the proposed decision is not reasonably available, the Executive Officer may assign it to another hearing officer.
(2) If the matter is assigned to another hearing officer, the new hearing officer shall review the entire record, including a transcript, before taking additional evidence.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections, 11440.10, 113963, 13908 and 13973, Government Code; Section 4903, Penal Code; and Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
§619.6. Correction of Decision.
Note • History
(a) The board may modify a decision or proposed decision before or after adoption to correct a mistake or clerical error.
(b) A copy of the modified decision shall be sent to all parties.
NOTE
Authority cited: Sections 11400.20, 11415.10(a), 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Section 11518.5(d), Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Note • History
(a) The board may designate any of its decisions in whole or in part as a precedent decision.
(b) The board may designate a prior decision as a precedent decision.
(c) A decision may be designated as a precedent decision if it:
(1) addresses a legal or factual issue of general public interest;
(2) resolves a conflict in the law;
(3) provides an overview of existing law or policy;
(4) clarifies existing law or policy;
(5) establishes a new rule of law or policy; or
(6) contains a significant legal or policy determination of general application.
(d) A precedential decision may be used as legal authority to interpret and implement the law in subsequent board decisions.
(e) The board may reverse in whole or in part the prior designation of a decision as a precedent decision.
(f) The board shall maintain an index of significant legal and policy determinations contained in precedent decisions.
(1) The index shall be updated annually, unless no new precedent decisions were designated.
(2) The index shall be available for purchase by the public.
(A) The availability of the index shall be publicized annually in the California Regulatory Notice Register.
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code; and Section 4906, Penal Code. Reference: Section 11425.60, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 8).
3. Editorial correction repealing erroneous History 2 and renumbering and amending former History 3 to History 2 (Register 99, No. 12).
Article 3. Presentation of Claims to the Controller
Claims shall be segregated by funds, by appropriations, and by fiscal years in which the obligations were incurred.
Every unusual item of a claim when submitted shall be explained adequately.
Every claim and every supporting pay roll schedule, or schedule of bills filed, shall be typewritten and shall show:
(a) The name of the department, board, commission, agency or officer.
(b) The total amount claimed.
(c) The designation of the appropriation and, excepting the General Fund, the fund against which the claim is filed.
(d) The chapter number and year of the statutes making the appropriation.
(e) The fiscal year in which the indebtedness was incurred.
§622.1. Claims Recorded on Electronic Tape.
Note • History
(a) Subject to the approval of the Controller, claims recorded on electronic tape may be presented under the following conditions:
(1) Each such claim shall consist of the electronic tape listing each payee and the amount of payment. A written reproduction of the electronic tape will be retained by the agency, or the information so provided will be retained by the agency on electronic tape, as a part of its records for the period required by the Controller. Original claim documents supporting the electronic tape listing, or reproductions thereof, shall be retained by the agency for the same period as agency copies of claim schedules unless otherwise provided by law. Such original claims documents, or reproductions thereof, shall be maintained in a manner that will enable verification of the propriety of claims recorded on the electronic tape.
(b) In accordance with Section 624, each claim shall contain a certificate reading as follows:
“I hereby certify under penalty of perjury as follows:
“That I am a duly appointed, qualified, and acting officer of the herein named state agency. That the respective amounts and payees included in this claim have been recorded on that certain electronic tape identified in the within schedule. That a written reproduction, listing each payee and the amount of payment, was prepared from said tape and will be retained as a part of the official records of said state agency, or the information so provided will be retained on electronic tape. That the respective amounts, payees, and totals are true and correct as set forth on said electronic tape and in said written reproduction, or retained electronic tape. That original claim documents, or reproductions thereof, have been retained and are maintained in a manner that will enable verification of the propriety of the amounts claimed. That payments are properly payable to each and all of the claimants as contained therein, and that such payments are authorized in the amount, for the period, and to the respective payees as indicated therein under all governing laws and regulations. That I have not violated any of the provisions of Sections 1090 to 1096, inclusive, Government Code.”
(c) Claims presented on electronic tape pursuant to this section, are excepted from the requirements of Sections 650 to 656, inclusive.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 925.6, 12410, and 19463, Government Code.
HISTORY
1. Amendment filed 2-28-80; designated effective 4-1-80 (Register 80, No. 9). For prior history, see Registers 71, No. 17; 70, No. 20; and 68, No. 27.
§623. Additional Information Required.
History
In addition to the information required under Section 622 every schedule of bills filed shall show:
(a) The name and address of the person in whose favor the warrant is to be drawn.
(b) The items briefly and clearly stated in chronological order, together with all the charges for the period covered by the schedule.
(c) All entries shall be carried to the dollars and cents column direct.
(d) No items shall be interlined.
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Amendment filed 10-1-49 as an emergency (Register 18, No. 1).
3. Repealer of subsection (e) filed 11-21-57; effective thirtieth day thereafter (Register 57, No. 20).
History
Each claim shall be approved by the department head or another person properly authorized, or, in the case of boards and commissions, by the secretary or by some other person, pursuant to a duly adopted resolution of the board or commission. Unless otherwise provided by law, every claim shall be accompanied by an affidavit or certificate under penalty of perjury of the officer, agent or employee directly responsible for the claim.
HISTORY
1. Amendment filed 10-29-51 as an emergency; effective upon filing (Register 26, No. 3).
History
(a) Items or the amounts of items which are incorrect or are not proper charges against the State shall be corrected or eliminated by the Controller, who shall indicate his reason for the change. The total amount claimed shall be adjusted accordingly.
(b) The Controller may, however, in his discretion, disregard net errors of $5 or under in each individual claim if in doing so time and expense will be saved.
(c) If the items eliminated or amounts reduced are proper charges against the State, they may be resubmitted with necessary correction or explanation with the next claim submitted. Such items shall be clearly identified and explained.
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Amendment filed 12-16-48 as an emergency; designated to be effective 12-20-48 (Register 14, No. 8).
3. Amendment filed 6-18-58; effective thirtieth day thereafter (Register 59, No. 10).
4. Amendment of subsection (b) filed 12-17-69 as procedural and organizational; effective upon filing (Register 69, No. 51).
History
HISTORY
1. Repealer filed 6-18-59; effective thirtieth day thereafter (Register 59, No. 10).
Article 3.1. Eligibility of Alien for Programs
Subarticle 1. General Provisions
Note • History
(a) This article applies to applications submitted to the following programs:
(1) erroneously-convicted felons under Penal Code sections 4900-4901;
(2) citizens benefiting the public under Government Code section 13972; and
(3) persons who provide information leading to the location of missing children under Government Code section 13974.1.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Section 1621.
HISTORY
1. New article 3.1 (subarticles 1-3, sections 627.1-629.2), subarticle 1 (sections 627.1-627.5) and section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New article 3.1 (subarticles 1-3, sections 627.1-629.2), subarticle 1 (sections 627.1-627.5) and section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including repealer of subsection (a)(2), subsection renumbering, and amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Note • History
(a) All eligibility requirements contained in this article shall be applied without regard to the race, creed, color, gender, religion, or national origin of the person submitting an application.
(b) Nothing in this article shall be construed as withdrawing eligibility for:
(1) necessary treatment of an emergency medical condition; and
(2) the testing and treatment of symptoms of a communicable disease.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Section 1621(b).
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Note • History
(a) Unless otherwise provided, the terms used in this article shall have the same meaning given the terms in 8 U.S.C. section 1101(a).
(b) As used in this article:
(1) “Alien” means any person not a citizen or national of the United States, as defined in 8 U.S.C. section 1101(a)(3);
(2) “Applicant” means a person submitting an application as defined in subsection (b)(3);
(3) “Application” means the following:
(A) a claim for compensation for erroneously-convicted felons under Penal Code sections 4900-4901;
(B) a claim for compensation for citizens benefiting the public under Government Code section 13972; and
(C) a claim for compensation for persons who provide information leading to the location of missing children under Government Code section 13974.1;
(4) “Benefits” means any payment, compensation or reimbursement under a program;
(5) “Board” means the State Board of Control;
(6) “Emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity so that the following could reasonably be expected to result without immediate medical attention:
(A) the patient's health would be placed in serious jeopardy;
(B) serious impairment to bodily function; or
(C) serious dysfunction of any bodily organ or part;
(7) “INS” means the U.S. Immigration and Naturalization Service;
(8) “Nonimmigrant Alien” means those aliens who are not classified as immigrants under 8 U.S.C. section 1101(a)(15);
(9) “Program” means the following programs administered by the Board:
(A) erroneously-convicted felons under Penal Code sections 4900-4901;
(B) citizens benefiting the public under Government Code section 13972; and
(C) persons who provide information leading to the location of missing children under Government Code section 13974.1;
(10) “Qualified Alien” means an alien who, at the time the alien files an application in a program, is:
(A) an alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act, 8 U.S.C. section 1101 et seq.;
(B) an alien who is granted asylum under 8 U.S.C. section 1158;
(C) a refugee who is admitted to the United States under 8 U.S.C. section 1157;
(D) an alien who is paroled into the United States under 8 U.S.C. section 1182(d)(5) for a period of at least one year;
(E) an alien whose deportation is being withheld under 8 U.S.C. section 1253(h) (as in effect immediately before the effective date of section 307 of division C of Public Law 104-208) or under 8 U.S.C. section 1251(b)(3) (as amended by section 305(a) of division C of Public Law 104-208);
(F) an alien who is granted conditional entry under 8 U.S.C. section 1153(a)(7) as it was in effect prior to April 1, 1980;
(G) an alien who is a Cuban or Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980 (8 U.S.C. § 1522)); and
(H) an alien who meets all of the following conditions:
1. the alien has been battered or subjected to extreme cruelty in the United States by:
A. a spouse;
B. a parent;
C. a member of the spouse's family residing in the alien's household and the spouse or parent consented to or acquiesced in the battery or cruelty; or
D. a member of the parent's family residing in the alien's household and the spouse or parent consented to or acquiesced in the battery or cruelty; and
E. for purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence;
2. there is substantial connection between the battery or cruelty and the need for the program's benefits as follows:
A. for purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:
i. the benefits are needed to enable the alien to become self-sufficient following separation from the abuser;
ii. the benefits are needed to enable the alien to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien from the abuser;
iii. the benefits are needed due to a loss of financial support resulting form the alien's separation from the abuser;
iv. the benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien to lose his or her job or to earn less or to require the alien to leave his or her job for safety reasons;
v. the benefits are needed because the alien requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty;
vi. the benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into day care for fear of being found by the abuser);
vii. the benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser;
viii. the benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien and/or to care for any resulting children; or
ix. where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien had when living with the abuser;
3. the alien has been approved for or has a petition pending which sets forth a prima facie case for:
A. status as a spouse or a child of a United States citizen under 8 U.S.C. section 1154(a)(1)(A)(ii),(iii), or (iv);
B. classification under 8 U.S.C. section 1154(a)(1)(B)(ii) or (iii);
C. suspension of deportation and adjustment of status under 8 U.S.C. section 1254 as in effect prior to April 1, 1997 [Pub.L. 104-208, § 501 (effective September 30, 1996, pursuant to § 591); Pub. L. 104-208, § 304 (effective April 1, 1997, pursuant to § 309); Pub.L. 105-33, § 5581 (effective pursuant to § 5582)] (incorrectly codified as “cancellation of removal under section 240A of such Act [8 U.S.C. § 1229b] (as in effect prior to April 1, 1997)”);
D. status as a spouse or child of a United States citizen under 8 U.S.C. section 1154(a)(1)(A)(i) or classification under 8 U.S.C. section 1154(a)(1)(B)(i); or
E. cancellation of removal under 8 U.S.C. section 1229b(b)(2);
4. the individual responsible for the battery or cruelty does not reside in the same household as the individual subjected to the battery or cruelty during the period for which program benefits are sought;
(I) an alien who meets all of the following conditions:
1. the alien's child has been battered or subjected to extreme cruelty in the United States by:
A. the alien's spouse;
B. a parent of the alien;
C. a member of the spouse's family residing in the alien's household, and the spouse or parent consented to, or acquiesced in the battery or cruelty; or
D. a member of the parent's family residing in the alien's household, and the spouse or parent consented to or acquiesced in the battery or cruelty; and
E. for purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence;
2. the alien did not actively participate in the battery or cruelty;
3. there is a substantial connection between the battery or cruelty and the need for the program's benefits as follows:
A. for purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:
i. the benefits are needed to enable the alien's child to become self-sufficient following separation from the abuser;
ii. the benefits are needed to enable the alien's child to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien's child from the abuser;
iii. the benefits are needed due to a loss of financial support resulting from the alien's child's separation from the abuser;
iv. the benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien's child to lose his or her job or to earn less or to require the alien's child to leave his or her job for safety reasons;
v. the benefits are needed because the alien's child requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty;
vi. the benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien's child's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into day care for fear of being found by the abuser);
vii. the benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser;
viii. the benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien's child and/or to care for any resulting children; or
ix. where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien's child had when living with the abuser;
4. the alien meets the requirements of section 627.3(b)(10)(H)3;
5. the individual responsible for the battery or cruelty does not reside in the same household as the individual subjected to the battery or cruelty during the period for which program benefits are sought;
(J) an alien child who meets all of the following conditions:
1. the alien child resides in the same household as a parent who has been battered or subjected to extreme cruelty in the United States by:
A. that parent's spouse; or
B. a member of the spouse's family residing in the same household as the parent and the spouse consented to, or acquiesced in the battery or cruelty; and
C. for purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence;
2. there is a substantial connection between the battery or cruelty and the need for the program's benefits as follows:
A. for purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:
i. the benefits are needed to enable the alien child's parent to become self-sufficient following separation from the abuser;
ii. the benefits are needed to enable the alien child's parent to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien child's parent from the abuser;
iii. the benefits are needed due to a loss of financial support resulting from the alien child's parent's separation from the abuser;
iv. the benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien child's parent to lose his or her job or to earn less or to require the alien child's parent to leave his or her job for safety reasons;
v. the benefits are needed because the alien child's parent requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty;
vi. the benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien child's parent's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into day care for fear of being found by the abuser);
vii. the benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser;
viii. the benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien child's parent and/or to care for any resulting children; or
ix. where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien child's parent had when living with the abuser;
3. the alien meets the requirements of section 627.3(b)(10)(H)3;
4. the individual responsible for the battery or cruelty does not reside in the same household as the individual subjected to the battery or cruelty during the period for which program benefits or assistance are sought;
(11) “SAVE” means the Systematic Alien Verification for Entitlements automated database.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Section 1641, and Department of Justice Notice, A.G. Order No. 2131-97 (62 Fed.Reg. 65285 (Dec. 11, 1997)).
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including repealer of subsections (a)(3)(B) and (a)(9)(B), subsection relettering, and amendment of subsections (a)(10)(H)1.E., (a)(10)(I)1.A. and E. and (a)(10)(J)1.C., and amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
§627.4. Nonprofit Charitable Organizations.
Note • History
A nonprofit charitable organization that provides federal, state, or local public benefits shall not be required to determine, verify or otherwise require proof of eligibility of any applicant under this article.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Section 1642(d).
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of section and Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Note • History
NOTE
Authority cited: Sections 13920 and 13974, Government Code; Section 25381, Health and Safety Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Section 1644.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including repealer of section, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Subarticle 2. Eligibility
Note • History
(a) Only the following aliens are eligible for any of the programs:
(1) a qualified alien;
(2) a non-immigrant alien; and
(3) an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year.
(b) Subsection (a) does not apply to eligibility for:
(1) necessary treatment of an emergency medical condition; and
(2) the testing and treatment of symptoms of a communicable disease.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Section 1621.
HISTORY
1. New subarticle 2 (sections 628.1-628.7) and section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New subarticle 2 (sections 628.1-628.7) and section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of section heading and Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
§628.2. Proof of Citizenship or Immigration Status.
Note • History
(a) When filing an application for a program, an applicant shall declare, under penalty of perjury, to be:
(1) a citizen or other national of the United States;
(2) a qualified alien;
(3) a nonimmigrant alien; or
(4) an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year.
(b) The applicant must complete and sign form SBOC-EO-0107 (New 3/98).
(c) An applicant must submit documents that are of a type acceptable to the INS, as set forth in form SBOC-EO-0107 (Rev. 11/98) which serve as reasonable evidence of the applicant's citizenship or immigration status.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: Section 25373, Health and Safety Code; Section 4900, Penal Code; and 8 U.S.C. Sections 1621, 1625 and 1641.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of subsections (a)(1) and (c) and amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Note • History
The Board may permit submission of the current version of a form identified in this article, or a form that supersedes one identified in this article.
NOTE
Authority cited: Sections 13920 and 13974, Government Code; and Section 4906, Penal Code. Reference: Sections 13972 and 13974.1, Government Code; and Section 4901, Penal Code.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
§628.4. Time to Submit Proof of Citizenship or Immigration Status.
Note • History
(a) The Board shall give an applicant who declares to be a citizen, a nonimmigrant alien, a qualified alien, or an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year, but fails to submit the documents required by subsections 628.2(c), 30 days to submit the required documents.
(b) The Board shall give an applicant who submits documents required by subsection 628.2(c) containing an alien registration or admission number, but whose immigration status is not verified by the SAVE system, 30 days to submit additional documents for verification.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: Sections 13972 and 13974.1, Government Code; Section 4901, Penal Code; and 8 U.S.C. Section 1625.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
§628.5. Verification of Immigration Status by SAVE System.
Note • History
(a) An applicant's immigration status shall be verified with the INS through the SAVE system, if the Board is authorized to do so.
(b) The secondary SAVE verification method shall be to send a photocopy of each document submitted by an applicant to show immigration status to INS for verification.
(c) The secondary SAVE verification method shall be used if:
(1) the SAVE system is unavailable;
(2) the SAVE system instructs the user to institute secondary verification;
(3) the documents presented include immigration status, but do not include an alien registration or alien admission number;
(4) the SAVE record verifies the alien registration or admission number on the document submitted by the alien, but does not match other information contained in the submitted document;
(5) the document is suspected of being counterfeit or to have been altered;
(6) the document includes an alien registration number in the A60 000 000 series (not yet issued) or A80 000 000 series (illegal border crossing);
(7) the document is a fee receipt from INS for replacement of a lost, stolen or unreadable INS document;
(8) the document is one of the following:
(A) INS Form I-181b notification letter issued in connection with a memorandum of creation of record of permanent residence (INS Form I-181);
(B) an arrival/departure record (INS Form I-94); or
(C) a foreign passport stamped, “Processed for I-551, temporary evidence of lawful permanent residence” that INS issued over one year before the date of the application for program benefits.
(d) If verification through the SAVE system is not available, or if the documents presented do not on their face reasonably appear to be genuine or to relate to the individual presenting them, the government entity that originally issued the document shall be contacted for verification. With regard to naturalized citizens and derivative citizens presenting certificates of citizenship and aliens, the INS is the appropriate government entity to contact for verification. The Board shall request verification by the INS by filing INS Form G-845 with copies of the pertinent documents provided by the applicant with the local INS office. If the applicant has lost his or her original documents, or presents expired documents or is unable to present any documentation evidencing his or her immigration status, the applicant shall be referred to the local INS office to obtain documentation.
(e) If the INS advises that the applicant is a citizen or a nonimmigrant alien, has immigration status which makes him or her a qualified alien, or is an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year, the INS verification should be accepted. If the INS advises that it cannot verify that the applicant is a citizen or a nonimmigrant alien, has immigration status that makes him or her a qualified alien, or is an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year, benefits shall be denied and the applicant notified pursuant to the program's regular procedures of his or her rights to appeal the denial of benefits.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Sections 1621 and 1625.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
§628.6. Manual Verification of Immigration Status.
Note • History
(a) If the documents presented do not on their face appear to be genuine or to relate to the individual presenting them, the government entity that originally issued the documents shall be contacted for verification. With regard to naturalized citizens and derivative citizens presenting certificates of citizenship and aliens, the INS is the appropriate government entity to contact for verification. The Board shall request verification from the INS by filing INS Form G-845 with copies of the pertinent documents provided by the applicant with the local INS office. If the applicant has lost his or her original documents, or presents expired documents, or is unable to present any documentation evidencing his or her immigration status, the applicant shall be referred to the local INS office to obtain documentation.
(b) The type of documentation referred to the INS for verification pursuant to INS Form G-845 shall include the following:
(1) a document that indicates immigration status but does not include an alien registration or alien admission number;
(2) a document that is suspected to be counterfeit or to have been altered;
(3) a document that includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series;
(4) a document that is one of the following:
(A) an INS Form I-181b notification letter issued in connection with an INS Form I-181 Memorandum of Creation of Record of Permanent Residence;
(B) an Arrival-Departure Record (INS Form I-94); or
(C) a foreign passport stamped “Processed for I-551, Temporary Evidence of Lawful Permanent Residence” that INS issued more than one year before the date of application for program benefits.
(c) If the INS advises that the applicant is a citizen or a nonimmigrant alien, has an immigration status which makes him or her a qualified alien, or is an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year, the INS verification should be accepted. If the INS advises that it cannot verify that the applicant is a citizen or a nonimmigrant alien, has immigration status that makes him or her a qualified alien, or is an alien paroled into the United States under 8 U.S.C. section 1182(d)(5) for less than one year, benefits shall be denied and the applicant notified pursuant to the program's regular procedures of his or her rights to appeal the denial of benefits.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: 8 U.S.C. Sections 1621 and 1625.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
§628.7. Eligibility Pending Verification of Status.
Note • History
NOTE
Authority cited: Sections 13920 and 13974, Government Code; Section 25381, Health and Safety Code; and Section 4906, Penal Code. Reference: Section 25373, Health and Safety Code; and Sections 4900-4901, Penal Code; and 8 U.S.C. Section 1621.
HISTORY
1. New section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including repealer of section, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Subarticle 3. Hearings
Note • History
(a) An applicant whose application is denied under sections 628.5(e) or 628.6(c) may request a hearing.
(b) A request for a hearing must be received by the Board within 45 days of the date the Board mailed the notification of the denial of the application.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: Sections 13973 and 13974.1, Government Code; and Section 4902, Penal Code.
HISTORY
1. New subarticle 3 (sections 629.1-629.2) and section filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New subarticle 3 (sections 629.1-629.2) and section refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of subsection (a) and Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Note • History
(a) The applicant shall have the burden of proof.
(b) The standard of proof is by a preponderance of the evidence.
NOTE
Authority cited: Sections 13920, 13974 and 13974.1, Government Code; and Section 4906, Penal Code. Reference: Sections 13973 and 13974.1, Government Code; and Section 4902, Penal Code.
HISTORY
1. New section, form and Lists A and B filed 3-24-98 as an emergency; operative 3-24-98 (Register 98, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-22-98 or emergency language will be repealed by operation of law on the following day.
2. New section, form and Lists A and B refiled 7-21-98 as an emergency; operative 7-21-98 (Register 98, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-21-98 order, including amendment of Note, transmitted to OAL 11-10-98 and filed 12-28-98 (Register 99, No. 1).
Embedded Graphic 02.0011
Embedded Graphic 02.0012
LIST A
A person who is a citizen or national of the United States.
A. Primary Evidence
• A birth certificate showing birth in one of the 50 states, the District of Columbia, Puerto Rico (on or after January 13, 1941), Guam, the U.S. Virgin Islands (on or after January 17, 1917), American Samoa, Swain's Island or the Northern Mariana Islands, unless the person was born to foreign diplomats residing in the United States.If applicant was born in Puerto Rico, the U.S. Virgin Islands or the Northern Mariana Islands before these areas became part of the U.S., the applicant may be a collectively naturalized citizen--see Paragraph C below;
• United States passport (except limited passports, which are issued for periods of less than five years);
• Report of birth abroad of a U.S. citizen (FS-240) issued by the Department of State to U.S. citizens;
• Certificate of Birth (FS-545) issued by a foreign service post or Certification of Report of Birth (DS-1350) issued by the Department of State, copies of which are available from the Department of State;
• Certificate of Naturalization (N-550 or N-570) issued by the INS through a Federal or State court, or through administrative naturalization after December 1990 to individuals who are individually naturalized; the N-570 is a replacement certificate issued when the N-550 has been lost or mutilated or the individual's name has been changed;
• Certificate of Citizenship (N-560 or N-561) issued by the INS to individuals who derive U.S. citizenship through a parent; the N-561 is a replacement certificate issued when the N-560 has been lost or mutilated or the individual's name has been changed;
• United States Citizen Identification Card (I-197) issued by the INS until April 7, 1983, to U.S. citizens living near the Canadian or Mexican border who needed it for frequent border crossings (formerly Form I-179, last issued in February 1974);
• Northern Mariana Identification Card issued by the INS to a collectively naturalized citizen of the U.S. who was born in the Northern Mariana Islands before November 3, 1986;
• Statement provided by a U.S. consular officer certifying that the individual is a U.S. citizen (this is given to an individual born outside the U. S. who derives citizenship through a parent but does not have an FS-240, FS-545 or DS-1350); or
• American Indian Card with a classification code “KIC” and a statement on the back (identifying U.S. citizen members of the Texas Band of Kickapoos living near the U.S./Mexican border).
B. Secondary Evidence
If the applicant cannot present one of the documents listed in A above, the following may be relied upon to establish U.S. citizenship or nationality:
• Religious record recorded in one of the 50 states, the District of Columbia, Puerto Rico (on or after January 13, 1941), Guam, the U.S. Virgin Islands (on or after January 17, 1917); American Samoa, Swain's Island or the Northern Mariana Islands (unless the person was born to foreign diplomats residing in such a jurisdiction) within three months after birth showing that the birth occurred in such jurisdiction and the date of birth or the individual's age at the time the record was made;
• Evidence of civil service employment by the U.S. government before June 1, 1976;
• Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s);
• Census record showing name, U.S. citizenship or a U.S. place of birth, and date of birth or age of applicant;
• Adoption Finalization Papers showing the child's name and place of birth in one of the 50 States, the District of Columbia, Puerto Rico (on or after January 13, 1941), Guam, the U.S. Virgin Islands (on or after January 17, 1917), American Samoa, Swain's Island or the Northern Mariana Islands (Unless the person was born to foreign diplomats residing in such a jurisdiction) or, where adoption is not finalized and the state or other jurisdiction listed above in which the child was born will not release a birth certificate prior to final adoption, a statement from a state-approved adoption agency showing the child's name and place of birth in one such jurisdiction (NOTE: the source of the information must be an original birth certificate and must be indicated in the statement); or
• Any other document that establishes a U.S. place of birth or in some way indicates U.S. citizenship (e.g., a contemporaneous hospital record of birth in that hospital in one of the 50 states, the District of Columbia, Puerto Rico (on or after January 13, 1941), Guam, the U.S. Virgin Islands (on or after January 17, 1917), American Samoa, Swain's Island or the Northern Mariana Islands, (unless the person was born to foreign diplomats residing in such a jurisdiction).
C. Collective Naturalization
If the applicant cannot present one of the documents listed in A or B above, the following will establish U.S. citizenship for collectively naturalized individuals:
Puerto Rico:
• Evidence of birth in Puerto Rico on or after April 11, 1899 and the applicant's statement that he or she was residing in the U.S., a U.S. possession or Puerto Rico on January 13, 1941; or
• Evidence that the applicant was a Puerto Rican citizen and the applicant's statement that he or she was residing in Puerto Rico on March 1, 1917 and that he or she did not take an oath of allegiance to Spain.
U.S. Virgin Islands:
• Evidence of birth in the U.S. Virgin Islands, and the applicant's statement of residence in the U.S., a U.S. possession or the U. S. Virgin Islands on February 25, 1927;
• The applicant's statement indicating residence in the U.S. Virgin Islands as a Danish citizen on January 17, 1917 and residence in the U.S., a U.S. possession or the U.S. Virgin Islands on February 25, 1927 and that he or she did not make a declaration to maintain Danish citizenship; or
• Evidence of birth in the U.S. Virgin Islands and the applicant's statement indicating residence in the U.S., a U.S. possession or territory or the Canal Zone on June 28, 1932.
Northern Mariana Islands (NMI) (formerly part of the Trust Territory of the Pacific Islands (TTPI)):
• Evidence of birth in the NMI, TTPI citizenship and residence in the NMI, the U.S., or a U.S. territory or possession on November 3, 1986 (NMI local time) and the applicant's statement that he or she did not owe allegiance to a foreign state on November 4, 1986 (NMI local time);
• Evidence of TTPI citizenship, continuous residence in the NMI prior to November 3, 1981 (NMI local time), voter registration to January 1, 1975 and the applicant's statement that he or she did not owe allegiance to a foreign state on November 4, 1986 (NMI local time); or
• Evidence of continuous domicile in the NMI prior to January 1, 1974 and the applicant's statement that he or she did not owe allegiance to a foreign state on November 4, 1986 (NMI local time). Note: If a person entered the NMI as a nonimmigrant and lived in the NMI since January 1, 1974, this does not constitute continuous domicile and the individual is not a U.S. citizen.
D. Derivative Citizenship
If the applicant cannot present one of the documents listed in A or B above, you may have derivative U.S. citizenship in the following situations:
Applicant born abroad to two U.S. citizen parents:
• Evidence of the U.S. citizenship of the parents and the relationship of the applicant to the parents, and evidence that at least one parent resided in the U.S. or an outlying possession prior to the applicant's birth.
Applicant born abroad to a U.S. citizen parent and a U.S. non-citizen national parent:
• Evidence that one parent is a U.S. citizen and that the other is a U.S. non-citizen national, evidence of the relationship of the applicant to the U. S. citizen parent, and evidence that the U.S. Citizen parent resided in the U.S., a U.S. possession, American Samoa or Swain's Island for a period of at least one year prior to the applicant's birth.
Applicant born out of wedlock abroad to a U.S. citizen mother:
• Evidence of the U.S. citizenship of the mother, evidence of the relationship to the applicant and, for births on or before December 24, 1952, evidence that the mother resided in the U.S. prior to the applicant's birth or, for births after December 24, 1952, evidence that the mother had resided, prior to the child's birth, in the U.S. or a U.S. possession for period of one year.
Applicant born in the Canal Zone or the Republic of Panama:
• A birth certificate showing birth in the Canal Zone on or after February 26, 1904 and before October 1, 1979 and evidence that one parent was a U.S. citizen at the time of the applicant's birth; or
• A birth certificate showing birth in the Republic of Panama on or after February 26, 1904 and before October 1, 1979 and evidence that at least one parent was a U.S. citizen and employed by the U.S. government or the Panama Railroad Company or its successor in title.
All other situations where an applicant claims to have a U.S. citizen parent and an alien parent, or claims to fall within one of the above categories but is unable to present the listed documentation:
• If the applicant is in the U.S., contact the local INS office for determination of U.S. citizenship;
• If the applicant is outside the U.S., contact the State Department for a U.S. citizenship determination.
E. Adoption of Foreign-Born Child by U.S. Citizen
• If the birth certificate shows a foreign place of birth and the applicant cannot be determined to be a naturalized citizen under any of the above criteria, you must obtain other evidence of U.S. citizenship;
• Since foreign-born adopted children do not automatically acquire U.S. citizenship by virtue of adoption by U.S. citizens, contact the local INS district office for a determination of U.S. citizenship if the applicant has no evidence of U.S. citizenship.
F. U.S. Citizenship By Marriage
• If a woman acquired U.S. citizenship through marriage to a U.S. citizen before September 22, 1922, submit evidence of U.S. citizenship of the husband and evidence showing the marriage occurred before September 22, 1922.Note: If the husband was an alien at the time of the marriage and became naturalized before September 22, 1922, the wife also acquired naturalized citizenship. If the marriage terminated, the wife maintained her U.S. citizenship if she was residing in the U.S. at that time and continued to reside in the U.S.
LIST B
A. Documentation Evidencing an Appproved Petition or Application
• INS Form I-551 (“Resident Alien Card” or “Alien Registration Receipt Card”, commonly known as a “green card”) with one of the following INS class of admission (“COA”) codes printed on the front of a white card or the back of a pink card: AR1, AR6, C20 through C29, CF1, CF2, CR1, CR2, CR6, CR7, CX1 through CX3, CX6 through CX8, F20 through F29, FX1 through FX3, FX6 through FX8, IF1, IF2, IR1 through IR4, IR6 through IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21 through P23, or P26 through P28.If an alien claiming approved status presents a code different than those enumerated, or if you cannot determine the class of admission from the I-551 stamp, Board of Control staff will file INS Form G-845 and the G-845 Supplement (mark item six on the Supplement), along with a copy of the document(s) presented, with the local INS office in order to determine whether the applicant gained his or her status because he or she was the spouse, widow, or child of a U.S. citizen or the spouse, child, or unmarried son or daughter of lawful permanent resident.
• INS Form I-551 with one of the following COA codes stamped on the lower left side of the back of a pink card: IB1 through IB3, IB6 through IB8, B11, B12, B16, B17, B20 through B29, B31 through B33, B36 through B38, BX1 through BX3, or BX6 through BX8.
• INS Form I-551 with COA code Z13.
• Unexpired Temporary I-551 stamp in foreign passport or on INS Form I-94 with one of the COA codes specified in the Subsections (1)-(3), above.
• INS Form I-797 indicating approval of an INS I-130 petition (only I-130 petitions describing the following relationships may be accepted: husbands or wives of U.S. citizens or LPRs, unmarried children under 21 years old of U.S. citizens or LPRs, or unmarried children 21 or older of LPRs), or approval of an I-360 petition (only I-360 approvals based on status as a widow/widower of a U.S. citizen or as a self-petitioning spouse or child of an abusive U.S. citizen or LPR may be accepted).
• A final order of an Immigration Judge or the Board of Immigration Appeals granting suspension of deportation under Section 244(a)(3) of the INA as in effect prior to April 1, 1997, or cancellation of removal under Section 240A(b)(2) of the INA.
B. Documentation Demonstrating that the Applicant has Established a Prima Facie Case
• INS Form I-797 indicating that the applicant has established a prima facie case; or
• An immigration court or Board of Immigration Appeals order indicating that the applicant has established a prima facie case for suspension of deportation under INA Section 244(a)(3) as in effect prior to April 1, 1997, or cancellation of removal under section 240A(b)(2) of the INA.
C. Documentation Indicating That the Applicant has Filed a Petition or That a Petition Has Been Filed on the Applicant's Behalf, as Applicable, but with no Evidence of Approval of the Petition or Establishment of a Prima Facie Case
Board of Control staff will determine from the documentation when the petition was filed and take the actions set forth below:
• Applicants with petitions filed before June 7, 1997 should have an INS Form I-797 indicating filing of the I-360 petition by “self-petitioning spouse [or child] of abusive U.S. citizen or LPR,” or a file-stamped copy of the petition, or another document demonstrating filing (including a cash register or computer-generated receipt indicating filing of Form I-360).
• Applicants with petitions filed after June 7, 1997, should have an INS Form I-797 indicating filing of the I-360 petition.
D. Documentation Indicating that the Applicant Has Filed a Petition or That a Petition Was Filed on His or Her Behalf, as Applicable
The following must indicate that the applicant is the widow/widower of a U.S. citizen, the husband or wife of a U.S. citizen or LPR, the unmarried child under age 21 of a U.S. citizen or LPR, or the unmarried child age 21 or older of an LPR):
• For aliens on whose behalf a petition has been filed: INS Form I-797 indicating filing of an INS I-130 petition, a file-stamped copy of the petition, or another document demonstrating filing (including a cash register or computer-generated receipt indicating filing of Form I-130).
• For self-petitioning widows or widowers: a file-stamped copy of the INS I-360 petition, or another document demonstrating filing (including a cash register or computer-generated receipt indicating filing of Form I-360).
E. Documentation Indicating That the INS Has Initiated Deportation or Removal Proceeding in Which Relief May Be Available.
• an “Order to Show Cause”
• a “Notice to Appear”; or
• a “Notice of Hearing in Deportation Proceedings”.
F. Minimal or No Documentation Regarding the Claimed Filing
If the applicant has some documentation, but it is insufficient to demonstrate filing, establishment of pirma facie case, or approval of a petition, Board of Control staff will fax the INS Request Form as well as a copy of any document(s) provided by the applicant, to the INS Vermont Service Center in order to determine the applicant's status. If the applicant has no documentation but is certain that a petition has been filed by his or her spouse or parent, Board of Control staff will fax the INS Request Form to the INS Vermont Service Center.
Article 4. Presentation of Claims to the State Board of Control
Note • History
There shall be presented to the Board of Control all claims for money or damages against the State:
(a) For which an appropriation has been made or for which a State fund is available and which have been rejected by the Controller.
(b) For which the appropriation made or fund designated is exhausted.
(c) For which no appropriation has been made or for which no fund is available but the settlement of which has been provided for by statute or constitutional provision.
(d) For which settlement is not otherwise provided for by statute or constitutional provision.
(e) On express contract.
(f) For the taking or damaging of private property for public use within the meaning of Section 19 of Article I of the Constitution.
(g) Based upon the negligent act or omission of a state officer, servant or employee or for the dangerous condition of state property.
(h) For any other injury for which the State is liable.
NOTE
Authority cited: Sections 13920 and 13921, Government Code.
HISTORY
1. Repealer of Article 4 (Sections 630-634) and new Article 4 (Sections 631-632, 632.5-632.11) filed 9-19-63 as an emergency; designated effective 9-20-63 (Register 63, No. 16). For history of former sections in Article 4, see Register 62, No. 22.
2. Certificate of Compliance filed 12-19-63 (Register 63, No. 25).
3. Amendment of subsection (f) filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
All claims or amendments thereto shall be filed in triplicate, shall be signed by the claimant or by a person acting on his behalf, shall be verified, and shall state the facts constituting the claim in simple concise language without resort to legal phraseology.
All claims or amendments filed with the State Board of Control based upon subsections (a) through (f) of Section 630 shall be in substantially the following form:
Embedded Graphic 02.0013
NOTICE
Section 72 of the Penal Code provides:
“Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any country, town, city, district, ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony.”
§632.5. Form of Claims Involving Negligence, or the Dangerous Condition of State Property, or Other Injuries for Which the State Is Liable.
All claims or amendments filed with the State Board of Control based upon subsections (g) or (h) of Section 630 shall be in substantially the following form:
Embedded Graphic 02.0014
Embedded Graphic 02.0015
NOTICE
Section 72 of the Penal Code provides:
“Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any country, town, city, district, ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony.”
§632.6. Notice of Insufficiency.
The Attorney General or other attorney authorized to represent the State is designated to given written notice of insufficiency of any claim within the time and in the manner prescribed by Government Code Section 910.8. A copy of such notice shall be forwarded to the State Board of Control and no action will be taken by the Board on the claim for a period of 15 days after such notice is given.
§632.7. Time for Presenting Claim.
Note • History
A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented to the Board of Control not later than the 100th day after the accrual of the cause of action. A claim relating to any other cause of action shall be presented to the Board of Control not later than one year after the accrual of the cause of action.
NOTE
Additional authority cited: Section 911.2, Government Code.
HISTORY
1. New NOTE filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
§632.8. Presenting Late Claim.
Note • History
(a) When due to mistake, inadvertence, surprise or excusable neglect, a claim required under Section 632.7 to be filed within 100 days after the accrual of a cause of action is not filed within such 100 day period, the claimant may present a written application to the Board for leave to present such claim. Such application must be presented within a reasonable time not to exceed one year after the accrual of the cause of action and shall state fully the reason for the delay in presenting the claim. The proposed claim shall be attached to the application and shall in form comply with these rules.
(b) Such application shall be granted or denied by the Board of Control within 45 days after its presentation to the Board.
(c) Automatic Rejection. If the application is not acted on by the Board within the time prescribed in this section, the application will be deemed rejected by the Board on the last day of the period within which Board is required to act on the application.
(d) Extension of Time. By written agreement, the applicant and the Attorney General or other attorney authorized to represent the State may extend the period within which the State Board of Control is required to act on the application.
(e) When an application for leave to file a late claim is presented to the State Board of Control pursuant to Government Code Section 911.4, the Secretary of the Board shall furnish the Attorney General or other attorney authorized to represent the State with a copy of such application and the Attorney General or other attorney authorized to represent the State may present affidavits of other evidence in opposition to the application.
(f) In reviewing the application, the Board shall consider whether the State has been prejudiced by the failure to present the claim within the time required by these rules. If the application is granted, the claim shall be deemed to have been presented to the Board upon the day that leave to present the claim was granted.
NOTE
Authority cited: Sections 911.4 and 911.6, Government Code. Reference: Section 11421, Government Code.
HISTORY
1. New NOTE filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
2. Amendment filed 3-12-79 as an emergency; effective upon filing (Register 79, No. 11).
3. Certificate of Compliance filed 5-25-79 (Register 79, No. 21).
4. Amendment filed 5-30-80; designated effective 7-1-80 (Register 80, No. 22).
Note • History
(a) At least 10 days prior to the date set for final action by the State Board of Control, written notice of the time and place of hearing by the State Board of Control of the claim, amendment or application to file a late claim, unless waived by claimant, shall be mailed by the Board to the address, if any, stated in the claim as the address to which the person presenting the claim desires notice to be sent. If no such address is stated in the claim, the notice may be mailed to the address, if any, of the claimant as stated in the claim. No notice will be given when the claim fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.
(b) At the hearing, and in the discretion of the Board, oral testimony and written instruments may be introduced without regard to the legal rules of evidence.
(c) In reaching their decision, and when reporting to the Legislature concerning the claim, the members of the Board may state and use any official or personal knowledge they may have touching the claim.
(d) If the Board approves or recommends a claim, and no sufficient appropriation for payment thereof is available, the Board, with the approval of the Governor, shall report to the Legislature such facts and recommendations concerning the claim as it deems proper.
(e) Upon the allowance by the Board of all or part of a claim for which a sufficient appropriation exists, and the execution and presentation of such documents as the Board may require which discharge the State, its officers, agents, servants and employees, of all liability under the claim, the Board shall designate the fund from which the claim is to be paid and the State agency concerned shall pay the claim from such fund.
NOTE
Additional authority cited: Section 915.4, Government Code.
HISTORY
1. New NOTE filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
§632.10. Board Action on Claims.
Note • History
(a) The Board of Control shall act on a claim presented in accordance with the rules within 45 days after the claim has been presented or, if the claim is amended, within 45 days after the amended claim is presented.
(b) Automatic Rejection. If the claim is not acted on by the Board within the time prescribed in this Section, the claim will be deemed rejected by the Board on the last day of the period within which the Board is required to act on the claim.
(c) Extension of Time. By written agreement, the claimant and Attorney General or other attorney authorized to represent the State may extend the period within which the State Board of Control is required to act on the claim. A copy of such written agreement shall be forwarded to the State board of Control by the Attorney General or other attorney authorized to represent the state.
NOTE
Additional authority cited: Section 911.6, Government Code.
HISTORY
1. New NOTE filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9)
§632.11. Settlement of Claims.
History
Where the claim is not covered by insurance the Attorney General on behalf of all state agencies, except the Department of Transportation, and the Director of the Department of Transportation on behalf of the Department of Transportation are authorized, subject to any instructions which may be issued by the Board from time to time, to investigate and recommend to the Board the disposition of all claims involving personal injury, wrongful death, and property damage.
The Attorney General on behalf of all state agencies except the Department of Transportation and the Director of the Department of Transportation are also authorized to adjust and pay all such claims where the settlement does not exceed one thousand dollars ($1,000) and where a sufficient appropriation exists, providing the Board is presented with a statement of the basis of the claim, the amount of the settlement, and the claimant's agreement therewith, and the Board approves such settlement.
Nothing contained herein shall preclude the Board from investigating a claim by assignment to the hearing officer or otherwise or from receiving recommendations from any other governmental agency.
HISTORY
1. Repealer and new section filed 8-19-64 as an emergency; designated effective 9-10-64 (Register 64, No. 18).
2. Certificate of Compliance filed 10-7-64 (Register 64, No. 20).
3. Amendment filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
Article 4.1. Payroll Claims
§633. Submission to State Personnel Board.
Note • History
All payroll claims shall be forwarded to the State Personnel Board at Sacramento.
NOTE
Authority cited: Section 19761, Government Code.
HISTORY
1. Renumbering of former article 6 to article 4.1 (sections 633-633.9) and renumbering of former section 650 to section 633 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
§633.1. Computing Salaries. Forwarding of Pay Roll Claims.
History
The State Controller shall not draw a warrant for payment of any claim for salaries and wages, other than statutory salaries, unless the State Personnel Board shall have certified that:
(a) All persons whose names appear upon such pay roll claims are holding positions as provided by the State Civil Service Act and the rules and regulations prescribed thereunder, and
(b) All items and amounts claimed thereon are in accordance with the current budgetary provisions as approved by the Department of Finance.
HISTORY
1. Renumbering of former section 651 to section 633.1 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
History
An employee whose salary is established on a monthly basis shall receive his monthly salary for any 21-day period in which he works 21 days or 168 hours, or for any 22-day pay period in which he works 22 days or 176 hours. For the purpose of computing the number of days or hours worked, time during which an employee is excused from working because of holidays, sick leave, vacation, compensating time off or other leave with pay shall be considered as time worked by the employee.
If an employee is required to work more than the normal amount of time in any pay period because his work schedule is other than five days a week, Monday through Friday, the extra time worked shall be credited the same as overtime. If such schedule requires him to work less than the normal amount of time, compensating time off shall be charged toward making up the deficiency.
An employee who is entitled to less than his full monthly salary for any pay period shall receive only that part of his monthly salary as the number of days he worked during the pay period bears to the total number of work days in the pay period.
HISTORY
1. Renumbering of former section 652 to section 633.2 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
§633.3. Preparation of Pay Roll Claims.
History
The pay roll presented for audit shall show:
(a) Where employees are paid on a monthly basis, the name, position occupied, period for which payment is made and the rate of pay. For example: John Smith, Carpenter, November 1-20, inclusive, at $150--$100.
(b) Where employees are paid on a per diem basis, the name, position occupied, number of days employed, dates and rate per day.
(c) Where employees are paid on an hourly basis, the name, position occupied, number of hours employed each day, dates, total number of hours employed and rate per hour.
(d) Where employees of the state colleges are engaged as supervising teachers, demonstration school teachers, or in extension class or summer session instruction, the name, position occupied, number of units taught, and rate per unit shall be shown.
(e) Where the State Personnel Board, in fixing compensation in accordance with prevailing rates of wages in the locality under Government Code Section 18853, has authorized subsistence, travel, or other allowance in addition to daily or hourly rate of pay, the type, rate and duration of allowance, locations and travel involved, and any other information necessary to establish entitlement and conformity with the authorization of the Personnel Board.
HISTORY
1. Renumbering of former section 653 to section 633.3 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
Note • History
(a) In accordance with Section 624, each pay roll claim shall contain a certificate reading as follows:
“I hereby certify under penalty of perjury:
“That I am the duly appointed, qualified and acting officer of the herein named state agency; that the within pay roll is correct; that the work for which payment is claimed was actually performed solely for the benefit of the State on the days and during the month specified; that the individuals whose names are set forth herein were employed in accordance with law to perform such services; that all the provisions of law governing such employment have been fully complied with; that each such individual is entitled to the amount set opposite his name, unless this is a claim for reimbursement of the departmental pay roll revolving fund, in which event each such individual was entitled to and has been paid the amount set opposite his name from such revolving fund; that all deductions made herein for purposes set forth in Sections 1156, 1156.1 and 13922, Government Code, are in conformity with written authorizations of the employees concerned on file in this office
“That the persons for whom payment is requested in this pay roll who have been appointed under emergency appointments or who hold positions excluded from the state civil service by Article XXIV of the State Constitution, have, in writing, declared themselves to be citizens of the United States.
“That the persons for whom payment is requested in this pay roll have taken, subscribed and filed the oaths, including the oath set forth in Section 3103 of the Government Code, required by law.
“That the totals of the schedules and of the within pay roll as presented are as set forth therein.”
(b) Each such claim shall also contain the following approval by the State Personnel Board:
“The persons named in the within pay roll are holding positions as provided in Article XXIV of the State Constitution, Sections 18570 to 19765, inclusive, Government Code, and the rules and regulations prescribed thereunder. All items and amounts claimed on the within pay roll are in accordance with the current budgetary provisions as approved by the Department of Finance. All persons named in the payroll who hold positions within the state civil service have declared themselves, in writing, to be citizens of the United States.
“The within payroll is hereby approved for payment with exceptions, if any, as noted.”
(c) Each such claim presented for reimbursement of the departmental pay roll revolving fund shall be marked “Pay Roll Revolving Fund.”
NOTE
Additional authority cited: Section 13920.1, Government Code.
HISTORY
1. Renumbering of former section 654 to section 633.4 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
§633.5. Salary Includes All Services. Acceptance of Fees by State Officers.
Note • History
The salaries fixed by law for all state officers, elective or appointive, shall be compensation in full for all services rendered in any official capacity or employment whatsoever, during their terms of office, and no such officer shall receive for his own use any fee or perquisite for the performance of any official duty.
NOTE
Authority cited: Section 18000, Government Code.
HISTORY
1. Renumbering of former section 655 to section 633.5 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
§633.6. Claims for Allowances Under Retirement System.
History
(a) In addition to the information required under Section 622, every claim for allowances under a retirement system shall show:
(1) The amount of the similar roll for the preceding period.
(2) All additions to and deletions from the roll for said preceding period, including adjustments, changes, and authorized deductions, together with the name of the respective payee affected by each thereof.
(3) The total amount of the roll, as thus adjusted.
(4) All entries shall be carried directly to the column showing the amount to be disbursed.
(b) In accordance with Section 624, each claim for payment of claims for allowances under a retirement system shall contain a certificate reading as follows:
“I hereby certify under penalty of perjury as follows:
“That I am the duly appointed, qualified and acting officer of the herein named retirement system. That the amount of the similar roll for the preceding period is truly and correctly set forth herein. That all proper additions to, and deletions from, said roll for the previous period (including all proper adjustments, changes, and deductions) are contained in the within schedules, and that the respective amounts and payees affected, and the totals, are true and correct as set forth herein. That retirement allowances and deductions therefrom are properly payable to each and all of the claimants as previously certified, as adjusted to and including the within schedules, and that such allowances (including amounts shown as deductions therefrom) are authorized in the amount, for the period, and to the respective payees, as indicated herein, under all laws and regulations governing the retirement system. That deductions for purposes set forth in Section 20135, Government Code are in conformity with written authorizations of the persons concerned. That I have not violated any of the provisions of Sections 1090 to 1096, inclusive, Government Code.
“That warrants drawn pursuant to this claim will be delivered to the respective claimants whose right to receive retirement allowances or deductions therefrom has been certified to the State Controller.”
(c) Claims for allowances under a retirement system are excepted from the requirements of Sections 650 to 655, inclusive.
(d) At the option of the State Controller, any claim for allowances under a retirement system may be filed and audited in accordance with Board of Control rules applicable but for the adoption of this section.
HISTORY
1. Renumbering of former section 656 to section 633.6 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history, see Register 87, No. 44.
§633.7. Pay Roll Claims Under Central Disbursement System.
Note • History
Upon determination by the State Controller of an effective date for any state agency in compliance with Section 12470 of the Government Code, such agency shall submit pay roll claims in the following form and manner, and the State Controller shall prepare and make direct payment of pay rolls for such state agency on the basis thereof.
(a) An original pay roll roster shall be presented at the outset, showing names, positions, rates of pay, and other pay roll information as prescribed by the State Controller, for all employees and approved established positions (filled and unfilled) of the agency. Every claim transmitting an original pay roll roster shall constitute a continuing claim for salary payments, subject to modification as in this section provided. In addition to the information required under Section 622 (excepting subsection (b) thereof), each claim transmitting an original pay roll roster shall contain a certificate in accordance with Section 624, reading as follows:
“I hereby certify under penalty of perjury as follows:
“That I am the duly appointed, qualified and acting officer of the herein named state agency. That the names, positions, amounts of salary payable, and other statements contained herein and in the attached documents, are true and correct. That the attached constitutes the `original pay roll roster' of the herein named state agency. That salary payments are properly and lawfully payable to every employee as certified herein, and that such salary payments are authorized each month from and after the effective date stated herein in the respective amounts and to the respective employees, as indicated, under all laws, rules, and regulations applicable, except as may be modified by pay roll roster change filed by this agency with the State Controller. That the individuals whose names are set forth herein are lawfully employed and all provisions of law governing such employment have been fully complied with. That all deductions listed herein for purposes set forth in Sections 1156, 1156.1 and 13922 (or 1153), Government Code, are in conformity with written authorizations of the employees concerned on file in this office. That the persons for whom payment is authorized herein have taken, subscribed and filed the oaths, including the oath set forth in Section 3103, Government Code, required by law and have in writing declared themselves to be citizens of the United States. That all positions included herein, whether filled or unfilled, have been properly established and approved by the State Personnel Board and Department of Finance, and are in conformity with current budgetary provisions.
“That I have not violated any of the provisions of Article 4 of Division 4 of Title 1 (Sections 1090 to 1097, inclusive) of the Government Code.”
(b) The state agency shall promptly notify the State Controller of every lawful addition to, deletion from, or change in the original pay roll roster, or of any exception to the normal pay amounts specified in such roster, with respect to any employee or position during any pay period. Such notification shall be by “pay roll roster change” filed with the Controller. Each pay roll roster change, when certified by an authorized person of the agency, shall constitute a continuing authorization to the Controller to modify the original pay roll roster in accordance therewith except as may be further modified in like manner. Each pay roll roster change shall contain the following certification:
“The foregoing additions to, deletions from, or changes in the original pay roll roster of the herein named state agency are true, correct, and in accordance with law. As modified to date by pay roll roster changes filed with the State Controller, to and including the within, said original pay roll roster is true, correct, and in accordance with law. All persons added to the pay roll roster, or whose status is modified, by this pay roll roster change were employed in approved established positions and have, if required by law, taken the oaths, including the oath set forth in Section 3103 Government Code.”
(c) The state agency shall submit, and each payroll prepared and paid by the State Controller under this section shall be supported by attendance reports from the agency in such form and manner as prescribed in the Uniform State Payroll System installed under Section 12470 of the Government Code.
(d) Certification to the State Controller by any state agency in the manner provided in (a) or (b), and (c), above, of the employment of any person, shall constitute authorization to the Controller to make salary payment of not to exceed one month's salary to such person without approval of the employment by the State Personnel Board. Subsequent salary payments shall not be made by the Controller to any such employee unless and until the employment has been approved by the State Personnel Board.
(e) Payroll claims under this section are excepted from the requirements of Sections 651, 653 and 654.
NOTE
Authority cited: Sections 13920 and 13921, Government Code.
HISTORY
1. Renumbering of former section 660 to section 633.7 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
§633.8. Agencies Not Included in Central Disbursement System.
Note • History
Any state agency or unit thereof which is not includable in the Uniform State Payroll System under Government Code Section 12470 may submit its payroll claims to the State Controller in the form and manner prescribed in Section 660. In such event:
(1) All appropriate forms, procedures and regulations adopted by the State Controller in connection with the operation of the Uniform State Payroll System are applicable.
(2) All provisions of Section 660 are applicable except that subdivision (d) thereof shall not apply, and each claim transmitting an original payroll roster shall contain the following certificate in lieu of the form of certificate prescribed in subdivision (a) of Section 660:
“I hereby certify under penalty of perjury as follows:
“That I am the duly appointed, qualified and acting officer of the herein named state agency. That the names, positions, amounts of salary payable, and other statements contained herein and in the attached documents, are true and correct. That the attached constitutes the `original payroll roster' of the herein named state agency. That salary payments are properly and lawfully payable to every employee as certified herein, and that such salary payments are authorized each month from and after the effective date stated herein in the respective amounts and to the respective employees, as indicated, under all laws, rules, and regulations applicable, except as may be modified by payroll roster change filed by this agency with the State Controller. That the individuals whose names are set forth herein are lawfully employed and all provisions of law governing such employment have been fully complied with. That all deductions listed herein for purposes set forth in Sections 12420 and 3922 (or 1153), Government Code, are in conformity with written authorizations of the employees concerned on file in this office. That the persons for whom payment is authorized herein have taken, subscribed and filed the oaths, including the oath set forth in Section 3103, Government Code, required by law and have in writing declared themselves to be citizens of the United States.
“That I have not violated any of the provisions of Article 4 of Division 4 of Title 1 (Sections 1090 to 1097, inclusive) of the Government Code.”
NOTE
Authority cited: Sections 13920 and 13921, Government Code.
HISTORY
1. Renumbering of former section 660.1 to section 633.8 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
§633.9. Payroll Deductions for Charitable Contributions.
Note • History
(a) Definitions
(1) California State Employees Charitable Campaign (CSECC): The annual fundraising campaign of State employees for charitable contributions through payroll deduction in State workplaces.
(2) Board: The Victim Compensation and Government Claims Board or VCGCB.
(3) Charity: An organization recognized as tax exempt under Section 23701(d) of the California Revenue and Tax Code and paragraph 3, subsection (c) of Section 501 of the United States Internal Revenue Code.
(4) Combined Fund Drive (CFD): A charitable organization as defined by (a)(3) above whose principal fundraising function is to conduct workplace fundraising campaigns on behalf of itself and multiple other affiliated charitable organizations.
(5) Principal Combined Fund Drive (PCFD): The CFD designated by the Board to conduct the annual CSECC campaign in a given geographic area.
(b) Any State officer or employee may authorize monthly deductions from his or her salary or wages for payment of charitable contributions, or make a one-time payment contribution through the PCFD authorized by the Board to manage the CSECC in the defined geographic area in which the employee works.
(c) In deciding whether a CFD will be selected as the PCFD to conduct the CSECC campaign in a given geographic area, the Board may consider, but is not limited to, the following factors:
(1) Whether the applicant is a California-headquartered, community-based CFD, as defined in (a)(3) and (a)(4) above with a demonstrated capacity to provide services to the geographic area in question.
(2) Whether the applicant has the demonstrated ability to coordinate with PCFDs in other geographic areas for consistent implementation of the campaign statewide.
(3) The number of local charitable organizations in the geographic area in question which are directly affiliated with the CFD.
(4) The number of dollars raised by the CFD and its affiliates in the geographic area in question through the most recently completed CSECC campaign.
(5) The percentage of administrative and fundraising costs the CFD proposes to deduct from contributions, not including State Controller fees.
(6) Whether there is any qualified CFD applying to be PCFD in a particular geographic area. If no qualifying organization is applying, the Board may offer the opportunity to be a PCFD to other qualifying organizations, taking into consideration geographic continuity and their ability to provide service in the service area in question.
(d) Applications submitted to the Board by CFDs proposing to manage the CSECC in a given geographic area shall be in the form prescribed by the Board and shall include the following:
(1) A copy of the Internal Revenue Services 501(c)(3) exemption letter stating that the organization is qualified as an exempt organization pursuant to section (a)(3) above.
(2) The names of the charitable organizations that are directly affiliated with the CFD.
(3) The defined CSECC geographic areas the CFD currently serves.
(4) A certification under penalty of perjury that the applicant is in compliance with the provisions of the Fair Employment Practice Act, Part 4.5, commencing with Section 1410, of Division 2 of the Labor Code. A separate certification shall be submitted by the PCFD for each of its affiliated charities.
(5) An agreement to transmit contributions, as designated by the employee, to any charitable organization qualified as an exempt organization pursuant to subsection (a)(3) above, less the fundraising and administrative costs approved by the Board and less the fees charged by the State Controller.
(6) An agreement to certify under penalty of perjury that the PCFD has distributed all charitable campaign funds from the prior year's CSECC campaign, less the Board-approved administrative and fundraising costs and less the State Controller fees, by no later than March 1st of the following year.
(7) A written justification for any combined fundraising and administrative costs above 14 percent exclusive of State Controller fees.
(8) An agreement that during the annual fund drive all State employees in the geographic area for which the PCFD is responsible will be provided with the following:
(A) A list, provided electronically or on paper, of charitable organizations approved by the Board for participation.
(B) A list, provided electronically or on paper, of all Board-approved PCFDs, the service areas they serve, and the administrative and fundraising costs they will charge to both affiliated and nonaffiliated organizations.
(C) Information regarding the costs charged by the State Controller pursuant to (D)(9) below and the costs charged by the Board pursuant to (i) below.
(D) A paper or electronic payroll deduction authorization form that enables State employees to contribute to any qualified charitable organization and that enables employees to make contributions through the Board-approved PCFD for the employee's work location.
(9) An agreement to pay, in the manner and time determined by the State Controller, the additional cost to the State of making deductions and remitting the proceeds.
(10) Such other provisions deemed necessary by the Board or the State Controller.
(e) Charitable organizations or CFDs which are not affiliated with a PCFD may apply to the Board for inclusion on the listing of approved non-affiliated organizations which all PCFDs are required to provide to each employee solicited. Such applications shall be in the form prescribed by the Board and shall include the following:
(1) The name of the organization.
(2) If a CFD, the names of the charitable organizations that are directly affiliated with it.
(3) If the organization does not provide services statewide, the boundaries of the geographic area in which the organization provides services.
(4) If a CFD, the defined CSECC geographic area(s) it currently serves.
(5) An agreement that the PCFD processing the employee contribution shall deduct the Board-approved administrative and fundraising costs and the State Controller fees from the contribution(s) before forwarding the contribution(s) to the non-affiliated organization.
(6) A copy of the Internal Revenue Services 501(c)(3) exemption letter stating that the organization is qualified as an exempt organization pursuant to subsection (a)(3) above.
(7) A certification under penalty of perjury that the organization is in compliance with the provisions of the Fair Employment Practice Act, Part 4.5, commencing with Section 1410 of Division 2 of the Labor Code.
(8) Such other provisions deemed necessary by the Board or the State Controller.
(f) All organizations recognized pursuant to subsections (d) and (e) shall be included in the listing in subsequent fund drives upon notification to the Board, at least 90 days before the commencement of each annual fund drive, certifying that the organization's status and conditions of approval remain the same as indicated in the original application.
(1) The Board shall send or cause to be sent preprinted or electronic application forms to all organizations annually.
(2) Organizations not directly affiliated with a PCFD or other CFD shall return their forms to the Board; affiliated organizations shall return their forms to the PCFD or CFD with which they are affiliated.
(g) Procedures for payroll deductions for charitable contributions will include the following:
(1) Employee authorization must be on the form prescribed by the State Controller, signed by the officer or employee, and submitted to his or her employing agency's authorized internal campaign committee, which shall then forward it to the PCFD to review, verify, and enter the information into its pledge processing database and then forward the authorizations to the State Controller or other State payroll office.
(2) New monthly deductions may be authorized in any amount of $5.00 or more.
(3) State officers or employees may cancel or modify current deductions for charitable contribution upon notice to the State Controller in the format required by the Controller.
(4) An authorization or cancellation shall not be effective for any payroll period unless received in sufficient time for the State Controller to process and enter or cancel the deduction on the payroll for that period.
(5) The State Controller may combine authorized deductions for employee association dues and authorized charitable deductions in his or her records.
(h) A PCFD must obtain Board approval prior to implementing any modifications to its agreement with the Board.
(i) The Board's program costs will be prorated based on how much money was raised in each PCFD service area during the most recent CSECC campaign. There will be no charge to any PCFD with a total annual amount raised less than $1,500. The percentage will be adjusted annually based on the prior year's total funds raised in all PCFD service areas combined.
(j) The Board may terminate the participation of any PCFD or charitable organization that fails to comply with the requirements of Government Code section 13923 and this section or its agreement with the Board.
(1) The Board shall notify a PCFD in writing of the Board's intent to terminate the PCFD's participation.
(2) A PCFD so notified shall have 30 calendar days to file an appeal to the Board. The Board shall hear the appeal at a regularly scheduled Board Meeting. All parties shall be notified of the hearing at least 30 calendar days in advance.
(k) If the Board terminates the participation of a PCFD for an area during a campaign year, the Board shall authorize another qualified CFD to act as PCFD for that area for the remainder of the year. The designated PCFD shall be entitled to charge the same administrative and fundraising cost approved by the Board for its primary service area.
(l) If a CFD organization ceases to be a PCFD, whether voluntarily or pursuant to (j) above, that organization shall forward all donor designation information from prior campaigns to the successor PCFD within 30 days of cessation.
NOTE
Authority cited: Section 13923, Government Code. Reference: Section 13923, Government Code.
HISTORY
1. Renumbering of former section 663 to section 633.9 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
2. Amendment filed 6-30-2011; operative 7-30-2011 (Register 2011, No. 26).
Article 4.2. State Contributions Under State Employees' Medical and Hospital Care Act
Note • History
(a) Authorization for contributions by the State under the State Employees' Medical and Hospital Care Act shall be certified to the State Controller as follows:
“I hereby certify under penalty of perjury as follows:
“That I am the duly appointed, qualified and acting officer of the herein named state agency; that the foregoing action is in accordance with the provisions of Part 5, Division 5 of Title 2 of the Government Code; that payment by the State as provided by Sections 22825 and 22827 through 22829, inclusive, of the Government Code is hereby approved.”
(b) Upon certification of any payroll roster change which may or may not affect cancellation of enrollment under the State Employees' Medical and Hospital Care Act, authorization for contributions by the State shall be certified to the State Controller as follows:
“Payment by the State when required under Sections 22825 and 22827 through 22829, inclusive, of the Government Code is hereby approved.”
(c) Each authorization shall constitute a continuing claim for payment of the State's contribution until modified by a subsequent authorization filed with the State Controller pursuant to this section.
(d) Claims for these payments are exempt from Sections 622, 623, and 650 through 655, inclusive.
NOTE
Authority cited: Sections 13920 and 13921, Government Code.
HISTORY
1. Renumbering of former article 6.1 to article 4.2 (section 634) and renumbering of former section 664 to section 634 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51). For prior history of article 4.2 (sections 636-636.3), see Register 87, No. 44.
Article 5. Claims of Persons Erroneously Convicted of Felonies
Note • History
Claims on behalf of persons erroneously convicted of felonies shall be filed on an “Erroneously Convicted Person Claim Form,” Rev. September 2011, hereby incorporated by reference, and provided by the Board or obtained on the Board's website.
(a) Claimants must include an original and one copy of the following:
(1) claim form, and;
(2) supporting documentation
(b) Upon receipt of a claim, the Board will provide the copy of the claim and one (1) copy of the supporting evidence and documentation to the California Attorney General. The Attorney General may offer evidence in support of or in opposition to the claim. If the Attorney General provides any evidence to the Board, it shall also provide a copy to the Claimant.
(c) Pecuniary injury may be established by showing that: the claimant was gainfully employed prior to being incarcerated; the claimant could have been gainfully employed if not for being incarcerated; or by other evidence showing that, as a result of being incarcerated, the claimant suffered a monetary loss.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 4900-4906, Penal Code.
HISTORY
1. Amendment filed 1-11-60; designated effective 3-1-60 (Register 60, No. 2).
2. Amendment filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
3. Editorial correction of History 2 (Register 2010, No. 44).
4. Change without regulatory effect amending first paragraph filed 6-7-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 23).
5. Amendment of first paragraph filed 1-31-2012; operative 3-1-2012 (Register 2012, No. 5).
§641. Evidence in Support of Claim.
Note • History
(a) In reaching its determination of the merits of the claim, claimant's denial of the commission of the crime; reversal of the judgment of conviction; acquittal of claimant on retrial; or, the decision of the prosecuting authority not to retry claimant for the crime, may be considered by the Board but will not be deemed sufficient evidence to warrant the Board's recommendation that claimant be indemnified in the absence of substantial independent corroborating evidence that claimant is innocent of the crime charged.
(b) The Board may consider as substantive evidence the prior testimony of witnesses claimant had an opportunity to cross-examine, and evidence admitted in prior proceedings for which claimant had an opportunity to object.
(c) All relevant evidence shall be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.
(d) Evidence that qualifies under subdivision (c) may be admitted even though there is a common law or statutory rule which might make its admission improper over objection in any other proceeding.
(e) Objections to and arguments about evidence may be considered when determining the weight to be given to the evidence.
(f) The Board may also consider any other information that it deems relevant to the issue before it.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 4900-4906, Penal Code.
HISTORY
1. New section filed 4-7-71 as an emergency; effective upon filing (Register 71, No. 15).
2. Amendment filed 8-4-71 as an emergency; effective upon filing. Certificate of Compliance included (Register 71, No. 32).
3. Amendment of section heading and section filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
4. Editorial correction of History 3 (Register 2010, No. 44).
Note • History
(a) Claims that are untimely or are otherwise not in compliance with Penal Code sections 4900 and 4901 will be rejected and will not be heard or considered by the Board.
(b) Prior to denying a hearing for failure to timely file a claim or for failure to state facts constituting a claim under Penal Code sections 4900 and 4901, the claimant shall be:
(1) notified of the reason for rejecting the claim and,
(2) given thirty (30) calendar days to present evidence that will overcome the rejection.
(c) If the claimant's response provides sufficient evidence to prove that the claim was timely filed and is otherwise compliant with the requirements of Penal Code sections 4900 and 4901, the claim will be timely scheduled for a hearing.
(d) If the claimant's response does not provide sufficient evidence to prove that the claim was timely filed and is otherwise compliant with the requirements of Penal Code sections 4900 and 4901, the claim will be rejected without a hearing and will not be considered by the Board.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 4900-4906, Penal Code.
HISTORY
1. New section filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
2. Editorial correction of History 1 (Register 2010, No. 44).
Note • History
(a) The hearing officer may conduct a pre-hearing conference in person or by electronic means.
(b) The parties shall receive reasonable notice of the time and location of a pre-hearing conference.
(c) A pre-hearing conference may address any of the following:
(1) clarification of issues;
(2) identity of witnesses;
(3) exchange of witness lists;
(4) limitation of the number of witnesses;
(5) limitation of the scope of a witness' testimony;
(6) limitation of time allocated to a party's presentation of evidence;
(7) limitation of time allocated to a party's cross-examination of witnesses;
(8) exchange of exhibits;
(9) objections to evidence;
(10) order of presentation of evidence;
(11) order of cross-examination of witnesses;
(12) stipulations;
(13) pre-hearing motions; and
(14) any other matters that will promote the orderly and efficient conduct of the hearing.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 4900-4906, Penal Code.
HISTORY
1. New section filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
2. Editorial correction of History 1 (Register 2010, No. 44).
Note • History
(a) Hearings shall be open to public observation, unless otherwise provided by law.
(b) Hearings will be conducted in Sacramento unless the Board agrees to an alternative location.
(c) The claimant has the burden of proof on all issues necessary to establish eligibility.
(1) The standard of proof is a preponderance of the evidence.
(d) The parties shall present evidence in the following order:
(1) the claimant;
(2) the Attorney General;
(3) the claimant, if he or she desires to offer any evidence or testimony to rebut the Attorney General's evidence or argument.
(e) The hearing officer may determine the amount of time allotted to present a claim for compensation. The determination made under this subsection shall be based on the following factors:
(1) complexity of legal or factual issues;
(2) necessity to evaluate credibility of witnesses for a proper determination of issues;
(3) parties' representation by legal counsel;
(4) necessity of witnesses being subject to cross examination for the proper determination of issues; and
(5) any other factor likely to affect a just and proper determination of issues.
(f) If a claimant fails to appear at the hearing or fails to proceed, the Board may base its decision on previously submitted evidence.
(g) A party that requests that all or part of a hearing be conducted by electronic means under California Code of Regulations section 617.4 may be responsible for providing, operating, and paying for all necessary equipment.
(h) The hearing will be recorded by electronic means at the expense of the Board.
(i) Any party may request the Board to arrange for the preparation of a hearing transcript. The party requesting the preparation of a hearing transcript shall bear all costs for its preparation and shall provide one copy of the transcript to the Board at no cost to the Board.
(j) The hearing officer may allow or request the parties to submit post-hearing briefs.
(1) Post-hearing briefs shall be limited to legal and factual arguments related to relevant issues under section Penal Code sections 4900 et seq. or identified by the hearing officer.
(2) The hearing officer shall inform the parties of the deadline for the submission of a post-hearing brief.
(k) In a hearing in which post-hearing briefs were not allowed or permitted, the hearing record shall be closed upon the conclusion of testimony and presentation of any oral argument by the parties, unless the hearing officer orders otherwise.
(l) In a hearing in which post-hearing briefs were allowed or permitted, the hearing record shall close at the deadline for the submission of post-hearing briefs, unless the hearing officer orders otherwise or grants an extension.
(m) No argument will be considered by the hearing officer after the close of the hearing record, except as allowed in California Code of Regulations section 619.4, unless the hearing officer orders otherwise.
(n) The hearing officer retains the discretion to reopen the hearing record for good cause.
(o) The formal hearing provision of the Administrative Procedure Act (Government Code §§11500-11529) do not apply.
(p) If there is any inconsistency or conflict between the provisions of California Code of Regulations Article 2.5 and this article, the provisions of this article shall apply.
(q) At the request of the claimant, the Attorney General, or other interested party, the Board will provide information about the hearing rules and procedures.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 4900-4906, Penal Code; Diola v. Board of Control (1982) 135 Cal.App.3d 580, 588, fn 7; and Tennison v. Victim Compensation and Government Claims Board (2007) 152 Cal. App. 4th 1164.
HISTORY
1. New section filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
2. Editorial correction of History 1 (Register 2010, No. 44).
§645. Proposed Decision by Hearing Officer.
Note • History
(a) The hearing officer shall take the matter under submission at the conclusion of the hearing.
(b) The hearing officer shall prepare a proposed decision that is written and contains a statement of the factual and legal bases for the proposed decision.
(c) If the factual basis for the proposed decision includes a determination based substantially on the credibility of a witness, the proposed decision shall identify specific evidence that supports the credibility determination, which may include but is not limited to demeanor, manner or attitude.
(d) The proposed decision shall be based on evidence in the hearing record and on matters subject to official notice under California Code of Regulations section 617.8.
(e) The hearing officer may use relevant experience, technical competence and specialized knowledge to evaluate the evidence.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 4900-4906, Penal Code.
HISTORY
1. New section filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
2. Editorial correction of History 1 (Register 2010, No. 44).
§646. Claims of Sheriffs. [Repealed]
History
HISTORY
1. Amendment filed 10-9-53 as an emergency; designated effective 1-1-54 (Register 53, No. 18).
2. Repealer filed 5-19-67; designated effective 7-1-67 (Register 67, No. 20).
Article 5.2. Hearings for Indemnification of Citizens Benefiting the Public and Indemnification of Victims of Crime
Subarticle 1. General Provisions
§647. Time for Presenting Claims. [Renumbered]
Note • History
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13970, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647 to new section 648.1 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
Note • History
(a) This article applies to:
(1) an application for assistance to the Victim Compensation Program under Government Code sections 13950-13966;
(2) an application for assistance as a minor witness under Government Code section 13957(a)(2)(B)(iii); and
(3) an application for indemnification by persons benefiting the public under Government Code sections 13970-13974.1.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13959 and 13973, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.1 to new section 648.2 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
2. New article 5.2 (sections 647.1-647.37), subarticle 1 (sections 647.1-647.3) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
3. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
4. Change without regulatory effect amending subsection (a) and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
5. Amendment of subsection (a)(1), new subsection (a)(2) and subsection renumbering filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Note • History
(a) The formal hearing provisions of the Administrative Procedure Act (Gov. Code, §§11500-11529) do not apply.
(b) The alternative dispute procedures of the Administrative Procedure Act (Gov. Code, §§11420.10-11420.30) do not apply.
(c) The declaratory decision provisions of the Administrative Procedure Act (Gov. Code, §§11465.10-11465.70) do not apply.
(d) If there is any inconsistency or conflict between the provisions of California Code of Regulations, title 2, article 2.5 and this article, the provisions of this article shall apply to the applications stated in section 647.1.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11420.10(c), 11425.10(a)(2), 11465.70(c), 13959 and 13973, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.2 to new section 648.3 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
2. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
3. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
4. Change without regulatory effect amending Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
5. Amendment of section heading, section and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Note • History
(a) As used in this article:
(1) “Attorney” shall mean an active member of the California Bar; and
(2) “Applicant” means a person submitting an application as defined in subsection (a)(3);
(3) “Application” means the following:
(A) an application for assistance or a supplemental claim to the Victim Compensation Program under Government Code sections 13950-13966;
(B) an application for assistance as a minor witness under Government Code section 13957(a)(2)(B)(iii); or
(C) an application for indemnification by persons benefiting the public under Government Code sections 13970-13974.1.
(4) “Hearing” means an evidentiary proceeding for the determination of facts upon which the Board makes its decision;
(5) “Hearing officer” means a person appointed by the Executive Officer to preside at a hearing;
(6) “Shall” means the action or conduct is mandatory.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13952(d), 13957.7(g), 13959 and 13973, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.3 to new section 648.4 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
2. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
3. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
4. Change without regulatory effect amending subsection (a)(1) and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
5. Amendment filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.4. Consideration of Applications and Supplemental Claims.
Note • History
(a) Following the verification process, VCP staff shall make a recommendation to the Board regarding the application or supplemental claim. Staff may recommend that the Board allow the application or supplemental claim, deny the application or supplemental claim, or allow the application or supplemental claim in part and deny the application or supplemental claim in part.
(b) In the event that VCP staff recommends denial of an application or supplemental claim in whole or in part, the staff of VCP shall prepare a notice of staff recommendation. Such notice shall include a statement as to why the matter is recommended for denial and shall be mailed to the affected applicant and his or her representative at their last known address of record. The notice shall inform the applicant and his or her representative of the right to a VCP hearing and how to request a hearing.
(c) If the VCP staff recommends denial of an application or supplemental claim in whole or in part, the applicant has 45 calendar days from the date of the mailing of the notice of the staff recommendation to request in writing that the matter be set for hearing to contest the staff recommendation. All written requests for hearing shall be mailed or delivered to the headquarters office of the VCP in Sacramento, California, the address for which shall be provided on this notice.
(d) Nothing in this section shall be construed to prevent an applicant or his or her representative from communicating with VCP staff during the period between notice of the staff recommendation and the date of hearing in order to supply additional information. Nothing in this section shall be construed to prevent VCP staff from amending the initial recommendation where additional documentation or information provides the necessary evidence to recommend approval of an application or supplemental claim.
NOTE
Authority cited: Section 11400.20, 13920 and 13974, Government Code. Reference: Sections 13956, 13958 and 13959, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.20 to new section 647.4 and amending section filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45). For prior history of section 647.4, see Register 97, No. 41.
2. Amendment of section heading and section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of subsection (a) and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
4. Amendment of subsection (b) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§647.5. Duty to Furnish Correct Address.
Note • History
(a) An applicant shall inform the Board of the applicant's correct address.
(b) A representative of an applicant shall inform the Board of the representative's correct address.
(c) An applicant or representative of an applicant shall promptly inform the Board of any change of address of the party or representative.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code; Reference: Sections 13959 and 13973, Government Code.
HISTORY
1. New section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Subarticle 2. Pre-Hearing Procedure
Note • History
(a) An applicant may request a hearing to contest any of the following actions:
(1) a staff recommendation that the Board deny an application because there is not good cause for the late filing of an application;
(2) a staff recommendation that the Board deny, in whole or in part, an application or supplemental claim; and
(3) a staff determination that an applicant should reimburse the Program for an overpayment of benefits.
(b) An applicant does not have a right to a hearing where benefits are approved and the applicant's sole objection is to the rates and limitations set by the Board.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13957.2(a), 13959, 13965 and 13973, Government Code.
HISTORY
1. New subarticle 2 (sections 647.20-647.25) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending subsections (a)(1) and (a)(3) and amending Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment of section and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.20.1. Hearing on the Written Record for Failure to State Basis to Grant Relief.
Note • History
(a) The Executive Officer or Hearing Officer may limit a hearing to the written record if the request for a hearing fails to state a basis upon which the applicant may be granted relief.
(b) Prior to making a determination that the hearing will be limited to the written record, the applicant shall be:
(1) notified that the request fails to state a basis upon which the applicant may be granted relief; and
(2) given thirty (30) calendar days to submit written materials that either refute the reason for the denial, or show that there is a basis upon which relief may be granted.
(c) If applicant fails within thirty (30) calendar days to show that there is a basis upon which relief may be granted, the Executive Officer or Hearing Officer shall write a proposed decision based upon the written record.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13959 and 13973, Government Code.
HISTORY
1. New section filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
2. Change without regulatory effect amending Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
3. Amendment of section heading and section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Note • History
(a) The Board shall send a notice to the applicant and, if applicable, to the applicant's representative of the following:
(1) the date, time and location of the hearing;
(2) notice that the hearing will be conducted electronically, if applicable; and
(3) information about how to request a copy of the hearing procedures.
(b) A notice of hearing shall be sent at least 20 calendar days before the start of the hearing.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11445.30, 13959 and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending section and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Repealer and new section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.22. Information About Hearing Procedures.
Note • History
The Board shall provide information about the hearing rules and procedures upon request to applicants and representatives.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11425.10(a)(2), 13959 and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending section and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment of section heading and section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.23. Representation of Applicant.
Note • History
(a) A representative shall provide written disclosure to an applicant if the person represents any other person or entity with a financial interest in the outcome of the application.
(1) The applicant must provide written acknowledgment of receiving the disclosure and written consent to the representation.
(2) The representative's written disclosure and the acknowledgment and consent shall be available upon request by the Board, Board staff, or the hearing officer.
(3) A person who does not have a written disclosure, acknowledgment of disclosure and consent to representation as required by this section shall be prohibited from representing an applicant at a hearing.
(b) No person shall charge, receive or collect any amount from an applicant for services rendered in connection with any proceeding under this article except as provided in Government Code section 13957.7(g).
(c) The Board shall not pay any fees for representation by a person who is not an attorney.
(d) An attorney shall not recover any attorney fees for representing himself or herself.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13959, 13957.7(g) and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending section and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. New subsection (d) filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.24. Access to Application Information.
Note • History
(a) A representative may receive access to personal information about an applicant in connection with a hearing if:
(1) the applicant authorizes it in writing;
(2) an original authorization is submitted to the Board;
(3) the applicant is entitled to have access to the information; and
(4) access is authorized by Government Code section 13954(d), if applicable.
(b) Written authorization under this section must include:
(1) the name, address and phone number of the applicant;
(2) the name, address and phone number of the representative;
(4) the signature of the applicant;
(5) the date on which the authorization was signed;
(6) a description of the information or documents that are authorized to be released; and
(7) an expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure.
(c) “Personal information” shall have the same meaning as in Civil Code section 1798(a).
(d) Members of the public may not inspect applications or application materials that may be withheld under the Public Records Act, Government Code section 6250-6270 unless the inspection or disclosure is authorized by this section or pursuant to a court order.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13952(d), 13959 and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending subsection (a)(2) and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment of subsections (a)(4) and (b)(7), repealer of subsection (c), subsection relettering, and amendment of newly designated subsection (d) and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.25. Hearing by Electronic Means.
Note • History
(a) The Board or hearing officer may conduct all or part of a hearing by telephone, videoconference, or other simultaneous electronic means if the applicant:
(1) has an opportunity to participate; and
(2) has an opportunity prior to the hearing to request copies of the documentation that is considered by the hearing officer.
(b) If an applicant objects to having a hearing conducted by telephone, videoconference or other electronic means, the Board must receive the objection no less than 10 calendar days before a scheduled hearing. If an applicant objects to having a hearing by electronic means, the hearing shall be rescheduled to take place in person in a location as convenient to the applicant as is practical and the applicant shall receive a notice stating the new date, time, and location of the hearing.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Section 11440.30, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Repealer and new section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.26. Request for Continuance.
Note • History
(a) A request for a continuance of a hearing must be in writing and submitted to the Executive Officer as soon as the need for the request is known to the party.
(b) A request for a continuance that is made less than ten calendar days prior to the date of the hearing may be granted only if good cause exists.
(c) A request for a continuance cannot be based on the applicant or representative's cellular phone not functioning at the time of a hearing that is being conducted by telephone.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13959 and 13973, Government Code.
HISTORY
1. New section filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
2. Change without regulatory effect amending Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
3. Amendment of subsection (b) and new subsection (c) filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Subarticle 3. Hearing Procedure
Note • History
(a) The Executive Officer or hearing officer shall determine whether the hearing shall:
(1) be based upon the written record, by electronic means, or in person; or
(2) include oral evidence taken under oath or affirmation in a hearing.
(b) If the hearing officer determines that oral evidence will be taken, any oral evidence shall be audio recorded.
(c) No additional evidence or argument shall be considered as a part of the hearing after the hearing record is closed by the hearing officer. The hearing officer retains the discretion to re-open the record, if necessary.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11445.10(a), 11445.20(c), 13959 and 13973, Government Code.
HISTORY
1. New subarticle 3 (sections 647.30-647.37) and section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending subsection (c) and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Note • History
(a) The technical rules of evidence relating to evidence and witnesses shall not apply.
(b) The Board or hearing officer shall control the taking of testimony and evidence in any manner suited to learning the relevant facts and safeguarding the rights of the parties, including the limitation or exclusion of:
(1) repetitious evidence;
(2) irrelevant evidence;
(3) evidence that is tangential to the issues to be determined;
(4) evidence that is of limited probative value; or
(5) evidence that is unreliable.
(c) The Board or hearing officer may rely on evidence that is:
(1) reliable; and
(2) the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule that might make improper the admission of the evidence over objection in a civil action.
(d) The Board or hearing officer may rely on written reports and other information received from the law enforcement agency or other governmental agency responsible for investigating the crime.
(e) The Board or hearing officer may review and consider:
(1) the application for assistance;
(2) the report and recommendation of staff;
(3) evidence obtained by staff;
(4) evidence submitted by the applicant;
(5) testimony provided by the applicant; and
(6) testimony provided by witnesses.
(f) The Board or hearing officer may take official notice of the following:
(1) the Board 's written policies;
(2) those matters which must be judicially noticed by a court under Evidence Code section 451;
(3) those matters which may be judicially noticed by a court under Evidence Code section 452.
Evidence Code sections 455 and 459, subdivisions (c) and (d) shall not apply.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11425.10(a)(1), 11425.50(c), 13959(e) and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending subsections (b), (d), (e) and (f) and amending Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment of section and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Note • History
(a) The applicant shall have the burden of proof on all issues necessary to establish eligibility.
(b) The Board shall have the burden of proof on all issues necessary to disqualify an applicant under Government Code section 13956, subsections (a), (b), or (c).
(c) The standard of proof is a preponderance of the evidence.
(d) If there is insufficient evidence that the crime identified in the application occurred, the application may still be considered eligible if there is a preponderance of evidence that a qualifying crime occurred to the victim, even if it is not the crime for which the application was submitted.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13959(e) and 13973, Government Code; and Graham v. State Board of Control (1995) 33 Cal.App.4th 253, 39 Cal.Rptr.2d 146.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending subsection (b) and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. New subsection (d) filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Note • History
(a) A hearing based upon an application under Government Code sections 13950-13966 shall be closed to the public unless the applicant or the applicant's representative requests that the hearing be open to the public.
(b) The Board or hearing officer shall not exclude:
(1) Board members;
(2) the hearing officer;
(3) Board staff;
(4) the applicant;
(5) a minor applicant's parents or guardians;
(6) the applicant's representative;
(7) witnesses during their testimony;
(8) translator or interpreter; and
(9) other persons of the applicant's choice to provide assistance to the applicant during the hearing.
(c) The Board or hearing officer may exclude an applicant, representative, or witness if the individual is threatening, abusing, or harassing the Board member, the hearing officer, or others.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 6254.17, 11125.8, 11425.20, 13954(d) and 13959, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending section and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment of section and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.34. Copies of Submitted Materials. [Repealed]
Note • History
NOTE
Authority cited: Sections 11400.20, 13920, 13968(a) and 13974, Government Code. Reference: Sections 13963 and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Repealer filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.35. Failure to Appear or Proceed.
Note • History
(a) If an applicant or representative either fails to appear at a hearing, or fails to proceed, the Board or hearing officer may base its decision on any material listed in section 647.31(e)(1)-(4).
(b) If an applicant does not answer the telephone at the time of a scheduled telephone hearing, the Board or hearing officer may base its decision on any material listed in section 647.31(e)(1)-(4).
(c) If an applicant or representative's cellular telephone stops working during a scheduled telephone hearing and the hearing officer is unable to reach the applicant or representative by telephone, the hearing will be based on the material in the record up to that point in time.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 13959(e) and 13973, Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
3. Change without regulatory effect amending section and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
4. Amendment filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.36. Proposed Decision by Hearing Officer.
Note • History
(a) The hearing officer may take the matter under submission at the conclusion of the hearing.
(b) The hearing officer shall prepare a proposed decision that is:
(1) written; and
(2) contains a statement of the factual and legal bases for the decision.
(c) If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the decision shall identify any specific evidence of the demeanor, manner or attitude of the witness, or other facts that support the credibility determination.
(d) The decision shall be based on evidence in the hearing record and on matters subject to official notice under section 647.31.
(e) The Board members or hearing officer may use relevant experience, technical competence and specialized knowledge to evaluate the evidence.
(f) The proposed decision shall be submitted to the Executive Officer.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11425.10(a)(6), 11425.50 and 13959, Government Code.
HISTORY
1. New section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32). For prior history, see Register 2008, No. 45.
§647.37. Notice and Public Comment on Proposed Decision.
Note • History
Section 619.4 shall not apply to hearings under this article.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Section 11125.7(d), Government Code.
HISTORY
1. New section filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§647.37.1. Action on Proposed Decision by Board.
Note • History
(a) The Executive Officer shall schedule consideration of a hearing officer's proposed decision on the agenda of a Board meeting.
(b) The Board shall deliberate regarding the proposed decision in a closed session.
(c) The Board may take any of the following actions concerning the proposed decision:
(1) adopt the proposed decision in whole or in part;
(2) reject the proposed decision in whole or in part; or
(3) defer decision and request the hearing officer to address specific issues or obtain additional information.
(d) If the Board rejects the proposed decision in whole or in part, it may take any of the following actions:
(1) decide the case itself after reviewing the record, including a transcript of the hearing;
(2) decide the case itself based upon a statement of facts agreed to by the parties;
(3) decide the case itself by conducting a hearing to take additional evidence or argument;
(4) order the hearing officer to take additional evidence or argument; or
(5) order the hearing officer to address specific issues in the proposed decision.
(e) If the Board rejects the proposed decision in whole or in part and orders a hearing officer to take additional evidence under subsection (d)(4), or respond to specific issues under subsection (d)(5), the hearing officer:
(1) shall take additional evidence as directed by the Board or as necessary in the hearing officer's discretion; and
(2) shall prepare a proposed decision as required by section 647.36.
(f) If the Board remands the matter to a hearing officer under subsection (d)(4) or (d)(5), it shall be returned to the hearing officer who prepared the proposed decision, if practicable.
(1) If the hearing officer who prepared the proposed decision is not reasonably available, the Executive Officer may assign it to another hearing officer.
(2) If the matter is assigned to another hearing officer, the new hearing officer shall review the entire record, including a transcript, before taking additional evidence.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Sections 11125.8, 11126(c)(3), 13959 and 13973, Government Code.
HISTORY
1. New section filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
§647.38. Requests for Reconsideration.
Note • History
Requests for reconsideration filed by applicants or their representatives in accordance with Section 13959(i) of the Government code shall be accepted by the Board only after the Board has acted on the application or supplemental claim at a hearing following a notice of staff recommendation to the Board to deny or deny in part. Requests for reconsideration shall not be granted unless the applicant produces to the Board new and additional evidence not reasonably available to the applicant at the time of the hearing. Nothing in this section shall be construed to prevent the Board from granting reconsideration on its own motion.
NOTE
Authority cited: Section 13974, Government Code. Reference: Sections 13954, 13956, 13959 and 13960, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.21 to new section 647.38 and amending section filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
2. Amendment of section and Note filed 8-3-2009; operative 9-2-2009 (Register 2009, No. 32).
Article 5.5. Indemnification of Citizens Benefiting the Public
§648.1. Time for Presenting Claims.
Note • History
There shall be presented to the Board all claims filed by citizens who have benefited the public through their actions as “good Samaritans” to the people around them. A claim filed under this article shall be presented to the Victim Compensation and Government Claims Board no later than one year after occurrence of the injury or damage. A claim filed after such shall not be considered unless the Board determines that, for good sufficient reason, the claim was not filed within said period.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13970, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647 to new section 648.1 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
2. Change without regulatory effect amending section filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
Note • History
All claims shall be filed in duplicate, shall be signed and verified by the claimant, or claimant's parent or guardian if claimant is a minor, and shall state the facts constituting the claim in simple, concise language. In the event the claim is filed on behalf of the claimant by a law enforcement or public safety agency, the claim shall be signed by such agency and need not be verified.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13970, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.1 to new section 648.2 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
Note • History
All claims or amendments filed with the Victim Compensation and Government Claims Board under this article shall be filed on forms, (identified as Form BC-VOC-100--APPLICATION FOR VICTIM OF CRIME COMPENSATION), provided by the Board.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13952, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.2 to new section 648.3 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
2. Change without regulatory effect amending section and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
Note • History
A claim for indemnification will not be allowed if the crime prevented, or the crime committed by the criminal was against the person or property of the person who prevented the crime, apprehended the criminal, or who substantially and materially assisted a peace officer for this purpose.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13973, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.3 to new section 648.4 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
Note • History
The maximum amount of any claim the Victim Compensation and Government Claims Board shall approve for payment shall not exceed the amount necessary to indemnify or reimburse the claimant for:
(a) The actual value of property damaged or destroyed, or the cost of repairing such property.
(b) Necessary expenses incurred for hospitalization or medical treatment, loss of wages, or other necessary expenses directly related to the injury or death. If continued hospitalization or medical treatment is necessary, a partial award may be made and the claim subsequently reconsidered for the purpose of recommending an additional award.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13957(a), Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.4 to new section 648.5 filed 10-10-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 41). For prior history, see Register 87, No. 41.
2. Change without regulatory effect amending first paragraph and Note filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
§648.6. Issues for Hearing on Application to Indemnify Citizens Benefiting the Public.
Note • History
(a) An applicant must prove all of the following:
(1) the nature of the crime committed by the apprehended criminal or prevented by the action of the applicant; or
(A) the nature of the action of the applicant in rescuing a person in immediate danger of injury or death as a result of fire, drowning, or other catastrophe; and
(B) the circumstances involved;
(2) the applicant's action substantially and materially contributed to:
(A) the apprehension of a criminal;
(B) the prevention of a crime; or
(C) the rescue of a person in immediate danger of injury or death due to fire, drowning, or other catastrophe;
(3) as a direct consequence of subdivision (a)(2), the applicant suffered:
(A) personal injury;
(B) property damage; or
(C) death; and
(4) the extent of the injury or damage under subdivision (a)(3) for which applicant was not compensated from any other source.
NOTE
Authority cited: Sections 11400.20, 13920 and 13974, Government Code. Reference: Section 13973, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 647.36 to new section 648.6 filed 11-3-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 45).
Article 5.6. Indemnification of Victims of Crime
Note • History
(a) As used in this article:
(1) “Applicant” means a person submitting either an application as defined in subsection (a)(2) or a supplemental claim as defined in subsection (a)(23).
(2) “Application” means an initial application for assistance to the Victims of Crime Program (VCP) under Government Code sections 13950-13974.5.
(3) “Board” means the Victim Compensation and Government Claims Board or VCGCB.
(4) “Certification under penalty of perjury” or “upon information and belief” as applied to the filing of an application or supplemental claim means a single signature under penalty of perjury or information and belief as required to certify that the contents of the application or supplemental claim are true and correct within the knowledge or belief of the applicant.
(5) “Code” means the California Government Code.
(6) “Denial of the application” as used in Section 13958 of the code and as construed for purposes of the Board hearing process means a preliminary determination and recommendation for disallowance by VCP staff and shall not be construed to mean a final administrative decision following a hearing by the Board to deny the application or supplemental claim.
(7) “Derivative victim” means the same as in Government Code section 13951(c).
(8) “Direct payment” as used in Section 13957.7(c)(1) of the code shall be those payments sent directly to providers when there is no objection by the victim or derivative victim, or when good cause is demonstrated, notwithstanding a victim's or derivative victim's objection.
(9) “Family member” means a person who is related to the victim at the time of the qualifying crime by blood, marriage, registered domestic partnership, or adoption.
(10) “Fiancé” or “fiancée” means a person who is engaged to be married or an unregistered domestic partner in a similar relationship.
(11) “File” or “filed” as it applies to an application or supplemental claim for VCP benefits means submitting the application or supplemental claim to the VCP or a joint powers victim witness center. An application or supplemental claim shall be deemed filed with the VCP or a joint powers victim witness center on the date that the application or supplemental claim is postmarked by the United States Postal Service or other private carrier postage prepaid and properly addressed, or on the date that it is personally delivered to the VCP or a joint powers victim witness center.
(12) “Fund” means the Restitution Fund as set forth in Government Code section 13964.
(13) “Hearing” means the same as under article 2.5 of these regulations.
(14) “Joint powers victim witness center” means an agency under contract with the Board to process applications under Government Code section 13954(c).
(15) “Law enforcement agency” includes but is not limited to:
(A) an agency from California or another state that investigates or prosecutes violations of law that are comparable to agencies listed in Section 13951(d) and
(B) Federal agencies that investigate or prosecute violations of law.
(16) “May” means that the conduct or requirement is permissive and discretionary.
(17) “Qualifying crime” means a crime as defined in Government Code section 13951(b) that resulted in one of the following:
(A) injury to the victim;
(B) threat of injury to the victim; or
(C) the death of the victim.
(18) “reimbursement sources” shall include but not be limited to the following types of benefits:
(A) All forms of private and public insurance benefits paid to or on behalf of the insured victim, the victim's survivors, or derivative victim, including medical, disability, wage loss, funeral/burial insurance, liability and casualty insurance, including vehicle, commercial and residential insurance.
(B) All forms of public and private assistance paid to, or on behalf of, the victim, the victim's survivors, or derivative victim, including Medi-Cal, social security, state disability insurance, workers' compensation and Medicare.
(C) Any salary, sick leave, or bereavement leave.
(D) Any restitution paid by the criminal perpetrator directly to the victim or his or her survivors whether collected by public agencies and paid over to the recipient or collected directly by the recipient.
(19) “Related to the victim by blood, marriage, registered domestic partnership, or adoption” means:
(A) the victim's spouse or registered domestic partner;
(B) relatives within the 4th degree of the victim or the victim's spouse as follows:
1. first degree relatives include parent and child;
2. second degree relatives include grandparent, brother, sister, and grandchild;
3. third degree relatives include great-grandparent, uncle, aunt, nephew, niece, and great-grandchild;
4. fourth degree relatives include great-great- grandparent, great uncle, great aunt, first cousin, grandnephew, and grandniece;
(C) the spouse of a person or registered domestic partner described in subsection (a)(19)(B); or
(D) the victim's fiancé or fiancée.
(20) “Resident of California” means the person's place of residence is California as determined by one of the following:
(A) Government Code section 244 for adults; and
(B) Welfare and Institutions Code section 17.1 for minors.
(21) “Shall” means that the conduct or requirement is mandatory and not discretionary.
(22) “State” means the District of Columbia, the Commonwealth of Puerto Rico and any other possession or territory of the United States.
(23) “Supplemental claim” means a request for payment submitted after the application is received.
(24) “Threat of physical injury” means conduct that meets both of the following:
(A) a reasonable person would feel threatened in the same circumstances as the victim; and
(B) a reasonable person in the same circumstances as the victim would believe both of the following:
1. the threat would be carried out; and
2. physical injury would result if the threat were carried out.
(25) “Victim” means a person who sustained injury or death as a direct result of a qualifying crime and is one of the following:
(A) a resident of California;
(B) a member of the military stationed in California;
(C) a family member living with a member of the military stationed in California; or
(D) a nonresident of California who is a victim of a qualifying crime occurring within California if the Board determines that federal funds are available for compensation of victims of crime.
(26) “VCP” means the Board staff that implement the Victims of Crime Program as specified in Title 2, Division 3, Part 4, Chapter 5, Article 1 of the Government Code, commencing with Section 13950.
(27) “Water vehicle” means the same as “vessel” as defined in Harbors and Navigation Code section 651(g).
(28) “Witnessed the crime” as used in Section 13955(c)(4) of the code means actual physical presence at the scene of the qualifying crime such that the person was a percipient witness to the qualifying crime.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13950, 13951, 13952, 13952.5, 13953, 13954, 13955, 13956, 13957.7, 13958, 13959, 13962 and 13964, Government Code.
HISTORY
1. New section filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89. For prior history, see Register 87, No. 41.
2. Readoption of emergency section filed 1-4-89; operative 1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
3. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
4. Certificate of Compliance as to 5-19-89 order including amendment transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
5. Amendment of subsection (g), repealer of subsection (i) and subsection relettering filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
6. Amendment of first paragraph and subsection (e), repealer of subsections (e)(1) and (e)(2) and incorporation of amended subsection (e)(3) into newly amended subsection (e), and amendment of subsection (g) filed 11-2-98 as an emergency; operative 11-2-98 (Register 98, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-2-99 or emergency language will be repealed by operation of law on the following day.
7. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
8. Certificate of Compliance as to 11-2-98 emergency order transmitted to OAL 3-1-99 and filed 4-2-99 (Register 99, No. 14).
9. Repealer and new section filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
10. Change without regulatory effect amending subsections (a)(2)-(3), (a)(7)-(9), (a)(12), (a)(14)-(15), (a)(16)(C), (a)(18) and (a)(26)-(28) and amending Note filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
11. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.1. Residency Requirements.
Note • History
(a) A victim must be a resident of California if the qualifying crime occurred outside California.
(b) A victim need not be a resident of California if the qualifying crime occurred in California if the board determines that federal funds are available for compensation of victims of crime.
(c) A derivative victim of a qualifying crime prior to January 1, 1999, must be a resident of California.
(d) A derivative victim of a qualifying crime on or after January 1, 1999, must be a resident of California or another state.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951 and 13955, Government Code.
HISTORY
1. Change without regulatory effect repealing former Section 649.1, and renumbering and amendment of Section 649.2 to Section 649.1 filed 9-28-87; operative 10-28-87 (Register 87, No. 41).
2. Amendment filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89.
3. Readoption of emergency section filed 1-4-89; operative 1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
4. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
5. Certificate of Compliance as to 5-19-89 order including amendment transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
6. Amendment of subsections (a) and (b) filed 12-10-96 as an emergency; operative 12-10-96 (Register 96, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-9-97 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 12-10-96 order transmitted to OAL 4-2-97 and filed 5-14-97 (Register 97, No. 20).
8. Amendment of subsections (b) and (e) filed 10-8-97 as an interim regulation pursuant to Government Code section 11400.20; operative 10-8-97 (Register 97, No. 41). Interim regulations expire on 12-31-98 unless earlier amended or repealed.
9. Amendment filed 11-2-98 as an emergency; operative 11-2-98 (Register 98, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-2-99 or emergency language will be repealed by operation of law on the following day.
10. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
11. Certificate of Compliance as to 11-2-98 emergency order transmitted to OAL 3-1-99 and filed 4-2-99 (Register 99, No. 14).
12. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
13. Change without regulatory effect renumbering former section 649.1 to section 649.15 and renumbering former section 651.1 to section 649.1, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.1.1. Timely Filing of Application for Derivative Victim. [Renumbered]
History
HISTORY
1. New section filed 11-2-98 as an emergency; operative 11-2-98 (Register 98, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-2-99 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-2-98 emergency order transmitted to OAL 3-1-99 and filed 4-2-99 (Register 99, No. 14).
3. Amendment of subsections (a) and (b) filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
4. Change without regulatory effect renumbering former section 649.1.1 to section 649.16 filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.2. Qualifying Crime Occurring Outside California.
Note • History
(a) A California resident who is a victim of a qualifying crime that occurred outside California shall apply first for assistance in the state where the qualifying crime occurred.
(1) Subsection (a) shall not apply if the qualifying crime occurred in a state that does not provide assistance to a non-resident victim.
(b) A California resident who is a victim of a qualifying crime outside California who is eligible for assistance shall not receive assistance until one of the following occurs:
(1) the program of the state in which the qualifying crime occurred determines that the person is not eligible for the program; or
(2) the program benefits of the state in which the qualifying crime occurred are exhausted or denied or requested benefits are not eligible for reimbursement by the other state.
(c) This section does not apply if the qualifying crime occurred both inside and outside California.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13955, Government Code.
HISTORY
1. Change without regulatory effect renumbering and amending former Section 649.2 to Section 649.1, and renumbering and amendment of Section 649.3 to Section 649.2 filed 9-28-87; operative 10-28-87 (Register 87, No. 41).
2. Change without regulatory effect pursuant to Title 1, California Code of Regulations, Section 100(b) (3) filed 2-16-90 (Register 90, No, 9).
3. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
4. Change without regulatory effect renumbering former section 649.2 to section 649.12 and renumbering former section 653.2 to section 649.2, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
5. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.3. Authorized Indemnification.
Note • History
(a) The amount of reimbursement paid by the Board shall not exceed the maximum rate set by the Board, if any, less the amount of reimbursement available from other sources.
(b) The total award to or on behalf of each victim or derivative victim may not exceed $63,000.
(c) Personal Property. Except as provided for in Government Code section 13957(a)(1), the Board may not indemnify a victim for loss of money or loss or damage to personal property sustained in the qualifying crime giving rise to the application.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 13957 and 13957.5, Government Code.
HISTORY
1. Renumbering of former section 649.24 to section 649.3, including amendment of section and Note, filed 7-5-2011; operative 7-5-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 27). For prior history of section 649.3, see Register 2009, No. 24.
§649.4. Eligibility of Felons.
Note • History
(a) The VCP shall accept an application or a petition for relief to file a late application from a person who has been convicted of a felony in the same manner as for other applicants. Neither that the applicant is presently incarcerated nor that the applicant has been convicted of a felony and has not been discharged from probation or released from a correctional institution and discharged from parole shall be reason for the VCP to refuse to accept an application.
(b)(1) The VCP shall not grant assistance to a person who has been convicted of a felony committed on or after January 1, 1989, when the assistance is to compensate for pecuniary loss sustained after the person is convicted of the felony and before the person is discharged from probation or has been released from a correctional facility and is discharged from parole, if any.
(2) The VCP shall grant assistance to a person otherwise eligible for assistance who has been convicted of a felony to compensate for pecuniary loss sustained as a result of victimization when the loss was incurred after discharge from probation or parole.
(3) The pecuniary loss for which reimbursement is barred because it was sustained after the person had been convicted of a felony and before the person was discharged from probation or released from a correctional institution and discharged from parole will not become reimbursable upon the person's discharge from probation or release from a correctional institution and discharge from parole.
(c) As used in this section, “parole” includes “supervised release.”
NOTE
Authority cited: Section 13974, Government Code. Reference: Sections 13951 and 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.72 to section 649.4, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.4, see Register 99, No. 12.
2. Amendment of subsections (a)-(b)(2) filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.5. Effect of Felon Status on the Eligibility of Victims and Derivative Victims.
Note • History
(a) The fact that a victim is disqualified from receiving assistance under section 649.4(b) shall not affect the eligibility of a derivative victim of the same qualifying crime who is otherwise eligible for assistance.
(b) The fact that a derivative victim is disqualified from receiving assistance under section 649.4(b) shall not affect the eligibility of a victim of the same qualifying crime who is otherwise eligible for assistance.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951, 13952 and 13956(d), Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 651.5 to section 649.5, including amendment of section heading, section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.5, see Register 99, No. 51.
§649.6. Effective Date of Substantive Changes. [Repealed]
Note • History
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13950-13974.5, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 650.1 to section 649.6, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.6, see Register 99, No. 51.
2. Repealer filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
Note • History
Applications for assistance as specified in Section 13952 of the code will be deemed to be complete within the meaning of Section 13952(c) of the code only if:
(a) The applicant provides all information as directed in the instructions to, and as elicited on, the application which the Board shall require to be certified under penalty of perjury or upon information and belief. As part of the application the Board shall require the following information:
(1) The name, residence address, and if different, mailing address, date of birth and telephone number of the applicant seeking restitution from the Fund.
(2) A designation as prescribed on the application as to whether the applicant is a victim or derivative victim, or in the event of a death caused by a crime, a person who legally assumed the obligation, or who voluntarily paid the medical or burial expenses incurred as a direct result of the qualifying crime (Section 13957(a)(9)(A) and (C) of the code).
(3) If the person signing the application as the applicant is a person other than the actual victim or derivative victim seeking assistance, some designation as to the legal authority of such person to apply for benefits on behalf of the victim or derivative victim (e.g. parent or legal guardian for a child; or court appointed conservator for adults adjudicated to be incompetent.)
(4) A description of the date, nature, location, and circumstances of the qualifying crime.
(5) Except in the case where the applicant has no pecuniary loss, a complete statement of losses and reimbursements directly related to the qualifying crime including but not limited to the cost of medical care or burial expense, the loss of wages the victim has incurred to date, or the loss of support the derivative victim has incurred to date, for which they claim assistance. This statement must include the date or dates that medical, mental health or other professional services were provided to the victim or derivative victim and a description of the services provided along with a statement that the services were in fact received and that such services were required as a direct result of the qualifying crime and for no other reason. If mental health counseling or psychotherapy services were provided, the statement must include a designation as to whether any counseling or psychotherapy provided was in an individual, family or group setting.
(6) A signed authorization permitting the VCP or a joint powers victim witness center, or both, to verify the contents of the application.
(7) If the applicant is represented by an attorney or other authorized person, the name, address and telephone number of such representative. If the representative is an attorney, the California State Bar license number and the tax payer identification number.
(8) A statement whether the victim, the victim's survivors, or the derivative victim have commenced or intend to commence a civil action to recover monetary damages from the perpetrator or perpetrators of the qualifying crime or any other parties in connection with the qualifying crime, along with the name, telephone number and address of any attorney representing the applicant in such civil proceedings.
(9) A promise to contact and repay the VCP if the applicant receives any payments from the offender, a civil suit, an insurance policy, or any other governmental or private agency to cover expenses that the VCP has already paid.
(10) A statement disclosing all collateral benefits including any private or public insurance or benefits payable from private or public programs of assistance for which the victim, the victim's survivors, or the derivative victim have applied or for which they may be eligible.
(b) In addition to the information as specified in subparagraph (a) above, applicants seeking types of assistance as set forth in Section 13957 of the code shall provide the following information relative to each category of assistance claimed:
(1) If medical or mental health expenses are claimed to have been incurred as a direct result of the qualifying crime, an itemized statement from the professional provider for all medical or mental health expenses incurred as of the date of the application including the license number of the professional certificate issued by the State of California or other jurisdiction to the medical or mental health practitioner providing the service as well as his or her business address and telephone number. Providers of services who are authorized by law to offer such services as part of their on-going business activity, but who are not required to obtain a professional or occupational license must provide either their social security number, or their Federal Employer Identification Number. The VCP may require the submission of mental health treatment session or progress notes in order to determine whether the treatment will best aid the victim or derivative victim and is necessary as a direct result of the qualifying crime. Session notes will be kept in a confidential locked file and after review, shall be returned to the provider or destroyed by the VCP upon request of the treating provider.
(2) If loss of income is claimed to have occurred as a direct result of the qualifying crime, the applicant shall produce evidence of income loss as well as a statement of disability from the treating medical or mental health provider.
(3) If funeral or burial expenses are claimed as a direct result of the qualifying crime, an itemized statement for all funeral or burial expenses incurred.
(4) If rehabilitative services are claimed, the applicant shall produce that evidence of need, and documentation for rehabilitation as specified in Section 649.24(c) of these regulations.
(c) A copy of the crime report evidencing the commission of the qualifying crime and setting forth the circumstances and factual events surrounding it.
In order to expedite the processing of the application, applicants will be encouraged to obtain and submit, along with the application, a copy of the crime report as prepared by the law enforcement agency to which the qualifying crime was reported. In cases in which the applicant or his or her representative are unable or decline to obtain such crime report, VOC or joint powers victim witness centers shall obtain the crime report.
No application shall be deemed complete until VOC or its contract agencies have received a copy of the crime report, unless VCP staff is otherwise able to verify that a qualifying crime occurred.
(d) All applications and supplemental claims must be certified under penalty of perjury by the victim or derivative victim where the victim or derivative victim is the applicant, or shall be attested to under information and belief if completed by an applicant other than the victim or derivative victim, or by an authorized representative.
NOTE
Authority cited: Section 13974, Government Code. Reference: Sections 13951, 13952, 13952.5, 13954, 13956, 13957, 13957.2, 13957.5, 13957.7, 13957.9 and 13963, Government Code.
HISTORY
1. Change without regulatory effect repealing former Section 649.7, and renumbering and amendment of Section 649.14 to Section 649.7 filed 9-28-87; operative 10-28-87 (Register 87, No. 41).
2. Change without regulatory effect pursuant to Title 1, California Code of Regulations, Section 100(b)(3) filed 2-16-90 (Register 90, No. 9).
3. Change without regulatory effect renumbering former section 649.7 to section 649.35 and renumbering former section 649.9 to section 649.7, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
4. Amendment of section and Note filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
Note • History
(a) An applicant may indicate on the application that he or she is applying for an emergency award.
(b) Upon receipt of an application for an emergency award, the VCP shall expedite the process of verifying the application to determine if an emergency award is appropriate. The VCP shall make telephone calls and transmit documents electronically or by facsimile to quickly obtain information necessary to evaluate an application for an emergency award. A decision regarding an application for an emergency award shall be promptly communicated to the applicant.
(c) An emergency award may be allowed when it is necessary to avoid or mitigate a substantial hardship to the applicant that is the direct result of the qualifying crime. Substantial hardship shall include the following:
(1) The inability to provide for the necessities of life, including but not limited to shelter, food, medical care, or personal safety, without the emergency award.
(2) The inability to pay for funeral and burial expenses or crime scene cleaning expenses without the emergency award.
(d) The amount of an emergency award shall be based on the applicant's immediate financial need as a direct result of the qualifying crime. Immediate financial need shall be determined by the financial assistance needed to avoid substantial hardship before the receipt of non-emergency assistance.
(e) An applicant for an emergency award shall provide sufficient information to substantiate both of the following:
(1) An emergency award is necessary to avoid substantial hardship as a direct result of the qualifying crime; and
(2) The applicant has an immediate financial need for an emergency award as a direct result of the qualifying crime.
(f) If sufficient information as required by subdivision (e) is not provided, an application for an emergency award shall be processed as an application for non-emergency assistance. The amount of the emergency award being requested shall be considered when determining the amount or type of information required to verify the application for an emergency award.
NOTE
Authority cited: Section 13920(c), Government Code. Reference: Section 13952.5, Government Code.
HISTORY
1. Change without regulatory effect repealing former Section 649.8, and renumbering and amendment of Section 649.15 to Section 649.8 filed 9-28-87; operative 10-28-87 (Register 87, No. 41).
2. Change without regulatory effect pursuant to Title 1, California Code of Regulations, Section 100(b)(3) filed 2-16-90 (Register 90, No. 9).
3. Change without regulatory effect renumbering former section 649.8 to section 649.36 and renumbering former section 649.11 to section 649.8 filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
4. Amendment of subsection (b) filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.9. Incomplete Applications. [Repealed]
Note • History
NOTE
Authority cited: Sections 13952, 13952.5 and 13974, Government Code. Reference: Sections 13952 and 13952.5, Government Code.
HISTORY
1. New section filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89. For prior history, see Register 87, No. 41.
2. Readoption of emergency section filed 1-4-89; operative 1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
3. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
4. Certificate of Compliance as to 5-19-89 order including amendment transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
5. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
6. Change without regulatory effect renumbering former section 649.9 to section 649.7 and renumbering former section 649.12 to section 649.9, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
7. Repealer filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.10. Zero Awards. [Repealed]
Note • History
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13957.2, Government Code.
HISTORY
1. New section filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89. For prior history, see Register 87, No. 41.
2. Readoption of emergency section filed 1-4-89; operative1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
3. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
4. Certificate of Compliance as to 5-19-89 order including amendment transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
5. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
6. Change without regulatory effect renumbering former section 649.10 to section 649.22 and renumbering former section 649.22 to section 649.10, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
7. Repealer filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.11. Application Without Verified Pecuniary Loss.
Note • History
When an applicant files an application for assistance supplying all of the required information as set forth in paragraph (a) of Section 649.7 but either fails or declines to provide any of the information needed to verify actual pecuniary loss as set forth in paragraph (b) of Section 649.7, the VCP may make an initial determination of eligibility. If the VCP determines that the applicant is eligible, the VCP shall treat the application as accepted for processing and so notify the applicant and his or her representative. The acceptance of an application does not obligate the VCP to pay claims until it has received fully verified evidence of pecuniary loss by the victim or derivative victim, and has satisfied itself that no other source of benefits or assistance is available to the victim or derivative victim to compensate for this loss.
Nothing in this section shall be construed to prevent the VCP from paying those claims for which documentation required by subparagraph (b) of Section 649.7 has been provided.
NOTE
Authority cited: Section 13974, Government Code. Reference: Sections 13951, 13952, 13954 and 13957, Government Code.
HISTORY
1. New section filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89. For prior history, see Register 87, No. 41.
2. Readoption of emergency section filed 1-4-89; operative 1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
3. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
4. Certificate of Compliance as to 5-19-89 order including amendment of NOTE transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
5. Amendment of section heading, repealer and new section and amendment of Note filed 2-3-2003 as an emergency; operative 2-3-2003 (Register 2003, No. 6). A Certificate of Compliance must be transmitted to OAL by 6-3-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 2-3-2003 order transmitted to OAL 6-2-2003 and filed 7-14-2003 (Register 2003, No. 29).
7. Change without regulatory effect renumbering former section 649.11 to section 649.8 and renumbering former section 649.15 to section 649.11, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
8. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.12. Third Party Applications.
Note • History
Under the provisions of Government Code Section 13951(g), “victim” shall not include an “individual” who merely provides medical or medically related services, funeral and/or burial services, estates, or corporations. Further, providers, estates, or corporations are not eligible to file an application with the VCP.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13951, Government Code.
HISTORY
1. New section filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89. For prior history, see Register 87, No. 41.
2. Readoption of emergency section filed 1-4-89; operative 1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
3. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
4. Certificate of Compliance as to 5-19-89 order including renumbering of former Section 649.12 to Sections 649.20 and 649.21, and new Section 649.12 transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
5. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
6. Change without regulatory effect renumbering former section 649.12 to section 649.9 and renumbering former section 649.2 to section 649.12, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
7. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.13. Derivative Victims Who Previously Had Relationship with Victim Substantially Similar to Family Member.
Note • History
For the purpose of qualifying as a derivative victim under Government Code section 13951(c), the two-year period during which the person lived in the victim's household in a relationship substantially similar to that of a parent, sibling, spouse or child may be either cumulative or consecutive in the following instances:
(a) A person may be found to have a relationship with a victim that is substantially similar to that of a parent if the person provided a significant portion of the necessities of life for the victim, including but not limited to the following:
(1) financial support;
(2) food;
(3) clothing;
(4) shelter;
(5) medical expenses;
(6) educational expenses;
(7) emotional support.
(b) A person may be found to have a relationship with a victim that is substantially similar to that of a child if the victim provided the person a significant portion of the necessities of life as listed in subsection (a).
(c) A person may be found to have a relationship with a victim that is substantially similar to that of a sibling if the person:
(1) previosuly lived in the same household as the victim; and
(2) was under the care of the same parent or parents, primary caretaker, or legal guardian.
(d) Factors that may be considered when determining whether a person has a relationship with a victim that is substantially similar to that of a spouse include, but are not limited to:
(1) previously lived in the same household;
(2) joint ownership of a residence;
(3) joint ownership of a motor vehicle;
(4) use of a joint bank account;
(5) use of a joint credit card account;
(6) maintenance of a sexually or emotionally intimate relationship;
(7) a significant portion of the items listed in subsection (a) are shared with, or provided to the victim.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951 and 13955(c), Government Code.
HISTORY
1. New section filed 9-29-88 as an emergency; operative 10-1-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-30-89. For prior history, see Register 87, No. 41.
2. Readoption of emergency section filed 1-4-89; operative 1-4-89 (Register 89, No. 3). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-4-89.
3. Readoption of emergency section filed 5-19-89; operative 5-19-89 (Register 89, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-18-89.
4. Certificate of Compliance as to 5-19-89 order including renumbering of former Section 649.13 to Section 649.22, and new Section 649.13 transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
5. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
6. Change without regulatory effect renumbering former section 649.13 to section 649.23 and renumbering former section 651.3 to section 649.13, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
7. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
Note • History
(a) A minor witness is a person under the age of 18 who suffers an emotional injury as a direct result of seeing or hearing a violent crime, and was in close physical proximity to the victim when he or she witnessed the crime.
(b) A minor witness does not include the following:
(1) A minor who knowingly and willingly participated in the commission of the crime that is the basis for the minor's application pursuant to section 13957(a)(2)(B)(iii);
(2) A minor who failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. However, in determining whether cooperation has been reasonable, the Board shall consider the witness' age, physical condition, and psychological state, cultural or linguistic barriers, any compelling health and safety concerns, including, but not limited to, a reasonable fear of retaliation or harm that would jeopardize the well-being of the witness or the witness' family, and giving due consideration to the degree of cooperation of which the witness is capable in light of the presence of any of these factors;
(3) A minor involved in the events leading to the crime. The Board shall consider the witness' age, physical condition, and psychological state, as well as any compelling health and safety concerns, in determining whether the witness' application should be denied; or
(4) A direct or derivative victim of the violent crime.
(c) For purposes of Government Code section 13957(a)(2)(B)(iii), a violent crime shall be found to have been committed in the following crimes:
(1) Murder and manslaughter (including vehicular manslaughter);
(2) Mayhem;
(3) Kidnapping;
(4) Carjacking;
(5) Assault with a deadly weapon;
(6) Battery resulting in great bodily injury;
(7) Rape and rape of spouse;
(8) Sodomy;
(9) Lewd and lascivious acts;
(10) Oral copulation;
(11) Robbery;
(12) Arson of inhabited dwelling; or
(13) Burglary of inhabited dwelling with physical injury to an inhabitant.
(d) The eligibility of a minor witness shall not be affected by the eligibility of the victim(s) or derivative victim(s).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13956 and 13957(a)(2)(B)(iii), Government Code.
HISTORY
1. Certificate of Compliance as to 5-19-89 emergency order including renumbering of former Sections 649.9(c) and 649.10(c) to Section 649.14 transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43). For prior history, see Register 87, No. 41.
2. Change without regulatory effect renumbering former section 649.14 to section 649.27 and renumbering former section 651.2 to section 649.14, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
3. Renumbering of former section 649.14 to section 649.16, subsection (b) and new section 649.14 filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
4. New subsection (d) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.15. Good Cause for Filing Late Applications.
Note • History
(a) A petition for relief from the period of limitations on grounds of good cause must be filed with the Board in writing not more than 30 days following the date notice is mailed to the applicant and his or her representative of the late filing, and shall include the statement under penalty of perjury as specified in subsection (b). An applicant failing to petition for relief in writing within the 30 days set forth herein will have his or her application recommended for denial.
(b) In determining whether good cause exists justifying the late filing of an application, the VCP staff must consider the following factors, including but not limited to:
(1) A preponderance of the evidence supports that a qualifying crime occurred;
(2) Circumstances of the qualifying crime;
(3) Age;
(4) Documented physical or mental disability to such an extent during the time specified for filing an application that the applicant could not have effectively pursued a claim and the victim did not have a conservator;
(5) Cultural or linguistic barriers; and
(6) When the applicant discovers that he or she has incurred a pecuniary loss as a direct result of the crime.
An applicant seeking relief from the period of limitations on the filing of an application shall, with his or her petition for relief and accompanying statement, submit any corroborating documents which serve to verify the stated justifications for late filing.
(c) If VCP staff does not find good cause for the late filing and recommends that the application be denied, the applicant may request a hearing to determine the existence or nonexistence of good cause.
(d) In all cases the determination by the Board as to the existence or nonexistence of good cause constitutes the final administrative determination on the issue, subject only to a proper motion for reconsideration upon a showing of new and additional evidence not reasonably available at the time of the initial hearing. Nothing in this section shall be construed to prevent an applicant or his or her representative from filing the above stated declaration and petition for relief upon a showing of good cause simultaneously with the late application.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13953 and 13954, Government Code.
HISTORY
1. Certificate of Compliance as to 5-19-89 emergency order including renumbering and amendment of former Section 649.9(d) to Section 649.15 transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43). For prior history, see Register 87, No. 41.
2. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
3. Change without regulatory effect renumbering former section 649.15 to section 649.11 and renumbering former section 649.1 to section 649.15, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
4. Amendment of section heading, section and Note filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
5. Amendment of subsections (a) and (b)(5), new subsection (b)(6) and repealer of subsection (e) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.16. Applications by Derivative Victims.
Note • History
(a) The period of limitations for filing an application is tolled for derivative victims when an application by a victim or on behalf of a victim for the same qualifying crime is accepted by the VCP.
(b) An applicant shall only be eligible once as a derivative victim of a crime regardless of the number of direct victims for that same crime.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951, 13952 and 13953, Government Code.
HISTORY
1. Certificate of Compliance as to 5-19-89 emergency order including renumbering and amendment of a former provision of Section 649.9(a)(8) to Section 649.16 transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43).
2. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
3. Change without regulatory effect renumbering former section 649.16 to section 649.30 and renumbering former section 649.1.1 to section 649.16, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
4. Amendment of section heading and subsection (a), repealer of former subsection (b), renumbering of former section 649.14 to subsection (b), new subsection (c) and amendment of Note filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
5. Repealer of former subsection (b), subsection relettering and amendment of newly designated subsection (b) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
Note • History
(a) All cash payments or reimbursement for expenses incurred in relocating must be necessary as a direct result of the crime. The amount of reimbursement paid by the Board shall not exceed the statutory maximum, less the amount of reimbursement available from other sources.
(b) Determinations by law enforcement or mental health providers may be provided in a manner determined by the Board, which may include, but are not limited to, in writing, by telephone, or other electronic means.
(c) One claimant per crime giving rise to the relocation means that only one member of a household may receive relocation benefits even if more than one member of a household is a direct victim of the qualifying crime.
(d) A higher level of scrutiny will apply to reimbursement requests if a significant amount of time has elapsed between the qualifying crime and the date of the relocation.
(e) Relocation expenses may include but are not limited to housing deposits, utility deposits, telephone deposits, connection fees, temporary lodging costs, emergency food expenses, emergency clothing costs, emergency costs of personal items, and other necessary expenses.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13957, Government Code.
HISTORY
1. New section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24). For prior history, see Register 2007, No. 49.
2. Amendment of subsections (c) and (e) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.17.1. Increased Relocation Benefits for Unusual, Dire, or Exceptional Circumstances.
Note • History
(a) A claim that meets the established criteria for relocation benefits may be eligible for relocation reimbursement of an amount greater than $2,000 due to unusual, dire, or exceptional circumstances including, but not limited to, the following:
(1) There is a crime report or other verification from law enforcement supporting that the applicant is an ongoing victim of threats or retaliation by or on behalf of the offender with a credible threat of great bodily injury or death and the claim meets the following two criteria:
(A) The applicant did not inform the offender of the location of the applicant's new residence or had obtained a restraining order against the offender and the offender has located the applicant; and
(B) The applicant's new residence must be located at a distance of no less than 30 miles from the residence at the time the crime occurred.
or
(2) If a mental health treatment provider has verified that the relocation was necessary for the emotional well-being of the applicant, then at least one of the following factors must be present:
(A) The qualifying crime resulted in substantial impairment of the applicant's activities of daily living;
(B) The qualifying crime resulted in permanent and substantial disability of the applicant; or
(C) The applicant is scheduled to testify or has testified as a witness in any criminal proceeding related to the qualifying crime and the need to relocate is directly related to the applicant testifying.
(b) The following circumstances will not qualify a victim for the unusual, dire, or exceptional circumstance relocation benefit on their own merit:
(1) Moving to or within a higher cost area.
(2) Having a large family.
(3) Moving a long distance.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13957, Government Code.
HISTORY
1. New section filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.18. Reimbursement of Funeral/Burial Expenses.
Note • History
(a) All cash payments or reimbursement for expenses of the funeral/burial of the victim are limited to a maximum of $5,000, and must have been incurred as a direct result of the qualifying crime.
(b) As funeral practices vary across cultures, the following traditional funeral and burial expenses or their equivalent expenses may be reimbursed up to $5,000, less the amount of reimbursement available from other sources:
(1) Burial costs, including but not limited to expenses for: the burial vault; casket; costs associated with the transport of the body; cremation charges; labor cost for opening and closing the grave; headstone; marker, or tombstone and the charge for its setting; the single-width, single-depth grave site; and, endowment care--a one time charge controlled by state law that ensures permanent maintenance of the grave.
(2) Funeral service costs, including but not limited to expenses for: preparation of the body for viewing; newspaper notices; copies of the death certificate; flowers for gravesite, chapel and hearse; photography costs; musician's fees; burial clothing; cost of transport to the burial site; on-site funeral service fees for chapels or other memorial service locations; licensed security guard services; gravesite service fees and costs, including equipment charges; and, items necessary for performing services in other cultural traditions.
(3) Memorial service costs including flowers, and pictures and picture frames at the service.
(4) If a double grave or headstone has been chosen, reimbursement may be made based upon an estimate of a single grave or headstone or half the cost of the double grave or headstone, whichever is the less expensive.
(c) The following expenses are not reimbursable by the VCP: coroner's charges, finance or interest charges or processing fees on a funeral/burial bill; a pre-purchased funeral or grave for the victim; any expenses based upon a VCP application filed by a mortuary, cemetery or other third party service provider, the cost of any food or beverages, and the cost for renting equipment and supplies such as tables and chairs.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 13957(a)(9), Government Code.
HISTORY
1. New section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24). For prior history, see Register 2007, No. 49.
2. Amendment of section and Note filed 7-5-2011; operative 7-5-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 27).
§649.19. Home Security Device or System.
Note • History
(a) The VCP will reimburse the costs of a new or additional home security device or system. Examples of home security device or system items include, but are not limited to the following:
(1) Alarms, keypads, cameras, and motion detectors;
(2) Installation costs;
(3) Monitoring costs;
(4) Window bars and security doors; and
(5) Replacing or increasing the number of locks.
(b) Examples of items which do not qualify as “installing or increasing residential security” and are not reimbursable include, but are not limited, to the following:
(1) Weapons (guns or non-lethal weapons);
(2) Guard dogs; and
(3) Self-defense courses.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13957, Government Code.
HISTORY
1. New section filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.20. Purchase of Vehicles.
Note • History
(a) The Board may reimburse the expense of a vehicle upon verification that the expense is necessary for a victim who is permanently disabled as a direct result of the qualifying crime, whether the disability is partial or total.
(b) The maximum benefit for vehicle purchase, renovating, and retrofitting is $30,000 per qualifying crime.
(c) Justifications that may be considered for purchasing a vehicle include, but are not limited to:
(1) Purchasing an accessible vehicle may be more economical than retrofitting the applicant's existing vehicle;
(2) A different vehicle is needed to accommodate a wheelchair or other assistive device; or
(3) Para-transit or public transit options may not be available to the claimant, and the claimant may need to purchase a vehicle when he or she did not have one before the qualifying crime.
(d) Items not eligible for reimbursement include, but are not limited to, any part or replacement that is necessary as a result of wear and tear or for maintenance.
(e) The applicant must submit a letter or statement from a mobility specialist, or a report from a rehabilitation specialist stating that:
(1) the vehicle meets the measurements and requirements necessary to accommodate the disabled victim, and
(2) if the victim will be operating the vehicle, the victim is physically and mentally capable of safely operating the vehicle.
(f) The applicant must also submit a copy of the driver's license for the licensed driver who will be driving/operating the vehicle.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 13957, Government Code.
HISTORY
1. New section filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1). For prior history, see Register 2008, No. 45.
2. Amendment of section and Note filed 7-5-2011; operative 7-5-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 27).
§649.21. Verification of Attorney's Fees.
Note • History
(a) As provided for in Government Code section 13957.7(g), the Board shall pay attorney's fees representing the reasonable value of legal services rendered to the applicant in an amount equal to 10 percent of the amount of the award or five hundred dollars ($500), which ever is less, for each victim and each derivative victim.
(b) The Board will not pay attorney's fees related to applications or supplemental claims which are denied by the Board.
(c) The Board will only pay attorney's fees for services provided to represent the applicant in the claim to the Board. The Board will not pay for attorney's fees incurred in connection with any other matter.
(d) “Legal services rendered” includes, but is not limited to, communication with an applicant or Board staff on behalf of the applicant, preparation of the application, representation in an appeal, and conducting legal research regarding the applicant's claim.
(e) Attorneys seeking compensation for attorney's fees must submit to the Board a statement detailing the date the legal services were rendered, describing the legal services rendered, and stating the amount of time for each service. An optional form to assist in the submission and review of the attorney's fees can be found on the Board's website tab for CalVCP.
(f) The Board will review the attorney's fee statements and determine if the amount is payable. Prior to payment of the attorney's fees, the Board may verify with the applicant that the described legal services were provided.
(g) An applicant may appeal the payment or non-payment of attorney's fees by requesting a hearing on the issue within 45 days of the date of the Board's notice of its recommended action on the fees.
(h) An attorney representing the applicant must sign the application prior to the applicant signing the application. An attorney may not be subsequently added to the application without the applicant consenting to representation by that attorney.
(i) If the applicant retains an attorney after the application is submitted, the applicant must submit a signed letter to the Board stating that the applicant is being represented by the attorney, the date the attorney was retained, and provide the attorney's name, address, and telephone number.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 13954(a) and 13957.7(g), Government Code.
HISTORY
1. New section filed 10-5-2011; operative 11-4-2011 (Register 2011, No. 40). For prior history, see Register 2008, No. 45.
§649.22. Verification for Payment of Supplemental Claim.
Note • History
All supplemental claims shall contain the information required by section 649.7(b) and shall be verified in the same manner as an application under section 649.7.
NOTE
Authority cited: Section 13974, Government Code. Reference: Sections 13951, 13952, 13954, 13957 and 13957.2, Government Code.
HISTORY
1. Certificate of Compliance as to 5-19-89 emergency order including renumbering and amendment of former Section 649.13 to Section 649.22 transmitted to OAL 9-14-89 and filed 10-16-89 (Register 89, No. 43). For prior history, see Register 89, No. 21.
2. Amendment filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
3. Change without regulatory effect renumbering former section 649.22 to section 649.10 and renumbering former section 649.10 to section 649.22, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
4. Amendment of section heading and section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.23. Reimbursement of Medical-Related Services.
Note • History
(a) All cash payments or reimbursement for medical-related services of the victim must have been incurred as a direct result of the qualifying crime. The amount of reimbursement paid by the Board shall not exceed the maximum rate set by the Board, if any, less the amount of reimbursement available from other sources.
(b) Reimbursable medical-related services include, but are not limited to: acupuncture, biofeedback, massage therapy, natural healing methods, and skilled and unskilled in-home supportive services.
(c) In order to be reimbursed for skilled and unskilled in-home supportive services, the victim must obtain verification from a treating physician specifying the reasons in-home supportive services are necessary, the duration the in-home services are needed, and the number of hours needed daily. A treating physician must re-certify the need for in-home supportive services at 60-day intervals.
(d) Skilled in-home supportive services must be provided by the following: licensed nurse, medical social worker, licensed therapists, or a state certified home health aide attendant.
(e) Unskilled in-home supportive services may be provided by family members or other persons to assist a victim that is unable to perform daily tasks such as walking, bathing, dressing, preparing meals or similar major-life functions. Unskilled in-home services are limited to eight hours a day and 40 hours per week.
(f) Medical-related expenses are reimbursable at the rates and within the limitations established by the Board pursuant to Government Code section 13957.2.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13957(a)(1) and 13957.2, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.13 to section 649.23, including amendment Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.23, see Register 2006, No. 4.
2. Repealer and new section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.24. Authorized Indemnification. [Renumbered]
Note • History
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13957 and 13957.5, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.3 to section 649.24, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.24, see Register 2006, No. 4.
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Renumbering of former section 649.24 to section 649.3 filed 7-5-2011; operative 7-5-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 27).
§649.25. Rehabilitative Services.
Note • History
Cash payments for job retraining or similar employment-oriented services will be paid to or on behalf of a victim after the following verification:
(a) The victim first shall apply for assistance from the California Department of Rehabilitation (“DOR”) and obtain an evaluation and assessment. If the victim is not a resident of California, the victim must apply to the equivalent public agency where he or she resides.
(b) If the DOR denies the victim job retraining or the victim has obtained all the job training opportunities available to the victim through DOR, the victim may seek job retraining from a private provider and will be reimbursed in accordance with the DOR or any other public agency evaluation.
(c) Persons requesting cash payment for private rehabilitative services shall clearly indicate the type of services or retraining contemplated, the intended provider, the cost, and the need for the services.
(d) The applicant shall also certify, to the satisfaction of the Board, that such assistance is not available from some other tax-supported program.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13957 and 13957.5, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.71 to section 649.25, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.25, see Register 2006, No. 4.
2. Repealer and new section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.26. Direct Payment to Providers.
Note • History
(a) If the VCP authorizes direct payment to a healthcare provider of VCP services, the VCP may require the provider to submit bills using CMS 1450, CMS 1500 or American Dental Association bill forms for verification of services provided. Applicants are not required to use the above-noted forms to request reimbursement of eligible pecuniary losses that they paid.
(b) The VCP shall inform the victim or derivative victim of his or her right to object to direct payments by VCP to providers of services in accordance with Government Code section 13957.7(c)(1). In the event that the victim or derivative victim asserts such right the VCP may reimburse pecuniary loss to the victim or derivative victim only in amounts equal to sums actually paid out by the victim or derivative victim to the service provider and only upon submission by the victim, the victim's survivors, or derivative victim of evidence of such payments, subject to the rates and limitations set by the Board in accordance with applicable law. Following such an objection, direct payment shall be made to the provider only upon a demonstration of good cause as determined by the board.
NOTE
Authority cited: Section 13974, Government Code, Reference: Section 13957.7, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.18 to section 649.26, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.26, see Register 2006, No. 4.
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of section heading and section filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.27. Third Party Verification.
Note • History
In all cases where VCP requests verification from hospitals, physicians, law enforcement officials or other interested parties and these third parties fail to return the requested information within 10 (ten) days as specified in section 13954(a) of the code, the Board may through its staff, review the application and all attachments as filed by the applicant and may, in the exercise of its sound judgment, deem the application to be verified based solely on a review of those documents.
NOTE
Authority cited: Sections 13952.5, 13954 and 13974, Government Code. Reference: Sections 13952.5 and 13954, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.14 to section 649.27, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49). For prior history of section 649.27, see Register 2006, No. 4.
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.28. Mental Health Counseling Providers.
Note • History
(a) A provider of outpatient mental health counseling related services who receives payment from, or whose services were reimbursed by, the Victim Compensation Program shall be subject to a clinical or fiscal audit, or both, to ensure that treatment and reimbursement were authorized by law.
(b) A provider shall make all necessary clinical and fiscal records available to Board staff for review upon request for up to three years after the date that reimbursement was paid.
(c) If a non-profit agency applies to enter into an agreement with the VCP as a qualified provider pursuant to Government Code section 13957.9, the VCP shall consider that the non-profit agency utilized the Restitution Fund at a significant level on a regular and constant basis if the non-profit agency has been reimbursed a minimum of $100,000 during the previous fiscal year for mental health services.
NOTE
Authority cited: Section 13920(c), Government Code. Reference: Sections 13954, 13957(a)(2), 13957.2(a) and 13957.9, Government Code.
HISTORY
1. New section filed 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
3. Amendment of section heading and new subsection (c) filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
4. Amendment of subsection (c) and amendment of Note filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.29. Authorized Mental Health Providers.
Note • History
Psychiatric, psychological, or other mental health counseling related expenses that became necessary as a direct result of the crime may only be reimbursed if provided by any of the following individuals:
(a) A person licensed as a physician who is certified in psychiatry by the American Board of Psychiatry and Neurology or who has completed a residency in psychiatry.
(b) A person licensed as a psychologist under Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code.
(c) A person licensed as a clinical social worker under Article 4 (commencing with Section 4996) of Chapter 14 of Division 2 of the Business and Professions Code.
(d) A person licensed as a marriage, family, and child counselor under Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code.
(e) A person registered as a psychological assistant who is under the supervision of a licensed psychologist or Board certified psychiatrist as required by section 2913 of the Business and Professions Code.
(f) A person registered with the Board of Psychology who is providing services in a nonprofit community agency pursuant to subdivision (d) of section 2909 of the Business and Professions Code.
(g) A person registered as a marriage, family, and child counselor intern who is under the supervision of a licensed marriage and family therapist, a licensed clinical social worker, a licensed psychologist, or a licensed physician certified in psychiatry, as specified in section 4980.44 of the Business and Professions Code.
(h) A person registered as an associate clinical social worker, as defined in Section 4996.18 of the Business and Professions Code, who is under the supervision of a licensed clinical social worker, a licensed psychologist, or a Board certified psychiatrist.
(i) A person who qualifies as a psychology intern as described in section 2911 of the Business and Professions Code who is under the supervision of a person licensed by the state to provide mental health services, as approved by the Board.
(j) A person who qualifies as a postdoctoral psychology trainee employed in an exempt setting pursuant to Business and Professions Code, section 2910, or employed pursuant to a State Department of Mental Health waiver pursuant to Welfare and Institutions Code, Section 5751.2, who is under the supervision of a person who is licensed by the state to provide mental health services as approved by the Board.
(k) A psychiatric resident who has completed at least the first year of residency and is under the supervision of a psychiatrist licensed by the state, as approved by the Board.
(l) A person licensed as a registered nurse pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code, who possesses a master's degree in psychiatric-mental health nursing and is listed as a psychiatric-mental health nurse by the Board of Registered nursing, or an advanced practice registered nurse certified as a clinical nurse specialist under Article 9 (commencing with Section 2838) of Chapter 6 of Division 2 of the Business and Professions Code, who participates in expert clinical practice in the specialty of psychiatric-mental health nursing.
(m) Any mental health provider approved by the Board under Government Code section 13957(a)(2)(D)(ii).
(n) Nothing in this section shall prevent the VCP from reimbursing peer counseling services under Government Code section 13957(a)(2), subject to the rates and limitations set by the Board.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13957(a)(2)(D)(i), Government Code.
HISTORY
1. New section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
Note • History
In all cases the victim, derivative victim, or applicant shall execute a lien in favor of the Restitution Fund, which shall be submitted with the application and may be utilized by the VCP to seek reimbursement in the event that civil proceedings based on the qualifying crime are commenced and result in any recovery of funds.
NOTE
Authority cited: Section 13974, Government Code. Reference: Section 13963, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.16 to section 649.30, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.31. Reimbursement Sources.
Note • History
In the event that other reimbursement sources are disclosed as required during verification, the applicant shall obtain and provide a written explanation of such benefits from the insurer, or benefit program setting forth a determination of eligibility as regards the victim, the victim's survivors, or derivative victim as well as the dollar amount of assistance or reparations to which the victim, the victim's survivors, or derivative victim is entitled. In the event that the applicant is unable to obtain an explanation of benefits, the VCP or joint powers victim witness center shall take steps to obtain such explanation of benefits or other verification from the insurer or benefit program. If a supplemental claim or expense is directly related to the qualifying crime and requested information is not received after a reasonable amount of time, the supplemental claim or expense will be considered allowed. However, no payment will be made until the necessary information regarding reimbursement sources is received.
NOTE
Authority cited: Section 13974, Government Code. Reference: Sections 13951, 13952, 13954 and 13957(b), Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.17 to section 649.31, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment of section heading and section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of section heading and section filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.32. Verification of Income or Support Loss.
Note • History
(a) The Board shall only pay income or support loss if the victim was employed at the time of the qualifying crime. The Board will not pay income or support loss if the victim or derivative victim in the limited cases where a derivative is eligible for income loss, had only a job offer at the time of the qualifying crime but had not begun working.
(b) All cash payments or reimbursement for income or support loss shall be necessary as a direct result of the qualifying crime.
(c) Income loss includes, but is not limited to, time lost from work for medical or mental health appointments necessary as a direct result of the qualifying crime.
(d) Acceptable evidence of income loss shall be in the form of one of the following unless the individual is in a particular situation as stated in subsection (e) below:
(1) documentation from the California Franchise Tax Board (FTB) for the tax year preceding the date of the qualifying crime, or
(2) documentation from the Board of Equalization, Social Security, and/or the California Employment Development Department for the tax year preceding the date of the qualifying crime or during the year of the qualifying crime, or
(3) a statement under penalty of perjury from the employer acknowledging that the applicant was employed, the dates of employment, the time missed from work, the rate of pay, and any benefits the applicant received from the employer; and copies of wage check stubs for a minimum period of one week immediately preceding the date of the qualifying crime along with an item from (d)(1) or (d)(2) unless the individual is in the particular situation as stated in either subsection (e) or (f).
(e) If the victim is a first time job holder or returning to the workforce, either (d)(1), (d)(2), or (d)(3) may be used as evidence of income loss. If (d)(3) is used as evidence of income loss, an additional item from (d)(1) or (d)(2) is not required.
(f) If the victim is self-employed then (d)(1) will apply unless the victim cannot provide documentation from FTB because of the date of entrance into self-employment; in this case (d)(2) will apply.
(g) If the qualifying crime occurred at the work place, documentation from a workers' compensation carrier showing earned income at the time of the qualifying crime and benefits paid or available and the duration of payment must be submitted.
(h) The treating medical or mental health provider may verify disability within the scope of his or her licensure. A statement of disability provided by the treating medical or mental health provider should contain sufficient information to verify the disability period that is a direct result of the qualifying crime and shall include information concerning the current diagnosis, prognosis for recovery, the extent and expected duration of the disability, and certification that the disability resulted directly from the qualifying crime.
(1) For physical injuries, a disability statement may come from the following treating providers: medical doctor, osteopath, optometrist, dentist, podiatrist or a chiropractor. If a chiropractor provides the disability statement, it will only be accepted for the period of time the chiropractor is providing treatment.
(2) For emotional injuries, a disability statement may come from any treating licensed social worker, marriage and/or family therapist, licensed clinical psychologist or treating psychiatrist for a disability period of six months. When the total disability period exceeds six months, the disability statement must be completed by a treating licensed clinical psychologist or psychiatrist.
(3) When a disability statement pursuant to subsection (h) is not available or does not contain sufficient information to verify the disability period, the Board may consult the following sources to verify a disability time period to ensure the disability time period is appropriate, including but not limited to:
• The Medical Disability Advisor: Workplace Guidelines for Disability Duration (most recent edition)
• WebMD
(i) The maximum income loss cannot exceed the statutory time period in Government Code section 13957.5, even if there are gaps in the victim's disability, or other reimbursement sources which partially or fully cover any income or support loss.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13957(a)(4) and 13957.5, Government Code.
HISTORY
1. New section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
2. Repealer and new subsection (g) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
3. Amendment filed 6-28-2012; operative 7-28-2012 (Register 2012, No. 26).
§649.33. Derivative Victims Eligible for Support Loss.
Note • History
(a) A derivative victim may be eligible for reimbursement of support loss if the derivative victim was legally dependant on the victim at the time of the crime.
(b) A derivative victim who is legally dependent on the victim at the time of the crime, includes but is not limited to:
(1) a minor child who is the legal dependent of each parent or legally adoptive parent;
(2) each spouse or registered domestic partner is the dependent of the other spouse or registered domestic partner; or
(3) an incapacitated adult that is the legal dependent of another adult or an unborn child conceived before the date of the crime.
(c) Evidence of legal dependency includes but is not limited to, birth certificates, marriage certificates, certificate of domestic partnership, medical records, adoption records, child support records, orders granting legal custody, alimony awards, settlements or agreements for spousal support, income tax records, Social Security disability or survivor benefits, veteran's death benefits, workers' compensation disability or death benefits, or any court order finding legal dependency or ordering support.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13955, 13957(a)(4) and 13957.5(a)(4), Government Code.
HISTORY
1. New section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
2. Amendment of subsection (b)(1) and amendment of Note filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.34. Eligibility of Law Enforcement Officers.
Note • History
A law enforcement officer who is a victim of a qualifying crime while acting within the course and scope of the officer's employment shall receive assistance for which the officer is otherwise eligible.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951 and 13955, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 651.4 to section 649.34, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.35. Duty of Local Law Enforcement Agencies.
Note • History
Notice of the Victims of Crime Act shall be given by local law enforcement agencies either in person or by mail, or in conjunction with local victim witness assistance centers, to all victims of crimes or their dependents at the time of the incident or as soon as possible thereafter. The notice as required by Government Code section 13962(b) shall be given in accordance with the written procedures developed by the agency pursuant to Section 649.36 of this article. In addition, new officers shall be advised by their superiors upon entering service of the particulars of the VCP Program. Instruction concerning the program shall be made a part of the training curriculum for all trainee officers.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 13962, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.7 to section 649.35, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.36. Victims of Crime Liaison Officer.
Note • History
Each local law enforcement agency shall designate a Victims of Crime Liaison Officer. The VCP shall be advised of the name, business address and telephone number of the person appointed. In carrying out the agency's responsibility under California Government Code Section 13962(b) and Section 649.35 of this article, the Liaison Officer shall devise and implement written procedures whereby victims, or their dependents or family, are notified and provided forms for filing under the VCP. These procedures shall be available for examination, upon request, by the Board. It shall also be the responsibility of the Liaison Officers or their designees to respond to inquiries from interested persons concerning procedures for filing a claim under the VCP. Liaison Officers or their designees shall provide to interested persons applications supplied by the VCP explaining the VCP.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 13962, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 649.8 to section 649.36, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.37. Proof of the Qualifying Crime.
Note • History
An applicant has the burden of proving each element of a qualifying crime.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951, 13956 and 13959, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 653.4 to section 649.37, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.38. Evidence of the Qualifying Crime.
Note • History
(a) A conviction shall be sufficient proof that a crime occurred.
(b) Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether or not a qualifying crime occurred.
(c) Factors that may be considered as evidence of a qualifying crime include, but are not limited to:
(1) an admission of guilt to law enforcement; and
(2) the filing of a criminal charge for the qualifying crime.
(d) Medical or mental health records alone may not be sufficient evidence that a qualifying crime occurred.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13952, 13956 and 13959, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 653.5 to section 649.38, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
Note • History
A victim or derivative victim may be compensated for emotional injury if the victim also sustained one of the following:
(a) physical injury; or
(b) threat of physical injury.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13955(f), Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 652.1 to section 649.39, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.40. Examples of Threat of Physical Injury.
Note • History
A threat of physical injury includes, but is not limited to the following situations:
(a) the victim was directly threatened with a weapon;
(b) the victim was within sight of a person brandishing a weapon and reasonably felt threatened for his or her own safety;
(c) the victim was directly threatened verbally with serious bodily injury and there was a reasonable probability that:
(1) the threat would be carried out; and
(2) physical injury would result if the threat were carried out.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13955, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 652.2 to section 649.40, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.41. Acts Constituting One Qualifying Crime.
Note • History
(a) An act or series of acts by a perpetrator or perpetrators that is a continuing series of events, regardless of the time period over which the acts occur, may be considered one crime for the purpose of filing an application or eligibility.
(b) The following shall constitute one crime for the purpose of filing an application or for eligibility:
(1) the same or similar crime is repeatedly committed against the same victim over a period of time by a single perpetrator;
(2) the same or similar crime is repeatedly committed against the same victim over a period of time by more than one perpetrator acting in concert or with the knowledge of the conduct of the other perpetrator or perpetrators;
(3) a series of crimes is committed against the same victim by one or more perpetrators over a period of time with a continuity of purpose.
(c) An act or series of acts that is one crime under this section that continues after an application is submitted constitutes one crime for the purpose of filing an application or for eligibility.
(d) A qualifying crime may have more than one victim or derivative victim.
(e) When there is more than one victim of the same acts described in subsection (b)(1), (2) or (3), a victim shall not be eligible as both a victim and a derivative victim for the same acts.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13951, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 653.3 to section 649.41, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.42. Date of Qualifying Crime.
Note • History
The date of a qualifying crime that is comprised of a series of acts under section 649.41 is the date on which the last act occurred prior to the date of the application.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13951, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 653.1 to section 649.42, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.43. Evidence of a Child Sexual or Physical Abuse Qualifying Crime.
Note • History
(a) Factors that shall be considered evidence of a child sexual or physical abuse qualifying crime include, but are not limited to:
(1) a sustained juvenile court dependency petition containing allegations of sexual or physical abuse, unless the court finds that the allegations of sexual or physical abuse did not occur;
(2) medical or physical evidence consistent with child sexual or physical abuse;
(3) a written or oral report from a law enforcement agency or a child protective services agency concluding that child sexual or physical abuse occurred;
(4) a credible witness corroborated the child sexual or physical abuse;
(5) a juvenile court order removed the child from the home because of sexual or physical abuse;
(6) criminal charges of child sexual or physical abuse were filed.
(b) Factors that may be considered evidence of a child sexual or physical abuse qualifying crime include, but are not limited to:
(1) a mental health evaluation concluded that child sexual or physical abuse occurred;
(2) the child victim's statement to a law enforcement or child protective services staff;
(3) evidence of behavior consistent with child sexual or physical abuse;
(4) a final superior court order that finds that child sexual or physical abuse occurred.
(c) A report under subsection (a)(3) shall contain all of the following information:
(1) name, telephone number and title of the person making the report;
(2) specific facts that form the basis of the conclusion that a crime occurred;
(3) citation to the relevant criminal statute for the crime that occurred.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13954, 13956 and 13959, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 654.2 to section 649.43, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.44. Evidence of a Domestic Violence Qualifying Crime.
Note • History
(a) Factors that may be considered as evidence of a domestic violence qualifying crime include, but are not limited to:
(1) the perpetrator was prosecuted for the qualifying crime;
(2) the perpetrator was enrolled in a batterers' program or its predecessor domestic violence diversion program as a result of the qualifying crime;
(3) a report from law enforcement concluded that a domestic violence crime was committed against the victim;
(4) a report from a battered women's program corroborates the allegation of domestic violence;
(5) medical records document injuries consistent with the allegation of domestic violence;
(6) a law enforcement officer obtained an emergency protective order under Family Code section 6250;
(7) a report from a law enforcement officer or prosecuting attorney concluded that a crime of domestic violence occurred;
(8) a violation of probation due to a domestic violence qualifying crime against the victim.
(b) For the purpose of this section, “domestic violence” shall have the same meaning as in Penal Code section 13700(b).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13954, 13956 and 13959, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 654.4 to section 649.44, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.45. Presumption of Physical Injury in a Domestic Violence Qualifying Crime.
Note • History
(a) A minor is presumed to have sustained physical injury as a result of a domestic violence qualifying crime if the child witnessed a domestic violence qualifying crime.
(b) A minor witnessed a domestic violence qualifying crime if the minor saw or heard an act constituting a domestic violence qualifying crime.
(c) Factors that may be considered as evidence that a minor witnessed an act constituting a domestic violence qualifying crime include, but are not limited to:
(1) the minor placed a 911 call;
(2) a report from a counselor at a domestic violence agency concluded that the minor witnessed an act constituting a domestic violence qualifying crime;
(3) a report from an eyewitness corroborated that the minor witnessed an act constituting a domestic violence qualifying crime;
(4) a restraining order required the perpetrator to stay away from the minor and a declaration supporting the restraining order stated that the minor was the victim of, or was threatened with, physical injury;
(5) the minor's reliable statements;
(6) other credible evidence.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13951, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 654.5 to section 649.45, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.46. Presumption of Physical Injury in a Child Abduction Qualifying Crime.
Note • History
The presumption of physical injury under Government Code section 13955(f)(3)(D) for violations of Penal Code sections 278 or 278.5 requires that the deprivation of custody continue for at least 30 consecutive days.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13955, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 654.3 to section 649.46, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.47. Evidence of the Qualifying Crime of Stalking.
Note • History
(a) Stalking (Penal Code section 646.9) may be a qualifying crime if the credible threat required by the crime was directed at the victim.
(b) Evidence of a qualifying crime of stalking (Penal Code section 646.9) includes, but is not limited to law enforcement's identification of the victim in the application as the victim in the crime report.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13951, 13954 and 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 654.6 to section 649.47, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
Note • History
Factors that may be considered evidence of human trafficking include, but are not limited to:
(a) Law Enforcement Agency Endorsement issued pursuant to Section 236.2 of the Penal Code;
(b) human trafficking caseworker as identified in Section 1038.2 of the Evidence Code, has attested by affidavit that the individual was a victim of human trafficking;
(c) certification or eligibility letter from a government agency for a special visa as a refugee due to human trafficking or other government benefits as a result of human trafficking; or
(d) medical records documenting injuries consistent with human trafficking.
Medical or mental health records alone shall not be sufficient evidence that the qualifying crime of human trafficking occurred.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956(b)(3), Government Code.
HISTORY
1. New section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
2. Amendment filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.50. Involvement in a Vehicle-Related Qualifying Crime.
Note • History
(a) A victim or derivative victim who was the driver of a vehicle, aircraft, or water vehicle may be found to have been involved in the events leading to the qualifying crime if one of the following was present:
(1) the victim or derivative victim was driving the vehicle with a blood alcohol content exceeding the legal limit;
(2) the victim or derivative victim was driving while under the influence of alcohol and/or drugs;
(3) the victim or derivative victim was cited or arrested by law enforcement based on events leading to the qualifying crime; or
(4) the victim's or derivative victim's conduct was the primary cause of the vehicle collision.
(b) If any of the factors listed in subsection (a) caused the qualifying crime, the application may be denied for participation in the qualifying crime under section 649.51.
(c) A victim or derivative victim who was the passenger in a vehicle driven by a person under the influence of alcohol or drugs may be found to have been involved in the events leading to the vehicle-related qualifying crime if one of the following was present:
(1) the victim or derivative victim knew or reasonably should have known that the driver was under the influence of alcohol or drugs; or
(2) the victim or derivative victim was under the influence of alcohol or drugs and if sober should have reasonably known that the driver was under the influence of alcohol or drugs.
(d) Subsection (c) does not apply if:
(1) the victim is under 14 years of age; or
(2) the victim is under 18 years of age and the driver of the vehicle was the parent or guardian of the victim.
(e) Subsection (c) may not apply if the victim is under 18 years of age and the driver of the vehicle is an adult who had responsibility for the victim other than the victim's parent or guardian.
(f) Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when evaluating the factors listed in subsections (a) and (c).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.6 to section 649.50, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment of subsections (a)-(a)(2), new subsection (a)(3) and amendment of subsections (d)-(e) and (f)(2) filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of subsections (a)(2) and (a)(3), new subsection (a)(4), repealer of subsections (f)-(f)(2), subsection relettering, amendment of newly designated subsection (f) and amendment of Note filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.51. Participation in the Commission of a Crime for Which Compensation is Being Sought.
Note • History
(a) A victim or derivative victim who knowingly and willingly participated in the commission of a crime that resulted in the pecuniary loss for which compensation is being sought shall not be eligible for assistance.
(1) This subsection shall not apply if the crime is a violation of Penal Code section 261.5 [Unlawful sexual intercourse with a minor] occurring on or after January 1, 1999.
(b) A derivative victim is not eligible for assistance if the victim of the same crime knowingly and willingly participated in the commission of the crime.
(c) A victim or derivative victim knowingly and willingly participated in the commission of the crime if the victim or derivative victim was any of the following:
(1) a perpetrator;
(2) a co-conspirator; or
(3) an accomplice.
(d) Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether the victim or derivative victim participated in the commission of a crime.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 655.1 to section 649.51, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment of section heading and section filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of section heading and subsections (a)-(c) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.52. Involvement in the Events Leading to the Qualifying Crime.
Note • History
(a) An application from a victim may be denied, in whole or in part, because of the involvement of the victim in the events leading to the qualifying crime.
(b) An application from a derivative victim may be denied, in whole or in part, because of the involvement of the victim or derivative victim in the events leading to the qualifying crime.
(c) Factors that may be considered when determining whether the victim or derivative victim was involved in the events leading to the qualifying crime include, but are not limited to:
(1) the conduct of the victim or derivative victim caused, resulted in, or reasonably could have led to the qualifying crime;
(2) the conduct of the victim or derivative victim was negligent and placed himself or herself, or another person in a position to be injured or victimized;
(3) the victim or derivative victim intentionally created, entered, or stayed in a situation or environment in which it was reasonably foreseeable that he or she would be victimized;
(4) the level of responsibility of the victim or derivative victim for the qualifying crime;
(5) the qualifying crime was a reasonably foreseeable consequence of the conduct of the victim or derivative victim;
(6) the reasonable ability of the victim or derivative victim to avoid the involvement in the events leading to the qualifying crime;
(7) the extent of harm to the victim or derivative victim resulting from the crime;
(8) future harm to the victim or derivative victim that may occur if assistance is not awarded.
(d) A victim or derivative victim need not participate in the qualifying crime or engage in conduct that is illegal in order to be found to be involved in the events leading to the qualifying crime.
(e) Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether the victim or derivative victim was involved in the events leading to the qualifying crime.
(f) Factors that shall be considered when determining whether a minor victim or derivative victim was involved in the events leading to a qualifying crime under subsection (a) or (b) include, but are not limited to:
(1) age;
(2) physical condition;
(3) psychological or emotional condition;
(4) compelling health or personal safety factors;
(5) reasonable fear of retaliation or harm to self or family.
(g) The eligibility of a minor derivative victim of a domestic violence qualifying crime shall not be affected by the victim's involvement in the events leading to the domestic violence qualifying crime.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.1 to section 649.52, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.53. Involvement in the Qualifying Crime Due to Mutual Combat.
Note • History
(a) Factors that may be considered when determining whether the victim or derivative victim was involved in the events leading to the qualifying crime as a result of mutual combat include, but are not limited to:
(1) there was an implicit or explicit agreement to fight;
(2) the victim or derivative victim made a deliberate threat;
(3) the victim or derivative victim engaged in conduct indicating the intention of carrying out a deliberate threat;
(4) the deliberate conduct of the victim or derivative victim reasonably provoked the other party into starting a physical altercation that lead to the qualifying crime;
(5) the victim or derivative victim initiated a physical altercation that lead to the qualifying crime.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Sections 13956 and 13964, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.4 to section 649.53, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.54. Involvement in the Qualifying Crime Due to Illegal Drug-Related Activity.
Note • History
(a) Involvement in the events leading to the qualifying crime by the victim or derivative victim may be found if the victim or derivative victim was either of the following:
(1) involved in an illegal drug transaction at the time the qualifying crime occurred; or
(2) victimized as a result of involvement in a prior illegal drug transaction.
(b) An illegal drug transaction includes, but is not limited to the following:
(1) the illegal purchase of a drug;
(2) the illegal sale of a drug;
(3) the illegal possession of a drug for sale;
(4) the illegal delivery or transportation of a drug;
(5) the illegal manufacture of a drug.
(c) Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether the victim or derivative victim was involved in the events leading to the qualifying crime under subsection (a).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.2 to section 649.54, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.55. Involvement in the Qualifying Crime Due to Gang Involvement.
Note • History
(a) Involvement in the events leading to the qualifying crime by the victim or derivative victim may be found if the victim or derivative victim was involved in and was injured from a qualifying crime that was a result of gang activity or prior gang activity in which the victim or derivative victim participated.
(b) Gang activity may include, but is not limited to the following:
(1) gang initiation;
(2) gang retaliation;
(3) gang fighting;
(4) intentionally provoking gang-related activity.
(c) Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether the victim or derivative victim was involved in the events leading to the qualifying crime under subsection (a).
(d) Gang membership alone shall not be sufficient for a finding of involvement in the events leading to the qualifying crime under subsection (a).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.3 to section 649.55, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.56. Involvement in the Qualifying Crime of Prostitution.
Note • History
(a) Involvement in the events leading to the qualifying crime of prostitution by the victim or derivative victim may be found if the victim or derivative victim was:
(1) engaged in activity related to prostitution; and
(2) the crime occurred as a direct result of the activity related to prostitution.
(b) Activity related to prostitution includes, but is not limited to the following:
(1) soliciting or participating in the solicitation of an act of prostitution;
(2) purchasing or participating in the purchase of an act of prostitution;
(3) engaging in an act of prostitution;
(4) pimping as defined in Penal Code section 266h;
(5) pandering as defined in Penal Code section 266i.
(c) For the purpose of this section, prostitution has the same meaning as defined in Penal Code section 647(b).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.5 to section 649.56, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.57. Mitigation of Involvement in the Events Leading to the Qualifying Crime.
Note • History
(a) Factors that may be considered to mitigate or overcome involvement in the events leading to the qualifying crime include, but are not limited to:
(1) the victim suffered an injury that was significantly more serious than reasonably could have been expected as a result of his or her involvement in the events leading to the qualifying crime;
(2) another person involved in the events leading to the qualifying crime escalated his or her conduct in a manner not reasonably foreseeable by the victim or derivative victim;
(3) a third party interfered in a manner not reasonably foreseeable by the victim or derivative victim.
(b) If factors overcome the victim or derivative victim's involvement, the application will be granted and the victim or any individual who pays the victim's expenses as stated in Government Code section 13957(a)(9) shall be eligible for Program benefits.
(c) If factors mitigate the victim or derivative victim's involvement but do not overcome that involvement, the application will be granted in part, and the victim or any individual who pays the victim's expenses as stated in Government Code section 13957(a)(9) shall only be eligible for medical expenses incurred on behalf of the victim on or after the date of the qualifying crime and funeral/burial expenses incurred on behalf of the victim.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.8 to section 649.57, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of subsections (b)-(c) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
Note • History
A victim shall not be found to be involved in the events leading to the qualifying crime if the sole involvement of the victim was in self-defense.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 656.7 to section 649.58, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.59. Failure to Cooperate with Law Enforcement.
Note • History
(a) A victim or derivative victim shall reasonably cooperate with any law enforcement agency in its investigation of the qualifying crime and the apprehension and prosecution of any person involved in the qualifying crime.
(b) A victim or derivative victim who knowingly and willingly failed to reasonably cooperate with a law enforcement agency in the investigation of the qualifying crime and the apprehension and conviction of any person involved in the qualifying crime is not eligible for assistance.
(c) A victim or derivative victim who initially cooperated with a law enforcement agency as required by subsection (a), and was determined to be eligible for assistance, and subsequently knowingly and willingly failed to cooperate with a law enforcement agency, may be found eligible for assistance only during the period the victim or derivative victim cooperated with a law enforcement agency.
(d) A derivative victim is not eligible for assistance if the victim of the same qualifying crime failed to cooperate with a law enforcement agency as required by subdivision (a).
(e) Cooperation with a law enforcement agency includes, but is not limited to:
(1) reporting the qualifying crime;
(2) completely and truthfully responding to requests for information in a timely manner;
(3) cooperating with identifying and apprehending any person involved in the qualifying crime; and
(4) testifying in all proceedings, including restitution proceedings, as required.
(f) A victim or derivative victim whose conduct adversely affected the ability of a law enforcement agency either to investigate a qualifying crime, or to apprehend or convict any person involved in the qualifying crime may be found to have failed to cooperate with a law enforcement agency.
(1) A victim or derivative victim whose action or failure to act required a law enforcement agency to expend additional effort to apprehend or convict any person involved in the qualifying crime may be found to have failed to cooperate with a law enforcement agency.
(2) A victim or derivative victim whose action or failure to act unreasonably impeded or impaired the investigation of the qualifying crime, or the apprehension or conviction of any person involved in the qualifying crime may be found to have failed to cooperate with a law enforcement agency.
(g) In order to determine that a victim or derivative victim failed to cooperate with a law enforcement agency for a delay in reporting the qualifying crime, the delay must have adversely affected a law enforcement agency as described in subsection (f).
(h) The failure of a victim or derivative victim to perform any of the duties described in subsection (e)(2) through (4) may be found to be a failure to cooperate with a law enforcement agency even if the failure did not adversely affect a law enforcement agency as described in subsection (f).
(i) Factors that may be considered when assessing a victim's or derivative victim's cooperation with a law enforcement agency include, but are not limited to:
(1) age;
(2) physical condition;
(3) psychological or emotional condition;
(4) compelling health or personal safety factors;
(5) reasonable fear of retaliation or harm to self or family.
(j) The factors listed in subsection (i) shall be considered when assessing a minor victim's cooperation with a law enforcement agency.
(k) The assessment of a victim's or derivative victim's cooperation with a law enforcement agency shall be based on all available evidence, including supplemental crime reports. Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether the victim or derivative victim cooperated with law enforcement.
(l) The eligibility of a minor victim shall not be affected by the failure of the minor victim's parent, legal custodian, or legal guardian to cooperate with a law enforcement agency.
(m) A minor derivative victim is not eligible if both of the following are true:
(1) the minor derivative victim's parent, legal custodian, or legal guardian is the victim through whom the minor seeks to qualify as a derivative victim; and
(2) the person described in subsection (m)(1) failed to cooperate reasonably with a law enforcement agency.
(n) An application from a non-offending parent concerning a child sexual abuse qualifying crime shall not be denied under subsection (a) for failing to timely report the qualifying crime to a law enforcement agency if the non-offending parent otherwise cooperated with a law enforcement agency.
(o) For the purposes of this section, “law enforcement agency” includes a child protective services agency.
(p) For the purposes of this section, “prosecution” shall include the imposition of restitution.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 657.1 to section 649.59, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment of subsections (a)-(b), (k), (m), (m)(2) and (p) filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
§649.60. Failure to Cooperate with Law Enforcement in a Domestic Violence Qualifying Crime.
Note • History
(a) Factors that may be considered when determining whether a victim of a domestic violence qualifying crime cooperated with a law enforcement agency under section 649.59 include, but are not limited to:
(1) the qualifying crime was reported to law enforcement;
(2) the perpetrator was prosecuted for the qualifying crime;
(3) the perpetrator was enrolled in a batterers' program or its predecessor domestic violence diversion program as a result of the qualifying crime;
(4) the perpetrator was not prosecuted due to factors not related to the victim's actions.
(b) A victim of a domestic violence qualifying crime who engaged in any of the following conduct may be found to have failed to cooperate with a law enforcement agency in the investigation of the qualifying crime, and the apprehension and conviction of any person involved in the qualifying crime:
(1) requested in writing that the suspect not be prosecuted for the qualifying crime;
(2) refused to testify when legally served with a subpena in a proceeding related to the prosecution of the qualifying crime;
(3) committed perjury relating to the qualifying crime;
(4) did not completely and truthfully respond to a request for information, evidence or assistance in a timely manner, unless circumstances beyond the victim's control prevented the victim from complying.
(c) For the purpose of this section, “domestic violence” shall have the same meaning as in Penal Code section 13700(b).
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 657.2 to section 649.60, including amendment of section and Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.61. Denial for Failure to File or Dismissal of a Criminal Complaint.
Note • History
(a) An application shall not be denied solely because a criminal complaint was not filed.
(b) An application may be denied if a criminal complaint was not filed due to the victim's or derivative victim's failure to cooperate with a law enforcement agency.
(c) An application shall not be denied solely because a criminal complaint was dismissed.
(d) An application may be denied if the criminal complaint was dismissed as a result of the victim's or derivative victim's failure to cooperate with a law enforcement agency.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13956, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 653.6 to section 649.61, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.62. Failure to Cooperate with Board or Staff.
Note • History
(a) An application or supplemental claim may be denied based on an applicant's failure to cooperate with the Board, VCP staff, or the staff of a joint powers victim witness center in the verification of all information necessary to determine eligibility.
(b) An applicant may be found to have failed to cooperate if any of the following are present:
(1) the applicant has information available to him or her, or which the applicant may reasonably obtain, that is needed to process the application or supplemental claim; and the applicant failed to provide the information after being requested to do so;
(2) the applicant provided or caused another to provide false information regarding the application or supplemental claim; or
(3) the applicant refused to apply for other benefits potentially available to him or her from other sources besides the VCP including, but not limited to, workers' compensation, state disability insurance, Social Security benefits, and unemployment insurance.
NOTE
Authority cited: Sections 13920 and 13974, Government Code. Reference: Section 13954, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 657.3 to section 649.62, including amendment of Note, filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
2. Amendment filed 6-12-2009; operative 7-12-2009 (Register 2009, No. 24).
3. Amendment of subsection (b)(2) and new subsection (c) filed 1-6-2011; operative 2-5-2011 (Register 2011, No. 1).
§649.71. Reimbursement Calculation. [Renumbered]
History
HISTORY
1. New section filed 3-19-92 as an emergency; operative 3-19-92 (Register 92, No. 13). A Certificate of Compliance must be transmitted to OAL 7-17-92 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-17-92 as an emergency; operative 7-17-92 (Register 92, No. 29). A Certificate of Compliance must be transmitted to OAL 10-13-92 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-17-92 order transmitted to OAL 11-6-92 and filed 12-23-92 (Register 92, No. 52).
4. Editorial correction of History 1 (Register 95, No. 40).
5. Change without regulatory effect renumbering former section 649.71 to section 649.25 filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
§649.72. Eligibility of Felons. [Renumbered]
History
HISTORY
1. New section filed 9-28-94 as an emergency; operative 9-28-94 (Register 94, No. 39). A Certificate of Compliance must be transmitted to OAL by 1-26-95 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 9-28-94 order transmitted to OAL 1-25-95 and filed 3-6-95 (Register 95, No. 10).
3. Amendment filed 8-25-97 as an emergency; operative 8-25-97 (Register 97, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-97 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-25-97 order, including amendment of subsection (b)(3), transmitted to OAL 10-22-97 and filed 11-17-97 (Register 97, No. 47).
5. Change without regulatory effect renumbering former section 649.72 to section 649.4 filed 12-6-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 49).
Article 6. Payroll Claims [Renumbered]
HISTORY
1. Renumbering of former article 6 (sections 650-663) to article 4.1 and renumbering of former section 650 to section 633 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
Article 6.1. State Contributions Under State Employees' Medical and Hospital Care Act [Renumbered]
HISTORY
1. Renumbering of former article 6.1 (section 664) to article 4.2 and renumbering of former section 664 to section 634 filed 12-17-99; operative 12-17-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 51).
Article 6.5. Security Payments to Aged and Blind
HISTORY
1. For history of Article 6.5. (Sections 665 and 666) see Register 59, No. 12.
Article 6.6. Property Tax Relief
Note • History
Lists of approved claims compiled by county assessors and presented to the State Controller for payment in accordance with Sec. 32, Chapter 1, Statutes of 1968 (First Extraordinary Session) shall contain a certificate reading as follows:
I certify that I am the duly qualified and acting Assessor of the County of ________________; that each claim in the accompanying list has been processed and verified in accordance with Chapter 1, Statutes of 1968, First Extraordinary Session, and Section 135, Chapter 1, Title 18, California Administrative Code, and is approved for payment thereunder;
That I have not violated any of the provisions of Government Code Sections 1090-1096, inclusive.
NOTE
Authority cited: for Article 6.6: Section 13920, Gov. Code. Reference: Section 925.4, Gov. Code.
HISTORY
1. New Article 6.6 (Sections 670 and 671) filed 3-20-69 as an emergency; effective upon filing (Register 69, o. 12).
2. Certificate of Compliance--Section 11422.1, Gov. Code filed 7-17-69 (Register 69, No. 29).
§671. Machine Processable Media.
In lieu of the certificate required under Section 670, claims recorded on and presented in the form of electronic tapes, punched cards, or other machine processable media, shall be accompanied by a certificate reading as follows:
I certify that I am the duly qualified and acting Assessor of the County of ________________; that each claim recorded on the accompanying electronic tape, punched cards, or machine processable media has been processed and verified in accordance with Chapter 1, Statutes of 1968, First Extraordinary Session, and Section 135, Chapter 1, Title 18, California Administrative Code, and is approved for payment thereunder; that a written reproduction listing each claimant was prepared therefrom and will be retained as a part of the official records of my office;
That have not violated any of the provisions of Government Code Sections 1090-1096, inclusive.
Note • History
A claim presented to the controller pursuant to chapter 927, Statutes of 1968, shall be accompanied by a certificate of an authorized representative of the local taxing authority, as follows;
I hereby certify under penalty of perjury that I am a duly appointed, qualified and acting officer of the herein named local taxing authority; that the within claim is based upon the records of assessed valuation and applicable tax rates for said local taxing authority and is in all respects true, correct, and in accordance with law; and that I have not violated any of the provisions of Government Code Sections 1090-1096, inclusive.
NOTE
Authority cited:Section 13920, Gov. Code. Reference: Sections 925.4 and 11030, Gov. Code.
HISTORY
1. New section filed 8-6-69 as an emergency; effective upon filing (Register 69, No. 32)
2. Certificate of Compliance-Section 11422.1, Gov. Code, filed 10-22-69 (Register 69, No. 43).
§673. Homeowner's Property Tax Exemption.
Note • History
Claims presented to the controller pursuant to Section 33, Chapter 1, Statutes of 1968, First Extraordinary Session, shall be accompanied by a certificate of the Auditor of the City or County, as follows:
(a) County Auditor.
I certify that I am the duly qualified and acting Auditor of the County of ____________; that the attached statement sets forth the amounts of exempt values granted in accordance with law for the homeowner's property tax exemption under Section 1d of Article XIII of the Constitution for said county, each city and school district or portion thereof within the county, each special district or subdivision or zone thereof or portion thereof within the county, for which a tax levy is carried on the county assessment roll; that I have correctly computed and shown on the attached statement the total amount of ad valorem tax loss to the county and the cities and districts resulting from such exemption, in accordance with the provisions of Chapter 1, Statutes of 1968, First Extraordinary Session, and Section 135, Chapter 1, Title 18, California Administrative Code; and certify, under penalty of perjury, that I have not violated any of the provisions of Government Code Sections 1090 to 1096, inclusive.
(b) City Auditor.
I certify that I am the duly qualified and acting Auditor of the City of ____________; that the taxes of said city are not collected by the county; that the attached statement sets forth the amounts of exempt values granted in accordance with law for the homeowner's property tax exemption under Section 1d of Article XIII of the Constitution for said city, each district, subdistrict, or special zone within the city for which a tax levy is carried on the city assessment roll, and the tax rates applicable to each; that I have correctly computed and shown on the attached statement the total amount of ad valorem tax loss to the city and the districts resulting from such exemption, in accordance with the provisions of Chapter 1, Statutes of 1968, First Extraordinary Session, and Section 135, Chapter 1, Title 18, California Administrative Code; and certify, under penalty of perjury, that I have not violated any of the provisions of Government Code Sections 1090 to 1096, inclusive.
NOTE
Authority cited: Section 13920, Gov. Code. Reference: Section 925.4, Gov. Code.
HISTORY
1. New section filed 10-9-69; effective thirtieth day thereafter (Register 69, No. 41).
§674. Business Inventory Tax Exemption.
History
Claims presented to the Controller pursuant to Section 16106 of the Government Code shall be accompanied by a certificate of the Auditor of the County as follows:
I certify that I am the duly qualified and acting Auditor of the County of ________; that the attached statement sets forth the amounts of exempt values granted in accordance with law for the Business Inventory Exemption under Section 219 of the Revenue and Taxation Code for said County, each city and school district or portion thereof within the County, each special district or subdivision or zone thereof or portion thereof within the County, for which a tax levy is carried on the county assessment roll; that I have correctly computed and shown on the attached statement the total amount of ad valorem tax loss to the county and the cities and districts resulting from such exemption, in accordance with the provisions of Section 219 of the Revenue and Taxation Code and Section 133, Chapter 1, Title 18, California Administrative Code; and certify under penalty of perjury that I have not violated any of the provisions of Government Code Sections 1090 to 1096, inclusive.
HISTORY
1. New section filed 2-3-72 as an emergency; designated effective 3-4-72 (Register 72, No. 6).
2. Certificate of Compliance filed 4-11-72 (Register 72, No. 16).
§674.1. Livestock Head-Day Tax Reduction.
History
Claims presented to the Controller pursuant to Section 16106 of the Government Code shall be accompanied by a certificate of the Auditor of the County as follows:
I certify that I am the duly qualified and acting Auditor of the County of ________; that the attached statement sets forth the amounts of property tax reductions granted in accordance with law for the Livestock Head-Day tax under Section 5523 of the Revenue and Taxation Code for said County, each city and school district or portion thereof within the County, for which a tax levy is carried on the county assessment roll; that I have correctly computed and shown on the attached statement the total amount of tax loss to the county and the cities and school districts resulting from such reductions, in accordance with the provisions of Part 11 of Division 1 of the Revenue and Taxation Code (commencing with Section 5501) and Section 1042, Chapter 1, Title 18, California Administrative Code; and certify under penalty of perjury that I have not violated any of the provisions of Government Code Sections 1090 to 1096, inclusive.
HISTORY
1. New section filed 2-3-72 as an emergency; designated effective 3-4-72 (Register 72, No. 6).
2. Certificate of Compliance filed 4-11-72 (Register 72, No. 16).
Article 7. Invoice Claims
§675. Purchase of Materials and Supplies.
History
The State Controller shall issue no warrants for claims covering work or services or the purchase of materials, supplies or equipment, within the purview of Section 14780 of the Government Code, unless the contracts or invoices have first been approved or purchase orders issued by the Department of General Services.
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Amendment filed 10-1-49 as an emergency (Register 18, No. 1).
3. Amendment filed 10-17-63 as procedural and organizational; effective upon filing (Register 63, No. 18).
4. Amendment filed 1-21-71 as procedural and organizational; effective upon filing (Register 71, No. 4).
§676. Specifications for Bids.
There shall be no qualifications in the specifications for any contract which will work for the advantage of any particular bidder or any class of bidders.
History
(a) All invoices or vouchers shall be billed to the State of California or to a particular department, board, commission, agency, or officer thereof and shall be presented for allowance in accordance with the procedure set forth in these rules and regulations.
(b) Invoices or vouchers not on printed bill heads shall be signed by the vendor or person furnishing the supplies or service.
(c) Every invoice for the purchase of materials, supplies or equipment shall show the purchase order number under which the materials, supplies or equipment were purchased.
(d) Every invoice shall be properly itemized before a claim, based thereon, is filed for payment.
(e) Where claims for services are rendered under a contract, the claims shall show the agency contract number.
(f) An invoice will not be required from a lessor if the applicable lease is on file with the State Controller and the State agency submits an itemized claim for payment in a form approved by the State Controller.
HISTORY
1. Amendment filed 6-14-60; designated effective 8-1-60 (Register 60, No. 14).
2. New subsection (f) filed 5-11-70 as procedural and organizational; designated effective 7-1-70 (Register 70, No. 20).
§678. Submission of Claims for Invoices.
Note • History
Claims for invoices may be submitted as frequently as desired. Where the amount involved is too large to be paid from revolving funds, invoices allowing discounts shall be submitted on special schedules, with a notation to the State Controller requesting an expeditious audit and issuance of the warrant. Invoices for amounts of $50 or less exclusive of sales tax, and invoices payable by authorized bank drafts in the amount of $10,000 or less inclusive of sales tax, are conclusively deemed to permit immediate payments from revolving funds when such funds are available, and such invoices shall be submitted when reimbursement of the revolving fund is claimed. Letters of transmittal covering claims are not required.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 925.4, Government Code.
HISTORY
1. Amendment filed 10-5-73; effective thirtieth day thereafter (Register 73, No. 40). For prior history, see Register 70, No. 25.
2. Amendment filed 5-24-74; effective thirtieth day thereafter (Register 74, No. 21).
3. Amendment filed 3-19-76; effective thirtieth day thereafter (Register 76, No. 12).
4. Amendment filed 12-8-80; effective thirtieth day thereafter (Register 80, No. 50).
5. Amendment of section heading, section and Note filed 2-29-2000; operative 2-29-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 9).
§679. Certificate Accompanying Claims.
Note • History
The affidavit or certificate accompanying claims for payment of invoices, required by Section 624, will normally be worded as indicated in (a) below. For special types of services or invoices, in connection with which this standard wording would not be suitable, the certificate may be worded in accordance with such other subsection of this rule as may apply.
(a) Normal invoices.
“I hereby certify under penalty of perjury as follows:
“That I am a duly appointed, qualified and acting officer of the herein named state agency, department, board, commission, office, or institution; that the within claim is in all respects true, correct, and in accordance with law; that the services mentioned herein were actually rendered and supplies delivered to the state agency in accordance with the contract and law; that authorizations for purchases have been duly obtained wherever required and that amounts claimed and articles delivered comply therewith; that the amounts of any refunds to claimants indicated herein were received from such claimants by the herein named agency in excess of that legally due it under the law, or are otherwise lawfully due such claimants; that all of the expenditures herein set forth are in accordance with the current budget allotments and provisions as approved by the Budget Division of the State Department of Finance, and that none of the expenditures are in excess thereof; that there has been full compliance with all provisions or restrictions in the budget act or any other appropriation relating to expenditures herein; that the claimants named herein are each entitled to the amount specified opposite their respective names and actually have been paid or will be paid as allowed when warrant is received from the State Controller; that I have not violated any of the provisions of Sections 1090 to 1096, inclusive, of the Government Code, in incurring the items of expense mentioned in the attached claim, or in any other way; that any disaster service worker for whom compensation or reimbursement for expenses incurred is claimed herein has, if required by law, taken, subscribed, and filed the oath set forth in Section 3103 of the Government Code.”
(b) Railroad invoices for claims under Section 1202.2, Public Utilities Code.
“I hereby certify under penalty of perjury as follows:
“That I am a duly appointed, qualified, and acting officer of the herein named state agency; that the within claim represents the share of the cost of maintaining automatic grade crossing protection assigned to the public agencies by the Public Utilities Commission pursuant to Section 1202.2 of the Public Utilities Code; that the amount of the within claim has been computed in accordance with the Decisions of the Public Utilities Commission and is true and correct; that I have not violated any of the provisions of Sections 1090 to 1096, inclusive, Government Code, in incurring the expenses mentioned in the attached claim, or in any other way; that all of the expenditures herein set forth are in accordance with the current budget allotments and provisions and that none of the expenditures is in excess thereof; that each claimant named herein is entitled to the amount specified opposite his name.”
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 925.4, Government Code.
HISTORY
1. Originally published 3-22-45 (Title 2).
2. Amendment filed 5-9-68; effective thirtieth day thereafter (Register 68, No. 18). For prior history, see Register 57, No. 20.
3. Amendment filed 2-28-80; designated effective 4-1-80 (Register 80, No. 9).
§680. Delayed Submission of Invoices.
Note • History
Invoices shall be submitted with claims for cost of securities purchased as investment of state funds. However, if circumstances exist which prevent the timely submission of invoices, the Controller may issue and deliver warrants for cost of securities. In such event an explanation must accompany the claim and the invoices must be submitted to the Controller within seven (7) calendar days after presentment of the claim.
NOTE
Authority cited: Sections 13920 and 13921, Government Code.
HISTORY
1. New section filed 6-18-59; effective thirtieth day thereafter (Register 59, No. 10).
Article 8. Traveling Expenses
Note • History
It is the purpose of this Article to provide reimbursement for the necessary out-of-pocket expenses incurred by state officers and employees because of travel on official state business. Each state agency is charged with the responsibility of determining the necessity for, and the method of, travel, provided, however, that once such necessity has been determined, reimbursement shall be governed by these rules. It is the intent of the Board that state agencies shall not have discretion to provide reimbursement at a lower amount than contained in Board rules, unless such discretion is specifically mentioned. Language of this article providing a specific time, distance, or amount shall be rigidly interpreted. Language such as “not more than” or “up to” a specified amount shall be interpreted as a rigid ceiling with departmental discretion below such ceiling.
NOTE
Authority cited for Article 8: Sections 13920 and 13921, Government Code.
HISTORY
1. Revision of Article 8 (Sections 700 through 730) filed 8-22-63; designated effective 10-1-63 (Register 63, No. 14). For prior history of Article 8, see Registers 61, No. 23; 62, Nos. 6, 12, and 16; 63, No. 8.
2. Amendment filed 1-13-69; designated effective 3-1-69 (Register 69, No. 4).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Note • History
For the purposes of this Article, the following definitions will apply:
(a) Headquarters. Headquarters shall be established for each state officer and employee and shall be defined as the place where the officer or employee spends the largest portion of his regular workdays or working time, or the place to which he returns on completion of special assignments, or as the Board of Control may define in special situations.
(1) Where an office building or similar definite place constitutes the employee's headquarters, no per diem expenses shall be allowed at any location within 25 miles of said headquarters as determined by the normal commute distance.
(2) Where the major portion of an employee's working time is spent within a specifically assigned or limited geographical area, such as a patrol area or beat where the same routes are traveled frequently and routinely on one-day trips, or such as different campuses or teaching locations associated with a college, no per diem expenses shall be allowed at any location within 25 miles from any point in this assigned area as determined by the normal commute distance.
In order to insure equity in special cases, agency heads may disregard this subsection and authorize individual claims based on subsection (1) of this rule.
(3) In cases where adherence to the 25-mile limitation creates an unusual and unavoidable hardship to the officer or employee, exceptions may be granted by the Board of Control.
(4) Employees on travel status for less than 24 hours may claim subsistence expenses incurred before or after the regularly scheduled work day in accordance with Section 706(c)(1) provided the departure time or return time exceeds the regularly scheduled work day by one hour.
(b) Residence. A place of primary dwelling shall be designated for each state officer and employee. A primary dwelling shall be defined as the actual dwelling place of the employee and shall be determined without regard to any other legal or mailing address. However, if an employee is temporarily required to dwell away from his primary dwelling place due to official travel away from headquarters, and said primary dwelling is either inhabited by his dependents or is maintained by the employee at a net monthly expense in excess of $200, such dwelling place may be continued as the employee's designated primary dwelling.
(1) No reimbursement for per diem or other subsistence expenses shall be allowed on the premises of an employee's residence.
(2) An employee shall have only one residence at which travel expenses are prohibited. In any case, where an employee maintains more than one dwelling, meeting the definition of residence set forth in subsection (b) above, the agency head shall designate the one place which bears the most logical relationship to the employee's headquarters.
(c) Travel Expenses. Travel expenses include:
(1) Per Diem Expenses. Per diem expenses consist of the charges and attendant expenses for meals and lodging and all charges for personal expenses incurred while on travel status.
(2) Business Expenses. Business expenses consist of the charges for business phone calls and telegrams; emergency clothing, equipment or supply purchases; and all other charges necessary to the completion of official business. Any emergency purchase shall be explained, and if over $25 must be approved by the department head, deputy, or chief administrative officer.
(d) Protective Services. A member of the California State Police assigned as provided by Government Code Section 14613, or a member of the California Highway Patrol assigned to supplement State Police capabilities under Section 14613, may claim subsistence allowance for in-state travel as follows:
(1) If expenses actually incurred by the employee while traveling with the protected individual exceed the per diem allowance authorized for in-state travel, the employee may elect to claim the subsistence allowance authorized by Board of Control Rule 706(b).
(2) Any expense claim submitted under (1), must contain a certification by the Chief of the California State Police naming the individual being protected and verifying that the travel expenses were incurred while the claimant was assigned to protect said individual.
(3) Claims submitted under this section shall not be subject to the limitations of subsection 701(a).
(e) Faculty Exchange Program. When an employee of the California State University and Colleges participates in a faculty exchange program at a campus more than 160 kilometers (100 miles) distance from the home campus or his residence, whichever is less, transportation expenses for one round trip shall be allowed in accordance with Section 711.
NOTE
Additional authority cited: Section 13920, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§702. Discontinuance of Subsistence Allowances.
Note • History
(a) Except in the case of state elected officials, Short Term Subsistence Allowances authorized by Rule 706(a)(1) will be discontinued after the 30th consecutive day in one location unless a continuation has been approved in advance by the department director, or equivalent.
(b) Long-Term and Non-Commercial Subsistence Allowances authorized by Rule 706(a)(2), 706(a)(3) may be continued beyond thirty days without the approval of the department director, or equivalent.
NOTE
Authority cited: Section 13920, Government Code.
HISTORY
1. Amendment filed 8-12-76 as an emergency; designated effective 9-1-76 (Register 76, No. 33). For prior history, see Register 69, No. 4.
2. Certificate of Compliance filed 1015-76 (Register 76, No. 42).
3. Amendment of subsection (b) filed 1-2-79; effective thirtieth day thereafter (Register 78, No. 52).
§703. Report of Reimbursed Expense Time Away from Headquarters.
History
(a) Any officer or employee whose headquarters is fixed by the Board of Control, who spends the equivalent of more than 10 days a month in his official duties, who receives a salary plus subsistence expenses, and who is away from headquarters and claims travel expense in any one location for more days in any one month than he spent at his headquarters, in each of three or more months in any calendar year, shall file a report thereof with the board.
(b) The report shall contain a statement of the days for which travel expense was claimed away from headquarters during the year and the location at which such expense was incurred. Such reports shall specify those circumstances inherent in the reportee's work assignments which will justify continuation of the headquarters as established by the board. Such reports shall be submitted by the 15th of the month following the third month in which the travel expense was claimed.
HISTORY
1. Amendment of subsection (b) filed 4-20-72 as an emergency; effective upon filing (Register 72, No. 17).
2. Amendment of subsection (b) refiled 9-7-72 as an emergency; effective upon filing (Register 72, No. 37).
3. Certificate of Compliance filed 1-3-73 (Register 73, No. 1).
Note • History
(a) No travel expense account shall be paid unless rendered upon a Travel Expense Claim, Standard Form 262 or upon some other form approved by the Controller. All expense accounts shall be properly itemized, accompanied by the necessary vouchers and approved by the duly authorized officer. It is the responsibility of the officer approving the claim to ascertain the necessity and reasonableness of incurring expenses for which reimbursement is claimed.
(b) Expense accounts shall be rendered at least once a month and not more often than twice a month except that if the amount claimable for any month does not exceed $10, the filing may be deferred until the total amount claimable exceeds $10 or until June 30, whichever occurs first. At the end of a fiscal year, travel expenses claimed for July 1 and beyond must be on a separate travel expense claim from those claimed for June 30 or earlier. In no event shall expense accounts totaling less than $1 be rendered or paid.
(c) Each officer and employee when making a claim for travel expenses must show the inclusive dates of each trip for which allowances are claimed and the times of departure and return. Time of departure and return, as used herein, means the time employee starts from or returns to his office or, when leaving on a trip or returning from a trip without going to the office, his home.
(d) Each officer and employee must state the purpose or objective of each trip for which reimbursement is claimed, and for each meal for which reimbursement is claimed under Rules 707 and 708.
(e) Each state officer and employee must show his headquarters address and his primary dwelling address on the Travel Expense Claim. Employees claiming subsistence expenses pursuant to Section 706(a)(2)(B) will show their headquarters address as the address of their primary dwelling.
(f) Each claim for the payment of travel expenses shall contain a certification as follows:
I hereby certify that the above is a true statement of the travel expenses incurred by me in accordance with Board of Control rules in the service of the State of California, and that all items shown were for the official business of the State of California.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 19463, Government Code.
HISTORY
1. Amendment of subsection (d) filed 8-12-76 as an emergency; designated effective 9-1-76 (Register 76, No. 33). For prior history, see Register 71, No. 4.
2. Certificate of Compliance filed 10-15-76 (Register 76, No. 42).
3. Amendment of subsection (e) filed 12-29-78 as an emergency; designated effective 1-1-79. Certificate of Compliance included (Register 78, No. 52).
4. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§705. Business Expenses. [Repealed]
History
HISTORY
1. Amendment filed 12-4-70; designated effective 1-4-71 (Register 70, No. 49).
2. Repealer filed 12-16-70 as an emergency; designated effective 1-4-71 (Register 70, No. 51).
3. Certificate of Compliance--Section 11422.1, Gov. Code, filed 3-3-71 (Register 71, No. 10).
Note • History
When state officers and employees are on travel status as defined in this Article, payment of a subsistence allowance will be authorized by the Board of Control for both in-state and out-of-state travel. The circumstances of travel will determine the rate allowed. Agencies will authorize payment for lodging, meals and incidental expenses as claimed by the employee in accordance with Section 706(c). Each agency will be responsible for determining which of the following allowances is applicable:
(a) In-State Subsistence Allowance.
(1) Short-Term Allowance. A short-term allowance will be authorized when the circumstances and duration of travel are such that the traveler incurs expenses comparable to those arising from the use of good, moderately priced establishments, catering to the general public. The short-term allowance is intended for trips of such duration that weekly or monthly rates are not obtainable.
(2) Long-Term Allowance. A long-term allowance will be authorized when the circumstances of travel are such that the traveler incurs expenses in one location comparable to those arising from the use of establishments catering to the long-term visitor.
(A) An employee on long-term field assignment away from his headquarters who maintains a permanent residence elsewhere while living at the job location will be authorized the full allowance provided one of the following conditions exists:
1. Permanent residence is occupied by employee's dependents, or
2. Permanent residence is being maintained at a net expense to him in excess of $200 per month.
To qualify for this allowance, an employee must submit whatever evidence his agency may require substantiating the existence of either condition 1 or 2.
(B) An employee on long-term field assignment away from his headquarters who does not maintain a permanent residence away from the job site in accordance with Section 706(a)(2)(A) will be authorized an allowance equal to one-half the amount of the long-term allowance rounded to the nearest dollar.
(C) Employees will be eligible to claim the appropriate allowance for every 24-hour period on travel status. Allowances for partial day travel status will be as follows:
1. Less than 12 hours, one-half the appropriate allowance, rounded to the nearest dollar,
2. From 12 to 24 hours, the full allowance
(3) Non-Commercial Allowance. A non-commercial allowance will be authorized when the circumstances of travel are such that the traveler incurs expenses comparable to those arising from the use of non-commercial subsistence facilities such as, but not limited to, house trailers or field camping equipment.
(A) Employees will be eligible to claim this allowance for every 24-hour period on travel status. Allowances for partial day travel status will be as follows:
1. Less than 12 hours, one-half the allowance, rounded to the nearest dollar,
2. From 12 to 24 hours, the full allowance
(b) Out-Of-State Subsistence Allowance. For out-of-state travel, state elected officials and other employees will be reimbursed actual lodging expenses, supported by a voucher, and reimbursed for meal and incidental expenses in accordance with Section 706(c).
(1) Out-of-Country Subsistence Allowance. When employees are authorized to travel outside the continental United States, and continue to maintain a permanent residence either occupied by the employees' dependents or maintained at a net monthly expense in excess of $200, reimbursement of subsistence expenses may exceed established rates if the agency obtains advance approval of specific rates from the Board of Control.
(c) Computation Of Allowances.
(1) In computing the allowance for travel, the following reimbursement will be allowed in any 24-hour period or fractional part thereof:
Statewide Designated High-
Cost Areas
Lodging $35.00 Up to $43.00
(with receipt)
Breakfast 4.00 4.00
Lunch. 7.25 7.25
Dinner 12.00 12.00
(2) Designated High-Cost Areas. To be eligible for the higher lodging allowance, the employees must be required to travel to the downtown areas of San Francisco, Los Angeles, or San Diego and must furnish a commercial lodging receipt for the day(s) of travel which bears one of the following ZIP Codes:
San Francisco: 94102, 94104, 94108, 94109, 94111, 94133, 94103, 94105
Los Angeles: 90012, 90013, 90014, 90015, 90017, 90021, 90071, 90045
San Diego: 92101, 92110, 92108, 92103, 92106.
Receipts bearing other than the above ZIP Codes, or no receipts, will limit reimbursement to the statewide rate of $62. Rule 710(b) may not be invoked.
(3) An additional $3.75 incidental allowance may be claimed for each 24-hour period.
(4) Long-Term and Non-Commercial Allowances will be computed at 60% of the statewide rate in Section 706(c)(1), plus the incidental allowance authorized by Section 706(c)(3) rounded to the nearest dollar.
(d) Expenses Outside the State. Expenses incurred outside the State will not be allowed unless authorization for incurring them and permission for absence from the State has first been obtained from the Governor and the Director of Finance, except that in cases where such expenses are incurred by travel to and from places in states bordering upon this State, approval of the Director of Finance only will be required. Any terms or directives set forth in such authorization are limitations and will not operate as exceptions to these rules. A claim for expenses for out-of-state travel must be submitted on a separate expense account. This section shall not apply to committees of the Legislature or of either house thereof nor to employees of any such committee.
(e) Subsistence Expense Negotiated or Paid for by the State. When a significant portion of the subsistence expenses (either meals or lodging) are negotiated or otherwise paid for by the State (e.g., billed to the State, paid by a group leader, included in overnight train fare, etc.), the employee will not be reimbursed for such expenses. The employee will be allowed to claim reimbursement in accordance with Section 706(c) for any subsistence not provided.
NOTE
Authority cited: Sections 11032 and 13920, Government Code. Reference: Sections 11030 and 19463, Government Code.
HISTORY
1. New subsection (b)(1) filed 5-6-77 as an emergency; effective upon filing (Register 77, No. 19). For prior history, see Register 77, No. 9.
2. Certificate of Compliance filed 7-29-77 (Register 77, No. 31).
3. Amendment filed 11-22-77; designated effective 1-1-78 (Register 77, No. 48).
4. Amendment of subsections (a), (b)(1) and (c) filed 12-29-78 as an emergency; designated effective 1-1-79. Certificate of Compliance included (Register 78, No. 52).
5. Amendment of subsection (c) filed 12-8-80; effective thirtieth day thereafter (Register 80, No. 50).
6. Amendment of subsection (c) filed 9-30-82; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 82, No. 40).
§706.1. Continuous Indeterminate Field Assignment Allowances. [Repealed]
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 19463, Government Code.
HISTORY
1. Repealer filed 12-29-78 as an emergency; designated effective 1-1-79. Certificate of Compliance included (Register 78, No. 52). For prior history, see Register 77, No. 48.
§707. Meal Expenses. [Repealed]
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 19463 and 11030, Government Code.
HISTORY
1. New subsection (d) filed 5-30-80; designated effective 7-1-80 (Register 80, No. 22). For prior history, see Registers 76, No. 33; 76, No. 42; 77, No. 9; 77, No. 48; 78, No. 40 and 78, No. 52.
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
3. Change without regulatory effect repealing section filed 5-13-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 20).
§708. Attending Conventions, Conferences, or Business Meetings.
Note • History
(a) All regulations governing short-term travel and subsistence allowances will apply except that employees may be reimbursed for actual subsistence expenses, supported by voucher, when the convention or conference is planned and arranged by a non-state agency if such expenses are beyond the control of the employees.
(b) Registration fees will be allowed except for conventions or conferences called by a state agency for the dissemination of information to its own employees. Reimbursement for registration fees exceeding $50 must be approved by the department head or delegated representative.
(c) Where more than two individuals (officers or employees) from the same department are attending the same convention or conference, each claim must be approved by the department head or delegated representative. This requirement does not apply to a convention or conference called by a state department for purposes of instruction or dissemination of information to its own officers or employees.
(d) Exceptions to these rules may be approved in advance by the Board of Control.
NOTE
Authority cited: Section 13920, Government Code.
HISTORY
1. Amendment filed 10-6-78; designated effective 11-6-78 (Register 78, No. 40). For prior history, see Register 77, No. 48.
2. Editorial correction of subsection (a) (Register 80, No. 29).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§709. Contracting for Subsistence Expenses.
History
Agreements may be entered into with restaurants, hotels, and lodging houses for the furnishing of subsistence to groups of state employees when such method of handling is advantageous to the State. When such agreements are entered into, the vendor may receive payment either from the group leader or by billing the State on a regular itemized invoice.
(a) Group leaders who pay subsistence expenses for other personnel may claim reimbursement by submitting a vendor's invoice and a list of names of the employees whose expenses were paid.
(b) Members of a group who have some portion of their subsistence expenses paid by the group leader may claim reimbursement for the remainder of their actual and necessary subsistence expenses in accordance with Section 706(e).
(c) The total payment under any such agreement shall not exceed the aggregate of the subsistence allowances otherwise claimable by the participating employees.
HISTORY
1. Amendment of subsection (a) filed 1-13-69; designated effective 3-1-69 (Register 69, No. 4).
2. Amendment of subsection (b) filed 12-4-70; designated effective 1-4-71 (Register 70, No. 49).
3. New subsection (c) filed 2-11-74; effective thirtieth day thereafter (Register 74, No. 7).
4. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
History
(a) Receipts or vouchers shall be submitted for every item of expense except as follows:
(1) Railroad and bus fares, where the fares are available in published tariffs, and travel is wholly within the State of California. However, vouchers must be submitted in the case of cash purchases of airplane travel, Pullman accommodations, or extra fare train, travel by any common carrier outside of the State except taxi or hotel bus fares.
(2) Subsistence allowances, except when specified.
(3) Street car, ferry fares, bridge and road tolls.
(4) Long distance telephone or telegraph charges, if date, place and party called are shown, unless the telephone call is in excess of $2.50 in which case vouchers or other supporting evidence shall be provided.
(5) Taxi or hotel bus fares, when necessary upon official business.
(6) All legal expenditures of $1 or less.
(7) Parking fees of $3.50 or less for any one continuous period of parking.
(b) In cases where receipts cannot be obtained or have been lost, a statement to that effect shall be made in the expense account and the reason given. In the absence of satisfactory explanation the amount involved shall not be allowed.
HISTORY
1. New subsection (a)(7) filed 1-3-69; designated effective 3-1-69 (Register 69, No. 4).
2. Amendment of subsection (a) filed 11-22-77; designated effective 1-1-78 (Register 77, No. 48).
3. Amendment of subsection (a)(7) filed 12-1-77 as an emergency; effective upon filing. Certificate of Compliance included (Register 77, No. 48).
4. Amendment of subsection (a)(7) refiled as an emergency 12-6-77; designated effective 1-1-78. Certificate of Compliance included (Register 77, No. 48).
5. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§711. Transportation Expenses.
Note • History
(a) Transportation expenses consist of the charges for commercial carrier fares; private car mileage allowances; emergency repairs to state cars; overnight and day parking of state or privately-owned cars; bridge and road tolls; necessary taxi, bus, or streetcar fares; and all other charges essential to the transport from and to the official headquarters.
(b) Reimbursement will be made only for the method of transportation which is in the best interest of the State, considering both direct expense as well as the officer's or employee's time. Provided the mode of transportation selected does not conflict with the needs of the agency, the officer or employee may use a more expensive form of transportation and be reimbursed at the amount required for a less expensive mode of travel. Both modes of transportation will be shown on the travel claim with reference to this section.
(c) In any case in which reimbursement for expenses of transportation by private automobile or privately-owned airplane is claimed, the license number of the automobile or the civilian airplane license number as well as the name of each state officer, employee, or board, commission, or authority member transported on the trip shall be stated. As such reimbursement is for the expense of use of the automobile or airplane regardless of the number of persons transported, no reimbursement for such transportation shall be allowed any passenger in any automobile or airplane operated by another such officer, employee or member.
In the determination of fares or mileage paid for transportation by airplane, the point of origin or return shall be an appropriate airport facility serving the area of the employee's headquarters or residence, whichever results in the lesser distance or amount.
(d) Expenses arising from travel between home or garage and headquarters shall not be allowed. Where a trip is commenced or terminated at claimant's home, the distance traveled shall be computed from either his headquarters or home, whichever shall result in the lesser distance.
Exceptions to the above are:
(1) Where such expenses are incurred by call back for overtime work necessitating more than one trip to the work location on a normal work day or by reason of any call back on an employee's normal day off.
(2) When the headquarters of a permanent, full time employee is located 24 or more kilometers (15 or more road miles) one way from the nearest residential area with available housing, the appointing power may authorize payment of expenses incurred by an employee in the use of a privately owned vehicle.
(A) The authorizing agency must obtain prior approval from the Board of Control with regard to the location of the nearest residential area with available housing and amount of mileage to be paid.
(B) Reimbursement will be at the rate provided in Rule 714(b) for distance driven and authorized in accordance with this rule and being in excess of 48 kilometers (30 miles) round trip.
(C) The term “available housing” as used in this subsection is intended to relate primarily to the quantity of housing available and not to its quality or cost.
(D) Distance will be computed from a location within the selected nearest residential area to the employee's work headquarters by the most direct road route and not the actual miles driven.
(E) If an employee's residence is not located in the designated residential area, but is more than 48 kilometers (30 miles) round trip from his remote location headquarters, he may be reimbursed for travel from his residence or from the selected location within the designated residential area, whichever is less.
(F) Payments will be authorized only if the appointing power has determined that the employee cannot participate in a department sponsored car or van pool.
(G) An employee whose headquarters is designated as remote and who lives in the designated residential area who is required to report to a worksite other than headquarters for a particular day, and who is required to use his own vehicle shall receive payment for the round trip from the designated residential area to the worksite.
(H) An employee whose headquarters is designated as remote and who lives less than 24 kilometers (15 miles) from headquarters, who is required to report to a worksite other than headquarters for a particular day, and who is required to use his own vehicle shall receive payment for the round trip from his own residence to the worksite or his headquarters to the worksite, whichever is less.
(I) An employee whose headquarters is designated as remote, who does not live in the designated area but lives more than 24 kilometers (15 miles) from his headquarters, who is required to report to a worksite other than headquarters for a particular day and who is required to use his own vehicle shall receive payment for the actual round-trip distance by the most direct route, not to exceed:
1. The distance from the designated residential area to the worksite, or
2. The distance from the employee's headquarters to the worksite, whichever is greater.
(3) When travel to or from a common carrier commences or terminates before or after the regularly scheduled work day or on a regularly scheduled day off, distance may be computed from the employee's residence in accordance with Section 714(b).
(e) When an employee's regular work assignment requires him to rotate among two or more posts or work stations at different geographic locations within a metropolitan area either to protect state property or state personnel and he is instructed to report directly to the designated post for a full shift, distance from his home to the designated post and return shall be limited to that which exceeds the round trip distance from his home to his designated headquarters, and shall be computed at the rate set forth under rule 714(b). For the purpose of determining the correct distance to be allowed in these situations, headquarters shall be a designated single geographic location or address regardless of whether the employee spends a major or significant portion of his working time there.
(f) No reimbursement will be allowed for transportation expense when the employee uses a privately-owned motorcycle or motor-driven cycle in the conduct of official state business.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New subsection (d)(3) filed 11-22-77; designated effective 1-1-78 (Register 77, No. 48). For prior history, see Register 77, No. 31.
2. Amendment of subsection (d)(2)(B) filed 12-12-77 as an emergency; designated effective 1-1-78. Certificate of Compliance included (Register 77, No. 51).
3. Amendment filed 6-8-79 as an emergency; designated effective 7-1-79 (Register 79, No. 23). Certificate of Compliance included.
4. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
Note • History
(a) Where it is necessary to hire special conveyances, except automobiles, a full explanation, stating the facts constituting the necessity, shall accompany the expense claim.
(b) Commercial Automobile Rental.
(1) Reimbursement will be for actual and necessary costs of such rental when substantiated by a voucher. Where it is necessary to pay extra charges or premium rental rates for air conditioning, convertible bodystyle, expensive, or other luxury items, a full explanation shall accompany the expense claim.
(2) Reimbursement will not be made for a damage waiver. Reimbursement will be made to the officer or employee for any loss necessarily sustained by him by reason of his not having purchased such waiver.
(c) Where a privately owned bicycle is used in the conduct of official state business, the employee will be allowed to claim 4 cents per 1.6 kilometers (mile).
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. New subsection (b) filed 4-23-64; designated effective 7-1-64 (Register 64, No. 8).
2. Amendment filed 1-13-69; designated effective 3-1-69 (Register 69, No. 4).
3. Repealer of subsection (c) filed 11-7-69; designated effective 1-1-70 (Register 69, No. 45).
4. New subsection (c) filed 8-31-79, designated effective 10-1-79 (Register 79, No. 35).
5. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§713. Transportation by Aircraft.
Note • History
(a) Scheduled Airline. Claims for transportation by scheduled airline shall be allowed at the lowest fare available in conformity with the regular published tariffs for scheduled airlines in effect on the date of origination of the flight. Claims for reimbursement of higher fare or extra charges for transportation by scheduled airline may be allowed if accompanied by a full explanation stating the facts constituting the official necessity.
(b) Privately-Owned Aircraft. A claim of an employee for transportation by privately-owned aircraft shall be allowed where he has obtained prior approval of the use of this form of transportation from his department. If an employee is to act as pilot, he must satisfy the requirements of the Insurance Officer, Department of General Services, as to liability insurance coverage. The Insurance Officer shall file approved authorizations for such allowance with the State Controller.
(1) Reimbursement for use of the employee's privately-owned aircraft shall be made at the rate of 28 cents per statute mile, or 17.5 cents per kilometer.
(A) Distance shall be computed on the basis of shortest air route from origin to destination, using airways whenever possible. Distance shown on claim shall be clearly marked “Air Distance.”
(B) When the trip is limited solely to state business and the “Air Distance” cannot accurately be computed from origin to destination, the department director may authorize reimbursement for the actual cost of renting a plane.
(2) Reimbursement for use of a rented aircraft will be for actual and necessary costs of such rental when substantiated by voucher.
(A) Reimbursement will be authorized only for the size and type aircraft necessary to complete the assignment.
(3) When substantiated by a voucher, reimbursement will be made for actual and necessary expenses for landing and parking fees in connection with the use of the aircraft. Reimbursement will not be allowed for storage or parking fees at the location where the privately-owned aircraft is normally stored.
(4) If an employee is to act as pilot and carry passengers he must, in addition to Federal Aviation Administration Regulations, have previously logged as a licensed private pilot in command of an aircraft at least 250 hours of actual flight. In addition, the employee pilot must have logged, as a pilot in command of an aircraft, at least 40 hours of actual flight within the preceding 12 months. Any employee pilot who has carried or intends to carry passengers may be required to present his log book substantiating that he meets these requirements. For the purpose of this rule, the term passenger shall be defined as any person other than the pilot traveling in the aircraft. An employee pilot who carries a passenger but fails to meet the above qualifications is not entitled to any reimbursement for that transportation expense.
(c) Payment of Fare. Payment for transportation by aircraft may be made by (1) cash, (2) credit card, or (3) ticket order. In cases where payment is made by cash, the travel expense claim must be accompanied by the traveler's flight coupon if one was issued, in accordance with Rule 710(a)(1). If no flight coupon was issued, as may be the case with chartered or private aircraft, a formal receipt must be submitted. If payment was made by credit card or by ticket order, this fact should be noted on the travel expense claim.
(d) Air Travel Insurance. Any state agency may insure its officers and employees against injury or death arising from aircraft accidents incurred while flying on state business in any except regularly scheduled passenger aircraft, subject to the following conditions:
(1) Such insurance shall be provided only to those employees who are directed to fly to fulfill their work requirements. Such insurance coverage shall not be provided where the use of a privately-owned aircraft is for point-to-point transportation and is a result of a voluntary response from the employee, even though such usage may be advantageous to the State.
(2) Application for such insurance shall be submitted to, and the insurance procured by, the Department of General Services.
(3) The maximum limit of such insurance shall be $15,000 in the case of death or dismemberment for each officer and employee.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. Amendment of subsection (b)(1) filed 12-8-80; effective thirtieth day thereafter (Register 80, No. 50). For prior history, see Register 79, No. 23.
2. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§714. Transportation by Automobile.
Note • History
(a) When a claimant uses a privately owned vehicle on state businesses he or she will be allowed to claim and to be reimbursed at the mileage rate set by the Department of Personnel Administration for non-represented employees. The mileage rate is set forth in California Code of Regulations, Title 2, Division 1, Chapter 3, Subchapter 1, Article 2, section 599.631, and all subsequent Department of Personnel Administration Personnel Management Liaison Memorandums.
(b) When a claimant uses a privately owned vehicle to travel to or from a common carrier terminal, and the vehicle is not parked at the terminal during the period of absence, the claimant may claim double the number of miles between the terminal and the claimants' headquarters or residence, whichever is less, while the employee occupies the vehicle. If the employee begins travel more than one (1) hour before he or she normally leaves home, or on a regularly scheduled day off, mileage may be computed from his or her residence.
(c) Ferry, bridge, or toll road charges shall be allowed.
(d) Charges shall be allowed for necessary parking while on state business for:
(1) Day parking when on trips away from the headquarters office and residence.
(2) Overnight public parking when on trips away from the headquarters city and city of residence. Claim should not be made if expense-free overnight parking is available.
(3) Day parking adjacent to claimant's headquarters, provided that claimant had other reimbursable private car expenses for the same day.
(e) Expenses for gasoline or routine repairs shall not be allowed.
(f) The rates of reimbursement for mileage set out in this section include the cost of maintaining liability insurance at the minimum amount prescribed by law and collision insurance sufficient to cover the reasonable value of the vehicle, less a standard deductible. When a privately owned vehicle operated by an officer, agent or employee is damaged by collision or receives other accidental damage, reasonable reimbursement for repair shall be allowed under the following conditions:
(1) The damage occurred while the vehicle was being used on official state business with the permission or authorization of his employing agency;
(2) The vehicle was damaged through no fault of the officer, agent, or employee;
(3) The amount claimed is an actual loss to the officer, agent, or employee, which is not recoverable either directly from or through the insurance coverage of any of the parties involved in the accident;
(4) The amount of the loss claimed does not result from a decision of an officer, agent or employee not to maintain collision coverage;
(5) The claim is processed in accordance with the procedures prescribed by the Department of General Services.
(g) Allowance of transportation expenses by privately owned automobile incurred in travel outside the State is limited by these rules and the requirement of the authorization specified in Section 706(d).
(h) The reimbursement rates provided by this regulation apply to private vehicles use on state business occurring on or after January 1, 2008.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 11030 and 11340.9, Government Code.
HISTORY
1. Amendment of subsections (b) and (c) filed 2-28-80; designated effective 4-1-80 (Register 80, No. 9). For prior history, see Register 79, No. 29.
2. Amendment of subsections (a)-(c) filed 9-30-82; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 82, No. 40).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
4. Amendment of section and Note filed 10-12-2006; operative 10-12-2006 pursuant to Government Code section 11343.4. Submitted to OAL for printing only pursuant to the exemption from OAL review for regulations that establish or fix rates (Government Code section 11340.9) (Register 2006, No. 41).
5. Amendment of subsections (a) and (h) filed 2-28-2007; operative 1-1-2007. Submitted to OAL for printing only pursuant to the exemption from OAL review for regulations that establish or fix rates (Government Code section 11340.9) (Register 2007, No. 9).
6. Amendment of subsections (a) and (h) filed 2-25-2008; operative 1-1-2008. Submitted to OAL for printing only pursuant to the exemption from OAL review for regulations that establish or fix rates (Government Code section 11340.9) (Register 2008, No. 9).
7. Amendment of subsection (a) and Note filed 12-30-2008; operative 12-30-2008. Submitted to OAL for printing only pursuant to the exemption from OAL review for regulations that establish or fix rates (Government Code section 11340.9) (Register 2009, No. 1).
§715. Railroad Transportation.
History
(a) No more than actual fare on any transportation service, in accordance with the latest tariffs at the time the trip was made, shall be allowed. Special rates and round-trip rates shall be used whenever possible.
(b) Reimbursement for roomette Pullman accommodations will be allowed. Where it is necessary to use Pullman accommodations more expensive than a roomette, a full explanation stating the facts constituting the official necessity shall accompany the expense account together with a receipted voucher.
(c) Unused portions of railroad and sleeping car tickets are subject to refunds and all steps necessary to secure refunds on such tickets shall be taken.
(d) Any unusual delay or a deviation from the shortest, usually travelled route shall be explained unless connected with return trip out-of-state deportation travel authorized by the Department of Health or the Department of the Youth Authority.
(e) In connection with return trip out-of-state deportation travel authorized by the Department of Health or the Department of the Youth Authority, reimbursement for subsistence and transportation expenses shall be made on the basis of shortest usually travelled routes, conventional train time, first class fare, and lower standard Pullman rates as certified to by a railroad passenger agent.
(f) Meals incurred while on overnight train travel will be reimbursed in accordance with Section 706(c).
(g) Tickets for rail transportation or Pullman accommodations may be purchased (1) by the individual, (2) by credit card, or (3) ticket order. If purchased by credit card, or by ticket order this fact should be noted on the individual's expense claim.
HISTORY
1. Amendment filed 4-24-70; designated effective 7-1-70 (Register 70, No. 17). For history of former section, see Register 64, No. 5.
2. Amendment of subsection (f) filed 8-12-76 as an emergency; designated effective 9-1-76 (Register 76, No. 33).
3. Certificate of Compliance filed 10-15-76 (Register 76, No. 42).
4. Amendment of subsections (d) and (e) filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
5. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§716. Allowances for State College Extension Program. [Repealed]
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 11030 and 13920, Government Code.
HISTORY
1. New section filed 3-3-71; effective thirtieth day thereafter (Register 71, No. 10).
2. Change without regulatory effect repealing section filed 5-13-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 20).
§717. Return of Deceased Employees.
Note • History
When a state officer or employee dies while travelling on official state business, reimbursement may be claimed for actual and reasonable expenses incurred in returning the remains to the place of burial, up to the amount necessary to return the remains to the official headquarters of the deceased. Claims for the reimbursement of such expenses shall be submitted to the State Controller by the person responsible for payment of the funeral expenses. Each claim shall bear a certification by the appointing power that the employee was travelling on official state business at the time of his death. Actual costs of the following will be considered necessary travel expenses for which reimbursement will be made.
(a) In all cases, regardless of mode of transportation:
(1) Telephone or telegraph charges for shipment arrangements.
(2) Transportation of the remains to the funeral home, preparing the remains for shipment, not in excess of $1 per 1.6 kilometers (mile) one way.
(b) When a portion of the shipment is by common carrier:
(1) Transportation by common carrier to the receiving point nearest the official headquarters or place of burial, whichever is less.
(2) Transportation not in excess of 50 cents per 1.6 kilometers (mile) one way from a funeral home to a shipping station and from the receiving station determined by paragraph (1) above to the headquarters location or place of burial, as applicable.
(3) Outside transportation case and casket or rental metal transfer case, not to exceed $100 plus taxes.
(c) When shipment is made by funeral coach alone, transportation costs not to exceed 50 cents per 1.6 kilometers (mile) one way, from the pick-up point to the city in which the official headquarters of the deceased was located, or to the place of burial, whichever is the shorter distance.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 11030.1, and 19463, Government Code.
HISTORY
1. Amendment filed 5-10-68; designated effective 7-1-68 (Register 68, No. 18).
2. Amendment filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
3. Amendment of subsections (a)(2), (b)(2), and (c) filed 12-29-78 as an emergency; designated effective 1-1-79. Certificate of Compliance included (Register 78, No. 52).
4. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
§718. Travel Allowances While on Sick Leave, Vacation or Compensating Time Off (CTO).
Note • History
(a) When a state officer or employee is granted sick leave while away from his headquarters for purposes of state business, such officer or employee may claim reimbursement for travel expenses in accordance with the allowances prescribed by these rules during such sick leave, provided the allowances for travel expenses shall not be authorized for a period exceeding three days. The time limitation prescribed by this section may be exceeded in unusual cases approved by the Board of Control.
(b) When a state officer or employee is authorized time off on vacation or CTO while away from his headquarters on state business, reimbursement for subsistence allowance during such vacation or CTO may not be claimed. The provisions of this section may be waived by an agency for employees claiming other than short-term allowances who are
(1) authorized time off on CTO, or
(2) employees in seasonal agricultural work authorized time off on vacation.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 19463, Government Code.
HISTORY
1. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15). For prior history, see Register 78, No. 52.
§719. Transportation Expenses of Applicants Who Are Called for Interview. [Repealed]
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 11030 and 18007, Government Code.
HISTORY
1. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15). For prior history, see Register 80, No. 9.
2. Change without regulatory effect repealing section filed 5-13-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 20).
§720. Nonsalaried Assistance; State Personnel Board. [Repealed]
Note • History
NOTE
Authority cited: Section 18941, Government Code.
HISTORY
1. Amendment filed 4-7-66; effective thirtieth day thereafter (Register 66, No. 9).
2. Amendment of subsection (a) and new NOTE: filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
4. Change without regulatory effect repealing section filed 5-13-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 20).
§721. Legislative Travel Expenses.
Note • History
(a) During those times that a Member of the Legislature is required to be in Sacramento to attend a session of the Legislature and during those times that a member is traveling to and from, or is in attendance at, any meeting of a committee of which he or she is a member or is attending to any other legislative function or responsibility as authorized or directed by the rules of the house of which he or she is a member or by the joint rules, he or she shall be entitled to reimbursement of his or her living expenses at the rate set by the United States General Services Administration for federal employees traveling to Sacramento. The rate is set forth in Federal Travel Regulation section 301-11, and all subsequent Federal Travel Regulation Per Diem Bulletins.
(b) The reimbursement rates provided by this regulation apply to travel occurring on or after the effective date of this regulation.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 8902, Government Code.
HISTORY
1. New section filed 7-20-2009; operative 7-20-2009. Amendment filed without review by OAL pursuant to exemption for regulations that establish or fix rates (Government Code section 11340.9(g)) (Register 2009, No. 30).
Article 8.1. Moving and Relocation Expenses [Repealed]
HISTORY
1. Change without regulatory effect repealing article 8.1 (sections 732-739) filed 5-14-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 20).
Article 8.5. Community Relations Expenses--State University and Colleges Presidents [Repealed]
HISTORY
1. Change without regulatory effect repealing article 8.5 (sections 740-744) (Register 87, No. 44).
Article 8.6. Community Relations Expenses of the Chancellor of the California State University and Colleges [Repealed]
HISTORY
1. Change without regulatory effect repealing article 8.6 (sections 745-749) (Register 87, No. 44).
Article 9. Telephone and Telegraph Charges
HISTORY
1. Repealer of Article 9 (Sections 50, 751, 754, 755, 756) filed 4-13-70 as procedural and organizational; effective upon filing (Register 70, No. 16). For prior history, see Register 67, No. 20.
Article 10. Agents Transporting Prisoners, Patients, and Wards
§775. Construction and Effect.
Note • History
The provisions of Article 8, Traveling Expenses, govern the charges and expenses of agents transporting prisoners, patients, and wards, except to the extent that Article 8 is modified by this article.
NOTE
Authority cited for Article 10: Section 13920, Government Code.
HISTORY
1. Amendment of Article 10 filed 5-19-67; designated effective 7-1-67 (Register 67, No. 20). For prior history see Registers 64, No. 6; 66, No. 5; 66, No. 45.
2. Amendment of NOTE: filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
Note • History
(a) General Provisions. Sheriffs are entitled to reimbursement for expenses incurred in the transportation of prisoners, patients, or wards to state institutions except in the case of transportation of criminal insane to state hospitals or placing a defendant in a diagnostic facility, which is chargeable to the county.
(b) Allowable Expenses. The general traveling expense rules of the State Board of Control will be followed in presenting claims with the following limitations:
(1) Subsistence allowances shall be in accordance with Rule 706(a)(1), Short-Term Allowance, and Rule 706(c), Computation of Allowances, except that no per diem shall be paid for any length of travel which totals less than 8 hours. Meal subsistence when the travel time is more than 4 but less than 8 hours will be paid according to the rate established in Rule 706(c), Business Related Meals. Subsistence may be claimed for each county employee who is actually transporting prisoners, patients, or wards and any non-county employee who may act as a matron.
(2) Any salary allowance reimbursement to a non-county employee acting as a matron shall be computed at the minimum entry level hourly rate for a comparable county employee.
(3) Distance expenses will be paid for total round trip distance at the rate of 18.5 cents per 1.6 kilometer (mile). The same rate shall be paid regardless of type of vehicle.
(4) A subsistence allowance of $1.75 per person per meal may be claimed for each prisoner, patient, or ward being transported only when the time elapsed is in excess of 4 hours one way.
(5) Bus or train. When transportation is by bus or train, reimbursement shall be based on either (A) or (B) below providing the sheriff indicates on the claim the mode of transportation; i.e., regularly scheduled bus, regularly scheduled train, chartered bus, or county-owned bus. The allowances provided in subsections (1) through (4) above may also be claimed if otherwise allowable.
(A) When transportation is by regularly scheduled bus or train, the actual and necessary cost of such transportation, not to exceed one first class, round-trip fare for each deputy (and matron, if necessary) and one first class, one-way fare for each patient or prisoner transported, may be claimed. The actual and necessary cost of such transportation may include taxi fares incurred at locations other than the county seat of the committing county if supported by receipt. Pullman charges are not allowed.
(B) When transportation is by chartered or county-owned bus, reimbursement may be claimed according to the mileage allowance referenced in(3) above.
(6) Aircraft. When transportation is by scheduled airline, reimbursement shall be based on Rule 713(a), Scheduled Airline. When transportation is by chartered aircraft, reimbursement will be for the actual cost not to exceed the equivalent cost of scheduled airlines' fares.
(7) Ambulance. When transportation is by ambulance, reimbursement shall be based on the actual cost of ambulance service. The allowances provided in subsections (b)(1) through (b)(4) above may also be claimed if otherwise allowable.
(c) Submissions of Claims.
(1) Form. Claims for payment of expenses shall be made on forms provided by the State Controller.
(2) Submission.
(A) Claims for transportation of persons delivered directly to institutions under the jurisdiction of the Department of Corrections and Department of the Youth Authority, shall be filed with the State Controller, Sacramento.
(B) Claims for transportation of persons delivered directly to institutions under the jurisdiction of the Department of Mental Health or the Department of Developmental Services shall be filed in duplicate with the Department of Mental Health or the Department of Developmental Services, Sacramento.
(C) Claims for the return of escapees or parolees to institutions under the jurisdiction of the Department of the Youth Authority, Department of Corrections, and Department of Mental Health or the Department of Developmental Services shall be filed in duplicate with the institution concerned.
(3) Vouchers. The vouchers required to be submitted with such claims are:
(A) Receipt from the institution showing delivery of prisoner, patient, or ward, code section under which committed and names of all persons by whom delivery was made.
(B) Receipt for cost of ambulance when trip is made by ambulance.
(C) Receipt for taxi fare when trip is made by regularly scheduled bus or train.
(D) Any other receipts or vouchers which may be applicable under Rule 710, Receipts or Vouchers.
(d) Probation Officers and Others. Claims for transportation expenses by probation and parole officers, or others, where authorized by law, shall be governed by these rules. Any such claim shall be accompanied by a copy of the court order designating the claimant to make the delivery.
NOTE
Authority cited: Sections 13920 and 26749, Government Code. Reference: Section 26749, Government Code and Sections 1203.03(d) and 1373, Penal Code.
HISTORY
1. Amendment of subsections (a), (b)(1), (b)(3), (c)(2)(B) and (C) filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9). For prior history, see Register 76, No. 42.
2. Editorial correction of subsection (b)(1) (Register 77, No. 48).
3. Amendment of subsection (c) filed 6-8-79 as an emergency; designated effective 7-1-79 (Register 79, No. 23). Certificate of Compliance included.
4. Editorial correction of subsection (c)(3), (Register 79, No. 29).
5. Amendment of subsection (b)(3) filed 3-12-80; effective thirtieth day thereafter (Register 80, No. 11).
Note • History
Claims of agents returning fugitives from justice or prisoners or wards detained in other states.
(a) Warrant or Equivalent Document. Claims under this section shall not be allowed unless a warrant for the return of the prisoner or ward has been issued by the Governor or the Director of the Youth Authority or unless the agent has been designated by the Administrator, Interstate Probation and Parole Compacts, to return the prisoner or ward. Such warrant or designation may be issued before or after the claimed expenses were incurred.
(b) Certificate. The claim of the agent shall not be allowed unless accompanied by one of the following, as applicable:
(1) Where the prisoner or ward has not been arraigned or placed on trial after his return: a certificate of an authorized representative of the Director of Corrections, Community Release Board, or Youth Authority that the prisoner or ward has been convicted of crime; has violated his probation, parole, or bail, or has escaped from the custody of state authorities; and/or has been returned to the custody of the state agency represented by the certifying official.
(2) A certificate from an authorized representative of the sister state verifying the necessity to present witnesses or evidence in the sister state to gain the release of the fugitive.
(3) A certificate with advance approval by the Governor authorizing the appearance of witnesses, in unusual cases where the interest of Justice would be served, to appear in the sister state on behalf of the fugitive in opposition to his extradition.
(4) Where the prisoner or ward has not been returned: a certificate of the agent stating fully the reasons for the failure to make such a return.
(5) Where the prisoner or ward is returned to another state under the provisions of Section 1389 of the Penal Code after having been brought back from that state and tried in California, a receipt for the prisoner or ward from the agency or institution in the other state to which he was returned.
(c) Allowable Expenses. The following expenses shall be allowed:
(1) Statutory fees charged by other states in connection with the detention and surrender of the prisoner or ward.
(2) Necessary living expenses of the prisoner or ward only for the period from the date of detention until the arrival of the agent to take him into custody.
(3) When rail transportation is used, expenses for compartment accommodations on the return trip with the prisoner or ward.
(4) Expenses of an assistant when authorized by appointment by the Governor in extradition cases or by the Administrator, Interstate Probation and Parole Compacts, in detainer cases.
(5) Attorney fees, only when authorized in advance by the Attorney General.
(6) Reasonable fees for the assistance of porters in watching prisoners en route.
(7) Expenses for use of chartered aircraft not to exceed the equivalent cost of scheduled airline fares.
(8) Expenses for use of private automobile, at the rate of 18.5 cents per 1.6 kilometer (mile).
(d) Route. The agent shall take the most direct and economical route available. If delays occur, a full explanation stating the reason, length of time delayed, and all other relevant factors shall accompany the claim. If the explanation is satisfactory, the additional expense shall be allowed. No expenses incurred in Sacramento en route shall be allowed.
NOTE
Authority cited: Section 13920, Government Code; Section 1557, Penal Code. Reference: Sections 1389 and 1557, Penal Code; and Section 1300, Welfare and Institutions Code.
HISTORY
1. Amendment of subsection (c)(8) filed 11-7-69; designated effective 1-1-70 (Register 69, No. 45).
2. Amendment of subsection (b) filed 5-29-75; effective thirtieth day thereafter (Register 75, No. 22).
3. Amendment and new NOTE: filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
4. Amendment of subsection (b) filed 6-8-79 as an emergency; designated effective 7-1-79 (Register 79, No. 23). Certificate of Compliance included.
5. Amendment of subsection (c)(8) filed 3-12-80; effective thirtieth day thereafter (Register 80, No. 11).
§778. Claims of Non-State Agents Transporting State Fugitives, Prisoners or Wards Detained in Other States Pursuant to Agreements Entered into Under the Computer Assisted Prisoner Transportation Index Service.
Note • History
(a) Agent Designation. Claims under this section shall not be allowed unless the agent has been designated by the Administrator, Interstate Probation and Parole Compacts, or the Governor to return the prisoner or ward. Such designation may be issued before or after the claimed expenses were incurred.
(b) Regular Extraditions. The Governor's Office shall approve all claims submitted by local agencies in regular extraditions.
(c) Certificate. The claim of the agent shall not be allowed unless accompanied by one of the following, as applicable, except as in (b) above.
(1) Where the prisoner or ward has not been arraigned or placed on trial after his return: a certificate of an authorized representative of the Director of Corrections, Community Release Board, or Youth Authority that the prisoner or ward has been convicted of crime; has violated his probation, parole, or bail, or has escaped from the custody of state authorities; and/or has been returned to the custody of the state agency represented by the certifying official.
(2) A certificate from an authorized representative of the sister state verifying the necessity to present witnesses or evidence in the sister state to gain the release of the fugitive.
(3) A certificate with advance approval by the Governor authorizing the appearance of witnesses, in unusual cases where the interest of justice would be served, to appear in the sister state on behalf of the fugitive in opposition to his extradition.
(4) Where the prisoner or ward is returned to another state under the provisions of Section 1389 of the Penal Code after having been brought back from that state and tried in California, a receipt for the prisoner or ward from the agency or institution in the other state to which he was returned.
(d) Allowable Expenses. The following expenses shall be allowed:
(1) Statutory fees charged by other states in connection with the detention and surrender of the prisoner or ward.
(2) Necessary living expenses of the prisoner or ward only for the period from the date of detention until the arrival of the agent to take him into custody.
(3) Subsistence expenses for the agent in accordance with Section 706(c) for not more than 24 hours unless approved by the Controller's Office because of extenuating circumstances.
(4) When rail transportation is used, expenses for compartment accommodations on the return trip with the prisoner or ward.
(5) Expenses of an assistant when authorized by appointment by the Governor in extradition cases or by the Administrator, Interstate Probation and Parole Compacts, in detainer cases.
(6) Attorney fees, only when authorized in advance by the Attorney General.
(7) Reasonable fees for the assistance of porters in watching prisoners en route.
(8) Expenses for use of chartered aircraft not to exceed the equivalent cost of scheduled airline fares, except when the use of a chartered or agency-owned aircraft will reduce subsistence, care rental and other expenses to an amount below the combined cost of scheduled airline fares, car rental, subsistence, and other expenses for agents, prisoners or wards.
(9) Expenses for use of private automobile, at the rate of 18.5 cents per 1.6 kilometer (mile).
(e) Route. The agent shall take the most direct and economical route available. If delays occur, a full explanation stating the reason, length of time delayed, and all other relevant factors shall accompany the claim. If the explanation is satisfactory, the additional expense shall be allowed.
NOTE
Authority cited: Section 13920, Government Code, and Section 1557, Penal Code. Reference: Sections 1389 and 1557, Penal Code; and Section 1300, Welfare and Institutions Code.
HISTORY
1. New section filed 12-8-80; effective thirtieth day thereafter (Register 80, No. 50).
Article 11. [Repealed]
§790. Sales Tax Refunds on Sales of Dairy Cattle. [Repealed]
History
HISTORY
1. Repealer filed 3-1-61; designated effective 4-1-61 (Register 61, No. 5).
Article 12. [Repealed]
§795. Rules Adopted by Adjutant General and Approved by the Board of Control Pursuant to Provisions of Chapter 19, Statutes of First Extraordinary Session of 1941-42. [Repealed]
History
HISTORY
1. Repealer filed 3-1-61; designated effective 4-1-61 (Register 61, No. 5).
Article 13. Rental Rates for Residences of Superintendents of State Institutions and Wardens of Prisons [Repealed]
HISTORY
1. Article 13, sections 800-808, repealed. For prior history of section 800, see Register 60, No. 2; for prior history of sections 801, 802, 803, 804 and 805, see Register 28, No. 5; for prior history of section 806, see Register 53, No. 11; for prior history of sections 807 and 808, see Register 64, No. 6.
Article 14. Employee Merit Award Program [Repealed]
HISTORY
1. Change without regulatory effect repealing article 14 (sections 825-831) (Register 87, No. 44).
Article 15. Use of State--Owned Vehicles [Repealed]
HISTORY
1. Change without regulatory effect repealing article 15 (sections 840-849) (Register 87, No. 44). For prior history of section 840, see Register 72, No. 7; for prior history of section 842, see Register 76, No. 7; for prior history of section 849, see Register 72, No. 1.
Article 16. Valuation of Employee Housing [Repealed]
HISTORY
1. Change without regulatory effect repealing article 16 (sections 850-867.2) (Register 87, No. 44). For prior history of sections 855, 856, 857, 858 and 859, see Register 76, No. 19.
Article 16.1. Meals at State Agencies [Repealed]
§868. Meals at State Agencies. [Repealed]
Note • History
NOTE
Authority cited for Article 16.1: Sections 13920 and 13921, Government Code.
HISTORY
1. New subsection (b)(6) filed 11-26-76; designated effective 1-1-77 (Register 76, No. 48). For prior history, see Register 76, No. 42.
2. Amendment of subsection (b)(6) filed 3-1-78; designated effective 4-1-77 (Register 78, No. 9).
3. Editorial correction of designated effective date of filing of 3-1-78 to 4-1-78 (Register 78, No. 9).
4. Change without regulatory effect repealing section (Register 87, No. 44).
Article 17. Bid Protests [Repealed]
§870. Requests for Hearings. [Repealed]
Note • History
NOTE
Authority cited: Sections 13920 and 13921, Government Code.
HISTORY
1. New Article 17 (Sections 870 through 876) filed 9-7-55 as an emergency; designated effective 9-7-55. Amended Article 17 filed 9-12-55 as an emergency; designated effective 9-12-55 (Register 55, No. 14).
2. Amendment filed 10-21-65 as procedural and organizational; effective upon filing (Register 65, No. 20).
3. Change without regulatory effect filed 4--14--87; operative 5--14--87 (Register 87, No. 16).
4. Repealer of article 17 (sections 870-877), repealer of section and new article 17 (sections 870.1-874.1) filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
Subarticle 1. General Provisions
Note • History
This article applies to bid protests under Public Contract Code sections 10306 and 12102, subdivision (h).
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New subarticle 1 (sections 870.1-870.3) and section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§870.2. Applicable Regulations.
Note • History
If there is any inconsistency or conflict between the provisions of article 2.5 and this article, the provisions of this article shall apply.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) As used in this article:
(1) “Bid” shall mean:
(A) an offer in response to a solicitation for materials, supplies, or equipment purchased pursuant to article 3 (commencing with section 10300), chapter 2, part 2, division 2, Public Contract Code; or
(B) an offer in response to a solicitation for electronic data processing or telecommunications goods or services pursuant to chapter 3 (commencing with section 12100) or chapter 3.5 (commencing with section 12120), part 2, division 2, Public Contract Code.
(2) “Bidder” shall mean an individual or entity that submitted a final bid in response to a solicitation that is subject to a protest;
(3) “Declaration” shall mean a written statement that includes the following:
(A) the signature of the person making the statement;
(B) the date on which and the place where it was signed;
(C) a statement substantially similar to: “I declare under penalty of perjury under the laws of California that the foregoing is true and correct.”
(4) “Detailed statement of protest” shall mean the written statement specifying the legal and factual basis for the protest under section 872.7;
(5) “Document” shall mean a writing as defined in Evidence Code section 250;
(6) “Party” shall mean:
(A) Procurement;
(B) the state agency procuring the product that is the subject of the solicitation;
(C) the protestant;
(D) the proposed awardee; and
(E) any other bidder that submitted a bid and submitted a written request to be a party, except that a bidder that filed a bid protest shall not be a party in a protest filed by another bidder.
(7) “Procurement” shall mean:
(A) the Department of General Services, Procurement Division or its successor; or
(B) another state agency that has been delegated purchasing authority by the Department of General Services;
(8) “Proposed awardee” shall mean the bidder to whom Procurement intends to award a contract as a result of Procurement's evaluation of the protested solicitation;
(9) “Protest” shall mean a written objection by a bidder to an intended contract award proposed by Procurement that is submitted to Procurement under section 872.1 after the posting of an intent to award.
(11) “Protestant” shall mean a bidder that submitted the bid protest that is the subject of the hearing;
(12) “Response to the detailed statement of protest” shall mean a party's written submission under section 872.8;
(13) “Solicitation” shall mean the process by which Procurement requests bids;
(14) “Solicitation document” shall mean the document that describes the goods or services that are to be purchased and establishes the method that will be used to evaluate bids; and
(15) “Solicitation file” shall mean documents used by Procurement in the procurement process, including documents used to evaluate bidders and select a proposed awardee.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§871. Definition of Interested Parties.
Note • History
NOTE
Authority cited: Sections 13920 and 13921, Government Code. Reference: Sections 10306 and 12102(f), Public Contract Code.
HISTORY
1. Amendment filed 10-17-63 as procedural and organizational; effective upon filing (Register 63, No. 18).
2. Amendment filed 10-21-65 as procedural and organizational; effective upon filing (Register 65, No. 20).
3. Change without regulatory effect of subsection (c) filed 4--14--87; operative 5--14--87 (Register 87, No. 16).
4. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
Subarticle 2. Requirements for Submissions
Note • History
(a) All documents submitted to the board shall be:
(1) typewritten or computer generated;
(2) standard 8-1/2 by 11 inches each page; and
(3) legible.
(b) A document submitted as an exhibit during a hearing need not comply with subsection (a)(1) or (2).
(c) The board may refuse to accept any document that does not comply with this section.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New subarticle 2 (sections 871.1-871.4) and section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§871.2. Documents Submitted by Facsimile.
Note • History
(a) Documents that exceed ten pages, including any attachments or exhibits, shall not be submitted to the board by facsimile.
(b) A document submitted to the board by facsimile in violation of subsection (a) shall not be accepted.
(c) The first page of a facsimile transmission shall be a cover page that includes:
(1) the name of the sender;
(2) the name and phone number of a person to be contacted in case of transmission problems; and
(3) the total number of pages transmitted, including the cover page.
(d) A party submitting a document by facsimile has the burden of proving that the entire document was successfully transmitted to the board.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§871.3. Copies of Submissions.
Note • History
(a) A party shall provide the board with one original and three copies of any document, including any attachments to the document, submitted to the board.
(b) The original document that is submitted by facsimile and three copies of the document shall be submitted to the board within two working days of the facsimile transmission.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) A party who submits a document, including correspondence, to the board shall send each party a copy.
(b) A party shall include a declaration of proof of service that the party complied with this section.
(c) This section shall not apply to the submission of the solicitation file to the board under section 872.4.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
NOTE
Authority cited:Sections 13920 and 13921, Government Code. Reference: Sections 10306 and 12102(f), Public Contract Code.
HISTORY
1. Amendment filed 5-19-61; effective thirtieth day thereafter (Register 61, No. 10).
2. Amendment filed 10-21-65 as procedural and organizational; effective upon filing (Register 65, No. 20).
3. Amendment filed 2-25-77; effective thirtieth day thereafter (Register 77, No. 9).
4. Change without regulatory effect filed 4--14--87; operative 5--14--87 (Register 87, No. 16).
5. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
Subarticle 3. Pre-Hearing Procedure
§872.1. Filing Protest with Procurement.
Note • History
(a) A protestant shall file a notice of protest of the proposed award of a contract with Procurement prior to the award of a contract governed by Public Contract Code section 10306.
(b) A protestant shall file a notice of protest of the proposed award of a contract governed by Public Contract Code section 12102, subdivision (h) with Procurement within the following time period:
(1) no earlier than the issuance of an intent to award a contract; and
(2) no later than five working days after the issuance of an intent to award a contract.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New subarticle 3 (sections 872.1-872.13) and section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.2. Submission of Protest to Board.
Note • History
(a) Procurement shall submit a notice of protest to the board within three working days of its receipt of a protest filed under section 872.1.
(b) At the same time that Procurement submits a notice of protest to the board under subdivision (a), it shall submit a written bid protest summary to the board that shall contain all of the following information to the extent that the information is readily available in the solicitation file:
(1) a description of the product or service that is the subject of the protested solicitation;
(2) the name of the state agency on whose behalf the solicitation is being administered, or a statement that the solicitation is being administered on behalf of all the state agencies;
(3) the following information for each bidder that submitted a final bid:
(A) the name of the bidder;
(B) mailing address;
(C) voice telephone number;
(D) facsimile telephone number;
(E) name of contact person;
(F) job title of contact person;
(G) the total dollar amount of the bid, including any corrections or adjustments made by Procurement during the evaluation of the bid; and
(H) the total points allocated to the bid, if applicable.
(4) the name of the proposed awardee;
(5) the statutory authority governing the solicitation; and
(6) a statement of the basis for selection.
(c) Procurement shall provide a copy of the bid protest summary submitted to the board under subdivision (b) to all bidders that submitted a final bid.
(d) The Executive Officer may dismiss a protest for any of the following grounds:
(1) the notice of protest was untimely filed; or
(2) the board does not have jurisdiction over the protest.
(e) Prior to dismissing a protest under subsection (d), the protestant shall be:
(1) notified of the reason for dismissing the protest; and
(2) given three working days to submit written materials that refute the reason for the dismissal.
(f) The Executive Officer shall review written materials submitted under subsection (e)(2), and any other pertinent materials, and prepare a written decision that complies with section 619.1.
(g) A copy of the Executive Officer's decision shall be mailed or delivered to the protestant and Procurement.
(h) The procedure in subsections (d)-(f) is a hearing under section 617.6.
(i) A protestant may object to the use of the informal hearing process upon receipt of the notice under subsection (e)(1).
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.3. Maintenance of Procurement Records.
Note • History
(a) Procurement shall maintain all documents used in the evaluation and selection process, including, but not limited to:
(1) scoring sheets;
(2) scoring summaries; and
(3) evaluation and selection report.
(b) The documents described in subsection (a) shall be maintained for ten working days after an intent to award a contract is issued, or until the board issues a final decision on a protest, whichever is longer.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.4. Submission of Solicitation File to Board.
Note • History
(a) Within three working days of Procurement's receipt of a protest under section 872.2, Procurement shall submit two copies of each of the following to the board:
(1) the solicitation document;
(2) the proposed awardee's final bid;
(3) the protestant's final bid; and
(4) any document prepared to record or justify the selection decision, including, but not limited to:
(A) a document used to indicate a proposed award to a bidder who is not the lowest bidder;
(B) the notice of intent to award a contract; and
(C) the evaluation and selection report.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.5. Availability of Solicitation Documents to Parties.
Note • History
(a) Procurement shall make available for inspection by a party the documents described in section 872.4 within three working days after receiving a written request from a party.
(b) A party shall make a request for documents under subsection (a) as soon as practicable and no later than five calendar days after receipt of the detailed statement of protest.
(c) Procurement shall permit a party to obtain a copy of any document described in section 872.4 by one of the following methods determined by Procurement in its discretion:
(1) permit a party to arrange for a private copy service to make a copy of the requested documents at a time and location convenient to Procurement; or
(2) make a copy of the requested documents after receiving advance payment from the party for the reasonable cost of photocopying.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.6. Schedule for Submission of Written Documents.
Note • History
(a) The Executive Officer or hearing officer may establish a schedule for the submission of:
(1) the detailed statement of protest;
(2) a written request to be a party;
(3) a response to the detailed statement of protest;
(4) a rebuttal to the responses to the detailed statement of protest; and
(5) any other written evidence or argument.
(c) The Executive Officer or hearing officer may require that the parties submit:
(1) a list of witnesses;
(2) a declaration from each witness the party intends to have testify that summarizes the testimony of the witness;
(3) a copy of each exhibit to be introduced into evidence other than items already submitted under section 872.4(a);
(4) a reasonable estimate of the time needed by each party to present its case;
(5) pre-hearing motions; and
(6) any information to assist the efficient administration of the hearing.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.7. Detailed Statement of Protest.
Note • History
(a) A protestant shall submit a written detailed statement of protest to the board within 10 calendar days after filing a notice of protest under section 872.1.
(b) If a protestant fails to submit a timely detailed statement of protest, a notice of protest shall be deemed withdrawn.
(1) If a protestant fails to submit a timely detailed statement of protest, the board shall inform all parties in writing that the protest is withdrawn and take no further action on the protest.
(c) A detailed statement of protest shall include a full and complete statement of the relevant law and facts supporting that:
(1) the protestant is the lowest responsible bidder meeting specifications, for a protest under Public Contract Code section 10306; or
(2) the protestant's bid should have been selected in accordance with the selection criteria in the solicitation document, for a protest under Public Contract Code section 12102(h).
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.8. Response to Detailed Statement of Protest.
Note • History
A party may submit a response to the detailed statement of protest within the time frame determined by the Executive Officer under section 872.6.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.9. Request for Extension of Time for Submitting Documents or Continuance.
Note • History
(a) A party may request a continuance of a hearing or an extension of time for the submission of a document, except for the submission of a detailed statement of protest.
(b) A request under subdivision (a) must be in writing and submitted to the Executive Officer as soon as the need for the request is known to the party, but no later than five working days prior to the date of the hearing or deadline for the submission of documents.
(1) If a party is first aware of the need for a continuance request on the day scheduled for hearing, the request may be made to the hearing officer.
(2) A request under subdivision (a) made less than five working days prior to the date of the hearing or deadline for the submission of documents shall not be granted unless:
(A) it was impossible for the party to make the request any sooner; and
(B) the party made the request as soon as becoming aware of the need for it.
(c) Prior to making a request under subdivision (a), a party must contact all other parties and:
(1) inform the parties of the need for the request;
(2) determine whether or not each party will agree to the request; and
(3) if the request is for a continuance of a hearing, determine alternative dates available to all parties.
(d) A request under subdivision (a) must include a declaration that includes:
(1) the specific facts showing good cause for the request;
(2) available documentation of the specific facts showing good cause for the request;
(3) the date when the facts supporting the request became known to the party; and
(4) a statement that all parties were contacted as required by subdivision (c) and a summary of the outcome.
(e) A request under subdivision (a) shall be granted only if good cause exists.
(f) Good cause for a request under subdivision (a) exists for any of the following:
(1) unavailability due to the death or incapacitating illness of a party, a representative, or a member of the immediate family of a party or representative, when it is not possible to substitute another individual because of the proximity of the hearing date or deadline for submission of documents;
(2) failure to receive a copy of the detailed statement of protest;
(3) failure to receive a copy of a response to a detailed statement of protest;
(4) failure to make documents available to a party under section 872.5 after a timely request;
(5) failure to receive timely notice of the hearing date as required by section 872.11; or
(6) agreement by all parties to the continuance or extension.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.10. Dismissal for Failure to State a Basis to Uphold Protest.
Note • History
(a) After reviewing the detailed statement of protest and responses of the parties, the Executive Officer shall:
(1) schedule the protest for further hearing under section 872.11; or
(2) recommend that the board dismiss the protest.
(b) The board may dismiss a protest for any of the following reasons:
(1) the detailed statement of protest fails to comply with section 872.7(b);
(2) the board does not have jurisdiction over the protest;
(3) the detailed statement of protest fails to state a basis upon which the protest may be upheld; or
(4) the protest is entirely without merit.
(c) If the Executive Officer recommends that the protest be dismissed under subsection (a)(2), the Executive Officer shall do all of the following:
(1) schedule the dismissal recommendation for action by the board;
(2) submit a written recommendation explaining the reasons for dismissing the protest without further hearing;
(3) notify all interested parties in writing that the dismissal recommendation has been scheduled for action by the board; and
(4) send a copy of the written recommendation required by subsection (c)(2) to the parties.
(d) The board's consideration of and action on the Executive Officer's recommendation to dismiss a protest is a hearing limited to written materials under section 617.6.
(1) A protestant may object to the use of the informal hearing process upon receipt of the notice of recommendation of dismissal under subsection (c)(3).
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.11. Assignment and Scheduling for Hearing.
Note • History
(a) The Executive Officer shall assign a protest that is not dismissed under section 872.10 to a hearing officer.
(b) The Executive Officer shall schedule the protest for hearing and send written notice to the parties.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.12. Pre-Hearing Conference.
Note • History
(a) The hearing officer or Executive Officer may conduct a prehearing conference.
(b) The parties shall receive reasonable written notice of the time and location of a prehearing conference.
(c) A prehearing conference may address any of the following:
(1) clarification of issues;
(2) identity of witnesses;
(3) exchange of witness lists;
(4) limitation of the number of witnesses;
(5) limitation on the scope of a witness' testimony;
(6) limitation of time allocated to a party's presentation of evidence;
(7) limitation of time allocated to a party's cross-examination of witnesses;
(8) exchange of exhibits;
(9) objections to evidence;
(10) order of presentation of evidence;
(11) order of cross-examination of witnesses;
(12) protective orders;
(13) stipulations;
(14) dismissal for any of the grounds included in section 872.10(b);
(15) pre-hearing motions; and
(16) any other matters that will promote the orderly and efficient conduct of the hearing.
(d) The hearing officer or Executive Officer may require the submission of prehearing statements concerning matters to be discussed at the prehearing conference.
(e) The hearing officer may issue a prehearing order incorporating the matters determined at the prehearing conference.
(1) The hearing officer may direct one of the parties to prepare a prehearing order.
(f) If the hearing officer decides to dismiss a protest under subsection (c), the hearing officer shall prepare a proposed decision for the board under section 619.3.
(g) A prehearing conference may be conducted by electronic means.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§872.13. Representation of Parties.
Note • History
(a) A party that chooses to be represented shall notify the board in writing with the following information concerning the representative:
(1) name;
(2) address;
(3) telephone number, including area code; and
(4) facsimile number, including area code.
(b) Once notified that a party has a representative, the board shall send all notices to the representative until the party informs the board that the person is no longer representing the party.
(c) Only one representative for a party may actively participate in a hearing.
(1) Active participation of a representative includes:
(A) conducting the direct examination of a witness;
(B) conducting the cross-examination of a witness;
(C) objecting to evidence;
(D) responding to objections;
(E) making offers of proof; and
(F) arguing issues of fact or law pertaining to subsection (c)(1)(A)-(E).
(2) No more than one representative for each party may:
(A) for each of the party's own witnesses:
1. examine the witness;
2. respond to objections raised during the examination; and
3. make and argue objections during the cross-examination of the witness.
(B) for each of the other parties' witnesses:
1. make and argue objections during the examination of the witness.
2. cross-examine the witness; and
3. respond to objections raised during the cross-examination;
(C) make an opening statement; or
(D) make a closing argument.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
History
HISTORY
1. Amendment filed 5-19-61; effective thirtieth day thereafter (Register 61, No. 10).
2. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
Subarticle 4. Hearing Procedure
§873.1. Hearing by Electronic Means.
Note • History
The party that requested that all or part of a hearing be conducted by electronic means under section 617.4 shall be responsible for providing, operating, and paying for all necessary equipment.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New subarticle 4 (sections 873.1-873.13) and section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) Each hearing shall be reported by a certified court reporter provided by the Board or recorded by electronic means.
(b) Any party may request the board to arrange for the preparation of a hearing transcript.
(1) The party requesting the preparation of a hearing transcript shall bear all costs for its preparation.
(2) One copy of the transcript shall be provided to the board at no cost to the board.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) The hearing officer or Executive Officer shall determine whether the hearing shall:
(1) permit the presentation of oral evidence under sections 617.7 and 873.5; or
(2) be limited to the submission of written materials under sections 617.6 and 873.4.
(b) The determination made under subsection (a) shall be based on the following factors:
(1) complexity of legal or factual issues;
(2) necessity to evaluate credibility of witnesses for a proper determination of issues;
(3) parties' representation by legal counsel;
(4) necessity of witnesses being subject to cross examination for the proper determination of issues; and
(5) any other factor likely to affect a just and proper determination of issues.
(c) The parties shall be informed of whether the hearing will be conducted under subsection (a)(1) or (a)(2).
(d) The hearing officer may allow or request the parties to submit a post-hearing brief.
(1) A post-hearing brief shall be limited to legal and factual arguments related to relevant issues under section 873.7 or identified by the hearing officer.
(2) The hearing officer shall inform the parties of the deadline for the submission of a post-hearing brief.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking with amendments and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.4. Protest Limited to Written Materials.
Note • History
(a) An assertion made in the detailed statement of protest that is supported by facts alleged in the detailed statement of protest shall be presumed to be true unless rebutted by a party in the party's response to the detailed statement of protest.
(b) An assertion made in a party's response to the detailed statement of protest that is supported by facts alleged in the response shall be presumed to be true unless rebutted by the protestant in its submission under section 872.6.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.5. Presentation of Oral Evidence.
Note • History
Each party has the right to cross examine witnesses called to testify by another party.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) All relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
(1) This does not limit the discretion of the hearing officer under section 617.2(b).
(b) Evidence that qualifies under subdivision (a) may be admitted even though there is a common law or statutory rule which might make its admission improper over objection in a civil action.
(c) Objections to and arguments about evidence may be considered when determining the weight to be given to the evidence.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) In a protest under Public Contract Code section 10306, the protestant must prove that it is the lowest responsible bidder meeting specifications in order for the protest to be granted.
(b) In a protest under Public Contract Code section 12102(h), the protestant must prove that its bid should have been selected in accordance with the selection criteria in the solicitation document.
(c) Evidence shall be limited to issues that are:
(1) relevant to subdivision (a) or (b), whichever is applicable; and
(2) identified in the protestant's detailed statement of protest; or in a party's response to the detailed statement of protest.
(d) The protest may be denied without determining any other issues raised under subdivision (c) if:
(1) Procurement alleged that the protestant was not responsive to the requirements of the solicitation document in its response to the detailed statement of protest; and
(2) the protestant failed to prove that its bid was responsive to the requirements of the solicitation document.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
Note • History
(a) The protestant shall have the burden of proof.
(b) The standard of proof is a preponderance of the evidence.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.9. Order of Presentation of Evidence.
Note • History
(a) In a hearing permitting the presentation of oral evidence under section 873.3(a)(1), the parties shall present evidence in the following order, except as provided in subsection (b):
(1) the protestant;
(2) Procurement;
(3) proposed awardee; and
(4) other parties in an order determined by the hearing officer.
(b) In a hearing permitting the presentation of oral evidence under section 873.3(a)(1) that concerns a solicitation in which Procurement intends to award a contract pursuant to article 3 (commencing with section 10300), chapter 2, part 2, division 2, Public Contract Code to other than the lowest bidder, the parties shall present evidence in the following order:
(1) Procurement;
(2) the protestant;
(3) proposed awardee; and
(4) other parties in an order determined by the hearing officer.
(c) The hearing officer may require the parties to present evidence in any order that furthers the efficiency of the hearing.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.10. Closure of Hearing Record.
Note • History
(a) In a hearing in which post-hearing briefs were not allowed or permitted, the hearing record shall be closed upon the conclusion of testimony and presentation of any oral argument by the parties, unless otherwise ordered.
(b) In a hearing in which post-hearing briefs were allowed or permitted, the hearing record shall close at the deadline for the submission of post-hearing briefs, unless the hearing officer or Executive Officer orders otherwise or grants an extension under section 872.9.
(c) No evidence or argument shall be submitted to the board after the close of the hearing record.
(1) The hearing officer of Executive Officer may grant a timely written request to reopen the hearing record for good cause.
(A) A written request is timely if it is filed with the board within 24 hours of the closing of the hearing record.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.11. Failure to Appear or Proceed.
Note • History
(a) The failure of a protestant to appear at a hearing, or to proceed with a hearing shall constitute a withdrawal of the protest, unless an extension of time for submission of documents or a continuance of the hearing has been granted.
(b) The failure of Procurement to appear at a hearing, or to proceed with a hearing shall constitute a withdrawal of its opposition to the protest, unless an extension of time for submission of documents or a continuance of the hearing has been granted.
(c) The failure of the proposed awardee to appear at a hearing, or to proceed with a hearing shall constitute a withdrawal of its opposition to the protest, unless an extension of time for submission of documents or a continuance of the hearing has been granted.
(d) The failure of any other party to appear at a hearing, or to proceed with a hearing shall constitute a withdrawal of the party's request to participate as a party in the protest, unless an extension of time for submission of documents or a continuance of the hearing has been granted.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.12. Withdrawal of Protest.
Note • History
(a) A protestant may withdraw its protest at any time prior to the board's adoption of a decision in the matter under section 619.5.
(b) The protestant shall notify the board in writing of the withdrawal of the protest.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
§873.13. Withdrawal of Opposition to Protest.
Note • History
(a) Procurement or the proposed awardee may withdraw its opposition to the protest at any time prior to the board's adoption of a decision in the matter under section 619.5.
(b) If Procurement withdraws its opposition to the protest under subsection (a), the protest shall be upheld without further hearing.
(c) If the proposed awardee withdraws its opposition to the protest under subsection (a), it shall not participate any further in the hearing.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
History
HISTORY
1. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
Subarticle 5. Prohibited Conduct
Note • History
In addition to the grounds provided in section 618.3, a party is subject to a contempt sanction for an intentional failure or refusal, without substantial justification, to comply with a timely request under section 872.5.
NOTE
Authority cited: Section 13920, Government Code. Reference: Sections 10306 and 12102(h), Public Contract Code.
HISTORY
1. New subarticle 5 (section 874.1) and section filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
2. Interim regulation transmitted to OAL 12-31-98 as a permanent rulemaking and filed 2-17-99; operative 2-17-99 pursuant to Government Code section 11400.20 (Register 99, No. 12).
History
HISTORY
1. New section filed 8-5-70; effective thirtieth day thereafter (Register 70, No. 32).
2. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
History
HISTORY
1. Renumbering from former Section 875 filed 8-5-70; effective thirtieth day thereafter (Register 70, No. 32).
2. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
History
HISTORY
1. Renumbering from former Section 876 filed 8-5-70; effective thirtieth day thereafter (Register 70, No. 32).
2. Repealer filed 12-15-97 as interim regulations under Government Code section 11400.20; operative 12-15-97 (Register 97, No. 51).
Article 18. Relocation Assistance in Connection with the Acquisition of Real Property by State Agencies
HISTORY
1. New Article 18 (Sections 880 through 884) filed 9-22-65 as an emergency; effective upon filing. Certificate of Compliance included (Register 65, No. 18).
2. Repealer of Sections 880 through 884 and new Sections 880 through 883 filed 4-7-71 as an emergency; effective upon filing (Register 71, No. 15).
3. Certificate of Compliance--Section 11422.1, Gov. Code, filed 7-21-71 (Register 71, No. 30).
4. Repealer of Article 18 (Sections 880 through 883) and new Article 18 (Sections 880 through 887.4) filed 6-15-72 as an emergency; designated effective 7-1-72. Certificate of Compliance included (Register 72, No. 25).
5. Repealer of Article 18 (Sections 880 through 887.4) filed 5-24-74; effective thirtieth day thereafter (Register 74, No. 21).
Article 19. Overpayments
Note • History
Upon authorization of the State Board of Control, a state agency may retain overpayments of the nature and amount specified in Section 16302.1 of the Government Code in accordance with the specific conditions of that section. State agencies desiring to secure such authorization shall file an application therefor with the State Board of Control, accompanied by a statement of the circumstances.
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 16302.1, Government Code.
HISTORY
1. New Article 19 (Section 890) filed 1-13-69; designated effective 3-1-69 (Register 69, No. 4).
Article 20. Miscellaneous Reimbursements
§895. Stolen Personal Property.
Note • History
NOTE
Authority cited: Section 19258.5, Gov. Code. Reference: Section 19258.5, Gov. Code.
HISTORY
1. New Article 20 (Section 895) filed 3-10-72; effective thirtieth day thereafter (Register 72, No. 11).
2. Amendment filed 6-8-79 as an emergency; designated effective 7-1-79 (Register 79, No. 23). Certificate of Compliance included.
3. Change without regulatory effect repealing section (Register 87, No. 44).
Note • History
NOTE
Reference: Sections 19460, et seq., Government Code.
HISTORY
1. New Sections 897-897.7 filed 11-1-72 as an emergency; designated effective 12-1-72 (Register 72, No. 45).
2. Certificate of Compliance filed 1-3-73 (Register 73, No. 1).
3. Change without regulatory effect repealing section (Register 87, No. 44).
History
HISTORY
1. Amendment filed 2-5-75 as an emergency; effective upon filing (Register 75, No. 6).
2. Certificate of Compliance filed 6-4-75 (Register 75, No. 23).
3. Change without regulatory effect repealing section (Register 87, No. 44).
History
HISTORY
1. Amendment of subsection (c) filed 9-14-73; effective thirtieth day thereafter (Register 73, No. 37).
2. Repealer of subsection (c) and renumbering of subsection (d) to (c) filed 2-5-75 as an emergency; effective upon filing (Register 75, No. 6).
3. Certificate of Compliance filed 6-4-75 (Register 75, No. 23).
4. Amendment of subsection (b) filed 8-16-78; designated effective 10-10-78 (Register 78, No. 33).
5. Change without regulatory effect repealing section (Register 87, No. 44).
§897.3. Annual Review of Requirements.
History
HISTORY
1. Change without regulatory effect repealing section (Register 87, No. 44).
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 19462, Government Code.
HISTORY
1. Amendment filed 2-5-75 as an emergency; effective upon filing (Register 75, No. 6).
2. Certificate of Compliance filed 6-4-75 (Register 75, No. 23).
3. Change without regulatory effect repealing section (Register 87, No. 44).
History
HISTORY
1. Repealer filed 2-5-75 as an emergency; effective upon filing (Register 75, No. 6).
2. Certificate of Compliance filed 6-4-75 (Register 75, No. 23).
§897.6. Payment Date and Procedures.
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 19462, Government Code.
HISTORY
1. Amendment filed 2-5-75 as an emergency; effective upon filing (Register 75, No. 6).
2. Certificate of Compliance filed 6-4-75 (Register 75, No. 23).
3. Amendment filed 8-16-78; designated effective 10-10-78 (Register 78, No. 33).
4. Change without regulatory effect repealing section (Register 87, No. 44).
§897.7. Annual Uniform Replacement Allowances.
Note • History
NOTE
Authority cited: Section 13920, Government Code. Reference: Section 19463, Government Code.
HISTORY
1. Amendment filed 8-16-78; designated effective 10-10-78 (Register 78, No. 33). For prior history, see Register 77, No. 48.
2. Amendment filed 10-4-79 as an emergency; designated effective 10-10-79. Certificate of Compliance included (Register 79, No. 40).
3. Amendment filed 10-26-79; effective thirtieth day thereafter (Register 79, No.43).
4. New subsection (e)(2) filed 2-28-80; designated effective 4-1-80 (Register 80, No. 9).
5. Amendment filed 12-8-80; effective thirtieth day thereafter (Register 80, No. 50).
6. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
7. Change without regulatory effect repealing section (Register 87, No. 44).
§897.8. Part-Time Uniform Allowance.
Note • History
NOTE
Authority cited: Sections 13920 and 19463, Government Code. Reference: Section 11030, Government Code.
HISTORY
1. Amendment filed 11-22-77; designated effective 1-1-78 (Register 77, No. 48). For prior history, see Register 77, No. 9.
2. Amendment filed 12-27-77 as an emergency; effective upon filing. Certificate of Compliance included (Register 77, No. 53).
3. Editorial reprinting of text deleted in error in Register 84, Nos. 8 and 12 (Register 84, No. 15).
4. Change without regulatory effect repealing section (Register 87, No. 44).
Chapter 2. State Controller
Subchapter 1. Accounting Procedures for Counties
Article 1. General
Note • History
To prescribe a uniform system of accounting procedures for California counties.
NOTE
Authority cited: Section 30200, Government Code.
HISTORY
1. New Article 1 (Secs. 901 through 904) filed 4-1-64; effective thirtieth day thereafter (Register 64, No. 7).
The mandatory accounting requirements, funds and account classifications are prescribed by this Chapter.
(a) Accounting Method. The accounting method with a general ledger employing a self-balancing group of accounts is prescribed.
(b) Accounting Basis. The accrual of expenditures is required. The accrual of revenues is optional.
The State Controller shall provide each county with a manual of accounting standards and procedures. The manual shall include all the requirements of this Subchapter. Supplemental definitions and posting examples may be included for increased clarity. It shall contain any other explanations and procedural suggestions which may benefit a user. The manual shall be kept current for changes in law, policy and procedures.
§905. Funds Not Subject to Prescribed Accounts.
Note • History
Balance sheet, revenue and expenditure accounts prescribed in this Subchapter do not apply to trust and agency, revolving, intragovernmental service and enterprise funds. Enterprise funds shall use the applicable accounting system from among those prescribed by the State Controller in Subchapter 3, “Accounting Procedures for Special Districts.” Trust and agency, revolving and intragovernmental service funds may use whatever accounts are best suited to their specialized purposes.
NOTE
Authority cited: Sections 30200 and 53891, Government Code.
HISTORY
1. New section filed 5-21-69; effective thirtieth day thereafter (Register 69, No. 21).
2. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, no. 6).
Article 2. Definitions
Note • History
A sum of money or other resources segregated for the purpose of carrying on specific activities or attaining certain objectives in accordance with special regulations, restrictions, or limitations and consisting of an independent fiscal and accounting entity. (National Committee on Governmental Accounting).
NOTE
Authority cited for Subchapter 1: Sections 30200, Government Code.
HISTORY
1. New subchapter (Sections 910-916, 920-924, 934-936 and 946-949) filed 7-13-60; designated effective 7-1-61 (Register 60, No. 16).
Amounts received (cash basis), or amounts received and receivable (accrual basis), which increase the governmental unit's equity. (See Account Adjustment Policy for exceptions.)
Amounts paid (cash basis), or amounts paid and payable (accrual basis) which decrease the governmental unit's equity. (See Account Adjustment Policy for exceptions.)
Expenditures which benefit only the current fiscal period.
The basis of accounting under which certain revenues are recognized when earned or when levies are made, and expenditures are recognized as soon as they result in liabilities for benefits received.
Those accounts necessary to reflect budget operations and condition, such as estimated revenues, appropriations, and encumbrances, as distinguished from proprietary accounts. (National Committee on Governmental Accounting.)
Those accounts which show actual financial condition and operations such as actual assets, liabilities, reserves, surplus, revenues, and expenditures, as distinguished from budgetary accounts. (National Committee on Governmental Accounting.)
Article 3. Funds
A minimum number of funds, including but not limited to the applicable funds prescribed in this article, which in the judgment of each county provide for efficient management and compliance with legal requirements, shall be used.
Note • History
The following funds shall be used in all counties, whenever applicable:
(a) General Fund. The fund that is available for any authorized purpose and which is, therefore, used to account for all revenues and all expenditures not provided for in other funds.
(b) Special Revenue Funds. To account for the proceeds of specific revenue sources (other than special assessments, expendable trusts, or for major capital projects) that are legally restricted to expenditures for specified purposes.
The following special revenue funds shall be used in all counties, wherever applicable.
(1) Fish and Game Fund. The fund used to account for fines and forfeitures received under Section 13003 of the Fish and Game Code and their expenditure for the propagation and conservation of fish and game.
(2) Special Aviation Fund. The fund used to account for aviation fuel taxes apportioned to the county under Section 21683 of the Public Utilities Code and their expenditure for authorized aviation purposes.
(3) Tax Reduction Fund. The fund to account for all new revenues, other than property taxes, made available by the legislature for use by boards of supervisors, as authorized under Section 29520 of the Government Code.
(4) Road Fund. The fund used to account for state and local tax apportionments and other authorized revenues, the expenditure of which is restricted to street, road, highway and bridge purposes.
(5) County Library Fund. The fund used to account for taxes and other revenues restricted to the operation of county free libraries.
(6) County Fire Fund. The fund used to account for taxes and other revenues restricted for fire prevention.
(7) Special Road Nos. 1, 2, 3, 4 and 5. The fund used to account for taxes and other revenues restricted for use within the unincorporated area for the construction and maintenance of the county road system.
(c) Capital Projects Fund. To account for financial resources to be used for the acquisition or construction of major capital facilities (other than those financed by Enterprise, Internal Service, Special Assessments or Trust Funds.)
(d) Debt Service Funds. To account for the accumulation of resources for, and the payment of, general long-term debt principle and interest.
(e) Special Assessment Fund. To account for the financing of public improvements or services deemed to benefit the properties against which special assessments are levied.
(f) Enterprise Fund. One or more funds used to account for services furnished to the general public and which are financed primarily by charges for such services. These funds are considered as separate from the regular county operations and their accounting methods are geared toward profit or loss determination.
Activities eligible for enterprise fund accounting are:
(1) Airports
(2) Harbors
(3) Transit systems
(4) Waste disposal systems
(5) Parking lots
(6) Hospitals which have been formally declared general
hospitals by the board of supervisors
(7) Golf courses
(8) Stadia
(9) Marinas
(10) Tennis centers
(11) Other similar recreational facilities
(12) Occupational health services
(g) Internal Service Funds. To account for services furnished to other county departments and which are financed primarily by charges for such services. Because they are divorced from the regular county operation, commercial accounting techniques may be used.
(h) Trust and Agency Fund. To account for assets held by a county in a trustee capacity or as an agent for individuals, private organizations, other governmental agencies, and/or other funds. Included are Expendable Trust Funds, Nonexpendable Trust Funds, Pension Trust Funds and Agency Funds.
Funds belonging to a special district which are required by law to be kept in the county treasury would be accounted for in a Trust and Agency Fund. County service area funds are classified as special district funds.
Funds belonging to a school district, including those funds which serve all school districts, which are required by law to be kept in the county treasury would be accounted for in a Trust and Agency Fund.
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Repealer and new section filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23). For prior history, see Register 61, No. 15.
§922. Operating Funds--Less Than Countywide.
Note • History
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Amendment filed 7-26-61; designated effective 9-1-61 (Register 61, No. 15).
2. Repealer filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).(p. 70D1)
Note • History
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Amendment filed 4-1-54; effective thirtieth day thereafter (Register 64, No. 7).
2. Amendment adding subsection (d) filed 11-23-66; effective thirtieth day thereafter (Register 66, No. 41).
3. Repealer filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
Note • History
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Repealer filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
§925. Intragovernmental Service and Enterprise Funds.
Note • History
NOTE
Authority cited: Section 30200, Government Code. Reference: Section 30200, Government Code.
HISTORY
1. New section filed 4-1-64; effective thirtieth day thereafter (Register 64, No. 7).
2. Amendment of subsection (b) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
3. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
4. Amendment of subsection (b) filed 8-23-79; effective thirtieth day thereafter (Register 79, No. 34).
5. Repealer filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
§926. Special District and School Funds.
Note • History
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. New section filed 4-1-64; effective thirtieth day thereafter (Register 64, No. 7).
2. Repealer filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
Article 4. Balance Sheet Accounts
History
The following chart of balance sheet accounts shall be mandatory for all counties, wherever applicable:
(a) Assets.
Cash Inventory of materials and
Imprest cash supplies
Cash with fiscal agents Investments
Taxes receivable Land
Allowance for uncollectible Structures and improvements
taxes Equipment
Accounts receivable Construction in progress (7-1-68)
Allowance for uncollectible Future long term debt
accounts principal requirements
Advances receivable Bonds authorized-unissued
Advances to intragovernmental
service and enterprise funds
Deposits with others
(b) Liabilities.
Warrants payable Deposits from others
Accounts payable Matured bond and interest
Tax anticipation notes payable payable
Advances payable Other matured long term
debt and interest
payable
Bonds payable
Other long term debt
payable
(c) Equities.
Fund balance--unavailable Investment in general fixed assets
Fund balance--available (7-1-68)
(d) Operating Accounts.
Revenues Expenditures
(e) Budgetary Accounts.
Estimated revenues Appropriations
Unanticipated revenues Encumbrances
Unrealized estimated revenues
HISTORY
1. Amendment of subsection (b) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38). For prior history, see Register 69, No. 21.
2. Amendment of subsection (a) filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
3. Amendment of subsections (a) and (b) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§928. Funds Not Subject to Prescribed Accounts.
History
HISTORY
1. Repealer filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
Article 5. Revenue Accounts
The primary classification of revenues is according to source.
Note • History
The following chart of revenue accounts shall be mandatory for all counties, wherever applicable:
(a) Taxes.
Property taxes--current-- Property Taxes--prior--
secured unsecured
Property taxes--current-- Penalties and costs on delinquent
unsecured taxes
Property taxes--prior-- Sales and use taxes
secured Timber yield taxes
Other taxes
(b) Licenses, Permits and Franchises.
Animal licenses Road privileges and permits
Business licenses Zoning permits
Construction permits Franchises
Other licenses and permits
(c) Fines, Forfeitures and Penalties.
Vehicle Code fines Forfeitures and penalties
Other court fines
(d) Revenue From Use of Money and Property.
Interest Royalties
Rents and concessions
(e) Aid From Other Governmental Agencies.
State--Alcoholic Beverage State aid for agriculture
license fee State aid for civil defense
State aid for aviation State aid for construction
State--Highway Users Tax State aid for corrections
State--Motor Vehicle in- State aid for county fairs
lieu tax State aid for disaster
State--Trailer Coach in- State aid for veterans affairs
lieu tax Homeowners' property tax relief
Other state in-lieu taxes Business inventory property tax
State--public assistance-- State--other
administration Federal--public assistance
State aid for public administration
administration programs Federal aid for public assistance
State--health--administration- programs
State aid for crippled children Federal--health--administration-
State aid for cerebral palsy Federal aid for construction
State aid for mental health Federal forest reserve revenue
State aid for tuberculosis Federal revenue sharing
control Federal in-lieu taxes
Other state aid for health Federal--other
Other governmental agencies
Federal aid for disaster
Federal grazing fees
Other in-lieu taxes
(f) Charges for Current Services.
Assessment and tax collec- Estate fees
tion fees Humane services
Civil process service Law enforcement services
Auditing and accounting Recording fees
fees Road and street services
Communication services Health fees
Election services Mental health services
Inheritance tax fees Sanitation services
Legal services Adoption fees
Personnel services Crippled children's services
Planning and engineering Institutional care and services
services Educational services
Purchasing fees Library services
Agricultural services Park and recreation fees
Court fees and costs Other
(g) Other Revenues.
Premiums and accrued in- Revenue applicable to
terest on bonds issued prior years
Revenue from discontinued Sale of fixed assets
districts Other sales
Other
NOTE
Authority cited: Section 30200, Government Code. Reference: Section 30200, Government Code.
HISTORY
1. Amendment of subsection (a) filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6). For prior history, see Register 69, No. 21.
2. Amendment of subsection (e) filed 4-10-75; effective thirtieth day thereafter (Register 75, No. 15).
3. Amendment of subsection (e) filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
4. Amendment of subsections (a), (b) and (c) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
5. Amendment of subsection (a) filed 8-23-79; effective thirtieth day thereafter (Register 79, No. 34).
The Revenue Chart of Accounts contains the minimum accounts necessary to adequately account for the revenues of California counties, and provides the data necessary for statements and reports.
However, if local requirements for information make further breakdowns of any account necessary, counties may use such subaccounts as desired, provided they can be combined into the prescribed account framework for reporting.
Article 6. Expenditures
History
Expenditures are classified according to object, subobject, function and activity.
HISTORY
1. New Article 6 (§§940 through 945) filed 7-26-61; designated effective 7-1-62 (Register 61, No. 15).
§941. Expenditure Objects and Subobjects.
Note • History
The following chart of expenditure object and subobject accounts shall be mandatory in all counties, whenever applicable. The subobjects “Retirement” and “Employee group insurance” are not necessarily applicable to each budget unit accounting for covered employees. Allocation of employee benefit costs to such units, while recommended, is not required.
(a) Salaries and Employee Benefits.
Salaries and wages Employee group insurance
Compensation for approved Workers' compensation insurance
leaves of absence with pay
on account of sickness
Retirement
(b) Services and Supplies.
Agricultural Office expense
Clothing and personal supplies Professional and specialized
Communications services
Food Publications and legal notices
Household expense Rents and leases--Equipment
Insurance Rents and leases--Structures,
Jury and witness expense improvements and grounds
Maintenance--Equipment Small tools and instruments
Maintenance--Structures, Special departmental expense
improvements and grounds Transportation and travel
Medical, dental and laboratory Utilities
supplies
Memberships
Miscellaneous expense
(c) Other Charges.
Support and care of persons Judgments
Contributions to other agencies Rights of way
Contributions to enterprise Taxes and assessments
funds
Bond redemptions
Retirement of other long
term debt
Interest on bonds
Interest on other long
term debt
Interest on notes and warrants
(d) Fixed Assets.
Land Structures and Equipment improvements
(e) Expenditure Transfers and Reimbursements.
Costs applied
In addition to the accounts listed, there is one additional account, “Expenditures applicable to prior years,” which is available for use as a subobject under any or all of the five major objects. Receipts or disbursements which adjust a prior year expenditure are posted to this account.
NOTE
Authority cited: Section 30200, Government Code. Reference: Section 30200, Government Code.
HISTORY
1. Amendment filed 4-1-64; effective thirtieth day thereafter (Register 64, No. 7).
2. Amendments of subsections (b) and (c) filed 5-21-69; effective thirtieth day thereafter (Register 69, No. 21).
3. Amendment of subsection (e) filed 5-14-76; designated effective 7-1-76 (Register 76, No. 18).
4. Amendment filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
5. Amendment of subsection (a) filed 8-23-79; effective thirtieth day thereafter (Register 79, No. 34).
The Expenditure Object and Subobject Chart contains the minimum accounts necessary to adequately account on this basis for the expenditures of California counties, and provides the data necessary for statements and reports.
However, if local requirements for information make further breakdowns of any expenditure necessary, counties may use additional accounts as desired, provided they can be combined into the prescribed account framework for reporting.
(a) Function. A function is a group of services aimed at accomplishing a certain purpose or end.
(b) Activity. An activity is a specific line of work carried on by a county in order to perform its functions.
(c) Budget Unit. A budget unit is that classification of the expenditure and reserve requirements of the Budget into appropriately identified accounting or cost centers deemed necessary or desirable for control of the financial operations. Except as otherwise provided by law, such units may be devised at the discretion of the board.
§944. Expenditure Functions and Activities.
History
The following charter of expenditure functions and activities shall be mandatory in all counties, wherever applicable:
Function Activity
(a) General Legislative and administrative
Finance
Counsel
Personnel
Elections
Communication
Property management
Plant acquisition
Promotion
Other general
(b) Public Protection Judicial
Police protection
Detention and correction
Fire protection
Flood control and soil and water
conservation
Protection inspection
Other protection
(c) Public Ways and Facilities Public ways
Transportation terminals
Transportation systems
Parking facilities
(d) Health and Sanitation Health
Hospital care
Crippled children's services
Sanitation
(e) Public Assistance Administration
Aid programs
Medi-Cal contribution
General relief
Care of court wards
Veterans' services
Other assistance
(f) Education School administration
Library services
Agricultural education
Other education
(g) Recreation and Recreation facilities
Cultural Services Cultural services
Veterans memorial buildings
Small craft harbors
(h) Debt Service Retirement of long term
debt
Interest on long term
debt
Interest on notes and warrants
HISTORY
1. Amendment of subsections (e) and (h) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11). For prior history, see Register 76, No. 18.
Each budget unit shall be classified as to function and activity. Costs of combined statutory offices which engage in more than one activity shall be allocated among the activities performed. In the absence of more refined allocation methods, a rough estimate may be used. With respect to other budget units which perform more than one activity, allocation is recommended but not required. If not allocated, such offices are classified according to the activity of greatest expenditure.
Article 7. Account Adjustment Policy
The proper classification of receipts and disbursements often requires adjustment of the revenue and expenditure accounts. Because of the possibility of inconsistent application among counties to a wide variety of situations, resulting in loss of budgetary control and uniformity in reports, these adjustments shall be made only in the situations indicated and in the manner prescribed in the following sections.
§947. Adjustments to Individual Accounts.
Adjustments to individual accounts are limited to reductions of specific accounts for (1) disbursements which correct a previous revenue, and (2) receipts which correct a previous expenditure.
These reductions should be entered in the proper revenue or expenditure accounts. When they affect transactions of a prior year they should reduce the accounts, “Revenues applicable to prior years” or “Expenditures applicable to prior years.”
Costs applied are defined as the interdepartmental transfer of materials and services, shown as a credit to the total expenditures of the transferring department.
These adjustments differ from adjustments to individual accounts as follows: There is no reduction of expense in the county group of funds taken as a whole; there is simply a reassignment of cost within that group; they do not represent corrections; the adjustment is not to a specific account, but to a group of accounts.
The costs applied device shall be used only within the general county group of funds. It does not apply to transactions between the county and: (1) private persons or agencies, or (2) cities and other governmental agencies required to file separate reports with the State Controller.
History
HISTORY
1. Repealer filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
Subchapter 2. Budgeting Procedures for Counties
Article 1. General Instructions
Note • History
This Subchapter provides a collection point for State Code requirements, administrative directives and recommended practices pertaining to the form and content of the annual county budget and to those of special districts which are required to be included in the budget document. Anticipated benefits include:
(a) Consistent application of the law.
(b) Higher degree of comparability among county budgets.
(c) Written guidance for new personnel.
NOTE
Authority cited: Section 30200, Government Code.
HISTORY
1. Repealer of Subchapter 2 (§§961 and 962) and new Subchapter 2 (Sections 951-958, 961-967, 981-987, 991-994, 1001-1004, 1011-1015) filed 2-29-68; effective thirtieth day thereafter (Register 68, No. 9).
The Government Code specifies the content of the budget, certain budget adoption procedures and dates by which actions must be taken. Districts whose affairs and finances are under the supervision and control of the county board of supervisors are subject to the same regulations.
The budget document must be on such forms as are prescribed by the State Controller, or approved variations of them.
Permission to deviate from the prescribed forms must be obtained by written application addressed to: State Controller Division of Local Government Fiscal Affairs Sacramento, California
Permission need not be obtained for the following:
(1) Addition of columns to prescribed forms, provided the presentation is not basically distorted.
(2) Moving budget unit function and activity designation from the right to left hand side of page.
(3) Choice of alternative sets of special district forms.
(4) Deviations previously authorized. Permission to change the language of prescribed column headings will not be granted.
Fund and account titles to be used by counties in the preparation of the budget are those contained in the publication “Accounting Standards and Procedures for Counties,” issued by the State Controller. Special districts required to be included in the budget document shall use fund and account titles contained in the publication, “Uniform Systems of Accounts for Special Districts.”
All amounts should be expressed in whole dollars. Generally, fractions of a dollar should be adjusted to the closest whole dollar. This rule does not apply to tax rates.
Basic terms used are defined:
(a) Budget. A comprehensive plan of financial operations embodying an estimate of proposed requirements for expenditure appropriations and provisions for reserves for a given period and the means of financing such requirements, as expressed in the official actions of the board.
(b) Budget Document. The instrument used to present the plan of financial operations of the county and of special districts whose affairs and finances are under the supervision and control of the board.
(c) Budget Unit. That classification of the expenditure and reserve requirements of the financial operational plan into appropriately identified accounting or cost centers deemed necessary and desirable for purposes of control of the financial operations.
(d) Estimated Revenues. The amount of revenue estimated to accrue or to be received (dependent on the basis of accounting) during a given period.
(e) Appropriations. Authorizations by the board to make expenditures and to incur obligations for specific purposes.
(f) Fund. A sum of money or other resources segregated for the purpose of carrying on specific activities or attaining certain objectives in accordance with special regulations, restrictions or limitations, and constituting an independent fiscal and accounting entity.
Article 2. General Plan
History
The county budget covers the operations of county operating and special revenue funds. Bond, intragovernmental service and enterprise funds are also included, but receive a different treatment (See Article 4, Special Funds). Funds of special districts whose affairs and finances are under the supervision and control of the county supervisors, while presented in the budget document, are a separate subject and are discussed in Subchapter 4, Article 1.
HISTORY
1. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
A computational end-product of the county budget is the amount of current property taxes and tax rates required for each fund. Property tax requirements are divided between the unsecured and secured rolls. The amount to be raised on the unsecured roll, determined by applying the preceding year's secured rate, is deducted from the total property tax requirement to obtain the amount which must be raised on the secured roll. If the computations result in fractions, the rate may be increased to the next whole cent.
Appropriations are authorizations for the county to make expenditures and to incur obligations during the current fiscal year. Amounts to be raised during the current fiscal period, but for which there is no appropriation, are termed provisions. The sum of appropriations and provisions is the total budget requirement.
§964. Appropriation Classifications.
Appropriations are classified by:
(a) Object
(b) Budget unit
(c) Activity
(d) Function
(e) Fund
Each budget unit is classified by function and activity. Budget units engaging in two or more activities are classified according to the activity of greatest expenditure, or, as is recommended, they may be segregated.
§965. Detail Within Each Budget Unit.
History
With certain exceptions (See Sections 994, 1002 and 1004), appropriations within each budget unit are segregated by expenditure objects:
(a) Salaries and employee benefits
(b) Services and supplies
(c) Other charges
(d) Fixed assets
(e) Expenditure transfers and reimbursements
Appropriations for fixed assets are further segregated by subobjects, as set forth in Article 6, Subchapter 1, and by project and equipment detail within subobjects. Subobjects of the remaining objects are required to be shown but are not legal components of adopted appropriations. At the option of the individual county all subjects may be given appropriation status.
When in the judgment of the board of supervisors it is in the best interests of the county to do so, a county may elect to eliminate the use of subobjects of expenditures, other than for fixed assets, from the budget document; when this option is exercised it shall be by resolution adopted at any regular meeting by a four-fifths vote of the Board. The county auditor shall forward a copy of the resolution to the State Controller within ten days of its adoption.
HISTORY
1. Amendment filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Amendment filed 4-10-75; effective thirtieth day thereafter (Register 75, No. 15).
§966. Estimated Revenue Classifications.
Estimated revenues are in terms of the standard source of revenue accounts. They are listed in detail on Schedule 4 and summarized by fund on Schedule 3.
History
The forms prescribed for presentation of the county budget are:
Schedule Information Developed
1 Fund requirements and available financing
2 Fund balance available
3 Summary of estimated revenues by fund
4 Detail of estimated revenues
5 Budget requirements by function, activity and budget unit
6 Appropriations by budget unit, contingency appropriations
7 Reserve provisions
8 Bond fund appropriations and expenditures
9 Internal service fund operating plans
10 Enterprise fund appropriations
HISTORY
1. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
2. Amendment filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
Article 3. Expenditure Detail
Appropriations are made in terms of total salaries before payroll deductions. Appropriations for salaries and wages of permanent and nonpermanent positions may be given in totals within each budget unit, provided that the estimates for salaries and wages of permanent positions are supported by a schedule setting forth for each position classification the salary rate or range and number of positions requested, recommended and approved.
Note • History
Total employee benefits should be shown in a separate budget unit. The amount of benefits applicable to each budget unit may also be shown. If this is done the total of the benefits so allocated is credited against the total appropriations of the central budget unit.
NOTE
Authority cited: Section 30200, Government Code. Reference: Section 30200, Government Code.
HISTORY
1. Amendment filed 8-23-79; effective thirtieth day thereafter (Register 79, No. 34).
A salary savings account is sometimes used to estimate the savings to result from employee turn-over--replacement of a terminating employee with a new employee at a lower step in the salary range. Use of a salary savings account is permissible provided it is included within the Salaries and Employee Benefits object in each budget unit, if applicable. Salary savings need not be shown separately, but may be netted from salary and wage appropriations.
The detail of fixed asset acquisitions other than land must be shown in the budget, or, in the case of equipment, be readily available in a separate document. Proposed acquisitions of structures and improvements must be itemized by project.
The anticipated transfer of the cost of services of one budget unit rendered to another is shown as a credit to the total appropriations of the budget unit from which the transfer will be made. The posting is to the account, Costs Applied, which has just the reverse effect as the regular appropriation accounts. In the receiving budget unit the appropriation is to the object appropriate to the service rendered. The same appropriation amount thus appears in the county budget twice, once in the receiving budget unit and once in the transferring budget unit. The latter, however, is in effect canceled by the negative appropriation to the Costs Applied account.
History
HISTORY
1. Repealer filed 4-30-76; designated effective 7-1-76 (Register 76, No. 18).
Information may be shown in more specific fashion than provided by the subobject accounts as long as subaccounts are identified with the proper subobject. The subobject should be listed without dollar amounts with the subaccounts underneath and indented to the right.
§988. Construction by Force Account.
Note • History
Force account is defined as “A method employed in the construction and/or maintenance of fixed assets whereby a governmental unit's own personnel are used instead of an outside contractor.” (MFOA)
On Schedule 6 of the Final Budget for the activity “Plant Acquisition,” the total of all projects shall be summarized between “Force Account” and “Contract.” The two summary totals need not be identified with individual projects.
The same procedure applies to schedules for intergovernmental service and enterprise operations.
NOTE
Authority cited: Sections 30200 and 53891, Gov. Code.
HISTORY
1. New section filed 3-31-70; designated effective 7-1-70 (Register 70, No. 14).
2. Amendment filed 12-14-72; effective thirtieth day thereafter (Register 72, No. 51).
Article 4. Special Budget Units
The budget of a fund may contain an appropriation for contingencies, limited to 10% of its non-contingency appropriations. An additional appropriation for contingencies may be included in the General Fund or in a separate Contingency Fund, limited to 10% of the following base:
Total appropriations of funds which do not include a contingency appropriation, reduced by appropriations for bonded debt service.
These amounts are appropriated through the budget process. However, to make them specific and to authorize expenditures against them, a four-fifths vote of the board is required.
Whether in a separate fund or within a fund, all contingencies appropriations are collected in a separate budget unit. The financing fund for each appropriation is designated.
Appropriations for structures and improvements to real property should be centralized in a single budget unit, regardless of the source of financing. Appropriations are detailed by project and the financing fund stated for each. This does not apply to bond fund appropriations.
A county budget unit can normally be classified under a single activity. A budget unit containing all the welfare categorical aids gives rise to an opposite situation--several activities are represented in one budget unit. Amounts applicable to each must be indicated and brought forward to the proper activity summary.
§994. Road Construction and Maintenance Activity.
History
In addition to, and in similar manner as prescribed for the estimates of expenditures classified by objects of expenditure, the official or person in charge of the roads function of the county shall also file a supporting statement setting forth the proposed work program for the year for which the budget is to apply. The proposed work program shall be construed to be the prescribed alternate procedure in lieu of the subobjects of expenditure as referred to in Section 965 of Article 2, and shall be arranged to set forth the data, as applicable in terms of the major operational classifications, namely:
(1) Administration (5) Acquisition of
(2) Construction Equipment
(3) Maintenance (6) Plant Acquisition
(4) Aid to Other Governmental (7) Reimbursable Work
Agencies (8) Cost Transfers and
Reimbursements
The Construction and the Plant Acquisition classifications shall be itemized by appropriately identified projects with estimated costs thereof, except that minor betterment projects in each classification may be grouped and shown in lump-sum amounts. Any of the other classifications may be further classified by such subactivities or itemization as is deemed desirable or necessary for administrative control purposes.
The work program statement shall be subject to the same procedures of review and revision as other estimates but need not be formally adopted by the board. It shall be included in the budget document as a supporting statement to the official budget estimates classified by objects of expenditures. It shall be subject to such administrative controls as deemed necessary and appropriate by the board.
HISTORY
1. Amendment file 12-14-72; effective thirtieth day thereafter (Register 72, No. 51).
Article 5. Special Funds
Proceeds from the sale of bonds are appropriated at the time of the bond election for the purposes stated in the proposal. For informational purposes, project appropriations and expenditures to date are required to be shown on Schedule 8. These amounts are not brought forward to the summary schedules.
§1002. Intragovernmental Service Funds.
History
A separate Schedule 9 is provided for presentation of the managerial budget of each intragovernmental service fund. Anticipated revenues and expenses are shown in terms of accounts deemed most appropriate for the activity. Comparative data for prior years must be shown. Supplementary schedules showing planned fixed asset acquisitions and salaries by position, if not already itemized in the budget, must accompany the presentation. The managerial budget must be adopted by the supervisors, although amounts are not brought forward to the budget summaries.
HISTORY
1. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
History
A budget must be included for each enterprise fund on a separate Schedule 10. The budget is expressed in terms of the revenue and expense accounts prescribed for the activity in which the enterprise is engaged (See Section 905). General requirements regarding prior year comparative data, salary schedules and fixed asset acquisition detail apply. Budgeted revenues and expenses are not included in budget summaries.
HISTORY
1. Amendment filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
§1004. Hospital Enterprise Funds.
History
HISTORY
1. Repealer filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
Article 6. Special Procedures
History
Provisions result in increases in reserves. They are detailed in Schedule 7. Typical provisions are those to increase the general reserve, accumulative capital outlay reserves, and reserves for inventories, advances to intragovernmental service funds, and allowable long-term loans. All provisions are shown in one budget unit. The fund to which each belongs is designated. It is recommended that balances to be retained in reserves not be cancelled at the end of each year, and that the provision be in the amount of the increase only.
HISTORY
1. Amendment filed 2-3-72; effective thirtieth day thereafter (Register 72, No. 6).
Cancellation of reserves releases resources for financing the current budget. Cancellation is effected by omitting the amount to be cancelled as a deduction from the total fund balance on Schedule 2. Reserve reductions are shown on Schedule 7.
§1013. Prior Year Encumbrances.
Encumbrances outstanding at the close of the year preceding the year covered by the budget are shown by fund in the column provided on Schedule 2. Such amounts, along with other reserves, are deducted from the total fund balance to arrive at the available fund balance. Appropriations corresponding to prior encumbrances are not shown in the current budget. Board approval of the overall budget, which includes the reserve for encumbrances, is the authority for re-establishment of encumbrances and related appropriations in the new year.
Schedule 2 provides a column in which both transfers in and out of funds may be entered. The arithmetic total of all entries in this column should, of course, be zero.
In the receiving fund the incoming money attaches to no particular budget unit, but supports the total fund program. This device is used only in special situations, such as to close out the remaining balance of a fund which has served its purpose, or to comply with a legal requirement that money be deposited in a special revenue fund as a condition for subvention. It should not be used as a substitute for the Costs Applied or Joint Fund Financing procedures.
A budget unit may be financed by two or more funds. In a centralized budget unit for structures and improvements, the fund financing each project is indicated. In other jointly-financed units, amounts to be financed from each fund are shown under the total appropriations.
Subchapter 2.5. Rules and Regulations to Administer Reimbursements to Counties for the Cost of Homicide Trials
Article 1. General
Note • History
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15202, Government Code.
HISTORY
1. New Subchapter 2.5 (Articles 1-4, Sections 1020.1-1023.5, not consecutive) filed 3-14-83; effective thirtieth day thereafter (Register 83, No. 12).
2. Repealer filed 5-13-87; operative 5-13-87 (Register 87, No. 21).
Note • History
All costs claimed pursuant to Government Code Sections 15202 and 15203 may be periodically reviewed by the State Controller to insure that on their face such claims meet the requirements of Government Code Section 15201. Costs eligible for reimbursement must be reasonable and necessary costs incurred by the county as a result of the criminal proceeding which would not have been incurred but for the trial, and do not include normal salaries, overhead, and other expenses, unless otherwise provided in Government Code Section 15202(b). At the conclusion of the trial, the State Controller may conduct an audit of selected claims as he deems necessary.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201, 15202 and 15203, Government Code.
HISTORY
1. Amendment filed 5-13-87; operative 5-13-87 (Register 87, No. 21).
Article 2. Costs Eligible for Reimbursement
Note • History
(a) The costs incurred as a result of judges sitting under assignment including travel, board, and lodging may be reimbursed. See Government Code Section 68540(a), Government Code Section 68542, and Title 2, California Administrative Code, Sections 700 through 715 and Section 718.
(b) Reporter's fees may be reimbursed in accordance with Government Code Sections 69947 through 69952. In counties where an ordinance prescribes the official reporters fee rate, the county may be reimbursed at the rate prescribed in the ordinance.
(c) County costs incurred for extra judicial assistance provided to a one-judge court, in order to allow the conduct of that court's normal workload when its only judge is presiding at the trial of a case eligible for reimbursement under Government Code Section 15201, may be reimbursed.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15202, Government Code.
HISTORY
1. Amendment of subsection (a) filed 5-13-87; operative 5-13-87 (Register 87, No. 21).
Note
(a) Fees and mileage may be reimbursed within the limits set forth in Penal Code Section 1143.
(b) Room and board for sequestered jurors may be reimbursed in accordance with Penal Code Section 1136. The court order sequestering the jury must be retained for audit examination.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code.
§1021.3. Witness Fees and Expenses.
Note
(a) Where allowed by the Court, subpoenaed witness fees and expenses may be reimbursed at rates or amounts determined pursuant to Penal Code Section 1329. The pertinent subpoena and the court order must be retained for audit examination.
(b) County costs for expert witnesses appointed by the court pursuant to Evidence Code Section 730 may be reimbursable. The court orders appointing such expert witnesses and establishing compensation for same, must be retained for audit examination.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code.
§1021.4. Legal Expenses (Prosecution and Defense).
Note • History
(a) Normal salaries and benefits for county employees are not reimbursable unless otherwise provided in Government Code Section 15202(b); overtime and fringe benefits actually paid for regular county employees may be reimbursable if such overtime is directly attributable to the case. The necessity, duration, and extent of the overtime must be fully explained and authorized by the appropriate supervisor in writing, and must be documented in accordance with written county personnel policies. Overtime documentation must be retained for audit examination.
(b) Assigned counsel fees, costs, or expenses may be reimbursable if such fees, costs or expenses are consistent with the provisions of Penal Code Section 987.2.
(c) With the exception of county employees, all attorneys and their support personnel must have a written contract indicating the rate of compensation, including that for trial work, overtime, costs, and expenses. The contract with non-county personnel shall specify the fee or rate of pay, and the treatment of overtime if applicable. Overtime will be as defined by the individual counties. County costs incurred pursuant to such contracts may be reimbursable.
(d) In order to be considered for reimbursement, charges for the services of outside contractors, including court appointed attorneys, must be supportable through adequate timekeeping records. Time charged must be approved by the appropriate contract supervisor or county official. Records maintained for billing purposes by court appointed attorneys, investigators, consultants, experts, and others shall be made available to the State Controller's Office, upon request, for examination. Such records will be reviewed to determine the reliability of timekeeping records submitted to the county.
(e) To be eligible for reimbursement, fees for court appointed attorneys, consultants, and experts, etc., must be determined by the trial judge. Reimbursement shall exceed neither the customary fees allowed by the courts for services in capital cases nor any fee limitation imposed by statute.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code; and Statutes of 1986, Chapter 186, Item 8180-101-001 (Budget Act of 1986 which expires after June 30, 1987).
HISTORY
1. Amendment of subsections (a) and (e) filed 5-13-87; operative 5-13-87 (Register 87, No. 21).
§1021.5. Investigation Expenses (Prosecution and Defense).
Note • History
(a) Investigation costs of the district attorney, public defender, sheriff and court-appointed attorney or attorneys may be reimbursable. As provided in Government Code Section 15201, normal salaries and expenses incurred by the county are not reimbursable unless otherwise provided in Government Code Section 15202(b).
(b) The trial judge must determine a reasonable rate of compensation for investigators used by the prosecution and/or defense in order for such compensation to be eligible for reimbursement. Rates may be based on the prevailing rate in capital cases. Reimbursement shall be subject to any limitation imposed by statute.
(c) Specific documentation requirements for investigation expenses are provided in Section 1021.4.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code; and Statutes of 1986, Chapter 186, Item 8180-101-001 (Budget Act of 1986 which expires after June 30, 1987).
HISTORY
1. Amendment filed 5-13-87; operative 5-13-87 (Register 87, No. 21).
Note • History
(a) Travel expenses for mileage, room and board, and per diem, may be reimbursable in accordance with written county policy, but may not exceed the rates outlined in Title 2, California Administrative Code, Sections 700 through 715 and Section 718.
(b) To be reimbursed for out-of-state and/or foreign travel costs, the county shall, to the extent possible, obtain from the trial judge a determination whether the contemplated trip is necessary and reasonable. The county shall obtain the determination prior to the travel.
(c) Travel beginning before Monday, and/or ending after Friday, must be justified in writing.
(d) Documentation supporting travel and per diem expenses shall be in accordance with county policy; provided such policy substantially conforms to Title 2, California Administrative Code, Sections 700 through 715 and Section 718. If county documentation requirements do not substantially conform to the California Administrative Code, then the county shall, to the extent possible, retain documentation which substantially conforms to Title 2, California Administrative Code, Sections 700 through 715 and Section 718.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15202, Government Code.
HISTORY
1. Amendment of subsection (a) filed 5-13-87; operative 5-13-87 (Register 87, No. 21).
Note
(a) All costs of security, over and above regular personnel costs, may be reimbursable.
(b) Costs for temporary personnel hired specifically to fill in for peace officers used in court security may be reimbursable. Courthouse security costs, over and above regular personnel costs, may be reimbursable.
(c) In a change of venue, “all costs,” as defined in Penal Code Section 1037, may be reimbursed.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code.
§1021.8. Reimbursable Miscellaneous Costs.
Note
(a) The cost of equipment rentals and/or purchases may be reimbursed if the following conditions are met:
(1) To be reimbursable, rental costs must be incurred solely because of the trial. Rental contracts must be retained for examination. The Controller's Office requires that, whenever possible, lease/rental-purchase agreements be used. The Controller's Office will not reimburse for equipment rental costs which exceed the original purchase price and the normal finance charge.
(2) The county's normal procurement procedures may be used for reimbursable equipment purchases. The county must obtain Controller's approval before purchasing any equipment for which the county will seek reimbursement. Reimbursements for equipment purchases will be made on a prorata basis. Proration will be determined by comparing the total monthly usage to the estimated useful life of the equipment. Whenever possible, IRS Publication 534, “Depreciation Tables,” will be used as an independent guideline to establish estimated useful life.
(3) Every three months the county shall submit to the State Controller's Office an up to date inventory. That inventory may include items purchased and/or rented for which reimbursement has, or will be claimed. At a minimum, the inventory shall include:
(A) a general description of the item purchased and/or rented;
(B) amount of purchase and/or rental charge to date;
(C) name of vendor;
(D) location of item purchased and/or rented.
(b) Building improvements or construction must be ordered by the court as necessary security measures in order to be considered for reimbursement by the state. Such building improvements and/or construction costs may be reimbursed on a prorata cost basis. The ratio of the number of months that the building improvement or construction is used during the proceedings to the estimated useful life may be used in determining prorata cost.
(c) Reporter files and transcript costs may be reimbursed at the rates set forth in Government Code Sections 69947 to 69950. Invoices pre-sented for payment must include the number of pages of transcript and folio count per page used in determining total folio count.
(1) The following definitions are applicable:
(A) A transcript is a record of testimony before the court.
(B) Words will be counted on a number of sample pages of transcript to determine average folio count per page. That average will be extended to the total number of pages.
(C) A folio is defined as 100 words, phrases, or characters.
(D) Examples of material included in folio count are:
1. Contractions count as two words, i.e., the word “can't” counts as two words.
2. Numerals each count as a word, i.e., “May 5, 1979” counts as six words.
3. Alpha numeric phrases count as one word for each character, i.e., “AR 317.5 G” counts as seven words.
4. Speaker identification is included, i.e., “Mr. Jones,” “the witness,” “the court,” “Q,” “A.” (Eight words shown.)
5. Hyphenated words count as two words, i.e., “home-owned” counts as two words.
6. The date and time stated at the beginning of each session is included in the folio count.
7. Abbreviations are counted as if the words were written out, i.e., “Mr.,” “Dr.,” “Sgt.,” “U.S.A.” (Six words shown.)
(E) Examples of material not included in folio count are:
1. Title page;
2. Indexes to witnesses, exhibits, etc.;
3. Reporter's certification page;
4. Reporter's commentary on events in courtroom that are not part of testimony;
5. Reporter's description of exhibits that are not part of testimony;
6. Page numbers.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code.
Article 3. Costs Not Eligible for Reimbursement
Note
Costs which defense or prosecution may consider confidential shall not be submitted to the Controller for reimbursement until confidentiality is no longer an issue.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code.
Note
Other costs which are not reimbursable include, but are not limited to:
(a) Administrative and countywide indirect overhead costs (except in those cases where it can be identified that additional support services were required due to the trial).
(b) Accounting services.
(c) Amortization.
(d) Auditing services, unless such costs directly relate to the trial. Prior to incurring such costs, the County Auditor-Controller should obtain approval from the State Controller's Office.
(e) Bailiff (except as provided in Section 1021.7).
(f) Bond premiums.
(g) Books (e.g., standard legal reference sets, law books, or periodicals).
(h) Budgeting services.
(i) Business services.
(j) Clerk of the Court.
(k) Construction (e.g., capital expenditures, security or restraint fixtures) unless ordered by the court and pursuant to provisions of Section 1021.8.(b).
(l) Depreciation.
(m) Employee relocation.
(n) Insurance (e.g., liability, fire).
(o) Landscaping.
(p) Memberships.
(q) Organization development.
(r) Research of a general nature. Research directly related to the trial is reimbursable.
(s) Search and apprehension of escaped defendants.
(t) Subscriptions (e.g., magazines, newspapers).
(u) Support of central services divisions.
(v) Use allowance (e.g., use of county owned facilities).
(w) Unpaid overtime to employees.
(x) Unpaid employer's share of staff benefits.
NOTE
Authority cited: Section 15204, Government Code. Reference: Section 15201, Government Code.
Article 4. Miscellaneous
Note
Any cost claimed for reimbursement must be supported by adequate documentation and be readily traceable through county records and books of accounts.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15203, Government Code.
§1023.2. Costs Ordered by the Court.
Note
Costs incurred pursuant to a court order must be supported by sufficient documentation for the Controller to determine whether the costs are directly related to the trial, and whether they are reasonable and necessary.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15203, Government Code.
Note
Costs claimed for state reimbursement shall be filed on forms prescribed or approved by the State Controller's Office.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15203, Government Code.
Note
Any cost reimbursable from another source shall not be reimbursed under Government Code Section 15202.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15203, Government Code.
Note
Counties shall submit claims periodically, pursuant to an agreement between the county and the State Controller, but no less frequently than quarterly.
NOTE
Authority cited: Section 15204, Government Code. Reference: Sections 15201 and 15203, Government Code.
Article 5. Reimbursement for Court-Ordered Expenses of Indigent Defendants in Capital Cases
§1025.1. Cost Eligible for Reimbursement.
Note • History
A county is eligible to receive reimbursement for disbursements made by the county for court approved costs under Section 987.9 which comply with the provisions of that section, as implemented by this Article. Where used in this Article, the term “county” shall include a city and county.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
HISTORY
1. New Article 5 (Sections 1025.1-1025.5, 1026.1-1026.2 and 1027.1-1027.6) filed 1-29-85; effective thirtieth day thereafter (Register 85, No. 5).
Note
(a) The costs of investigators are reimbursable at a rate not to exceed the prevailing rate paid investigators performing similar services in capital cases.
(b) The cost of an investigation conducted by an attorney is reimbursable if the investigating attorney is not an attorney of record in the capital case. Such reimbursement shall not exceed the prevailing rate paid investigators performing similar services in capital cases. For the purpose of this subsection, “investigation” does not include legal research or legal representation.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
Note
Reasonable costs of consultants, expert witnesses, and others are reimbursable. Reasonableness shall be determined by such factors as prevailing rates for similar services, customary fees normally approved by the court for similar services, or such other criteria or standard of comparison as may be reasonable for a particular expense.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
Note
Travel expenses, including expenses for room and board, are reimbursable under the following conditions:
(a) Actual and necessary expenses are claimed and do not exceed State Board of Control standards for travel and per diem expenses (Title 2, California Administrative Code, commencing at Section 700);
(b) In the case of out-of-state travel, the court specifically authorized the travel pursuant to Section 987.9.
(c) A travel expense claim is submitted with the accounting which substantially conforms to State travel expense claims and sets forth the following information:
(1) Name and address (business and residential) of person incurring the expense.
(2) Date and time of departure and return for each trip.
(3) Description of each expense claimed.
(4) If a private automobile is used, the number of miles traveled.
(5) Cost of commercial transportation. Appropriate receipts should be attached.
(6) A detail of the amount of carfare, bridge tolls, and parking charges the daily sum of which exceeds $2.50, and receipts for parking charges exceeding $3.50 for any one continuous period of parking.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
§1025.5. Supplies and Equipment.
Note
(a) Reasonable and necessary expenditures by investigators, consultants, experts, or others for material and supplies are reimbursable
(b) The cost of equipment rental is reimbursable to the extent such cost does not exceed the retail purchase price of the equipment, provided:
(1) The equipment is used solely for the capital case which is the subject of the claim; and
(2) A copy of the rental contract is submitted to the State Controller with the accounting referred to in Section 1027.2 of this Article.
(c) In lieu of renting, the cost of purchasing equipment is reimbursable under the following conditions:
(1) Extraordinary circumstances necessitate the purchase of the equipment;
(2) The purchase is specifically approved by the court;
(3) Justification for the purchase is provided to the State Controller in writing;
(4) A copy of the purchase invoice is submitted to the State Controller with the accounting; and
(5) Reimbursement is limited to the difference between the purchase price and the fair market value of the equipment at the time it is no longer needed for the preparation or presentation of the defense.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
§1026.1. Costs Not Reimbursable.
Note
The following costs are not eligible for reimbursement:
(a) Dental plates, haircuts, and other expenses relating to improving the defendant's personal appearance;
(b) Clothing;
(c) Cleaning charges (clothing);
(d) Cash to defendant;
(e) Attorney fees or costs whether or not for an attorney identified of record;
(f) Any cost reimbursable from another source.
Other costs not listed above will also be ineligible for reimbursement if they are not otherwise allowable under Section 987.9 and this Article.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
§1026.2. Reduction of Capital Charge.
Note
Costs incurred after the case against the indigent defendant no longer involves the death penalty are not reimbursable. A case shall be considered as not involving the death penalty where either the allegations of special circumstances have been dismissed or the prosecution has formally elected not to seek the death penalty.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 193); and Section 987.9, Penal Code.
§1027.1. Claims to the State Controller for Reimbursement.
Note
Subsequent to any disbursement pursuant to the ruling of a court under Section 987.9, the county making the disbursement may apply for reimbursement in accordance with this Article. Any such reimbursement is subject to subsequent audit, and recoupment to the extent the reimbursement exceeded the amount permitted by these regulations.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
§1027.2. Accounting to the State.
Note
Not later than six months after the judgment becomes final in a case in which funds were disbursed under Section 987.9, the county auditor shall provide to the State Controller a copy of the accounting filed by defendant's attorney with the court. If such accounting is not furnished to the State Controller within said period, the State Controller shall notify the county auditor in writing of noncompliance with this section. If the county fails to provide a copy of the accounting to the State Controller within thirty days of receipt of such notice, the State Controller may recover through offset against other payments due the county the amount of any reimbursements made to the county for the particular case.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
Note
The accounting provided the State Controller shall be supported by sufficient details and documentation for the State Controller to determine whether the expenditures of defendant's attorney were authorized by the provisions of the Article and Section 987.9.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
§1027.4. Remittance of Refunded Monies.
Note
The county auditor shall immediately remit to the State any moneys refunded by defense counsel to the extent that reimbursement had been made by the State.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
§1027.5. Summary Statement of Funds.
Note
After the close of each fiscal year, the State Controller shall provide each county receiving reimbursements under Section 987.9 a summary statement of funds advanced to the county, and the amount of any funds due to the county from the State or owed by the county to the State.
NOTE
Authority cited: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983). Reference: Item 8160-111-001, Budget Act of 1983 (Chapter 324 of the Statutes of 1983); and Section 987.9, Penal Code.
Note
All claims for costs pursuant to Section 987.9 are subject to review by the State Controller to ensure that, on their face, such claims meet the requirements of Section 987.9 and this Article. The State Controller may conduct such further audit of a claim or payment as he deems necessary, including an audit subsequent to the filing of the accounting referred to in Section 1027.2 of this Article.
NOTE
Authority cited: Section 12410, Government Code. Reference: Section 12410, Government Code; and Section 987.9, Penal Code.
Subchapter 3. Accounting Procedures for Special Districts
Article 1. General Information
Note • History
These accounting systems are in compliance with Section 53891 of the Government Code, which requires the State Controller to prescribe uniform accounting and reporting procedures which shall be applicable to all special districts, except as exempted. Eligibility for exemption and the procedure for obtaining it are covered in Section 1032.
NOTE
Authority cited: Section 53891, Government Code.
HISTORY
1. New Subchapter 3 (§§ 1031 through 1031.10, 1032, 1041.1 through 1041.13, 1042, 1043.1 through 1043.4, 1051.1 through 1051.13, 1052, 1053.1 through 1053.5, 1061.1 through 1061.13, 1062, 1063.1 through 1063.6 and 1081) filed 4-7-67; designated effective as to Districts on a calendar year--1-1-68, and as to Districts not on a calendar year--at the beginning of the first fiscal year commencing after 1-1-68 (Register 67, No. 14).
The requirements herein prescribed have been approved by the Advisory Committee to the State Controller on Reporting of Financial Transactions of Local Government Agencies, as required by Section 53891 of the Government Code.
The purpose of the accounts and procedures is to furnish a common accounting and reporting framework for all special districts within a designated class, flexible enough to accommodate any legal freedoms of action and needs of individual districts.
§1031.4. Application of Article 1.
Information in this article applies to each of the systems of accounting in subsequent articles.
§1031.5. Accounting Principles.
Generally accepted principles and conventions of governmental accounting, as set forth in Municipal Accounting and Auditing, published by the National Committee on Governmental Accounting, have been employed in the development of the several systems. Various other publications have been used in specialized areas.
The accounting method with a general ledger with a self-balancing group of accounts is prescribed.
§1031.7. Account Code Numbers.
Account titles are prescribed; account numbers are not. Each district may devise the system of coding regarded as most useful for its situation.
§1031.8. Two or More Activities.
The following policy governs the accounting for districts engaged in two or more activities:
(1) A district performing a recognized utility activity must account for that activity under one of the systems prescribed in Articles 1-9.
(2) Such a district may account for its non-utility activities on an enterprise basis, if desired. However, each activity must be reported to the State Controller according to the basis prescribed by him for that activity.
The test of materiality is implicit in each system. Small amounts may be accorded a convenience treatment, so long as the possible distortion of financial position and results of operations is negligible.
Each system includes accounting situations over which the individual district may exercise an option. Whenever a change has been made from one acceptable practice to another and the effects on the accounts involved are significant, disclosure is required in reports and statements.
§1031.11. Interest on Bond Proceeds.
History
When bond proceeds are invested prior to their use for the purpose for which the bonds were issued, the earnings shall be applied toward debt service as indicated in Section 29303 of the Government Code, unless a different disposition is prescribed in law or in the resolution authorizing the bonds. (Effective with respect to bonds issued on or after the effective date of each accounting system)
HISTORY
1. New section filed 12-6-67; effective thirtieth day thereafter (Register 67, No. 49).
§1031.12. Priority of Legal Requirements.
History
When a legal requirement imposed by this system of accounts is in conflict with requirements of State Codes, bond indentures, contractual arrangements with other governmental agencies, or other legal requirements, the latter shall have priority.
HISTORY
1. New section filed 12-6-67; effective thirtieth day thereafter (Register 67, No. 49).
§1031.13. Assets Held Under Lease Agreements.
Note • History
A district shall account for and report leases of assets from others as follows. If the lease is a non-cancellable financing arrangement under which the lessee acquires the facility, the asset shall be capitalized and the related liability recorded, both in the amount of total payments due, less interest included. If the lease is cancellable or no property or other rights of value accrue to the district, periodic payments are charged to expense.
NOTE
Authority cited: Sections 30200 and 53891, Government Code. Reference: Section 53891, Government Code.
HISTORY
1. New section filed 12-14-72; effective thirtieth day thereafter (Register 72, No. 51).
2. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
§1031.14. Accounting by District Lessor.
Note • History
A district, including a joint powers or nonprofit agency required to report as a district under Section 12463.1 of the Government Code, shall account and report leases of assets to others as follows. If the lease is a non-cancellable financing arrangement under which the lessee acquires the facility, the total of the payments due, less interest included, is recorded as a receivable and interest as revenue when earned or received. If the lease is cancellable or no property or other rights of value accrue to the lessee, periodic payments are recorded as revenue.
NOTE
Authority cited: Sections 30200 and 53891, Government Code. Reference: Section 53891, Government Code.
HISTORY
1. New section filed 12-14-72; effective thirtieth day thereafter (Register 72, No. 51).
2. Amendment filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
Section 53891 of the Government Code provides that districts which substantially follow a system of accounting prescribed by the Public Utilities Commission of the State of California or the Federal Power Commission may be exempted from the uniform accounting and reporting requirements prescribed by the State Controller. Three documents must be submitted:
(1) A resolution of the prescribed form.
(2) A copy of its chart of accounts.
(3) A copy of its most recent independent audit report.
The Controller's Advisory Committee will recommend granting or denying the exemption.
Article 2. Water Utility Districts
The system of accounting herein described shall be used by all California special districts, including conservation-type districts, engaged in the production, sale or distribution of water, except such districts which have been exempted from the requirements pursuant to Section 53891 of the Government Code.
§1041.2. Relation to Public Utilities Commission Accounts.
The Uniform System of Accounts of the California Public Utilities Commission is the guide for this system. Accounts have been added and deleted and policies have been modified as deemed necessary to recognize the governmental character of the utility, and to provide for proper recording of transactions peculiar to its operation.
§1041.3. Accounting Method and Basis.
The enterprise approach, having as its objective the determination of financial position and the results of operations by fiscal period, is prescribed. Accounts shall be kept by the double-entry method on the accrual basis, with the exception of assessments and ad valorem taxes, for which the accrual basis is optional.
Funds provided for use of water utility districts are listed in Section 1042. Unless legally required to account for specific resources in separate funds, the district may include them within the General Fund.
§1041.5. Current and Long-Term Accounts.
History
Asset and liability accounts are grouped in current and long-term sections. A current asset is one normally convertible to cash, or a cash equivalent benefit, within twelve months. Other assets are labelled long-term, or a special category of long-term, i.e., deferred charges, etc. Similarly, current liabilities are those which will become due and payable within twelve months.
HISTORY
1. Amendment filed 10-2-69; effective thirtieth day thereafter (Register 69, No. 40).
Acquisitions of fixed assets are capitalized in accordance with enterprise accounting practice. Definitions and value and life tests for fixed asset recognition are those presented in Accounting For General Fixed Assets.
Both revenue and expense accounts are segregated between operating and non-operating. The basic classification of revenue is by source. Expense accounts are classified primarily by cost center and secondarily by nature of expense.
Basic accounts and, in a few cases, certain subaccounts, are required. Districts may segregate detail in as many additional subaccounts as desired. Each subaccount must be keyed to a prescribed account, either by its title or code number.
Transactions which correct a previously recorded transaction of the current period are posted directly to the account affected. Recovery of costs from insurance or damage settlements shall be credited against the account charged with the cost of repairing the damage. Provision is also made for the transfer of expense from one segment of the accounts to another without disturbing balances of accounts to which the expenses were initially entered.
§1041.10. Transactions Adjusting Prior Balances.
Transactions which adjust nominal account balances of prior fiscal periods are posted to one of two current non-operating accounts, Revenues Applicable To Prior Years or Expenses Applicable To Prior Years.
§1041.11. Retirement of Fixed Assets.
When a fixed asset is sold or otherwise retired, cost or recorded value is removed from the property accounts and the accumulated allowance for depreciation or amortization for that asset is removed from the valuation reserve.
Gain or loss, measured by the difference between:
Book value (Cost less accumu- Proceeds from sale of
lated depreciation) and asset or salvage
Removal or dismantling costs Insurance proceeds
is posted to other non-operating revenue or other non-operating expense.
In addition to the options afforded in Sections 1041.4 and 1041.8, the district may exercise an option on the following:
(a) Cash discounts on purchases may be accounted as revenue or as a reduction of purchase price.
(b) After posting employee benefits to the General and Administrative cost centers, they may be reallocated to the other cost centers.
§1041.13. Non-Water Activities.
The principal activity of a district is defined as that activity for which the greatest amount of time and money is expended. Districts which are principally water, but which engage also in other activities, must account for the latter in terms of accounts prescribed in other articles.
The accounts
Revenue from Other Activities, and
Expenses of Other Activities
indicate the positions of non-water revenues and expenses. In practice they would act as control accounts for prescribed accounts, or would be replaced by them.
This policy does not extend to balance sheet accounts. Multi-activity districts need maintain only the balance sheet accounts prescribed for the principal activity.
History
The funds listed and defined below are recognized for use by water utility districts.
(a) General. A fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
(b) Debt Service. A fund used to account for revenues appropriated for the periodic payment of interest, and the principal of matured long-term debt.
(c) Sinking. A fund established by periodic contributions and earnings thereon to provide for retirement of bond principal.
(d) Construction. A fund used to account for the proceeds from the sale of bond issues or other long-term borrowings restricted for capital outlay.
(e) Accumulative Capital Outlay. A fund used to account for the accumulation of revenues restricted for capital outlay under Section 53731 Government Code.
(f) Special Assessment. A fund used to account for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the property owners.
(g) Intragovernmental Service. A fund which accounts for services furnished to the district and which is financed primarily by charges for such services.
(h) Trust and Agency. A fund used to account for money or other property received by the district in the capacity of trustee or agent.
HISTORY
1. Amendment of subsection (g) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1043.1. Asset and Other Debit Accounts.
History
(a) Utility plant
Utility plant in service Construction in progress
Intangible plant Utility plant held for future use
Land Allowance for depreciation and
Other land rights amortization of utility plant
Water rights Utility plant in service
Source of supply plant Utility plant held for future use
Pumping plant
Water treatment plant
Transmission and distribution
plant
General plant
Undistributed items
(b) Investments, restricted assets, other long-term assets
Other physical property Investments
Non-water utility plant Contracts and notes receivable
Other property Allowance for uncollectible
Allowance for depreciation and accounts
amortization of other physical Restricted assets
property
Non-water utility plant
Other property
(c) Current assets
Cash Allowance for uncollectible
Cash with fiscal agents accounts
Deposits Utility services
Imprest cash Merchandise
Temporary investments Other
Notes receivable *Taxes receivable
Accounts receivable *Allowance for uncollectible taxes
Utility services Due from other funds
Merchandising Water in storage
Travel and expense advances Inventory of materials and supplies
Other Prepayments
Other current assets
(d) Deferred debits
Preliminary survey and investigation Other work in progress
charges Other deferred debits
*Clearing accounts
*Stores
*Transportation
*Shop
HISTORY
1. Amendment of subsection (a) filed 10-2-69; effective thirtieth day thereafter (Register 69, No. 40).
*Optional accounts.
§1043.2. Liability and Other Credit Accounts.
History
(a) Long-term debt
Bonds Time warrants
Other governmental agencies Other long-term debt
State
Federal
Other
(b) Current liabilities
Notes payable Interest payable
Accounts payable Matured
Current portion of long-term Accrued
liabilities Deposits--customers'
Matured bonds Deposits--service connections and
Other matured long-term meters
liabilities Deposits--construction
Other Taxes accrued
Due other funds Other current liabilities
(c) Deferred credits
Advances for construction Deferred credits
(d) Reserves
Insurance reserves Other reserves
Employee benefits reserves
(e) Investment in fixed assets
Investment in utility plant Investment in other assets
Contributions Contributions
Other sources Other sources
(f) Fund balances
General Fund balance Other fund balances
HISTORY
1. Amendment of subsection (b) filed 10-2-69; effective thirtieth day thereafter (Register 69, No. 40).
2. Amendment of subsection (e) and new subsection (f) filed 9-19-70; effective thirtieth day thereafter (Register 70, No. 38).
Note • History
(a) Water sales
Residential Sales for resale
Business Interdepartmental
Industrial Other
Irrigation
(b) Water services
Fire prevention Other
Ground water replenishment
(c) Non-operating
Revenues from lease of other Other governmental agencies:
physical property Federal
Interest revenues State
Taxes and assessments Homeowners' property tax relief
Special district augmentation fund Business inventory property
Revenues applicable to prior tax relief
years Other
Other
Revenues from other activities
NOTE
Authority and reference cited: Section 53891, Government Code.
HISTORY
1. Amendment of subsection (c) filed 10-2-69; effective thirtieth day thereafter (Register 69, No. 40).
2. Amendment of subsection (c) filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
3. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
(a) Source of supply
Supervision, labor and expense Purchased water
Maintenance--structures and Ground water replenishment
improvements
(b) Pumping
Supervision, labor and expense Fuel or power purchased for
Maintenance--structures pumping
and improvements
(c) Water treatment
Supervision, labor, and expense Maintenance--structures
and improvements
(d) Transmission and distribution
Supervision, labor and expense Maintenance--structure and plant
(e) Customer accounts
Supervision, meter reading and Uncollectible accounts
other expenses
(f) Administrative and general
Salaries
Office supplies and other expenses Franchise requirements
Property insurance, injuries and Rents and leases
damages Maintenance--general plant
Employees retirement and benefits Other
(g) Other operating
Depreciation and amortization Other
Taxes Expense credits
(h) Non-operating
Interest on long-term debt Other
Other interest Expense credits
Expense applicable to prior years Expenses of other activities
Article 3. Airport Districts
The system of accounting herein described shall be used by all California special districts engaged in the operation of an airport. If the principal activity of the district is an activity other than airport operation, the operating accounts, only, are mandatory with respect to the airport phase of its operations.
§1051.2. Accounting Method and Basis.
The enterprise approach, having as its objective the determination of financial position and the results of operations by fiscal period, is prescribed. Accounts shall be kept by the double-entry method on the accrual basis, with the exception of assessments and ad valorem taxes, for which the accrual basis is optional.
Funds provided for use of airport districts are listed and defined in Section 1052. Unless legally required to account for specific resources in separate funds, the district may include them within the General Fund.
Revenues are classified by cost or revenue center and by source. Expenses are classified by cost or expense center and by nature of expense.
History
Acquisitions of fixed assets are capitalized in accordance with enterprise accounting practice definitions and value and life tests for fixed asset recognition are those presented in “Accounting for General Fixed Assets.”
HISTORY
1. Amendment filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1051.6. Fixed Assets from Federal Grants.
Fixed assets acquired through grants-in-aid from the federal government shall be capitalized in the same manner as other assets. However, depreciation of such assets is not a charge against operations, but shall be treated as a direct reduction of the FAA grant-in-aid account.
Purchase discounts allowed for early payment may be treated as expense reductions or as revenue at the option of the district. Trade discounts are always netted from purchases prior to entry.
§1051.8. Current and Long-Term Assets and Liabilities.
Assets and liabilities are segregated in the account chart as current and long-term. Current assets are those which are normally convertible to cash within a twelve-month period. Prepaid expenses have a cash-equivalent value and are included as current. Other assets are long-term.
Similarly, liabilities which will become payable within twelve months are classed as current.
The distinction between long and short-term need not be currently maintained in the accounts. It is sufficient to recognize the transition from long-term to current status on financial statement working papers, without actually making the entries in the books.
§1051.9. Interest During Construction Period.
Interest expense during the construction period on money borrowed to finance the construction shall be capitalized. When large projects are undertaken in stages, a completed component may be usable before the total project is finished. If so, the construction period ends for that unit when it is placed into service.
§1051.10. Account Adjustments.
Transactions which correct a previously recorded transaction of the current period are posted directly to the account affected. Recovery of costs from insurance or damage settlements shall be credited against the account charged with the costs.
§1051.11. Transactions Adjusting Prior Balances.
Transactions which adjust nominal account balances of prior fiscal periods are posted to one of two current accounts, Revenues Applicable To Prior Years or Expenses Applicable To Prior Years.
Investments are shown on the balance sheet at book value--maturity value, adjusted for any unamortized premium or discount.
§1051.13. Disposition of Fixed Assets.
When fixed assets are sold or otherwise disposed of, the gain or loss, measured by the difference between book value and selling price, is included as a charge or credit to current operations.
History
The following classes of funds are recognized for use by airport districts.
(a) General. A fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
(b) Debt Service. A fund used to account for revenues appropriated for the periodic payment of interest, and the principal of matured long-term debt.
(c) Construction. A fund used to account for the proceeds from the sale of bond issues or other long-term borrowings restricted for capital outlay.
(d) Capital Outlay. A fund used to account for the accumulation of revenues restricted for capital outlay under Section 53731, Government Code, or the organic law of the district.
(e) Special Aviation. The fund used to account for aviation fuel taxes apportioned to the district under Section 21682 of the Public Utilities Code and their expenditure for authorized aviation purposes.
(f) Intragovernmental Service. A fund which accounts for services furnished to the district and which is financed primarily by charges for such services.
(g) Special Assessment. A fund used to account for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the property owners.
(h) Trust and Agency. A fund used to account for money or other property received by the district in the capacity of trustee or agent.
HISTORY
1. Amendment of subsection (f) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1053.1. Asset and Other Debit Accounts.
(a) Current assets
Cash Interest receivable
Cash with fiscal agents Inventories
Notes receivable Investments
Accounts receivable Unamortized discount on
Allowance for doubtful accounts investments
* Taxes receivable Unamortized premium on
* Allowance for uncollectible taxes investments
Due from other funds Prepaid expenses
Deposits
(b) Property, plant and equipment
Land Equipment
Land rights Construction in progress
Land improvements Allowance for depreciation and
Buildings and structures amortization
(c) Restricted and other long-term assets
Advances and loans receivable Restricted assets
(d) Deferred charges
Unamortized bond discount and Other
expense
(e) Suspense
Suspense accounts
* Optional accounts.
§1053.2. Liability and Other Credit Accounts.
History
(a) Current liabilities
Notes payable Payroll liabilities
Accounts payable Other accrued taxes
Matured and maturing long-term Deposits
debt Other
Accrued interest
(b) Long-term liabilities
Bonds payable Notes and contracts payable
(c) Deferred credits
Prepaid income Other
(d) Grants-in-aid
FAA grants-in-aid Write-down through depreciation
(e) Reserves
Reserves for restricted assets Other
(f) Investment in fixed assets
Investment in property, plant and equipment
(g) Fund balances
General Fund balance Other fund balances
HISTORY
1. Amendment of subsection (f) and new subsection (g) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
Revenues and expenses shall be identified with the following activity centers:
Landing area Administration
Terminal buildings and areas General shop and equipment
Other buildings and areas Non-operating
Non-aviation activities
Note • History
Landing fees Other
Aircraft storage fees Grants-in-aid
Fuel flowage fees Federal
Concessions State-Homeowners' property tax
Interest relief
Rents and leases State-Business inventory prop-
Sale of surplus property erty tax relief
Sales Other
Revenue applicable to prior Taxes
years Special district augmentation
fund
NOTE
Authority and reference cited: Section 53891, Government Code.
HISTORY
1. Amendment filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Amendment filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
3. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
Salaries and wages Office expense
Payroll burden Operating supplies
Purchases for resale Professional services
Advertising and promotion Outside services
Bad debt expense Rents and leases
Communications Repairs and maintenance
Depreciation and amortization Taxes and assessments
Dues and subscriptions Travel
Education Utilities
Elections Expenses applicable to
Insurance prior years
Interest Other
Judgments and damages Allocated expenses
Article 4. Harbor and Port Districts
The system of accounting herein described shall be used by all California special districts engaged in the operation of a harbor or port. If the principal activity of the district is some other activity, the operating accounts, only, are mandatory with respect to the harbor or port phase of its operations.
§1061.2. Accounting Method and Basis.
The enterprise approach having as its objective the determination of financial position and the results of operations by fiscal period, is prescribed. Accounts shall be kept by the double-entry method on the accrual basis, with the exception of assessments and ad valorem taxes, for which the accrual basis is optional.
Funds provided for use of harbor and port districts are listed and defined in Section 1062. Unless legally required to account for specific resources in separate funds, the district may include them within the General Fund.
Revenues are classified by revenue center and by source. Expenses are classified by expense center and by nature of expense.
History
Acquisitions of fixed assets are capitalized in accordance with enterprise accounting practice. Definitions and value and life tests for fixed asset recognition are those presented in “Accounting for General Fixed Assets.”
HISTORY
1. Amendment filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1061.6. Disposition of Fixed Assets.
When fixed assets are sold or disposed of otherwise, their recorded value is removed from the property accounts and the valuation reserve is reduced by the accumulated allowances for depreciation and amortization for those assets.
Gain or loss, measured by the difference between:
Book value (Cost less accumu- Proceeds from sale
lated depreciation) and or salvage
Costs of removal or dismantling Insurance proceeds
is credited or charged to current operations.
Purchase discounts allowed for early payment may be treated as expense reductions or as revenue, at the option of the district. Trade discounts are always netted from the purchase price before recording.
§1061.8. Current and Long-Term Assets.
Assets and liabilities have been grouped as current and long-term. A current asset is one normally convertible to cash, or a cash-equivalent benefit, within twelve months. Other assets are labelled long-term, or some special category of long-term, i.e., Deferred Charges, etc. Similarly, current liabilities are those which will become due and payable within twelve months.
Status of the asset at date of acquisition, or liability at time of incurrence, governs the account to which posted. However, except for matured bonds payable it is not intended that the accounts be subsequently adjusted for each transition from long-term to current. Balance sheets should reflect correct status at the statement date, but reclassification entries need not be posted to the accounts.
§1061.9. Interest During Construction Period.
Interest expense during the construction period on money borrowed to finance the construction shall be capitalized. When large projects are undertaken in stages, a completed component may be usable before the total project is finished. If so, the construction period ends for that unit when it is placed in service.
§1061.10. Account Adjustments.
Transactions which correct a previously recorded transaction of the current period are posted directly to the account affected. Recovery of costs from insurance or damage settlements shall be credited against the account charged with costs of repairing the damage. If desired, such costs and recoveries may be initially collected in clearing accounts, and the difference subsequently posted to the operating accounts.
§1061.11. Transactions Adjusting Prior Balances.
Transactions which adjust nominal account balances of prior fiscal period are posted to one of two current accounts, Revenues Applicable To Prior Years or Expenses Applicable To Prior Years.
Investments are shown on the balance sheet at book value--maturity value, adjusted for any unamortized premium or discount.
§1061.13. Bond Premium, Discount and Expense.
Discount and expense on bonds issued may be charged against operations in the year of issue, or may be amortized over the life of the bonds. Bond premium is also subject to optional treatment.
Accrued interest received on the sale of bonds is credited to the interest expense account.
History
The following classes of funds are recognized for use in harbor and port districts:
(a) General. A fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
(b) Debt Service. A fund used to account for revenues appropriated for the periodic payment of interest, and the principal of matured long-term debt.
(c) Sinking. A fund established by periodic contributions and earnings thereon to provide for retirement of bond principal.
(d) Construction. A fund used to account for the proceeds from the sale of bond issues, governmental grants or other long-term borrowings restricted for capital outlay.
(e) Capital Outlay. A fund used to account for the accumulation of revenues restricted for capital outlay under the organic law of the district or Section 53731, Government Code.
(f) Special Assessment. A fund used to account for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the property owners.
(g) Intragovernmental Service. A fund which accounts for services furnished to the district and which is financed primarily by charges for such services.
(h) Trust and Agency. A fund used to account for money or other property received by the district in the capacity of trustee or agent.
HISTORY
1. Amendment of subsection (g) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1063.1. Asset and Other Debit Accounts .
(a) Current assets
Cash Due from other funds
Cash with fiscal agents Deposits
Notes receivable Inventories
Accounts receivable Investments
Allowance for uncollectible Unamortized discount--
accounts investments
*Taxes receivable Unamortized premium--
* Allowance for uncollectible taxes investments
Interest receivable Prepaid expenses
(b) Property, plant and equipment accounts
Land Construction in progress
Other land rights Allowance for depreciation and
Structures and improvements amortization
Equipment
(c) Restricted assets
Restricted assets
(d) Deferred charges
Unamortized bond discount and Suspense accounts
expense Other deferred charges
*Optional accounts.
§1063.2. Liability and Other Credit Accounts.
History
(a) Current liabilities
Notes payable Matured interest
Accounts payable Accrued interest payable
Due other funds Deposits
Matured and maturing long-term Payroll liabilities
debt Other current liabilities
(b) Long-term liabilities
General obligation bonds Other notes and loans payable
Revenue bonds Other contractual obligations
Due State of California
(c) Deferred credits
Deferred income Other deferred credits
Unamortized bond premium
(d) Reserves
Reserve for restricted assets Other reserves
(e) Investment in fixed assets
Investment in property, plant and equipment
(f) Fund balances
General Fund balance Other fund balances
HISTORY
1. Amendment of subsection (e) and new subsection (f) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
Districts operating a marine terminal shall segregate revenues between Marine and Non-Operating. Those operating a small craft harbor shall segregate revenues between Harbor and Non-Operating.
Note • History
Revenue accounts to be used as needed within each revenue center
(a) Marine
Dockage Service charges--bulkloader
Wharfage Service charges--cargo
Storage, demurrage and Stevedoring
space rental Other sales and services
Loading and unloading
(b) Harbor
Slip rentals Rents and concessions
Launching charges Other sales and services
Fuel sales
(c) Non-Operating
Interest Other governmental agencies:
Gain on sale of capital assets Federal
Revenue from other activities State
Taxes and assessments Homeowners' property tax relief
Special district augmentation Business inventory property
fund tax relief
Other
Other
NOTE
Authority and reference cited: Section 53891, Government Code.
HISTORY
1. Amendment of subsection (c) filed 9-16-70; effective thirtieth day hereafter (Register 70, No. 38).
2. Amendment of subsection (c) filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
3. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
Expenses shall be identified with the following expense centers:
Operating and Security
Maintenance
Administration and General
Depreciation
Non-Operating
Objects of expense to be used as needed within each expense center are:
(a) Operating and security, maintenance and administration and
general
Salaries and wages Motive equipment expense
Payroll burden Office expense
Cost of sales Operating supplies
Advertising and promotion Outside services
Auto mileage Professional services
Bad debt expense Rents and leases
Communications Repairs and maintenance
Conferences and meetings Small tools
Dues and subscriptions Utilities
Elections Allocated expenses
Insurance
(b) Depreciation
Depreciation and amortization
(c) Non-Operating
Interest Expenses of other activities
Judgments and damages Taxes and assessments
Loss on sale of capital assets Other
Article 5. Transit Districts
Note • History
The system of accounting herein described shall be used by all public agencies engaged in the operation of a public transit system in the State of California, hereinafter referred to as operator. This includes a California City, a California County, a California Special District, and a public entity, agency, board, etc. as defined in Government Code Section 12463.1.
The system is prescribed to comply with Government Code Section 53891 and Public Utilities Code Section 99243.
NOTE
Authority cited: Section 53891, Government Code. Reference: Section 99243, Public Utilities Code; Section 53891, Government Code.
HISTORY
1. Repealer of Article 5 (Sections 1071.1-1073.4, not consecutive) and new Article 5 (Sections 1071.1-1073.7, not consecutive) filed 6-28-78; designated effective 7-1-78 per Section 99243, Public Utilities Code (Register 78, No. 26). For history of former Article 5, see Registers 67, No. 49; 70, No. 38; and 77, No. 11.
§1071.2. Accounting Method and Basis.
The enterprise approach, having as its objective the determination of financial position and the results of operations by fiscal period, is prescribed. Accounts shall be kept by the double-entry method on the accrual basis, with the exception of assessments and ad valorem taxes, for which the accrual basis is optional.
Note • History
It is recommended that, unless the district is legally required to account for specific resources in separate funds, all accounting be done in one fund. In the event additional funds are required, they should be classified according to the standard list in Section 1072.
While the fund is a separate fiscal and accounting entity, separate bank accounts should not be established unless legally required.
Operators providing charter or handicapped and elderly services should maintain records of operation for each of these services to facilitate determining operating ratios for state subvention purposes.
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
§1071.4. Current and Long-Term Accounts.
Asset and liability accounts are grouped in current and long-term sections. A current asset is one normally convertible to cash, or a cash-equivalent benefit, within one year. Other assets are considered long-term. Similarly, current liabilities are those which will become due and payable within one year.
Status of the asset at the date of acquisition, or liability at time of incurrence, determines whether the item is posted to a current or long-term account. Changes in status due to the passage of time should be reflected on the balance sheet, but need not be posted to the accounts.
Grants, subventions, and Provisions from the Local, State, or Federal Government for operating assistance, the acquisition of equipment, or other capital outlay should not be formally recognized in the accounts until the grant becomes a valid receivable as a result of complying with appropriate grant requirements. Usual steps attending such grants are:
(1) Application by grantee.
(2) Acceptance and approval by grantor.
(3) Requisition for all or part of grant by grantee.
(4) Notice of approval of requisition by grantor or receipt of check by grantee.
Upon completion of Step (3), the amount requisitioned should be charged to a Receivable and credited to the applicable account in the revenue section.
Memo records should be started for each grant not later than the date of the grant application. These records should be maintained on a current basis and reviewed before the books are closed at the end of the fiscal year to ascertain that all requisitions have been mailed and the receivable and revenue recorded.
When all transactions for the year ended have been recorded, the Capital Outlay revenues are closed into the corresponding grant equity accounts in the Capital group. Equipment acquired from this source is recorded in account Tangible Transit Operating Property Acquired by Grant or with Grant Funds, and is accounted for and depreciated in the same manner as other equipment.
Note • History
Fixed assets shall be capitalized and their cost periodically charged against operations in the form of depreciation or amortization. The tests for distinguishing between capital costs and operating charges are found in the Controller's publication, Accounting for General Fixed Assets. At its option the operator may lower these standards, but may not raise them.
Depreciation on assets acquired with grant funds should be recorded in the appropriate depreciation expense account. Net income will reflect such depreciation. However, the account will be transferred to the related capital contribution account reflecting the proper equity within the contribution account.
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
§1071.7. Interest During Construction.
Interest during the construction period on money borrowed to finance the construction shall be capitalized. However, should circumstances in an individual case justify a different recognition, this departure must be footnoted on the balance sheet. No recognition shall be given to imputed interest.
Income from use of the facility during its construction period is accounted as a decrease in the cost of construction.
§1071.8. Retirement of Fixed Assets.
Accounting for fixed assets sold or otherwise retired will depend upon the method of depreciation employed. For assets with individual cost and depreciation records, cost or recorded value is removed from the property accounts and the accumulated allowance for depreciation or amortization from the valuation reserve. Gain or loss, measured by the difference between:
Book value (Cost less ac- Proceeds from sale
cumulated depreciation) and or salvage
Removal or dismantling Insurance proceeds
costs
is posted to depreciation accounts as applicable.
Revenue and expense accounts are not segregated between operating and non-operating. Revenues are classified by source. Expenses are classified primarily by system mode and secondarily by function and thirdly by object of expenditure. These accounts are listed in Sections 1073.1, 1073.2, 1073.3, 1073.4, 1073.7 and 1073.8. Budgetary accounts are provided but such accounting is not recommended unless legally required.
Basic accounts listed in Sections 1073.1-1073.4 represent minimum accounting and reporting classifications. Within these classifications districts may account in as much detail as desired through subaccounts. Each subaccount must be keyed to a prescribed account, either by title or code number.
This system is fully compatible with the Section 15 reporting requirements of the Urban Mass Transportation Agency and may be expanded to any level of that system.
In the Controller's accounting manual, code numbers are shown for each account and fund primarily for reference purposes. While the numbers are considered appropriate and may be used, each operator is free to devise a coding system suitable to its individual needs. Account titles, however, are required.
§1071.12. Purchased or Contracted Service.
Note • History
Transit service claimants contracting for transportation service and receiving Transportation Development Act Funds to pay for such service, shall include in “operating costs” and “fare revenues” the amount of fare revenues that are received by the entity providing the service and not transferred to the claimant. This will ensure the claimant has included all costs and revenues when determining operating ratios for state subvention purposes.
NOTE
Authority and reference cited: Section 53891, Government Code; Section 99243, Public Utilities Code.
HISTORY
1. New section filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
Note • History
By definition the General Fund is created to account for all transactions of the operator, and, except as noted below, should be so used. It is defined as: A fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
If bond indentures, State law, governmental grant requirements, contractual agreements or action of the governing body require separate funds for restricted resources, the following classes of funds are recognized:
(a) Special Revenue. A fund used to finance particular activities from the receipts of specific taxes or other revenues.
(b) Debt Service. A fund used to account for revenues appropriated for the periodic payment of interest, and the principal of matured long-term debt.
(c) Sinking. A fund established by periodic contributions and earnings thereon to provide for retirement of bond principal.
(d) Capital Projects. A fund used to account for the proceeds from the sale of bond issues or other long-term borrowings restricted for capital outlay.
(e) Accumulative Capital Outlay. A fund used to account for the accumulation of revenues restricted for capital outlay under Section 53731, Government Code.
(f) Special Assessment. A fund used to account for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the property owners.
(g) Internal Service. A fund which accounts for services furnished by the operator and which is financed primarily by charges for such services.
(h) Trust and Agency. A fund used to account for money or other property received by the operator in the capacity of trustee or agent.
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
(a) Current Assets
Cash and cash items
Receivables
Materials and supplies inventory
Other current assets
(b) Tangible and Intangible Assets
Work in Process
Tangible Transit Operating Property
Tangible Transit Operating Property Acquired with Operator Funds
Tangible Transit Operating Property Acquired by Federal, State, or Transportation Development Act Funds
Accumulated Depreciation
Accumulated Depreciation of Tangible Transit Operating Property
Acquired With Operator Funds
Accumulated Depreciation of Tangible Transit Operating Property
Acquired by Federal, State, or Transportation Development Act Funds
Tangible Property Other Than for Transit Operations
Accumulated Depreciation of Tangible Property Other Than
for Transit Operations
Intangible Assets
Accumulated Amortization
(c) Investments and Other Long-Term Assets
Investments
Special funds
Other assets
§1073.2. Liabilities and Capital.
Note • History
(a) Current Liabilities
Trade Payables
Accrued Payroll Liabilities
Accrued Tax Liabilities
Short-Term Debt
Other Current Liabilities
(b) Long-Term Liabilities
Advances Payable
Long-Term Debt
(c) Estimated Liabilities and Deferred Credits
Estimated Liabilities
Deferred Credits
(d) Public Equity
Public (Governmental) Entity Ownership
(e) Grant Equity
Grants, Donations and Other Paid-In Capital
Federal Capital Grants
UMTA Section 3 Grants
UMTA Section 5 Grants
Federal Aid Urban Grants
Federal Interstate Grants
Other Federal Grants
Revenue Sharing
Depreciation Expense Accumulated
State Capital Grants and Subventions
Article XIX Guideway Funds
General Fund Provisions
State Transit Assistance Fund
Transportation Planning and Development (TP&D) Guideway Fund (P.U.C. 99316)
Other State Provisions
Depreciation Expense Accumulated
Local Capital Grants and Provisions
Sales Taxes
Motor Vehicle Fuel Tax
Property Taxes
Transportation Development Act 1/4 cents Sales
General Fund
Other Local Provisions
Local Article XIX Guideway Funds
Depreciation Expense Accumulated
Non-Governmental Donations and Other Paid-In Capital
Depreciation Expense Accumulated
(f) Earnings or Losses
Accumulated Earnings (Losses)
Accumulated Earnings--Unrestricted
Accumulated Earnings--Restricted
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment of subsection (e) filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
Note • History
(a) Operating
Passenger Fares For Transit Service
Special Transit Fares
School Bus Service Revenues
Freight Tariffs
Charter Service Revenues
Auxiliary Transportation Revenues
Nontransportation Revenues
Taxes Levied Directly by Transit System
Property Tax Revenue
Sales Tax Revenue
Special District Augmentation Fund
Local Cash Grants and Reimbursements
General Operating Assistance
Transportation Development Act 1/4 cents Sales Tax
Motor Vehicle Fuel Tax
Local Article XIX Guideway Funds
Local Special Fare Assistance
State Cash Grants and Reimbursements
Homeowner's, Property Tax Relief
Business Inventory Property Tax Relief
Article XIX Guideway Funds
State Transit Assistance Fund
Transportation Planning and Development (TP&D) Guideway Fund (P.U.C. 99316)
Other State Provisions and Grants
State Special Fare Assistance
Federal Cash Grants and Reimbursements
General Operating Assistance--UMTA Sec. 5
Special Demonstration Project Assistance
Other Financial Assistance
Revenue Sharing Pass Through (Federal from local sources)
Comprehensive Employment Training Act (CETA)
Contributed Services
State and Local Government
Contra Account for Expense
Subsidy From Other Sectors of Operations
(b) Capital Grants, Subventions, and Provisions
Federal Capital Grants
UMTA Section 3 Grants
UMTA Section 5 Grants
Federal Aid Urban Grants
Federal Interstate Grants
Other Federal Grants
Revenue Sharing (Federal from local sources)
State Capital Grants and Subventions
Article XIX Guideway Funds
General Fund Provisions
State Transit Assistance Fund
Transportation Planning and Development (TP&D) Guideway Funds (P.U.C. 99316)
Other State Provisions and Grants
Local Capital Provisions
Sales Taxes
Motor Vehicle Fuel Tax
Property Taxes
Transportation Development Act 1/4 cents Sales Tax
General Fund
Other Local Provisions
Local Article XIX Guideway Funds
Non-Governmental Donations
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment of subsection (a) filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
2. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
3. Amendment filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
Note • History
(a) Operating Functions
Operations
Vehicle Maintenance
Non-Vehicle Maintenance
General Administration
(b) **Expense Objects
Labor
Operators Salaries and Wages
Other Salaries and Wages
Fringe Benefits
Services
Materials and Supplies Consumed
Fuels and Lubricants
Tires and Tubes
Other Materials and Supplies
Utilities
Casualty and Liability Costs
Taxes
Purchased Transportation Service
Miscellaneous Expenses
Expense Transfers
Interest Expense
Leases and Rentals
Depreciation and Amortization
Depreciation and Amortization--Property
Acquired With District (Operator) Funds
Depreciation and Amortization--Property
Acquired With Grant Funds
NOTE
Authority and reference: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment of subsection (a) filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
**To be used as needed within each expense operating function.
§1073.5. Prior Year Adjustments.
Revenues and expenses applicable to prior years will be recorded in the proper account for the current year.
Note • History
Transit systems are initially classified according to the mode or modes of transit service provided. Data collection and reporting, transit property, expense and nonfinancial operating information is segregated by mode. The modes recognized in the systems described herein are defined below. A multi-mode transit system is one operating two or more of these modes:
(a) Rail Rapid Transit: High-speed, passenger rail cars operating singly or in trains of two or more cars on fixed rails in separate rights-of-way from which all other vehicular and foot traffic is excluded. The tracks may be located in underground tunnels, on elevated structures, in open cut or at surface level. There are very few, if any, crossings of streets and roads at track level, and rail traffic has the right-of-way at such intersections. The cars are driven electrically with the power being drawn from an overhead electric line or from an electrified third rail.
(b) Light Rail--Streetcar: Passenger rail cars operating singly (or in short, usually two-car, trains) on fixed rails in right-of-way that is not separated from other traffic for much of the way. Streetcars do not necessarily have the right-of-way at-grade crossings with other traffic. Streetcars are driven electrically with the power being drawn from an overhead electric line via a trolley or a pantograph.
(c) Trolleybus: Rubber-tired passenger vehicles operating singly on city streets. These buses are driven electrically with the power being drawn from an overhead electric line via trolleys.
(d) Motor Bus: Rubber-tired passenger vehicles operating singly on city streets. These buses are powered by fuel contained within the bus; they are, therefore, not restricted to operating on a fixed route.
(e) Demand Response: Rubber-tired passenger vehicles operated on city streets, propelled by gas, gasoline or diesel engines equipped to provide personal demand transit service, normally upon dispatch, and used exclusively for this service.
(f) Ferryboat: A vessel for carrying passengers and/or vehicles over a body of water. The vessels are generally steam or diesel-powered conventional ferry vessels. They may also be hovercraft, hydrofoil and other high-speed vessels.
(g) Other: Other modes of transit service such as cable cars, personal rapid transit systems of varying designs, monorails, incline railways, etc., not covered in the above categories.
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
Note • History
The expense functions shown are required for each operating mode:
(a) Operations: This function pertains to all activities relating to carrying of passengers including dispatching of buses or trains; passenger census for scheduling purposes, supervision of drivers, scheduling of drivers and vehicles and the direct supervision of operations activities.
(b) Vehicle Maintenance: This function pertains to the maintenance and repair of vehicles, including revenue, service and maintenance administration vehicles.
(c) Non-Vehicle Maintenance: This function pertains to the maintenance and repairs of equipment, buildings and facilities related to the transit system including tracks, tunnels, bridges, subways, maintenance and administrative buildings, etc.
NOTE
Authority and reference cited: Section 53891, Government Code and Section 99243, Public Utilities Code.
HISTORY
1. Amendment filed 8-12-80; effective thirtieth day thereafter (Register 80, No. 33).
Article 6. Hospital Districts
§1081. Prescribed Accounting System.
History
All California special districts engaged in the operation of a hospital shall use the accounting system prescribed by the California Health Facilities Commission.
HISTORY
1. Amendment filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
Article 7. Electric Utility Districts
Note • History
The system of accounting herein described shall be used by all California special districts engaged in the production, sale or distribution of electric power, except such districts which have been exempted from the requirements pursuant to Section 53891 of the Government Code.
NOTE
Authority cited for Article 7, Section 53891, Government Code.
HISTORY
1. New Article 7 (§§1091.1-1091.13, 1092, 1093.1-1093.4) filed 9-23-68; designated effective 7-1-69 (Register 68, No. 36).
§1091.2. Relation to Federal Power Commission Accounts.
The Uniform System of Accounts of the Federal Power Commission is the guide for this system. Accounts have been added and deleted and policies have been modified as deemed necessary to recognize the governmental character of the utility, and to provide for proper recording of transactions peculiar to its operation.
§1091.3. Accounting Method and Basis.
The enterprise approach, having as its objective the determination of financial position and the results of operations by fiscal period, is prescribed. Accounts shall be kept by the double entry method on the accrual basis, with the exception of assessments and ad valorem taxes, for which the accrual basis is optional.
Funds provided for use of electric utility districts are listed and defined in Section 1092. Unless legally required to account for specific resources in separate funds, the district may include them within the General Fund.
§1091.5. Current and Long-Term Accounts.
Asset and liability accounts are grouped in current and long-term sections. A current asset is one normally convertible to cash, or a cash-equivalent benefit, within twelve months. Other assets are labeled long-term, or some special category of long-term, i.e., Deferred Charges, etc. Similarly, current liabilities are those which will become due and payable within twelve months.
Status of the asset at date of acquisition, or liability at time of incurrence, governs the account to which posted. However, it is not intended that the accounts be subsequently adjusted for transitions from long-term to current. Balance sheets should reflect the correct status as of the date of the statement, but reclassification entries need not formally be posted to the accounts.
Acquisitions of fixed assets are capitalized in accordance with enterprise accounting practice. Definitions and value and life tests for fixed asset recognition are those presented in Accounting for General Fixed Assets.
Both revenue and expense accounts are segregated between operating and non-operating. The basic classification of revenue is by source. Expense accounts are classified primarily by cost center and secondarily by nature of expense. These accounts are listed and explained in Sections 1093.3 and 1093.4, respectively.
Basic accounts and, in a few cases, certain subaccounts, are required. Districts may segregate detail in as many additional subaccounts as desired. Each subaccount must be keyed to a prescribed account, either by its title or code number.
Transactions which correct a previously recorded transaction of the current period are posted directly to the account affected. Recovery of costs from insurance or damage settlements shall be credited against the account charged with the cost of repairing the damage. Provision is also made for the transfer of expense from one segment of the accounts to another without disturbing balances of accounts to which the expenses were initially entered.
§1091.10. Transactions Adjusting Prior Balances.
Transactions which adjust nominal account balances of prior fiscal periods are posted to one of two current non-operating accounts, Revenues Applicable to Prior Years or Expenses Applicable to Prior Years.
§1091.11. Retirement of Fixed Assets.
When a fixed asset is sold or otherwise retired, cost or recorded value is removed from the property accounts. Except in the case of a non-depreciable asset or an entire property having a separately-identified depreciation allowance, gain or loss is not recognized. Rather, the allowance for depreciation account is charged for the difference between:
Recorded cost of the asset Proceeds from sale of
Removal or dismantling and asset or salvage
costs Insurance proceeds
In exceptional cases where gain or loss is recognized, it is credited or charged to non-operating revenue or expense.
In addition to the options afforded in 1091.3 and 1091.8, the district may exercise an option on the following:
(a) Cash discounts on purchases may be accounted as revenue or as a reduction of purchase price.
(b) After posting employee benefits to the General and Administrative cost centers, they may be reallocated to the other cost centers.
§1091.13. Non-Electric Activities.
The principal activity of a district is that activity for which the greatest amount of time and money is expended. Districts which are principally electric, but which engage also in other activities, must account for the latter in terms of accounts prescribed in other Articles of this Subchapter. The accounts
Revenues from other activities, and
Expenses of other activities
indicate the positions of non-electric revenues and expenses. They may serve as control accounts for prescribed accounts, or may be replaced by them. This policy does not extend to balance sheet accounts. Multi-activity districts need maintain only the balance sheet accounts prescribed for the principal activity.
History
The funds listed and defined below are recognized for use by electric utility districts.
(a) General. A fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
(b) Debt Service. A fund used to account for revenues appropriated for the periodic payment of interest, and the principal of matured long-term debt.
(c) Sinking. A fund established by periodic contributions and earnings thereon to provide for retirement of bond principal.
(d) Construction. A fund used to account for the proceeds from the sale of bond issues or other long-term borrowings restricted for capital outlay.
(e) Accumulative Capital Outlay. A fund used to account for the accumulation of revenues restricted for capital outlay under Section 53731, Government Code
(f) Special Assessment. A fund used to account for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the property owner.
(g) Intragovernmental Service. A fund which accounts for services furnished to the district and which is financed primarily by charges for such services.
(h) Trust and Agency. A fund used to account for money or other property received by the district in the capacity of trustee or agent.
HISTORY
1. Amendment of subsection (g) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1093.1. Asset and Other Debit Accounts.
(a) Electric plant accounts
Electric plant in service: Construction in progress
Intangible plant Electric plant held for
Land future use
Other land rights Allowance for depreciation
Production and amortization of elec-
Transmission tric plant:
Distribution Electric plant in service
General plant Electric plant held for
Undistributed items future use
(b) Investments, restricted assets, other long-term assets
Other physical property: Other property
Non-electric utility plant Investments
Other property Contracts and notes
Allowance for deprecia- receivable
tion and amortization of Allowance for uncollect-
other physical property: ible accounts
Non-electric utility Restricted assets
plant
(c) Current assets
Cash Allowance for uncollect-
Cash with fiscal agents ible accounts:
Deposits Utility services
Imprest cash Merchandise
Temporary investments Other
Notes receivable *Taxes receivable
Accounts receivable: *Allowance for uncollect-
Utility services ible taxes
Merchandising Due from other funds
Travel and expense Inventory of materials and
advances supplies
Other Prepayments
Other current assets
(d) Deferred debits
Preliminary survey and Other work in progress
investigation charges Other deferred debits
*Clearing accounts:
Stores
Transportation
Shop
*Optional accounts.
§1093.2. Liability and Other Credit Accounts.
History
(a) Long-term debt
Bonds Time warrants
Other governmental Other long-term debt
agencies:
State
Federal
Other
(b) Current liabilities
Notes payable Deposits--customers'
Accounts payable Deposits--service
Matured long-term debt connections and meters
Due to other funds Deposits--construction
Interest payable: Taxes accrued
Matured Other current liabilities
Unmatured
(c) Deferred credits
Advances for construction Deferred credits
(d) Reserves
Insurance reserves Other reserves
Employee benefits reserves
(e) Investment in fixed assets
Investment in electric plant Investment in other assets
Contributions Contributions
Other sources Other sources
(f) Fund balances
General Fund balance Other fund balances
HISTORY
1. Amendment of subsection (e) and new subsection (f) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
Note • History
(a) Sales of electric energy
Residential Sales for resale
Business and industrial Interdepartmental
Rural Other
Sales to public authorities
(b) Other electric revenues
Servicing of customers' Other
Installations
(c) Non-operating
Revenues from lease of Other governmental
other physical property agencies
Interest revenues Federal
Taxes and assessments State
Special district Homeowners' prop-
augmentation fund erty tax relief
Revenues applicable to Business inventory
prior years property tax relief
Other
Other
Revenues from other
activities
NOTE
Authority and reference cited: Section 53891, Government Code.
HISTORY
1. Amendment of subsection (c) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Amendment of subsection (c) filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
3. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
(a) Production
Supervision, labor and Purchased power
expense Generation fuel, water and
Maintenance--structures steam
and improvements
(b) Transmission
Supervision, labor and Maintenance--structures
expense and improvements
(c) Distribution
Supervision, labor and Maintenance--structures,
expense improvements and
equipment
(d) Customer accounts
Supervision, meter reading Uncollectible accounts
and other expense
(e) Administrative and general
Salaries Franchise requirements
Office supplies and other Rents and leases
expenses Maintenance--general
Property insurance, plant
injuries and damages Other
Employees' retirement and
benefits
(f) Other operating
Depreciation and Other
amortization Expense credits
Taxes
(g) Non-operating
Interest on long-term Other
debt Expense credits
Other interest Expenses of other activities
Expenses applicable to
prior years
Article 8. Waste Disposal Districts
Note • History
The system of accounting herein described shall be used by all California special districts engaged in waste-water or solid waste disposal, which either:
(1) Make regular charges against users of the service within the district to cover all or a portion of operating expenses. “Regular service charges” includes regular availability or standby charges, but does not include one-time charges, such as annexation and connection fees, or
(2) Have annual operating expenses of $50,000 or more.
Districts normally involved in waste disposal are sanitary, sanitation, sewer, garbage disposal, etc. It is frequently the primary activity of county water, community services and public utility districts.
Districts having neither service charges nor operating expenses of $50,000 may, at their option, use either the system herein described or the system described in “Article 9. Other Districts.” Once a district uses the Waste Disposal System, whether by requirement or by choice, it may not later change to another system.
If the principal activity of the district is an activity other than waste disposal, but the waste disposal phase requires use of this system, the operating accounts, only, are required.
NOTE
Authority cited for Art. 8: Sections 30200 and 35891, Government Code.
HISTORY
1. New Article 8 filed 5-21-69; designated effective 7-1-70 (Register 69, No. 21).
§1101.2. Accounting Method and Basis.
The enterprise approach, having as its objective the determination of financial position and the results of operations by fiscal period, is prescribed. Accounts shall be kept by the double-entry method on the accrual basis, with the exception of assessments and ad valorem taxes, for which the accrual basis is optional.
Funds provided for use of waste disposal districts are listed and defined in Section 1102. Unless legally required to account for specific resources in separate funds, the district may include them within the General Fund.
Revenues are classified by source. Expenses are classified by expense center and by nature of expense.
History
Acquisitions of fixed assets are capitalized in accordance with enterprise accounting practice. Definitions and value and life tests for fixed asset recognition are those presented in “Accounting For General Fixed Assets.”
HISTORY
1. Amendment filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1101.6. Optional Depreciation Method.
As used in this section “actual” depreciation refers to depreciation based on the cost, or appraised value if cost is not readily available, and estimated lives of individual assets, or limited groups of like assets. Actual “straight line” depreciation is preferred. However, since at the effective date of this System many districts will lack both historical cost of fixed assets and experience in depreciation, the following approximation may be used.
1970-71 (or first fiscal year starting after July 1, 1970) is the base year. Depreciation for this year will be 40% of total operating expenses exclusive of depreciation. For 1971-72 the depreciation allowance will be 38.75% of base year operating expenses, plus actual depreciation on assets acquired on or after July 1, 1970. Thereafter the percentage declines 1 1/4% per year, until after 32 years depreciation will be entirely on an actual basis.
Depreciation Allowance on Fixed Assets Acquired Prior to 7-1-70
Year Year Year Year
Ending Ending Ending Ending
June 30 % June 30 % June 30 % June 30 %
1971 40 1979 30 1987 20 1995 10
2 38.75 80 28.75 8 18.75 6 8.75
3 37.5 1 27.5 9 17.5 7 7.5
4 36.25 2 26.25 90 16.25 8 6.25
5 35 3 25 1 15 9 5
6 33.75 4 23.75 2 13.75 2000 3.75
7 32.5 5 22.5 3 12.5 1 2.5
8 31.25 6 21.25 4 11.25 2 1.25
These estimates are designed to exclude depreciation on underground and underwater plant. However, they will include depreciation applicable to any surface assets which have been donated.
Balance sheet values with respect to fixed assets acquired prior to July 1, 1970 may be estimated as follows:
Underground &
underwater plant 20 X base year operating expenses.
All other plant 12.8 X base year operating expenses.
Allowance for depre-
ciation--All other plant 6.2 X base year operating expenses.
A district commencing under the Optional Method may switch to actual depreciation in any subsequent year. A district may not change from actual to Optional depreciation.
§1101.7. Disposition of Fixed Assets.
When fixed assets are sold or disposed of otherwise, the gain or loss, measured by the difference between book value and the consideration received, is a current charge or credit.
§1101.8. Current and Long-Term Assets and Liabilities.
Assets and liabilities are segregated in the chart of accounts between current and long-term. Current assets are those which are normally convertible to cash within a twelve-month period. Prepaid expenses have a cash-equivalent value and are included as current. Other assets fall into some category of long-term.
Similarly, liabilities which will become payable within twelve months are classed as current.
Status of the transaction at the time first recorded determines whether it is posted to a current or long-term account. It is unnecessary that transitions from long-term to current status be posted in the books. However, the proper segregation should be displayed on the balance sheet.
§1101.9. Interest During Construction Period.
Interest expense during the construction period on money borrowed to finance the construction shall be capitalized. Interest expense after the facility is placed into service is an operating expense.
When a single bond issue finances several projects which will be completed in stages, the interest applicable to each during its period of construction must be determined.
§1101.10. Account Adjustments--Current.
Transactions which correct a previously recorded transaction of the current period are posted directly to the account affected. Recovery of costs from insurance or damage settlements shall be credited against the account charged with the costs.
§1101.11. Account Adjustments--Prior.
Transactions which correct nominal account balances of prior fiscal periods are posted to one of two current accounts, “Revenues applicable to prior years” or “Expenses applicable to prior years.”
§1101.12. Bond Premium, Discount and Expense.
Bond premium, discount and expense may be credited or charged to operations in the year the bonds are sold, except that if a discount is substantial in relation to the bonds, it should be amortized over the life of the bonds.
Purchase discounts allowed for early payment may be treated as expense reductions or as revenue at the option of the district. Trade discounts are always netted from the purchase price before recording.
Investments shall be shown on the balance sheet at book value, adjusted for any unamortized premium or discount.
History
The following classes of funds are recognized for use of waste disposal districts:
(a) General. A fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
(b) Debt Service. A fund used to account for resources set aside for the periodic payment of interest, and the principal of matured long-term debt.
(c) Accumulative Capital Outlay. A fund used to account for the accumulation of revenues restricted for capital outlay under Section 53731 of the Government Code.
(d) Construction. A fund used to account for the proceeds from the sale of bond issues, from governmental grants, or from other resources restricted for capital outlay.
(e) Special Assessment. A fund used to account for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the property owners.
(f) Intragovernmental Service. A fund which accounts for services furnished to the district and which is financed primarily by charges for such services.
(g) Trust and Agency. A fund used to account for money or other property received by the district in the capacity of trustee or agent.
HISTORY
1. Amendment of subsection (f) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1103.1. Asset and Other Debit Accounts.
(a) Current assets
Cash Due from other funds
Imprest cash Due from other govern-
Cash with fiscal agents mental agencies
Notes receivable Deposits
Accounts receivable Inventories
Allowance for doubtful accounts Temporary investments
*Taxes receivable Prepaid expenses
*Allowance for uncollectible taxes Other
(b) Property, plant and equipment
Land General plant and adminis
Property rights trative facilities
Sewage collection facilities Other physical property
Sewage treatment facilities Construction in progress
Sewage disposal facilities Allowance for depreci-
Solid waste disposal facilities ation and amortization
(c) Restricted and other long-term assets
Contracts and notes receivable Restricted assets
(d) Deferred debits
Preliminary survey and Other work in progress
investigation charges Other
*Clearing accounts
Stores
Transportation
Shop
* Optional accounts.
§1103.2. Liability and Other Credit Accounts.
History
(a) Current liabilities
Notes payable Deposits
Accounts payable Customers'
Matured and maturing Service connections
long-term debt Construction
Interest payable Due other funds
Matured Due other governmental
Accrued agencies
Accrued payroll
Accrued taxes
Other
(b) Long-term debt
Bonds Other
Other governmental
agencies
(c) Deferred credits
Advances for construction Other
(d) Reserves
Reserves for restricted assets Other
(e) Investment in fixed assets
Investment in operating Investment in other assets
plant Contributions
Contributions Other sources
Other sources
(f) Fund balances
General Fund balance Other fund balances
HISTORY
1. Amendment of subsection (e) and new subsection (f) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
Note • History
(a) Operating
Service charges Other services
Permit and inspection fees Sales of reclaimed water
Connection fees Other sales
(b) Non-operating
Annexation charges Aid from other governmental
Rents and leases agencies
Taxes Federal
Special district State--Homeowners' property
augmentation fund tax relief
Franchises State--Business inventory prop-
Interest erty tax relief
In lieu taxes Revenue applicable to prior
years
Other
NOTE
Authority and reference cited: Section 53891, Government Code.
HISTORY
1. Amendment of subsection (b) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Amendment of subsection (a) filed 12-14-72; effective thirtieth day thereafter (Register 72, No. 51).
3. Amendment filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
4. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
(a) Expense centers
Sewage collection Solid waste disposal
Sewage treatment Administration and general
Sewage disposal Non-operating
(b) Operating expense objects**
Salaries and wages Contractual services
Employee benefits Professional services
Directors' fees Printing and publication
Election expense Rents and leases
Depreciation and amortiza- Repairs and maintenance
tion Research and monitoring
Gasolines, oil and fuel Travel and meeting
Insurance Uncollectible accounts
Memberships Utilities
Office expense Other
Operating supplies
(c) Non-operating expense objects
Taxes and assessments Expenses applicable to prior
Interest years
Other
**To be used as needed within each expense center.
Article 9. Other Districts
Note • History
The provisions of this Article are prescribed for all districts engaged in activities for which accounting systems are not provided in preceding Articles.
NOTE
Authority cited: Section 53891, Government Code.
HISTORY
1. New Article 9 (Sections 1111.1 through 1111.14, 1112.1, 1113.1, 1114.1 through 1114.6) filed 12-6-67; designated effective 7-1-69 (Register 67, No. 49).
Insofar as possible, this system employs the fund, function, activity and account titles of the publication “Accounting Standards and Procedures for Counties,” issued by the State Controller. Where necessary, accounts have been added to meet special needs. Otherwise, the county accounts are equally applicable to districts. A substantial number of districts are accounted for by the county auditor. To the extent that the district systems can coincide with that used by the county, the accounting is facilitated.
The modified cash basis of accounting is prescribed with full accrual available as an option. Under the modified cash basis expenditures are recorded when the liability for payment exists; revenue is recorded when received. Under full accrual expenditures are recorded when payable and revenues when receivable. Since the accrual of revenues is optional, a district may elect to accrue some, but not all, revenues so long as this election is consistently exercised.
The standard funds and groups of accounts to be used in accounting for various resources are given in Section 1113.1.
Standard accounts are listed in Sections 1114.1- 1114.6. Each district will select from the chart those which are necessary to adequately account for its financial position and results of operations. Operating accounts are in terms of revenues and expenditures. Revenues are classified by source, and expenditures by object.
Districts which need or desire more detailed information than that provided by the account in the standard chart may use supplementary accounts, subject to the requirement that each such account used must be identified with a required account by either code number or title, in order that related accounts and subaccounts can be readily combined into the standard form.
§1111.7. Enterprise Accounting.
The purpose of enterprise accounting is to determine the profit or loss from operations, a job which the regular governmental-type accounts are not designed to do. Enterprise systems are prescribed only for those activities designated as utility activities (See Articles 2-8). All others must follow the system in this Article. However, districts subject to this Article are free to employ enterprise accounting as an addition to the official records, but not as a substitute for them.
Transactions which correct a previously recorded transaction of the current period are posted directly to the account affected. Provision is also made for the transfer of expenditures from one fund or account to another without reducing balances of accounts to which the expenditures were originally posted.
§1111.9. Transactions Affecting Prior Balances.
Transactions which adjust operating account balances of prior fiscal periods are posted to one of two current operating accounts:
Expenditures applicable to prior years, or
Revenues applicable to prior years
Purchases of fixed assets are charged as current expenditures of the fund from which purchased. Costs of fixed assets owned are carried in the General Fixed Asset Group of Accounts. Definitions and accounting procedures are those contained in “Accounting for General Fixed Assets.”
§1111.11. Premium on Long-Term Debt.
Premium on long-term debt is accounted as a current revenue of the fund which will account for payment of debt principal and interest.
§1111.12. Budgetary Accounting.
Budgetary accounting is recommended as an aid in holding expenditures to a financial operating plan. However, budgetary accounting is not a requirement of this system. Under Section 53065 of the Government Code, districts whose governing body is the county board of supervisors or for which the county fiscal officers are ex officio officers of the district are subject to the budget provisions of Government Code Sections 29000-29143.
§1111.13. Multi-Purpose Districts.
Districts which engage in more than one activity must maintain a separate set of revenue and expenditure accounts for each. However, only one set of balance sheet accounts, covering all activities, need be kept. If one of the activities is a recognized utility activity, see Article 1--General Information, Section 1031.8.
§1111.14. Procedures by Reference.
Accounting for general fixed assets and for special assessments are described in the two publications:
Accounting for General Fixed Assets
Special Assessment Accounting
§1112.1. Activity Classification.
History
For reporting purposes each district shall designate its activity according to the following list. This must be done if districts are to be properly grouped, since neither the district name nor its account structure will always indicate the nature of its operation. Multi-purpose districts shall list each different activity.
Air pollution control Local and regional planning
Ambulance service or development
Cemetery Memorial
maintenance Parking
Drainage and drainage Pest control
Financing or constructing Police protection and
facilities personal safety
Fire protection Recreation and park
Flood control and water Resources conservation
conservation Streets and roads--construction-
Health tion and maintenance
Land reclamation and levee Television translator station
maintenance facilities
Library services Underground electric and
Lighting and lighting communication facilities
maintenance Waste disposal
HISTORY
1. Amendment filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1113.1. Funds and Account Groups.
History
The funds and account groups listed and defined in this section ar prescribed for use by districts in the accounting situations indicated.
(a) General. The fund that is available for any authorized purpose and which is therefore used to account for all revenues and all expenditures not provided for in other funds.
(b) Debt Service. A fund used to account for revenues appropriated for the periodic payment of interest, and the principal of matured long-term debt.
(c) Accumulative Capital Outlay. A fund used to account for revenues and expenditures of monies restricted to capital outlay.
(d) Zone No. ___. A fund used to account for taxes and assessments levied upon less than the entire taxable property of the district and other revenues restricted for the benefit of the areas taxed.
(e) Bond. A fund used to account for the proceeds from the sale of bonds issued.
(f) Intragovernmental Service. A fund which accounts for services furnished to the district and which is financed primarily by charges for such services.
(g) Special Assessment. A fund which accounts for assessments levied against certain properties to defray the cost of improvements or services presumed to be of special benefit to the owners of such property.
(h) Trust and Agency. A fund used to account for money or other property received by the district in its capacity of trustee or agent to be disbursed in accordance with the conditions of the trust or agency.
(i) General Fixed Asset Group of Accounts. A self-balancing group of accounts to present the cost, or assigned value in lieu of cost, of fixed assets owned by the district, along with sources of investment.
(j) General Long Term Debt Group of Accounts. A self-balancing group of accounts to present the amount of future principal and interest payments on long-term debt of the district.
HISTORY
1. Amendment of subsection (f) filed 3-8-77; effective thirtieth day thereafter (Register 77, No. 11).
§1114.1. Asset and Other Debit Accounts.
History
Cash Inventory of materials and supplies
Imprest cash Investments
Cash with fiscal agents Advances to working capital funds
*Taxes receivable Land
*Allowance for uncollectible taxes Structures and improvements
Assessments receivable Equipment
Assessments receivable--delinquent Construction in progress
Accounts receivable Future loan repayment requirements
Allowance for uncollectible accounts Future bond redemption
Advances receivable requirements
Deposits from others Bonds authorized--unissued
HISTORY
1. Amendment filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
*Optional Accounts.
Warrants payable Deposits from others
Accounts payable Loans payable--deferred
Loans payable Bonds payable--deferred
Bonds payable Interest payable--deferred
Interest payable
History
Reserves (Designate) Fund balances
Investment in general fixed assets General Fund balance
Other fund balances
HISTORY
1. Amendment filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
§1114.4. Operating and Budgetary Control Accounts.
Expenditures Estimated loan proceeds
Estimated revenues Revenues
Encumbrances Appropriations
Note • History
(a) Taxes
Property taxes--current--secured Special district augmentation fund
Property taxes--current--unsecured Property assessments
Property taxes--prior--secured Penalties and costs on delinquent
Property taxes--prior--unsecured taxes
(b) Licenses and Permits
Construction permits Other licenses and permits
Zoning permits
(c) Fines, Forfeits and Penalties
Fines Forfeits and penalties
(d) Revenue from Use of Money and Property
Interest Royalties
Rents and concessions
(e) Aid from Other Governmental Agencies
State aid for construction State-other
Homeowners' property tax relief Federal aid for construction
Business inventory property tax Federal-other
relief Other governmental agencies
(f) Charges for Current Services
Communication services Road and street services
Legal services Health fees
Personnel services Mental health services
Planning and engineering services Educational services
Purchasing fees Library services
Agricultural services Park and recreation services
Law enforcement services Other services (Designate)
(g) Other Revenues
Contributions from private parties Revenue applicable to prior years
Premium and accrued interest on Sale of fixed assets
bonds issued Other sales
Revenue from discontinued districts Other
NOTE
Authority and reference cited: Section 53891, Government Code.
HISTORY
1. Amendment of subsection (e) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Amendment filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
3. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
§1114.6. Expenditure Accounts.
History
(a) Salaries and Employee Benefits
Salaries and wages Employee group insurance
Retirement
(b) Services and Supplies
Agricultural Maintenance--structures
Clothing and personal supplies improvements and grounds
Communications Medical, dental and
Food laboratory supplies
Household expense Memberships
Insurance Miscellaneous expense
Office expense Rents and leases--structures,
Professional and specialized services improvements and grounds
Publications and legal notices Small tools and instruments
Rents and leases--equipment District special expense
Maintenance--equipment Transportation and travel
Utilities
(c) Other Charges
Contributions to other agencies Rights of way
Repayments--long-term debt Taxes and assessments
Interest-long-term debt Expenditures applicable to
Interest on notes and warrants prior years
Judgments and damages
(d) Fixed Assets
Land Equipment
Structures and improvements
(e) Expenditure Transfers and Reimbursements
Costs applied
HISTORY
1. Amendment of subsection (e) filed 8-5-76; effective thirtieth day thereafter (Register 76, No. 32).
Article 10. Redevelopment Agencies
Note • History
The provisions of this Article are prescribed for all redevelopment agencies which are required to report to the State Controller under Section 12463.1 of the Government Code.
NOTE
Authority cited: Section 53891, Government Code. Reference: Section 99243, Public Utilities Code and Section 53891, Government Code.
HISTORY
1. Repealer of Article 10 (Section 1115) and new Article 10 (Section 1115.1-1117.5) filed 6-28-78; designated effective 7-1-78 per Section 99243, Public Utilities Code (Register 78, No. 26). For prior history, see Register 70, No. 38.
The accounting system prescribed is traditional fund accounting used by governmental agencies for general operations. The redevelopment project is the accounting entity. Accordingly, the prescribed accounting system shall be used to account for the general operations of each redevelopment project.
The basis of accounting shall be that appropriate to the type of fund as determined by reference to, “Governmental Accounting, Auditing, and Financial Reporting” (MFOA) and the “Industry Audit Guide--Audits of State and Local Governmental Units” (AICPA).
All activity of the redevelopment agency is accounted for by project. The standard funds and account groups applicable to governmental agencies are also applicable to redevelopment projects. Section 1116 lists and defines the minimum funds and account groups to be used by redevelopment projects. Should an activity of a redevelopment project meet the criteria established by GAAFR for use of other funds (e.g. Enterprise, Intragovernmental Service, Capital Projects, Trust and Agency, Special Revenue or Special Assessment) the agency may use such funds if approved in writing by the State Controller's Office.
Each redevelopment project will select from the chart of accounts those accounts needed to adequately account for its financial position and results of operations. Revenues are classified by source and expenditures by function and object.
Agencies which need or desire more project detail than is provided by the chart of accounts may use supplementary accounts, subject to the requirement that each such account must be identified with a required account by either number or title, in order that transactions can be reported in a uniform manner.
Redevelopment agencies exist to facilitate improvements in designated areas. To accomplish this they engage in planning, clearance, construction and reconstruction activities, expenditures for which are normally capitalized. However, such improvements are held by the agency for disposal rather than agency use. Section 1115.8 provides accounting alternatives for these activities. The Fixed Asset Group of Accounts for projects will contain relatively minor acquisitions which are to be utilized by the project. A redevelopment agency which acquires fixed assets using funds of more than one project may maintain accounting control by use of an agency-wide fixed asset group of accounts. In the event an agency elects to use an agency-wide Fixed Asset Group of Accounts the investment in fixed assets must be distributed to individual projects for year-end reporting purposes. The distribution may be made by either worksheet or formal journal entry. If a formal journal entry is used, a reversing journal entry would be made at the beginning of the subsequent fiscal year. Definitions and accounting procedures are those described in “Accounting for General Fixed Assets” published by the State Controller's Office.
§1115.8. Land and Improvements Held for Disposal.
At the option of the redevelopment agency, such costs may be accounted for as (1) period charges or (2) Investments--Land and Improvements Held for Disposal. If an agency elects to use option (2) such investments will be stated at lower of cost or market value. In addition Annual Reports of Financial Transactions submitted to the State Controller will include an analysis of changes in the investments account balance. Such analysis shall be in the format and contain the information required by the State Controller.
§1115.9. Premium/Discount on Long Term Debt.
The agency may either:
(1) Record premium on the sale of bonds as a revenue of the project and discount as a project charge in the year of sale, or
(2) Capitalize premium and discount and amortize them during the life of the bonds.
§1115.10. Budgetary Accounting.
Budgetary accounting is not a requirement of the system and such accounts are not included in the chart of accounts. Agencies desiring to incorporate budgetary information into the system may use the control accounts:
(1) Estimated Revenue
(2) Appropriations
(3) Encumbrances
§1116. Funds and Account Groups.
The funds and account groups defined in this Section are prescribed for use by agencies in the accounting situations indicated.
(a) Redevelopment Clearing. The fund used to temporarily account for transactions not conveniently posted directly to a project. All such entries are subsequently allocated and transferred to appropriate project funds. (Use of this fund is optional).
(b) Project Fund. The fund used to account for all current assets and liabilities, investments, revenues and expenditures of a project.
(c) Debt Service Fund. The fund used to account for the payment of interest and principal on long-term debt. This is the special fund referred to in the Health and Safety Code to which tax increment monies are allocated and paid.
(d) Long Term Debt Group of Accounts. A self-balancing group of accounts used to record and fairly present a project's liability for long-term debt at any time from date of issuance until the debt is retired.
(e) General Fixed Asset Group of Accounts. A self-balancing group of accounts used to present the cost, or assigned value in lieu of cost, of fixed assets owned by the redevelopment project.
§1117.1. Asset and Other Debit Accounts.
Cash Due from Project Fund
Imprest Cash Due from Clearing Fund
Cash with fiscal agents Investments
Accounts receivable Structures and Improvements
Accrued interest receivable Equipment
Loans receivable Future long term debt principal
Contracts receivable requirements
Minimum lease payments receivable Tax increments receivable
Accounts payable Due to Clearing Fund
Interest payable Tax Allocation bonds payable
Tax anticipation notes payable Revenue bonds payable
Loans payable Long-term loans
Due to Project Fund Unamortized premium/discount
on long term debt
Unearned Lease Finance Charges
Reserves (designate) Fund Balances
Investment in general fixed assets
Tax Increment revenue Sale of other assets
Sale of bonds Grants--Federal
Long term debt proceeds Grants--State
Premium on bonds Grants--Other
Rental income Other income
Sale of real estate
Gain or loss on sale of land
and improvements held
for disposal
§1117.5. Expenditure Accounts.
Administration costs Site clearance costs
Legal services Project improvement costs
Planning, survey and design Disposal costs
Real estate purchases Rehabilitation costs
Acquisition expense Rehabilitation grants
Operation of acquired property Interest expense
Relocation costs Long term debt principal payments
Relocation payments Fixed asset acquisitions
Subchapter 4. Budgeting Procedures for Special Districts
Article 1. General Plan
Note • History
Section 53065, Government Code, states that provisions of law relating to budgets which apply to counties shall also apply to any district whose governing body is the board of supervisors or for which the county fiscal officers are ex officio fiscal officers, except:
(a) School districts
(b) Districts in two or more counties
(c) Where such matters are otherwise provided by law
Section 29010 of the Government Code provides that the budget document shall include special districts whose affairs and finances are under the supervision and control of the county board of supervisors.
NOTE
Authority cited: Section 30200, Government Code.
HISTORY
1. New Subchapter 4 (Sections 1121-1127) filed 2-29-68; effective thirtieth day thereafter (Register 68, No. 9).
District budgets follow the basic county budgeting concept. The total available fund balance is applied against the total fund requirement, the difference being the amount to be raised by property taxation for that fund. A distinction is made between appropriations, against which expenditures may be made, and reserve provisions, amounts to be raised but which are unavailable for expenditure during the budget period.
Each district budget shall be in terms of the applicable fund and account titles prescribed by the State Controller for special districts in Sections 1031.1-1114.6, inclusive of the California Administrative Code.
Note • History
Forms available for use in the presentation of district budgets are:
Schedule Contents
11 Summary of district budgets
12 Fund balance available
13 District budget detail
13 continuation Continuation of appropriation detail of Schedule 13
14 Detail of provision for reserves
15 Bond fund expenditure status
16 School district debt service requirements
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Amendment filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
Under the standard arrangement a separate Schedule 13 is prepared for each district. The appropriate elements are then collected for all districts on Schedules 11, 12, 14 and 15. All schedules are necessary to present the complete budget of any given district.
§1126. Schedule 13B Represents an Alternative to Schedule 13A.
Note • History
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Repealer filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
Note • History
Long-term principal and interest requirements for districts under the board of supervisors must be included in the appropriations listed on Schedule 13. Similarly, debt service reserves must be shown on 14. Debt service requirements for school districts are not required to be included. However, for counties wishing to include these requirements in the budget document as a matter of public information, Schedule 16 has been provided.
NOTE
Authority and reference cited: Section 30200, Government Code.
HISTORY
1. Amendment filed 6-6-80; effective thirtieth day thereafter (Register 80, No. 23).
Subchapter 5. Minimum Audit Requirements and Reporting Guidelines for Special Districts
Note • History
(a) The following audit requirements are not intended to be a comprehensive audit program or check list of things to be completed during a special district audit. This is intended to include only the minimum requirements which the State Controller must prescribe pursuant to Section 26909 of the Government Code.
The county auditor or professional independent certified public accountant or public accountant undertaking an audit of a California Special District should:
(1) Have sufficient knowledge and training to enable him to comply with generally accepted auditing standards.
(2) Have a thorough knowledge of the fundamental principles of governmental accounting, including both fund accounting and enterprise accounting, and governmental auditing.
NOTE
Authority cited: Section 26909(b), Government Code. Reference: Sections 6505 and 26909(b), Government Code.
HISTORY
1. New Subchapter 5 (Sections 1131.1 through 1131.6) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
2. Repealer of Subchapter 5 (Sections 1131.1-1131.6) and new Subchapter 5 (Sections 1131.1-1131.5) filed 1-15-80 as an emergency; effective upon filing (Register 80, No. 3). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 5-15-80.
3. Certificate of Compliance filed 3-27-80 (Register 80, No. 13).
§1131.2. Minimum Audit Requirements.
Note
(a) The audit shall be made in accordance with generally accepted auditing standards. Various auditing procedures are suggested and described on pages 41 through 69 of the American Institute of Certified Public Accountants publication Audits of State and Local Governmental Units. No hard and fast rules can be set down as to the specific procedures that should be taken. Professional judgment must be exercised. Following are general statements that the county auditor or independent accounting firm should consider in preparing an audit program in connection with the audit of a California special district.
(1) A proper study and evaluation of the existing internal control and the financial organizational structure should be made. The extent to which an auditor should go in testing the evidential matter supporting his opinion on the financial statements depends on the effectiveness of the district's system of internal control.
Sufficient competent evidential matter is to be obtained through inspection, observation, inquiries, and confirmations to afford a reasonable basis for an opinion regarding the financial statements under examination.
If the internal control is so deficient that an auditor must disclaim his opinion in this regard, the reason for this disclaimer must be set forth in the audit report.
(2) The auditor should review the laws applicable to the financial transactions of the district. For instance, all special districts are subject to a uniform accounting system prescribed by the State Controller. Should there be indications that the district may have failed to comply with legal requirements, the transactions may be referred to proper legal counsel for interpretation of the applicable law. Noncompliance should be commented upon in the report and, if necessary, the auditor's opinion should be qualified, disclaimed or adverse.
(3) The district's report of financial transactions to the State Controller should be reviewed to see that it agrees with the official records of the district for the period. The State Controller should be informed of any material difference.
(4) A review should be made of the previous audit report workpapers and program if available.
(5) The auditor should ascertain what funds are maintained and by what authority or under what circumstances each fund maintained was created.
(6) The auditor should ascertain the basis of accounting, that is, cash, accrual or modified accrual. Accrual is the basis for enterprise funds and modified accrual is the basis for non-enterprise funds. The cash basis is no longer approved for special districts.
(7) The auditor should take a trial balance of the accounts of each fund and should list both opening and closing balances. The opening balances should be compared with the amounts shown in the audit report for the previous period, if any, and any difference should be investigated and reconciled.
(8) A summary of the financial data included in the minutes or other official records of the proceedings of the legislative body should be prepared. Expenditure authorizations and the appropriations made to cover the authorizations should be confirmed.
(9) The auditor should verify the balance of cash on hand.
(10) The auditor should reconcile bank accounts including cash on deposit with county treasurer as of the balance sheet date and such other times as is necessary. He should obtain confirmation from depositories for (1) all bank accounts, time certificates or savings and loan accounts, and (2) collateral securing such accounts, if applicable. Collateral should be examined or confirmed with the depository holding the collateral as trustee. The auditor should determine the adequacy and propriety of the collateral pledged.
(11) The auditor should test the tax levy, tax collection and delinquencies whether processed by the district or the county.
(12) The collection and recording of all ascertainable revenues should be tested during the period under audit. The test should be sufficient to determine that receipts have been recorded in the proper funds and period.
(13) The auditor should determine:
(A) That the expenditures were properly authorized and incurred and are proper charges to the fund and appropriation against which they have been charged.
(B) That the expenditures are supported by the proper documents and that the documents are so marked as to prevent their reuse. In this connection, it should be ascertained whether noncash expenditures, that is, interdepartmental transactions are supported by adequate documentation and were properly recorded.
(14) A review should be made of nonrevenue receipts and nonexpense disbursements to determine if they were legal and properly recorded.
(15) All other assets such as investments, accounts receivable, inventories, paid expenses, fixed assets and similar items should be verified in accordance with generally accepted auditing standards.
(16) All liabilities such as accounts payable, notes payable, contracts payable, judgments and similar items should be verified in accordance with generally accepted auditing standards. Proper authorities should be contacted to ascertain existence of any possible contingent liabilities.
(17) The auditor should verify the fund balance and reserve accounts of all funds.
NOTE
Authority cited: Section 26909(b), Government Code. Reference: Sections 6505 and 26909(b), Government Code.
§1131.3. Audit Report Requirements.
Note
(a) The report shall state whether the financial statements are presented in accordance with generally accepted principles of accounting and the State Controller's Minimum Audit Requirements and Reporting Guidelines.
(b) The report shall state whether such generally accepted accounting principles have been observed in the current period in relation to the preceding period.
(c) Informative disclosures in the financial statements are to be regarded as reasonably adequate unless otherwise stated in the report.
(d) The audit report shall contain an opinion regarding the fairness of the financial statements as enumerated by the State Board of Accountancy Rules 58.1 and 58.2. The types of opinions that may be expressed are:
(1) an unqualified opinion
(2) a qualified opinion
(3) an adverse opinion
(4) a disclaimer of opinion
(e) The report shall so state, if the audit is not completed within the statutory time limit.
NOTE
Authority cited: Section 26909(b), Government Code. Reference: Sections 6505 and 26909(b), Government Code.
Note
(a) It is suggested that the audit report be prepared in accordance with the following general format. Supplementary information such as schedules, comments, and statistical table are optional and often enhance the usefulness of a report.
(1) Title page
(2) Table of contents
(3) Scope, opinion and other necessary paragraphs
(4) Basic financial statements of each fund:
(A) Balance sheet
(B) Statement of revenues and expenditures
(C) Statement of changes in fund balance
(D) Statement of changes in financial position (enterprise activities only)
(E) Footnotes
(5) Supplementary information
(A) Schedules
1. Fixed asset detail
2. Bonded debt detail
3. Investment detail
4. Revenue detail
5. Expense or expenditure detail
(6) Other schedules
(b) Comments (if too extensive to be covered in schedules or the
letter of transmittal)
(1) Organization and description of the district
(2) Accounts and records
(3) Insurance coverage
(4) Budgetary procedure
(5) General comments
(c) Statistical tables if applicable
(1) Legal debt margin
(2) Statement of tax levies, tax collections, and tax delinquencies
(3) Other tables
The AICPA Industry Audit Guide: Audits of State and Local Governmental Units contains additional guidance on audit reports.
NOTE
Authority cited: Section 26909(b), Government Code. Reference: Sections 6505 and 26909(b), Government Code.
§1131.5. A Management Letter Is Required.
Note
It is understood that management has the responsibility for establishing internal controls and checks. The auditor, however, shall prepare and forward to management, the governing body, and all required recipients of the audit report, a separate letter containing suggestions and recommendations relating to opportunities for improvement in the district's accounting and financial controls. Further, this management letter shall be used to comment on the action or lack of action taken regarding suggestions made in a prior year letter.
It is not intended that this management letter communicate only negative comments. The auditor shall state when proper internal controls are established and in operation. Further remarks concerning proper accounting and reporting practices may be included.
NOTE
Authority cited: Section 26909(b), Government Code. Reference: Sections 6505 and 26909(b), Government Code.
Subchapter 6. Tax Collection Procedures for Counties
Article 1. Forms
Note • History
Forms listed in this Article shall be used by all county tax collectors and redemption officers.
NOTE
Authority cited: Section 30301, Gov. Code.
HISTORY
1. New subchapter 6 (§§ 1136.1 through 1136.40) filed 12-16-70; effective thirtieth day thereafter (Register 70, No. 51).
The number shown parenthetically at the end of each Section refers to the section in “Reference Manual, County Tax Collectors and Redemption Officers,” issued by the State Controller, where that form is illustrated.
§1136.3. Delinquent Tax Notice--Certificate of Intent to Sell Real Property to the State.
A newspaper notice, published on or before June 8, drawing attention of tax collector's intent to sell real property to the State, the taxes, of which, remain unpaid. This notice should immediately precede the “Notice of Intent to Deed.” (2131)
§1136.4. Notice of Intent to Deed to the State.
Published in newspaper on or before June 8 and is tax collector's notice of intent to deed to the State all property upon which taxes have been unpaid five years after property was sold to the State. (2220)
§1136.5. Parcel Numbering System Explanation.
Explains parcel numbering system used by counties; or, in lieu of that, the list of abbreviations. (2242.4)
§1136.6. Notice of Intent to Deed Real Property to the State.
Notice appearing in newspapers when list is divided and distributed to more than one newspaper in the county. (2253.1)
§1136.7. Notice--Property to Be Deeded to the State.
This notice is mailed to the last assessee of the property. It is sent by registered or certified mail. (2260)
§1136.8. Delinquent Tax Notice--Certificate of Real Properties Sold to the State.
Published in a newspaper on or before September 8 by the tax collector. It lists all real property sold to State the preceding June which has not been redeemed. (2320)
§1136.9. Addenda to Published Delinquent List.
Should an “Addenda List” be required for any year, it will immediately follow at the end of the regular Published Delinquent List. (2321)
§1136.10. Delinquent Tax List.
If the delinquent list is divided in more than one newspaper, this notice appears above, and in conjunction with, the Published Delinquent List. (2353.1)
§1136.11. Statement of Property Sold to State.
History
HISTORY
1. Repealer filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.12. Tax Collector's Summary Statement of Sale to the State Pursuant to Section 3446(a), Revenue and Taxation Code.
Form furnished by the Controller to the tax collector, to be used in lieu of T.D.L. 3410 by those counties under the Alternative Procedure. It is submitted by tax collector on or before August 31. (3452.3)
§1136.13. Conveyance of Real Estate.
History
Standard deed form furnished by the Controller to all tax collectors. It is used in deeding property to the State for nonpayment of delinquent taxes. This form is also used in issuing a corrected deed to the State when a clerical error or misstatement of fact has been made, provided, in the latter case, the publication of “Notice of Intent to Deed to State” is correct. (L.G.F.A. 503)
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.14. Certificate of Erroneous Tax Deed and Order to Cancel.
History
HISTORY
1. Repealer filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.15. Application to County Tax Collector for the Purchase of Tax Deeded Property.
Application form to be filled out by prospective purchaser for the purchase of tax deeded property at public auction sale. (6231)
§1136.16. Notice of Intention to Sell, Request for Controller's Authorization to Sell, and Report of Sale of Property at Public Auction or Sealed Bid.
History
Forms to be used by the tax collector in securing necessary approvals to sell tax deeded property at public auction or sealed bid, and to report the disposition of the property at the sale (6241 and 6241a).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.17. Authorization by the State Controller for the Sale of Tax Deeded Property at Public Auction.
Upon receipt of a resolution from tax collector, this form is authorization by the State Controller for sale of such property. (6243)
§1136.18. Notice of Sale of Property Deeded to the State for Delinquent Taxes.
History
Forms for newspaper publication or posted notice by the tax collector of intent to sell tax deeded property at public auction or sealed bid sale (6245.23a or 6245.23b).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.19. Notice of Sale of Tax Deeded Property.
History
Notice of proposed sale to last assessee of property. It is sent either by registered or certified mail. (6245.3).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
Deed from tax collector to the purchaser upon receipt of full purchase price at completion of sale. (6273.1)
§1136.21. Agreement to Purchase Tax Deeded Land. Purchase by State.
History
(Div. 1, Part 6, Chapter 8, Revenue And Taxation Code). Agreement between the Board of Supervisors of the County and the State of California for State purchase of property in unincorporated area of the County (6332a). Agreement between the Board of Supervisors of the County, the State of California, and a city, for State purchase of property within the city's boundaries (6332b).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.22. Agreement to Purchase Tax Deeded Land. Purchase by County.
History
(Div. 1, Part 6, Chapter 8, Revenue And Taxation Code). Agreement between the Board of Supervisors of the County and the State of California for County purchase of property in unincorporated area of the County (6332c).
Agreement between the Board of Supervisors of the County, the State of California and a city, for County purchase of property within the city's boundaries (6332d).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.23. Agreement to Purchase Tax Deeded Land. Purchase by City.
History
(Div. 1, Part 6, Chapter 8, Revenue And Taxation Code). Agreement to purchase between the Board of Supervisors of the County and a city which is a taxing agency (6332e). Agreement to purchase between the Board of Supervisors of the County and a city which is a revenue district (6332f).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.24. Agreement to Purchase Tax Deeded Land. Purchase by Revenue District.
History
(Div. 1, Part 6, Chapter 8, Revenue And Taxation Code). Agreement to purchase between the Board of Supervisors of the County and the revenue district. (6332)
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.25. Agreement to Purchase Tax Deeded Land. Purchase by Taxing Agency.
History
(Div. 1, Part 6, Chapter 8, Revenue And Taxation Code). Agreement to purchase between the Board of Supervisors of the County, the taxing agency (6332(h)).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.25.1. Agreement to Purchase Tax Deeded Land. Purchase by Redevelopment Agency.
Note • History
(Div. 1, Part 6, Chapter 8, Revenue and Taxation Code.) Agreement to purchase between the Board of Supervisors of the County and the redevelopment agency (6332-I).
NOTE
Authority cited: Section 30301, Government Code. Reference: Section 30301, Government Code.
HISTORY
1. New section filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
History
Form to be attached to each Agreement under Div. 1, Part 6, Chapter 8 of the Revenue and Taxation Code, Forms Nos. 6332a, b, c, d, e, f, g, h, and I. The Exhibit “A” shows the description of the property, first year delinquent, sale number and purchase price (6332-J).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.27. Notice of Agreement to Purchase Property Deeded to the State for Delinquent Taxes.
History
(Div. 1, Part 6, Chapter 8, Revenue and Taxation Code.) The tax collector, upon receipt of the authorization from the State Controller, shall publish this notice when the tax deeded property is being purchased by the State, a city, taxing agency, revenue district, or redevelopment agency (6341.2a).
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.28. Notice of Agreement to Purchase Property Deeded to the State for Delinquent Taxes.
(Div. 1, Part 6, Chapter 8, Revenue And Taxation Code). This form will be used by the tax collector, upon receipt of authorization from the State Controller, when the county purchases property from the State. (6341.2b)
§1136.29. Authorization and Direction to Tax Collector.
Notice to the tax collector to publish the notice of the agreement. (6337.2)
§1136.30. Notice of Sale for Taxes on Unsecured Property.
This notice of intended sale of seized property (unsecured) for taxes is to be given by publication or posting at least one week before the sale. (8631.3)
§1136.31. Letter to Attorney General.
History
A two-page form letter to Attorney General when rental is past due and tenant ignores previous notices. Submitted to the State Controller by the tax collector; the State Controller then forwards it to the Attorney General after he grants approval. (11342.2)
HISTORY
1. Amendment filed 12-14-76; effective thirtieth day thereafter (Register 76, No. 51).
§1136.32. Letter by Condemning Authority Ordering Abatement of a Public Nuisance.
This is a form letter to be filled out by the condemning authority ordering abatement of a public nuisance. (T.D.L. 40)
§1136.33. Letter to Former Owner of the Condemned Property, Giving Him 10 Days to Remove Condemned Nuisance. (T.D.L. 41)
§1136.34. Form Letter to be Used by Party Offering to Remove Condemned Nuisance. (T.D.L. 42)
§1136.35. Form Letter Prepared and Signed by the Tax Collector Giving Authority for Removal of Condemned Nuisance, and Also for Obtaining Signature of Condemning Authority as to Satisfactory Removal. (T.D.L. 43)
§1136.36. Rental Agreement Form.
These are pre-numbered lease forms, in triplicate, issued to lessee of tax deeded property. This is the Controller's standard form and is issued to the tax collectors. (No number assigned)
§1136.37. Form Letter to Lessee Authorizing Repairs to Improvements on Tax Deeded Property, and Setting Forth How Credit Is to be Allowed on Monthly Rental. (11442.1)
§1136.38. Form Letter to Tenant Occupying Tax Deeded Property, by Lease Agreement, That Such Property Has Been Sold or Redeemed and That Said Lease Is Cancelled as of the Date of Such Redemption or Sale. (11523.1)
§1136.39. Back Rental Agreement.
When rental payments are delinquent and lessee is unable to pay the entire delinquency in a lump sum, this agreement may be executed to provide for liquidation in installments. (11612.2a)
§1136.40. Back Rental Agreement.
This form is used when a person has been collecting rental subsequent to the deed to the State. Settlement can be in full, or in installments if the amount is too large to be met in one payment. (11612.2b)
Subchapter 6.5. Rules and Regulations Relating to California Estate Tax
Article 1. Imposition of Tax
Note • History
(a) The estate tax (Part 8 of the Revenue and Taxation Code) took effect of June 8, 1982, and applies to the estates of decedents dying on or after said date and before January 1, 2005.
(b) Any liability for inheritance or gift tax incurred prior to such date shall be determined and enforced under the applicable law in effect on the date of death or date of completed transfer as fully and to the same extent as if the repeals of Parts 8 and 9 of Division 2 of the Revenue and Taxation Code had not been made.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Sections 13301, 13302, Revenue and Taxation Code; Section 4 of Initiative Measure, Proposition 6 of June 8, 1982.
HISTORY
1. New subchapter 6.5 (articles 1-7, sections 1138.10-1138.90), article 1 (sections 1138.10-1138.18), and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
2. Amendment of subsection (a) filed 10-30-2007; operative 11-29-2007 (Register 2007, No. 44).
§1138.12. Tax Imposed -- Generally.
Note • History
(a) In general, property subject to the California Estate Tax includes any real or personal property, and any rights or interest therein or income therefrom, the receipt of or succession to which may be taxed under the California Estate Tax and under the Constitutions of this State and the United States.
(b) The California Estate Tax is due in every case in which the credit is available, whether or not it is claimed for federal estate tax purposes. It is not affected by a failure to take or preserve the federal credit.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13302, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.14.
Note • History
(a) In no event shall the California Estate Tax result in a total death tax liability to the State of California and the United States in excess of the death tax liability to the United States which would result if Section 13302 of the Revenue and Taxation Code were not in effect. However, in no event shall the California Estate Tax be less than the credit for state death taxes (adjusted under Section 13304 if applicable) less the credits that would have been claimed on lines 17 through 19 on page 1 of the federal estate tax return if there had been no California Estate Tax.
(b) Two calculations of the estate tax are made: one computing the total state and federal estate tax due and one computing the federal estate tax assuming no California estate tax. The sum obtained in the first computation cannot exceed the amount determined in the second computation. If it does, the California Estate Tax is reduced by the excess.
This may be stated by the following formula:
CET + FET <=FET assuming no CET.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13302, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Note • History
“Another state” or “other states” means any state of the fifty states in the United States, other than this state, and includes the District of Columbia, and any possession or territory of the United States.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Sections 13304 & 13830, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.18.
Note • History
If a decedent, having property with a situs in California, leaves property having a situs in a state other than California, the maximum state death tax credit shall be multiplied by the percentage which the gross value of property having a situs in California bears to the gross value of the entire estate subject to federal estate tax. The product of the calculation shall be the portion of the maximum state death tax credit which is attributable to property having a situs in California. The property having a situs in the other state, whether or not or to what extent the property is taxed in that state, will be ignored for purposes of the California tax.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13304, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 2. Definitions
§1138.20. Property in California.
Note • History
Property located in California includes, but is not limited to:
(1) All real and tangible personal property situated in this state;
(2) All intangible personal property, wherever situated, of a resident decedent;
(3) In general, intangibles of a deceased, non-resident of the United States, if evidence of ownership is in California or if the issuer (i.e., of stock certificates, promissory notes, or similar choses in action) has its principal place of business in California.
(4) Land Trust agreements which expressly provide that the interest of the beneficiary of the trust shall be deemed to be personal property with no right, title, or interest in or to any portion or specific part of the real estate, but only an interest in the earnings or proceeds, shall be deemed to be intangible personal property of the beneficiary.
(5) Real property having a situs in this state is taxable although such property is held in a personal trust. Real property having an actual situs outside this state shall not be taxable with respect to a resident decedent when such property is held in a personal trust.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13402, Revenue and Taxation Code.
HISTORY
1. New article 2 (sections 1138.20-1138.29) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.22. Definition of Property.
Note • History
(a) Real Property. Real property includes, but is not limited to, leasehold interests, mineral interests (including royalty interests in oil, gas, or similar leases or property interests), the vendee's interest in an executory contract for the purchase of real property, and real interests held in trust.
(b) Intangible Personal Property. The term “intangible personal property” includes but is not limited to, stocks, bonds, notes (whether secured or unsecured), bank deposits, accounts receivable, patents, trademarks, copyrights, good will, fungible goods, partnership interests, life insurance policies, the vendor's interest in an executory contract for the sale of real property, and other choses in action.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13402, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.24. Personal Representative.
Note • History
(a) “Personal representative” generally means the executor or administrator appointed to administer the decedent's estate. However, when no such person has been appointed, or is no longer acting, then any such person in possession of the property of the estate can be considered a “personal representative” for estate tax purposes.
(b) “Possession” of property means actual or constructive possession and denotes physical dominion or control or the right thereto over the property, including but not limit to joint or co-owners, partners or joint ventures, trustees or other fiduciaries, and transferees or distributees of the estate.
(c) A “personal representative” also includes a guardian, conservator, trustee, or other person charged with the responsibility of paying the estate tax under the provisions of Sections 20100 through 20125 of the Probate Code.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13403, Revenue and Taxation Code; Section 20100, Probate Code; 26 USC Section 2203.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Note • History
(a) “Domicile” is the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain, and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively. Domicile is acquired by: (1) birth, (2) operation of law, (3) choice.
(b) The domicile of the custodial parent is the domicile of an unmarried minor and cannot be changed by his or her own act.
(c) A married person may retain his or her legal residence in the State of California, notwithstanding a change in legal residence or domicile of his or her spouse.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13407, Revenue and Taxation Code; Section 244, Government Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.28. Non-Resident Decedent. Generally.
Note • History
(a) When a claim is made that domicile was outside the State of California, the taxpayer has the burden of proof.
(b) A claim that a decedent was domiciled in another state shall be supported by a declaration under penalty or perjury under the laws of California or by affidavit.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Sections 13408, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Note • History
(a) Evidence of a person's intent as to domicile at the time of death shall include:
(1) The state in which the decedent had, at the time of his death, his principal place of business or employment;
(2) Oral declarations made by the decedent (greater weight is given to the decedent's actions than statements of intent);
(3) Written declarations, whether contained in letters, deeds, wills or contracts and other instruments, made by the decedent;
(4) Place of filing of federal and state income tax returns, and the address given on such returns;
(5) Automobile registration and driver's license;
(6) Registration as a voter;
(7) The center of decedent's social activities, such as membership in local churches, lodges, clubs or societies;
(8) The place where decedent's children attend schools;
(9) Professional or vocational licenses obtained by the decedent from a particular state;
(10) Ownership, purchase, or lease of real property;
(11) Amount of time spent in state;
(12) Place of death and burial.
(b) No single factor is controlling in determining domicile. Rather the factors are examined collectively to determine if the intent to acquire or abandon California domicile exists. A simple declaration of intent to abandon domicile, or physical presence elsewhere is insufficient to abrogate California domicile.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13408, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 3. Estate Tax Returns
Note • History
(a) A California Estate Tax Return is not required to be filed with the State Controller's Office for decedents dying after December 31, 2004.
(b) A California Estate Tax Return is required to be filed with the State Controller's Office for decedents dying on or after June 8, 1982, and before January 1, 2005, if a federal estate tax return (Form 706) is required to be filed with the Internal Revenue Service.
(1) If a California Estate Tax Return is required under this section, then within nine (9) months of the date of death, a return consisting of an original executed copy of the California Estate Tax Return (form ET-1, 10/07) and an executed copy of the federal estate tax return with accompanying schedules and dispositive documents shall be filed with the office of the State Controller, Sacramento, California, at the address indicated on the ET-1.
(2) The postmark date will determine the date of filing when returns are delivered to the State Controller by United States mail. If no postmark is present, a postage meter is used, or delivery is made to another entity, the date of receipt will determine the date of filing.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13501, Revenue and Taxation Code.
HISTORY
1. New article 3 (sections 1138.30-1138.38) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
2. Amendment filed 10-30-2007; operative 11-29-2007 (Register 2007, No. 44).
Note • History
An extension of time in which to file the return does not operate as an extension of time in which to make payment.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Sections 13502, 13532, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.34.
Note • History
Each time an amended federal estate tax return is filed, an amended return shall be filed with the Controller. An amended return shall be filed even though it is anticipated that the additional amended returns will be filed. The return shall consist of an original executed copy of an amended California Estate Tax Return and an executed copy of the amended federal estate tax return with accompanying schedules and relevant documents such as the report of examination changes.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13503, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.36. Notice of Final Determination.
Note • History
(a) The written notice of the final determination of federal estate tax due shall include copies of any final determination report, any compromise agreement, the closing letter, any court decisions, and any other available evidence of the final determination.
(b) A final federal determination is an irrevocable determination of a taxpayer's liability from which there exists no further right of appeal, either administrative or judicial. Some examples of final determination dates are:
(1) A closing agreement under Section 7121 of the Internal Revenue Code finally and irrevocably adjusting and settling a tax liability.
(2) A decision by the United States Tax Court or a judgment, decree or other order by any court of competent jurisdiction which has become final.
(3) A final disposition of a claim for refund.
(4) An assessment pursuant to a waiver filed under Section 6213 (d) of the Internal Revenue Code or pursuant to a comprise.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13504, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.38. Federal Estate Tax Return.
Note • History
A “federal estate tax return” includes, but is not limited to, any notice or filing required under federal law, any notice or filing which indicates a tax due, which indicates any change in a tax due, or which could affect the determination of tax due the federal government under Chapter 11 of the Internal Revenue Code.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13501-13504, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 3.5. Penalties
§1138.40.
Note • History
(a) If the required return is not filed on time the delinquency penalty is mandatory unless there is a showing of “reasonable cause” for the delay.
(b) “Reasonable cause” means the exercise of ordinary business care and prudence. The following specific causes for failure to file a return within the time prescribed by law, if clearly established by the taxpayer, will be accepted as reasonable.
(1) Where the return was mailed on time, properly addressed and with sufficient postage to reach the Controller's Office in the normal course of United States mail service within the legal period.
(2) Where the delay or failure to file was due to erroneous information given the taxpayer by an employee of the Controller.
(3) Where the delay or failure to file was caused by death or serious illness of the taxpayer or serious illness in the immediate family.
(4) Where the delay was caused by the unavoidable absence of the taxpayer.
(5) If a similar penalty for failure to timely file the federal estate tax return is waived, the waiver shall be deemed to constitute reasonable cause. On the other hand, if a similar federal penalty is assessed and not waived, it shall be presumed that reasonable cause does not exist. A “similar” penalty is one imposed when the return was filed late with California for essentially the same reasons and at the same time. For example, if a federal estate tax return was filed late in January 1994 and IRS granted a penalty waiver but no return was filed with California until November 1994, the federal waiver will not be recognized.
(c) Generally, the failure to timely file is not excused by reliance on an agent and such reliance is not reasonable cause for late filing
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13510, Revenue and Taxation Code; United States v. Boyle (1985) 469 US 241).
HISTORY
1. New article 3.5 (sections 1138.40-1138.42) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.42.
Note • History
(a) The taxpayer has the burden of proving reasonable cause.
(b) The taxpayer shall set forth any claim of reasonable cause for a delinquent filing an affidavit or declaration under penalty of perjury.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13510, Revenue and Taxation Code; United States v. Boyle (1985) 469 US 241).
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 4. Deficiency Determination
§1138.50.
Note • History
Generally, a “return” includes, but is not limited to all returns required by Section 13501 of the Revenue and Taxation Code, all amended returns required by Section 13503, and the notice required by Section 13504.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Sections 13501, 13503, 13504 & 13516, Revenue and Taxation Code.
HISTORY
1. New article 4 (section 1138.50) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 5. Payment of Tax
§1138.60. Liability of Personal Representative.
Note • History
A personal representative is liable for all taxes, interest and penalties payable on the estate until the same have been paid.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13530, Revenue and Taxation Code.
HISTORY
1. New article 5 (sections 1138.60-1138.68) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.62.
Note • History
(a) The personal representative is liable for the payment of the tax to the extent of assets subject to his or her control. There may be more than one personal representative. For example, the executor of an estate for payment of the tax rising from assets subject to his or her control as may be the trustee of an inter vivos trust for payment of the tax rising from assets subject to his or her control.
(b) Nothing in this section shall be interpreted as reducing the responsibilities of a personal representative for payment of the California estate tax from the set forth in Sections 20100 to 20125 of the Probate Code.
NOTE
Authority cited: Section 14103, Revenue of Taxation Code. Reference: Section 13530, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.64.
Note • History
Liability for payment of the tax continues until the tax is paid to the extent of assets which, at the time of decedent's death, or thereafter, became subject to the control of the personal representative. Distribution of the assets does not extinguish liability.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13530, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Note • History
An extension of time for filing a return does not operate to extend the time for payment of the tax.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13531, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
§1138.68. Payment to Controller.
Note • History
Payment of the tax may be in legal tender of the United States, or by negotiable check, draft, or money order to the State Treasurer. The acceptance by the Controller of a check, draft, or money order in U.S. currency constitutes a payment of the tax for which it was given as of the date of the acceptance when, but not before, such instrument is actually paid. If the instrument for any reason is not actually paid, the Controller will proceed to collect the tax, and the taxpayer will remain liable therefor, together with all interest thereon, as though the payment had not been tendered.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13533, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 5.5. Interest
§1138.70. Interest on Delinquent Tax.
Note • History
There is no relief for accrued interest for a late payment of the Estate Tax.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13550, Revenue and Taxation Code.
HISTORY
1. New article 5.5 (sections 1138.70-1138.74) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Note • History
If the tax due is not paid by the due date, the amount due shall bear interest at the same rate charged for underpayment of estate tax provided in Section 6621(a)(2) of the Internal Revenue Code from the date it became delinquent and until it is paid. Interest under this section shall be compounded daily.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13550, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
2. Repealer and new section filed 10-30-2007; operative 11-29-2007 (Register 2007, No. 44).
Note • History
(a) If partial payment is made prior to the delinquent date, and there is no penalty imposed, such payment shall be applied to principal due.
(b) If a penalty is imposed it continues until the filing date and is not stopped by payment on the tax.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13551, Revenue and Taxation Code.
HISTORY
1. New section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 6. Refunds
§1138.80.
Note • History
The Federal Reserve rate is the federal discount rate set by the Federal Reserve Board.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13563, Revenue and Taxation Code.
HISTORY
1. New article 6 (section 1138.80) and section filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
Article 7. Lien of Tax
§1138.90.
Note • History
The lien may be enforced against any person liable for the tax or any property subject to the tax, or both.
NOTE
Authority cited: Section 14103, Revenue and Taxation Code. Reference: Section 13610, Revenue and Taxation Code.
HISTORY
1. New article 7 (section 1138.90), section, and form filed 4-29-96; operative 5-29-96 (Register 96, No. 18)
2. Amendment of form ET-1 filed 10-30-2007; operative 11-29-2007 (Register 2007, No. 44).
Embedded Graphic 02.0016
ET-1 (Rev. 10/07)
Embedded Graphic 02.0017
Article 8. Inspection of Records
§1139. Confidential Information; Disclosure.
Note • History
(a) All information and records relative to any tax imposed by the California Estate Tax Law acquired by the State Controller or any of his or her employees are confidential in nature and, except as may be necessary for the enforcement of the estate tax law, cannot be divulged to any person other than a person liable for the tax or his or her duly authorized agent, or any local, state, or federal tax official.
(b) If the State Controller has received the information to be divulged from the United States Internal Revenue Service, the person to whom it is divulged shall be advised of its source and that the confidentiality afforded thereto must be the same as if it were received directly from the Internal Revenue Service.
(c) Except where otherwise prohibited by federal or state law or by agreement between the Internal Revenue Service and the State Controller, information received from the United States Internal Revenue Service may be divulged only
(1) to representatives of the Internal Revenue Service;
(2) to the State Board of Equalization and the Franchise Tax Board;
(3) to a person liable for the tax or his or her duly authorized agent; and
(4) in judicial proceedings for enforcement of the California Estate Tax Law.
NOTE
Authority cited: Sections 14103 and 14252, Revenue and Taxation Code. Reference: Sections 14251 and 14252, Revenue and Taxation Code.
HISTORY
1. New article 8 (section 1139) and section filed 6-12-2001; operative 7-12-2001 (Register 2001, No. 24).
Subchapter 7. City Financial Report
Note • History
The accounts and format prescribed in this Subchapter shall be used by general law cities in fulfilling their requirement under Section 40804 of the Government Code to publish annually a summary report of financial transactions.
NOTE
Authority cite: Sections 26909(b), 30200, 40804 and 53891, Gov. Code.
HISTORY
1. New subchapter 7 (Sections 1141.1 through 1141.6) filed 9-16-70; effective thirtieth day thereafter (Register 70, No. 38).
§1141.2. Minimum Requirements.
Requirements contained in this Subchapter are minimum. A city may expand the summary, restate or list additional information as it may deem necessary or desirable.
§1141.3. Non-Enterprise Operations.
For other than enterprise operations, revenues and expenditures shall be presented as follows:
Embedded Graphic 02.0018
§1141.4. Enterprise Operations.
Enterprise operations are those designated as such in the Annual Report of Financial Transactions to State Controller, LGFA-111. Operations of each enterprise shall be presented as follows:
Embedded Graphic 02.0019
§1141.5. General Obligation Bonds.
The amount of general obligation bonded indebtedness as of the end of the fiscal year shall be shown.
General Obligation Bonded Indebtedness (as of June 30, 19__) $xxx
The assessed valuation of property subject to local taxation for the year under review shall be displayed as follows:
Embedded Graphic 02.0020
Subchapter 7.5. Conflict of Interest Code
The Political Reform Act, Government Code Sections 81000, et seq., requires state and local government agencies to adopt and promulgate Conflict of Interest Codes. The Fair Political Practices Commission has adopted a regulation, 2 Cal. Codes of Regs., Section 18730, which contains the terms of a standard Conflict of Interest Code, which can be incorporated by reference, and which may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act after public notice and hearings. Therefore, the terms of 2 Cal. Codes of Regs., Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission, along with the attached Appendix in which officials and employees are designated and disclosure categories are set forth, are hereby incorporated by reference and constitute the Conflict of Interest Code of the State Controller, except as provided below.
Designated employees shall file statements of economic interests with the agency. With regard to the statement filed by the Deputy State Controller, the agency shall make and retain a copy and forward the original to the Fair Political Practices Commission.
Appendix
Disclosure
Designated Positions Category
Division of Administration & Disbursements
Assistant Deputy State Controller, Administrative I
Chief, Human Resources I
Data Processing Manager III V
CEA, Level I I
Division of Accounting & Reporting
Chief, Division of Accounting & Reporting, SCO I
Chief, Accounting I
Assistant Chief, Division of Accounting I
Division of Audits
Chief Division of Audits, SCO I
Special Liaison, Division of Audits, SCO I
Supervising Management Auditor, Financial Related Audits I
Supervising Management Auditor, Operations I
Supervising Management Auditor, Compliance Audits I
Supervising Management Auditor, Quality Control and
Training I
Supervising Management Auditor, Management Analysis
and Technical Support I
Supervising Management Auditor, Financial Audits I
Personnel/Payroll Services Division
Chief, Personnel/Payroll Services Division I
Bureau Chief, Personnel/Payroll Operations I
Bureau Chief, Program Management Analysis Section,
SCO I
Bureau Chief, Special Projects I
Information Systems Division
Chief, Information Systems Division, SCO I
Data Processing Manager III V
Data Processing Manager IV V
Division of Collections
Chief, Division of Collections, SCO I
Bureau Chief, Bureau of Unclaimed Property, SCO I
Bureau Chief, Bureau of Tax Administration, SCO I
Executive Office
Chief Deputy State Controller, Finance & Reporting I
Chief, Deputy State Controller (Exempt) I
Chief Deputy State Controller, Administrative I
Deputy State Controller (Trail Court Funding) I
Deputy State Controller, Taxation I
Deputy State Controller, Legislation I
Special Assistant to the State Controller, CEA I
Assistant to the Controller, Public Affairs I
Assistant Deputy State Controller (Exempt) I
Chief Legal Counsel I
Chief, Communications, SCO I
Supervising Special Investigator II I
Assistant Deputy State Controller, State Services I
Consultants *
*Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:
The State Controller may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. This determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
Disclosure Categories
Statement of Designated Employees in Category I shall include:
All interests in real property in the State of California, as well as investments, business positions and sources of income, including gifts, loans, and travel payments.
Statement of Designated Employees in Category II shall include:
Investments and business positions in, and income, including gifts, loans, and travel payments from any business entity which is a bank, savings and loan company, or other institution which serves or may serve as a depository for state, state agency, or local government funds.
Statement of Designated Employees in Category III shall include:
Income, including gifts, loans, and travel payments but excluding salary, reimbursement for expenses and per diem, from any local government agency.
Statement of Designated Employees in Category IV shall include:
Investments and business positions in and income, including gifts, loans, and travel payments from any business entity which is subject to the taxes and/or assessments administered in whole or in part by the Tax Collection and Refund Unit of the Division of Collections.
Statement of Designated Employees in Category V shall include:
Investments and business positions in and income, including gifts, loans, and travel payments from any business entity that provides equipment or services which is of the type utilized by the division or office in which they are employed.
Statement of Designated Employees in Category VI shall include:
All interests in real property in the State of California and investments and business positions in and income, including gifts, loans and travel payments from any source which engages in land development or construction or the acquisition, sale, or lease of real property.
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New subchapter 7.5 (sections 1142-1149, 1149.1, and Exhibits A and B) filed 4-8-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-15-77 (Register 77, No. 15).
2. Repealer of subchapter 7.5 (sections 1142-1149.1 and Exhibits A and B) and new subchapter 7.5 (section 1142 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of misprinted section number (Register 81, No. 14).
4. Amendment of Appendix filed 2-3-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-21-82 (Register 83, No. 6).
5. Amendment filed 12-1-83; effective thirtieth day thereafter. Approved by the Fair Political Practices Commission 10-4-83 (Register 83, No. 49).
6. Amendment filed 2-28-85; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-8-85 (Register 85, No. 9).
7. Amendment of Appendix filed 3-21-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-4-86 (Register 86, No. 12).
8. Amendment of Appendix filed 10-7-92 and submitted to OAL for printing only. Approved by Fair Political Practices Commission 8-7-92 (Register 92, No. 41).
9. Amendment of section and Appendix filed 4-22-2004; operative 5-22-2004. Approved by Fair Political Practices Commission 5-23-2003 (Register 2004, No. 17).
Appendix
Disclosure
Designated Positions Category
Division of Administration
Chief Deputy State Controller I
Deputy State Controller I
Deputy State Controller, Administration I
Assistant to the State Controller I
Assistant to the Controller, Public Affairs I
Deputy State Controller, Taxation I
Deputy State Controller, Legislation I
Assistant Deputy State Controller, Fiscal Control I
Assistant Deputy State Controller I
Chief Counsel I I
Staff Counsel I
Senior Staff Counsel (Specialist/Supervisor) I
Chief, Planning & Facilities Management I
Legislative Coordinator I
Program Manager, SCO Lottery Operations I
Staff Services Manager III I
Staff Services Manager II V
Staff Services Manager I V
Staff Management Auditor V
Associate Governmental Program Analyst, Purchasing V & VI
Division of Accounting
Assistant Deputy State Controller, Fiscal Control I
Chief, Division of Accounting I
Assistant Chief, Division of Accounting I
Accounting Administrator II II
Disclosure
Designated Positions Category
Division of Audits
Assistant Deputy State Controller, Audits I
Assistant Chief, Division of Audits I
Senior Management Auditor II
Supervising Management Auditor I
Supervising Special Investigator I I
Senior Special Investigator I
Staff Management Auditor II
Principal Claim Auditor II
Assistant Principal Claim Auditor II
Supervising Claim Auditor II
Special Advisor for Inheritance Taxes, SCO II
Staff Services Manager I I
Division of Disbursements
Assistant Deputy State Controller, Administrative Services I
Data Processing Manager III I
Data Processing Manager I V
Staff Services Manager I V
Computer Operations Supervisor II V
Staff Information Systems Analyst (Specialist/Supervisor) V
Division of Local Government Fiscal Affairs
Assistant Deputy State Controller, Local Government I
Assistant Chief, Division of Local Government Fiscal Affairs I
Supervisor, Local Government Budgets and Reports III
Supervisor, Tax Deeded Land III
Senior Administrative Analyst, Accounting Systems III
Staff Administrative Analyst, Accounting Systems III
Staff Services Manager II III
Staff Services Manager I III
Supervising Government Auditor II III
Supervising Governmental Auditor I III
Personnel/Payroll Services Division
Assistant Deputy State Controller, State Services I
Chief, Personnel/Payroll Services Division I
Staff Services Manager III I
Staff Services Manager II V
Staff Services Manager I V
Senior Information Systems Analyst (Specialist) V
Staff Information Systems Analyst (Specialist) V
Division of Organizational and Fiscal Controls
Data Processing Manager II I
Program Manager, CFIS I
Chief, Organizational & Fiscal Controls I
Senior Administrative Analyst, Accounting Systems V
Staff Administrative Analyst, Accounting Systems V
Staff Programmer Analyst (Specialist/Supervisor) V
Senior Management Auditor II
Systems Software Specialist II (Technician) V
Staff Information Systems Analyst (Supervisor) V
Systems Development Division
Chief, Systems Development Division I
Data Processing Manager I V
Data Processing Manager II V
Data Processing Manager III V
Systems Software Specialist (Supervisor) V
Division of Tax Administration
Chief Counsel II I
Assistant Chief, Division of Tax Administration, SCO I
Senior Staff Counsel (Specialist/Supervisor) I
Supervising Inheritance and Gift Tax Examiner II I
Supervising Auditor I IV
Disclosure
Designated Positions Category
Division of Unclaimed Property
Chief, Division of Unclaimed Property I
Assistant Chief, Division of Unclaimed Property I
Staff Services Manager II I
Supervising Auditor II I
Consultants *
*Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:
The State Controller may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
Disclosure Categories
Statements of Designated Employees in Category I shall include:
(1) Investments and business positions in any business entity;
(2) Investments and positions in any local government agency;
(3) Income;
(4) Interests in real property.
Designated employees in Category I shall complete Schedules A through H.
Statements of Designated Employees in Category II shall include:
(1) Investments and business positions in any financial business entity;
(2) Investments and positions in any local government agency;
(3) Income derived from the above sources.
Designated employees in Category II shall complete Schedules A, C2, D, E, F, G and H.
Statements of Designated Employees in Category III shall include:
(1) Investments and positions in any local government agency;
(2) Income derived from the above sources.
Designated employees in Category III shall complete Schedules A, C2, D, E, F, G and H.
Statements of Designated Employees in Category IV shall include:
(1) Investments and management positions in any business entity which is subject to the taxes and/or assessments administered in whole or in part by the Tax Collection and Refund unit of the Division of Tax Administration;
(2) Income derived from the above sources.
Designated employees in Category IV shall complete Schedules A, C2, D, E, F, G and H.
Statements of Designated Employees in Category V shall include:
(1) Investments and business positions in any business entity which provides or could provide equipment or services used by the division or office in which they are employed;
(2) Income derived from the above sources.
Designated employees in Category V shall complete Schedules A, C2, D, E, F, G and H.
Statements of Designated Employees in Category VI shall include:
(1) Interest in real property;
(2) Income derived from the above sources.
Designated employees in Category VI shall complete Schedules B, C1, D, E, F and H.
Definitions
“Local government agency” as used in the Appendix to this Code means a California county, city, or district of any kind, including school district, or any other local or regional political subdivision, bureau, office, board or commission.
“Financial business entity” as used in the Appendix to this Code means any business entity which is a bank, savings and loan company, or other institution which serves or may serve as a depository for state, state agency, or local government funds.
“Investments in a Local Government Agency” as used in the Appendix to this Code means holdings in Municipal Bonds.
“Position in a Local Government Agency” as used in the Appendix to this Code means salaried and consultant positions.
A “Consultant” as used in the Appendix to this Code is a natural person who provides, under contract, information, advice, recommendation or counsel to a local government agency.
Schedules A and B--held in the designated employee's name.
Schedules C1 and C2--held in the name of a business in which the designated employee has an investment.
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New subchapter 7.5 (sections 1142-1149, 1149.1, and Exhibits A and B) filed 4-8-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-15-77 (Register 77, No. 15).
2. Repealer of subchapter 7.5 (sections 1142-1149.1 and Exhibits A and B) and new subchapter 7.5 (section 1142 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of misprinted section number (Register 81, No. 14).
4. Amendment of Appendix filed 2-3-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-21-82 (Register 83, No. 6).
5. Amendment filed 12-1-83; effective thirtieth day thereafter. Approved by the Fair Political Practices Commission 10-4-83 (Register 83, No. 49).
6. Amendment filed 2-28-85; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-8-85 (Register 85, No. 9).
7. Amendment of Appendix filed 3-21-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-4-86 (Register 86, No. 12).
8. Amendment of Appendix filed 10-7-92 and submitted to OAL for printing only. Approved by Fair Political Practices Commission 8-7-92 (Register 92, No. 41).
Subchapter 7.6. Rules and Regulations Relating to Audit and Recordkeeping Procedures Pertaining to Legislative Expenditures
Article 1. Legislative Expenditures
Note • History
To prescribe a uniform system of audit and recordkeeping procedures for claims presented to the Controller by legislative committees for payment of properly made expenditures.
NOTE
Authority cited: Section 925.6(b), Government Code. Reference: Section 925.6(b), Government Code.
HISTORY
1. New section filed 3-22-90 as an emergency; operative 3-22-90 (Register 90, No. 14). Submitted to OAL for filing and printing only pursuant to Government Code section 925.6. A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 7-23-90.
§1145.1. Minimum Audit Requirements.
Note • History
(a) All legislative claims submitted to the State Controller's Office will be audited to determine that:
(1) the expenditure is proper and legal;
(2) the claim is charged against the correct appropriation;
(3) invoices and documents are attached and supported;
(4) the claim is certified;
(5) the proper approvals are obtained; and
(6) in the event that payments are under contracts or purchase orders, copies are on file and the payments being made are in accordance with their terms.
(b) If a question develops in the audit of a claim, it will be returned to the submitting legislative body with a request for additional information or justification.
NOTE
Authority cited: Section 925.6(b), Government Code. Reference: Section 925.6(b), Government Code.
HISTORY
1. New section filed 3-22-90 as an emergency; operative 3-22-90 (Register 90, No. 14). Submitted to OAL for filing and printing only pursuant to Government Code section 925.6. A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 7-23-90.
§1145.2. Recordkeeping Requirements.
Note • History
(a) All written contracts should be filed with the State Controller after execution.
(b) All accounting records, contracts and leases, claim schedules with supporting documentation, and purchase orders shall have a retention schedule of five years from end of the fiscal year in which the claim is filed.
(c) Records of claims kept by the Controller pursuant to these regulations shall be open to public inspection as permitted by the California Public Records Act (chapter 3.5 (commencing with section 6250) of division 7 of Title 1).
NOTE
Authority cited: Section 925.6(b), Government Code. Reference: Section 925.6(b), Government Code.
HISTORY
1. New section filed 3-22-90 as an emergency; operative 3-22-90 (Register 90, No. 14). Submitted to OAL for filing and printing only pursuant to Government Code section 925.6. A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 7-23-90.
Subchapter 8. Unclaimed Property Law
Article 1. General
§1150. Purpose and Statutory Authority.
Note • History
The rules and regulations contained in this Subchapter are for the purpose of implementing provisions of the Unclaimed Property Law and are authorized by Code of Civil Procedure Section 1580.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Sections 1500-1582, Code of Civil Procedure.
HISTORY
1. New Subchapter 8 (Sections 1150-1176 not consecutive) filed 9-25-74 as an emergency; effective upon filing (Register 74, No. 39).
2. Repealer of Subchapter 8 (Sections 1150-1176, not consecutive) pursuant to Order for Preliminary Injunction (Slettland and Kerner vs. Flournoy) (Register 7, No. 5).
3. New Subchapter 8 (Sections 1150-1176, not consecutive) filed 8-15-75; effective thirtieth day thereafter (Register 75, No. 33).
History
The term “charges” means any type of charge deducted by a holder (“holder” as defined in subdivision (e) of Code of Civil Procedure Section 1501) from property subject to the Unclaimed Property Law, including, but not limited to, service charges, handling charges, and administrative costs.
HISTORY
1. Change without regulatory effect amending section filed 7-15-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 28).
The term “property” means any property that is reportable to the State Controller under the Unclaimed Property Law, or would be reportable if charges had not been deducted therefrom.
History
The term “inactivity” means non-occurrence of any of the events or acts described in Code of Civil Procedure Section 1513(a)(1)(A)(i-iii) or (a)(2)(A)(i-iii). A period of inactivity cannot be terminated by the unilateral act of the holder.
HISTORY
1. Amendment filed 6-15-76; effective thirtieth day thereafter (Register 76, No. 25).
2. Change without regulatory effect amending section filed 7-15-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 28).
The term “deducted” is synonymous with the terms “excluded” and “withheld.”
Article 1.5. Electronic Funds Transfer of Cash Unclaimed Property
Note • History
For purposes of this article, the following definitions apply:
(a) “Pretest” is a test to validate the holder's routing/transit number and bank account prior to the initiation of the first electronic funds transfer transmittal.
(b) “Reference Number” means the number unique to each holder's remittance that assists the State Controller's Office in matching the electronic funds transfer remittance to the holder's unclaimed property report.
(c) “Proof Of Transfer” means the documentation unique to each remitter that will prove that an electronic funds transfer was made to the State Controller's Office for payment of unclaimed property.
(d) “ACH” means Automated Clearing House Association.
NOTE
Authority cited: Section 1532(a), Code of Civil Procedure. Reference: Section 1532, Code of Civil Procedure.
HISTORY
1. New article 1.5 (sections 1155.100-1155.550) and section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
§1155.150. Participation in the Electronic Funds Transfer.
Note • History
(a) Mandatory Participation
A holder of cash unclaimed property in an amount of twenty thousand dollars ($20,000.00) or more is required to deliver the cash unclaimed property to the State Controller's Office through the electronic funds transfer program.
(b) Voluntary Participation
A holder of cash unclaimed property in an amount less than twenty thousand dollars ($20,000.00) may voluntarily pay cash unclaimed property to the State Controller's Office through the electronic funds transfer program, however, participation in the electronic funds transfer process is not mandatory.
NOTE
Authority cited: Section 1532(a), Code of Civil Procedure. Reference: Section 1532(a), Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
§1155.200. Liability for Civil Penalty of 2 Percent of the Amount of the Payment.
Note • History
Holders remitting $20,000 or more of unclaimed property in any form other than electronic funds transfer shall be assessed a 2% penalty of the amount of the payment. A holder seeking relief from the penalty must file a written “Declaration Under Penalty of Perjury” statement espousing the conditions for failing to use one of the authorized electronic funds transfer processes available to them. The holder can be relieved of the penalties if the failure to remit via electronic funds transfer is due to reasonable cause and circumstances beyond the holder's control, and occurred notwithstanding the exercise of ordinary care and in the absence of willful neglect.
NOTE
Authority cited: Section 1532(a), Code of Civil Procedure. Reference: Section 1532(e), Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
§1155.250. Electronic Funds Transfer Procedure.
Note • History
(a) Before a holder can utilize electronic funds transfer, the holder must register with the State Controller's Office by completing an “Authorization Agreement for Electronic Funds Transfer” (Form SCO EFT-1 (03/98)), and provide the required account information to the State Controller's Office prior to initiating an electronic funds transfer payment.
(b) After a holder completes and returns an “Authorization Agreement For Electronic Funds Transfer,” (Form SCO EFT-1 (03/98)), the holder should contact the State's data collector to conduct a pretest on ACH Debit transactions to validate accounting information.
(c) If a holder wishes to remit unclaimed property funds by Fedwire or International Funds Transfer, an “Authorization To Remit By Fedwire Or International Funds Transfer And Registration Form” (SCO EFT-3 (01/98)), must be completed and returned to the State Controller's Office. The State Controller's Office will review the request to determine if the holder has clearly established their inability to remit their unclaimed property through the Automated Clearing House Association (ACH Debit or ACH Credit). Remittance by Fedwire or International Funds Transfer may not be made without such approval. The holder is responsible for ensuring that remittance by an approved Fedwire or International Funds Transfer is made timely.
(d) ACH DEBIT and ACH CREDIT remitters of unclaimed property must provide the following information when remitting unclaimed property by electronic funds transfer:
• FEIN - This is the Federal Employer Identification Number.
• BRANCH NUMBER - For financial institutions this may be a branch or a section within a branch. If the remitter does not have a branch number, one will be supplied by the State Controller's Office specifically for the purposes of remitting via electronic funds transfer.
• REMITTER NAME.
• REMITTER ADDRESS.
• COMPANY NAME IF DIFFERENT THAN REMITTER NAME.
• UNCLAIMED PROPERTY REMITTER TYPE CODE - This code will identify the type of holder that is remitting unclaimed property.
• REMITTANCE TYPE CODE - This identifies the type of unclaimed property.
• REMITTANCE AMOUNT - This is the amount of the unclaimed property remittance.
(e) In addition to the information specified in (d) above, the following information must be provided in the registration and unclaimed property reporting process for ACH Debit transactions:
• BANK NAME
• BANK ACCOUNT NUMBER
• TRANSIT and ROUTING NUMBER
• TYPE OF ACCOUNT
• METHOD OF COMMUNICATING EFT REMITTANCES
(f) In addition to the information in (d) above, the following information must be provided in the unclaimed property reporting process for ACH Credit transactions:
• REMITTING instructions to your bank or other evidence of remittance that connects the remittance to the annual unclaimed property report.
NOTE
Authority cited: Sections 1532(a) and 1580, Code of Civil Procedure. Reference: Section 1532, Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
Note • History
(a) Banking costs incurred for an ACH credit shall be paid by the holder originating the credit.
(b) Banking costs incurred for remitting by Fedwire or International Funds Transfer are the responsibility of the holder.
NOTE
Authority cited: Sections 1532(a) and 1580, Code of Civil Procedure. Reference: Section 1532(f), Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
Note • History
(a) Payment Contact
The remitter must contact the State's data collector to remit funds by ACH debit. For information on the State's data collector contact the State Controller's Office, Electronic Funds Transfer Unit.
(b) Reference Number
“Reference number” is the number that will assist the holder in verifying that an ACH Debit remittance has been made.
The State's data collection service provides the reference number at the end of each completed ACH debit transaction. This reference number must be included in your annual unclaimed property report by entering it on the holder face sheet (UFS-1 (02/98)) or the remittance form (Form UP 27 (02/98)) that accompany your annual report.
NOTE
Authority cited: Sections 1532(a) and 1580, Code of Civil Procedure. Reference: Section 1532, Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
Note • History
(a) Payment Contact
To remit unclaimed property by ACH Credit, your financial institution must originate your payment by using the Cash Concentration or Disbursement plus Tax Payment Addendum (CCD+TXP) format adopted by the National Automated Clearing House Association and endorsed by the Federation of Tax Administrators.
(b) Account Number
Use the State Controller's bank account number when remitting unclaimed property by ACH credit.
(c) Reference Number
A copy of your proof of transfer must be attached to your annual unclaimed property report.
NOTE
Authority cited: Sections 1532(a) and 1580, Code of Civil Procedure. Reference: Section 1532, Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
§1155.450. Refunds/Reimbursements.
Note • History
Refunds or reimbursements to the holder will not be issued by electronic funds transfer.
NOTE
Authority cited: Sections 1532(a) and 1580, Code of Civil Procedure. Reference: Section 1532, Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
Note • History
When the last day for report, payment, or delivery of escheated property pursuant to Code of Civil Procedure section 1530 or section 1532 falls on a Saturday, Sunday, or state recognized holiday, the last day for report, payment, or delivery will move to the next business day.
NOTE
Authority cited: Sections 1530(d), 1532(a) and 1580, Code of Civil Procedure. Reference: Sections 1530 and 1532, Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
2. Change without regulatory effect amending section and Note filed 7-15-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 28).
Note • History
The holder has the responsibility of proving that an electronic funds transfer has taken place. Acceptable proof is the reference number for ACH Debit remitters or a copy of the transfer documentation for ACH Credit remitters.
NOTE
Authority cited: Sections 1532(a) and 1580, Code of Civil Procedure. Reference: Section 1532, Code of Civil Procedure.
HISTORY
1. New section filed 3-26-98; operative 4-25-98 (Register 98, No. 13).
Article 2. Charges Lawfully Withheld
Charges shall not be deducted from property unless:
(a) Expressly permitted by provisions of the Unclaimed Property Law; and
(b) Authorized by a statute other than the Unclaimed Property Law or by a valid, enforceable contract.
§1161. Substantiation of Deductions.
If charges are deducted from property, a holder shall include or attach as part of the report filed pursuant to Code of Civil Procedure Section 1530:
(a) The citation of the statute or a copy of the form of contract authorizing such charges.
(b) The value or amount of each item of property, before any charges are deducted therefrom.
(c) The amount of charges deducted from each item and the date or dates on which such charges were deducted.
(d) Such other information or documentation as the State Controller may require after review of the report to substantiate the deduction of charges.
§1162. Non-Enforcement of Right.
Charges may not be deducted from property pursuant to a contract or statute if the holder would not have deducted such charges in the event the property had been claimed by the owner prior to being reported or remitted to the State Controller.
Article 3. Reasonable Charges
§1165. Substantiation of Reasonableness.
History
As to any item of property subject to Code of Civil Procedure § 1513(a)(1)(A) or (a)(2)(A) on which charges have been deducted, other than demand deposits, a bank or financial organization shall include the following information as part of the report filed pursuant to Code of Civil Procedure § 1530:
(a) An estimate of the gross amount of income earned from use or investment of the property during the period of inactivity;
(b) A description and itemization of all costs directly incurred for purposes of maintaining and safeguarding the property during the period of inactivity and which would not have been incurred except for such inactivity; and
(c) Such other information or documentation pertaining to the reasonableness of the charges as the Controller may require after review of the report.
HISTORY
1. Change without regulatory effect amending first paragraph filed 7-15-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 28).
Article 4. Interest or Dividends
§1170. Authority for Discontinuance.
History
If payment of interest or dividends on property subject to Code of Civil Procedure Section 1513(a)(1)(A) or (a)(2)(A) is discontinued at any time during the period of inactivity, the holder shall include or attach as part of the report filed pursuant to Code of Civil Procedure Section 1530:
(a) A copy of the form of a valid, enforceable contract which authorized such discontinuance of payment of interest or dividends; or
(b) The citation of the statute which authorized such discontinuance of payment of interest or dividends.
HISTORY
1. Change without regulatory effect amending first paragraph filed 7-15-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 28).
§1171. Non-Enforcement of Right.
A contract or statute shall not be considered as authorizing discontinuance of payment of interest or dividends if such payment would not have been discontinued, or would otherwise have accrued to the benefit of the owner, in the event the property had been claimed by the owner prior to being reported or remitted to the State Controller.
Article 4.5. Reporting and Delivering Property that Escheats Pursuant to Code of Civil Procedure Section 1516(b)
Note • History
(a) Securities Remitted in Certificate Form
(1) The holder of any intangible interest as evidenced by the stock records or membership records of the business association shall deliver a duplicate certificate to the State Controller's Office, Unclaimed Property Division. The duplicate certificate shall be registered in the name of the: State Controller, State of California. The duplicate certificate replaces the original certificate issued to the original shareholder or member.
(2) For those certificates that can be transferred into the name of the State Controller, State of California, the delivery date is the date the certificate is registered in the name of the State Controller, State of California.
(3) Unless as defined in (b) below, certificates are not delivered unless registered in the name of the State Controller. The delivery date is the date the certificate is registered in the name of the State Controller, State of California.
(b) Securities Not Remitted in Certificate Form and Foreign Securities
(1) Where the holder remits securities in uncertificated form, the delivery date is the date the asset is credited to the account number of the State Controller, State of California maintained by a broker contracting with the State Controller's Office.
(2) The holder must obtain written permission from the State Controller's Office, Unclaimed Property Division, prior to remitting with the method in §1172.20(b)(1), above.
(c) Open-end Mutual Funds
For open-end mutual fund securities, the delivery date is the date the asset is credited to the account number of the State Controller, State of California maintained by a broker contracting with the State Controller's Office.
(d) Certificates That Cannot Be Remitted In The Name Of the State Controller, State of California
For those securities where title cannot be transferred into the name of the State Controller, State of California, but a duplicate certificate is obtained, the delivery date is the postmark date the securities were mailed to the State Controller's Office.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Sections 1516 and 1530, Code of Civil Procedure.
HISTORY
1. New article 4.5 (sections 1172.20-1172.80) and section filed 12-31-97; operative 1-30-98 (Register 98, No. 1).
2. Change without regulatory effect amending subsections (a)-(a)(1), (b)-(b)(2) and (c) filed 7-15-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 28).
§1172.40. Interest Assessment.
Note • History
Pursuant to Code of Civil Procedure section 1577, the State Controller's Office will assess interest against a person who fails to report or pay or deliver, within the time prescribed by the Unclaimed Property Laws, Code of Civil Procedure, Section 1500 et. seq., property that escheats to the state pursuant to Code of Civil Procedure section 1516(b).
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Sections 1516 and 1577, Code of Civil Procedure.
HISTORY
1. New section filed 12-31-97; operative 1-30-98 (Register 98, No. 1).
§1172.60. Interest Assessment Date.
Note • History
Except for life insurance companies, interest will be assessed from November 1 of the reporting year in which the property was due to the date of delivery of the property. For life insurance companies, interest will be assessed from May 1 of the reporting year in which the property was due to the date of delivery of the property.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Sections 1532 and 1577, Code of Civil Procedure.
HISTORY
1. New section filed 12-31-97; operative 1-30-98 (Register 98, No. 1).
Note • History
(a) Securities listed on an established stock exchange will be valued, for the purpose of calculating interest, at the opening bid quote on the interest assessment date of the reporting year the property was due.
(b) Over-the-counter securities will be valued by the latest published quotation within two weeks preceding interest assessment date. If no quotation precedes the interest assessment date, the closest quotation subsequent to that date, but again within two weeks of that date, will be used. If there is no published quotation within that time frame, the stock will be valued as a privately held stock.
(c) Privately-Held securities will be valued using the Internal Revenue Service Revenue Ruling 59-60 (1959), hereby incorporated by reference.
(d) There will be no assessment for securities for which the State Controller's Office is unable to obtain a value or estimated value.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Section 1577, Code of Civil Procedure.
HISTORY
1. New section filed 12-31-97; operative 1-30-98 (Register 98, No. 1).
Article 4.7. Reasonable Cause
§1172.90. Reasonable Cause -- Defined.
Note • History
(a) If any person fails to report or pay or deliver unclaimed property within the time prescribed by the Unclaimed Property Law (Civil Code of Procedure Section 1500 et seq.), the assessment of interest is mandatory unless there is a showing of “reasonable cause” for the delay.
(b) “Reasonable cause” means the exercise of ordinary business care and prudence. The following specific causes for failure to report or pay or deliver unclaimed property within the time prescribed by law will be accepted as reasonable.
(1) Where in the absence of willful neglect, the failure was due to circumstances beyond the holder's control.
(2) Where the delay or failure to file was due to erroneous information given to the holder of unclaimed property by an employee of the Controller's Office.
(c) Generally, the failure to timely report or pay or deliver unclaimed property is not excused by reliance on an agent and such reliance is not reasonable cause for late reporting, payment or delivery.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Section 1577, Code of Civil Procedure.
HISTORY
1. New article 4.7 (sections 1172.90-1172.92) and section filed 7-28-2004; operative 8-27-2004 (Register 2004, No. 31).
Note • History
(a) The holder of unclaimed property has the burden of proving reasonable cause.
(b) The holder of unclaimed property shall set forth any claim of reasonable cause for a delinquent reporting, payment or delivery in an affidavit or declaration under penalty of perjury.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Section 1577, Code of Civil Procedure.
HISTORY
1. New section filed 7-28-2004; operative 8-27-2004 (Register 2004, No. 31).
Article 5. Miscellaneous
§1173. Report of No Reportable Property.
Note • History
On written request, a holder who does not have property which is reportable under the law shall report that fact.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Sections 1500-1582, Code of Civil Procedure.
HISTORY
1. New Section filed 6-15-76; effective thirtieth day thereafter (Register 76, No. 25).
§1174. Information Contained in Report.
Note • History
In addition to the information required by Section 1530 of the Code of Civil Procedure and by other rules of this Subchapter, the report filed pursuant to Section 1530 shall contain the following information on a form prescribed by the State Controller:
(a) The type of organization filing the report (corporation, partnership, etc.).
(b) If the report is filed by a corporation:
(1) the date of incorporation;
(2) the state of incorporation; and
(3) the state in which the corporation has its principal place of business.
(c) The date that the organization filing the report commenced operations.
(d) If the report is prepared by an agent of the holder (for example, a transfer agent), the name and address of the agent.
(e) The name and title of the person who actually prepared, or was directly responsible for preparing, the report.
(f) If the social security number or taxpayer identification number of the owner is contained in the records of the holder, the holder shall list such social security or taxpayer identification number along with the items of property reported. Upon written application of a holder to the State Controller, and for good cause shown, the State Controller, in writing, may relieve the holder of the obligation to report such social security or taxpayer identification numbers.
NOTE
Authority cited: Sections 1530 (b) (6) and 1580, Code of Civil Procedure. Reference: Section 1500, Code of Civil Procedure.
HISTORY
1. New subsection (f) filed 12-22-87; operative 1-21-88 (Register 88, No. 2).
Any person or holder shall retain all records pertaining to property for a period of seven (7) years after such property is reported, or would have been reported except for the deduction of charges, to the State Controller. Such records shall contain the information required by Section 1530 of the Code of Civil Procedure and this Subchapter. The State Controller may, in writing, consent to the destruction of any such records prior to expiration of the above period.
§1176. States Without Unclaimed Property Laws.
Note • History
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Section 1500, Code of Civil Procedure.
HISTORY
1. Repealer filed 12-22-87; operative 1-21-88 (Register 88, No.2).
§1180. Inapplicability of Articles.
Note • History
Articles 2, 3 and 4 of Subchapter 8, do not apply to property which is first required to be reported after January 1, 1976.
NOTE
Authority cited: Section 1580, Code of Civil Procedure. Reference: Sections 1500-1582, Code of Civil Procedure.
HISTORY
1. New section filed 6-15-76; effective thirtieth day thereafter (Register 76, No. 25).
Subchapter 9. Rules and Regulations Relating to Trial Court Recordkeeping, Accounting and Reporting
Article 1. Definitions
Note • History
Court operations: The term “court operations” is defined in Government Code section 77003 and the California Rule of Court 810 as adopted by the Judicial Council of California. For purposes of these regulations, “court operations” will have the same definition.
Appropriations: A legal authorization granted by a legislative body to make expenditures and to incur obligations for specific purposes.
For purposes of the Brown-Presley Trial Court Funding Act, appropriations represent year-end adjusted appropriations which are supported by actual expenditures and encumbrances.
Encumbrances: Commitments related to unperformed (executory) contracts for goods and services. Used in budgeting, encumbrances are not expenditures or liabilities according to Generally Accepted Accounting Principles, but represent the estimated amount of expenditures ultimately to result if unperformed contracts in process are completed.
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
2. Editorial correction of printing error in subchapter heading and second paragraph (Register 92, No. 10).
Article 2. Accounting
Note • History
The use of a Special Revenue Fund to account for the receipt of Trial Court Block Grants and the expenditures relating to court operations is recommended by the State Controller's Office. Counties may utilize alternative procedures as outlined in Section 8.39 of the “Accounting Standards and Procedures for Counties Manual” published by the Office of State Controller. Option counties shall establish a new account within the Intergovernmental Revenue classification entitled “State-Trial Courts” with four sub-accounts entitled “Block Grant,” “Salary Grant,” “Super Block Grant,” and “Trial Court Improvement Fund.”
Trial Court Improvement Fund expenditures must be clearly identified in order to satisfy grant requirements prescribed by the Administrative Office of the Courts.
Interest earned from Trial Court Improvement Fund Grants made pursuant to Government Code Section 77207 shall be accounted for under guidelines established by the Administrative Office of the Courts. Interest earned from all other trial court funding grants made pursuant to Government Code Sections 68206 and 77200 must be calculated and allocated only if the total of such grants plus interest will exceed the total cost of court operations for a fiscal year. In such case, the excess must be expended on court operations in the subsequent year. The calculation of interest shall be consistent with the method used in allocating interest to other county funds.
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
2. Amendment of last paragraph filed 7-17-91; operative 8-16-91. Submitted to OAL for printing only and exempt from OAL review per Government Code section 77205 (Register 92, No. 10).
Article 3. Chart of Accounts
The following chart of accounts is recommended for use by option counties in reporting court revenues and expenditures to the Controller. This new chart of accounts correlates directly with the report formats prescribed by the Controller. It contains the same object accounts presented in Chapters 6 and 7 of the Controller's “Accounting Standards and Procedures for Counties Manual” and allowable “court operation” expenditures listed in Judicial Council's California Rule of Court 810. Option counties may continue to use their existing chart of accounts to record activities relating to the Trial Court Funding Program, however, it must be expanded to include the revenue accounts and sub-accounts specified in Article 2, Section 1180.2.
Note • History
INTERGOVERNMENTAL REVENUES
State-Trial Courts:
Block grant
Salary grant
Super block grant
Trial court improvement fund
State-Other:
Court reimbursements
Other
Revenue from Use of Property and Money:
Interest
Other Financing Sources:
Fees and Fines
Sale of fixed assets
Operating transfers-in
Other
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
2. Amendment of Article 3. Chart of Accounts filed 7-17-91; operative 8-16-91. Submitted to OAL for printing only and exempt from OAL review per Government Code section 77205 (Register 92, No. 10).
§1180.4. Block Grant Expenditures.
Note • History
SALARIES AND EMPLOYEE BENEFITS
Salaries and Wages
Retirement
Employees Group Insurance
Worker's Compensation Insurance
Other Benefits
SERVICES AND SUPPLIES
Communications
Jury and Witness Expense:
Court-appointed expert witness fees
Jury expenses
Maintenance-Equipment:
Maintenance of office equipment
Maintenance-Facilities:
*Minor remodeling costs of courthouse and supporting facilities
Security and maintenance of court facilities including janitorial service
Memberships:
Memberships and subscriptions
Statutory multi-district judges' association expense
Office Expense:
Office supplies
Postage
Printing
Professional dues
Other:
Collective bargaining costs under the Meyers-Milias-Brown Act
Expenses of assigned judges
Micrographics
Research, planning, and program coordination expenses
Small claims advisor program costs
Professional and Specialized Services:
All verbatim reporting services including contract reporters and courtroom monitors, transcription services and transcripts ordered for use of the court
Collections
Contract service operations
Court-appointed counsel (juvenile dependency)
Court information services
Court legal expenses
Court ordered forensic evaluations
Data processing operations, computer programs and systems
Family court service program
Interpreters and translators
Other professional services
Publications and Legal Notices:
Books, publications, and training materials
Publications and legal notices, by the court
Rents and Leases-Equipment:
Equipment and furnishing-leased or rented
Special Departmental Expense:
Center for judicial education and research
National judicial college
National center for state courts
Judicial and non-judicial training
Other
Travel and Transportation:
Vehicle use
EQUIPMENT
Equipment and Furnishing-Purchased
INDIRECT COSTS
Accounting:
Auditor-Controller charges
Disbursements
Payroll
Other accounting duties related to court operations
Administrative:
Budget preparation/execution
Grant coordination
Auxiliary Services:
Equipment use
*Minor remodeling costs of courthouse and supporting facilities
Purchasing
Record retention and destruction
Security
Stores
Treasury service
Utilities
Others
Collections
Communications:
Messenger service
Data Processing
Financial:
Financial hearing officer
Insurance:
Facility insurance
Liability and bonding insurance
Maintenance:
Maintenance of court facilities, including janitorial services
Parking lot maintenance
Personnel Services:
Personnel related costs
Recruiting
Training
ADDITIONAL ALLOWABLE COSTS FOR COUNTIES HAVING POPULATION OF 350,000 OR LESS AND WHOSE BLOCK GRANT EXCEEDS THE ADJUSTED 1987-88 FUNDING LEVEL FOR TRIAL COURTS
**Probation Department -- Costs attributable to probation and pretrial release services:
Salaries and Employee Benefits
Services and Supplies
Indirect Costs
**Indigent Criminal Defense -- Costs attributable from public defender and others:
Salaries and Employees Benefits
Services and Supplies
Indirect Costs
**Pretrial Release Services -- Costs attributable from Sheriff Department and others:
Salaries and Employee Benefits
Services and Supplies
Indirect Costs
*Up to the amount established by the county auditor-controller, but not exceeding $50,000.
**Use the same object and sub-object accounts listed under “block grant” expenditures.”
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
2. Amendment filed 7-17-91; operative 8-16-91. Submitted to OAL for printing only and exempt from OAL review per Government Code section 77205 (Register 92, No. 10).
3. Editorial correction of printing errors (Register 92, No. 10).
4. Editorial correction of History Note 2 (Register 95, No. 6).
§1180.5. Trial Court Improvement Fund Expenditures (For Building Construction Only).
Note • History
**SALARIES AND EMPLOYEE BENEFITS
**SERVICES AND SUPPLIES
OTHER CHARGES
FIXED ASSETS
OTHER FINANCING USES
INDIRECT COSTS
Accounting
Administrative:
Bid/Estimate
Auxiliary Services:
Advertising
Equipment Use
Purchasing/Procurement
Security
Utilities
Communications
Data Processing
Financial
Insurance:
Facility insurance
Liability and bonding insurance
Maintenance-Equipment
Other Project Expenses:
Mobilization, Assembly, Move-Out Costs
Spoilage, loss, and theft
Trailer
Warehouse costs
Yarding and Hauling
Other Costs
Personnel Services
Professional and Specialized Services:
Legal Costs
Labor -- Salaries and Benefits
Management Expenses
**Use the same object and sub-object accounts listed under “block grant expenditures.”
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
2. Editorial correction of printing errors (Register 92, No. 10).
Article 4. Maintenance of Effort
Government Code section 77204 requires option counties to maintain levels of effort in support (maintenance of effort) of court operations. Beginning with the 1989-90 fiscal year, for maintenance of effort purposes, the first full fiscal year of county participation in the Trial Court Funding Program will be considered the base year. Appropriations for the base year will be the basis for future appropriations for court operations. Each county must also provide at least the same proportionate level of indirect services to the court as was provided in the 1986-87 fiscal year. Option counties are required to maintain a maintenance of effort level on a county-wide basis reflecting total appropriate for the entire trial court system.
For maintenance of effort purposes, option counties with a population of 350,000 or less will include appropriations for probation services, indigent criminal defense and pretrial release services to the extent the block grant for a given fiscal year exceeds the 1987-88 funding level for the trial courts in that county, as adjusted by the current consumer price index.
§1180.6. Base Year Requirements.
Note • History
(a) Beginning with the 1989-90 fiscal year, an option county shall appropriate and authorize for expenditure each fiscal year an amount not less than the amount appropriated for court operations in the first full fiscal year in which a county became an option county, as adjusted by the percentage provided in Government Code section 77201.
(b) The county shall provide the trial courts with at least the same proportionate level of indirect services as was provided in the 1986-87 fiscal year. The OMB Circular A-87 (County Cost Plan) may be utilized in determining the indirect services level for the 1986-87 fiscal year.
(c) The county shall fulfill its shared financial and other obligation pursuant to Government Code section 68073.
(d) The county shall provide for judicial arbitration and court mediation and conciliation services at a level at least proportionate to the number of cases filed subject to such programs in the 1986-87 fiscal year.
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
Article 5. Reporting
Note • History
Each option county shall submit to the Controller for each full fiscal year that the county participates in the Trial Court Funding Program, a report of all revenues including fees, fines and forfeitures, and all expenditures in the form and manner prescribed by the State Controller. The report prepared by the appropriate county department/officer shall be certified by the county auditor of the option county. This report must be submitted to the Controller on or before the October 1 following the fiscal year being reported.
This annual report shall contain detailed data for individual court districts and may include supplementary schedules as deemed necessary by the Controller. This detailed data will be combined to reflect total revenues and expenditures for the county trial court system.
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
Note • History
A “super block grant” may be paid to option counties based upon the number of new judgeships, in excess of 10, a county is authorized by chapter 1211 of the statutes of 1987. In addition, option counties receiving new judgeships authorized on or after January 1, 1990 are also eligible to receive a super block grant. The super block grant is based upon year-end adjusted appropriate for court operations and should result in a grant payment greater than the standard annual grant of $212,000. The eligible county will receive the super block grant progressively reduced over four years as provided under Government Code section 77200.
Option counties receiving judgeships in excess of 10 new judgeships authorized by chapter 1211 of the statues of 1987, shall provide the Controller with a report of the counties' average quarterly appropriation for court operations for the 1987-88 fiscal year. This report shall be used by the Controller in determining the “super block grant” for affected judgeships.
For each new judgeship authorized by statutes taking effect after January 1, 1990, option counties shall submit a report of average quarterly appropriations for the fiscal year prior to the effective date of the statute authorizing the new judgeships. The Controller shall use this report to determine the “superblock grant” for the newly authorized judgeships.
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
§1180.9. No and Low Property Tax Cities.
Note • History
Some option counties participating in the Trial Court Funding Program will be required to shift a portion of the county's share of property taxes to certain qualifying cities. Section 97.35 of the Revenue and Taxation Code provides that most qualifying cities will receive 7% of the property tax revenues generated within their boundaries, phased in over a 7 year period. The shift begins in the 1989-90 fiscal year. Option counties will be required to submit to the State Controller a report of “eligible cities” as defined under Revenue and Taxation Code section 11005(b)(1)(B)(iv).
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
2. Editorial correction of printing error (Register 92, No. 10).
Article 6. Recordkeeping
Note • History
All accounting records, source documents and resolutions relating to the Brown-Presley Trial Court Funding Act are required to be maintained for audit purposes by the option county for at least three fiscal years following the first fiscal year of participation. This section shall not supersede other statutory provisions requiring a longer retention period. Agreements between a county and a city for the issuing or processing of citations as allowed under Penal Code section 1463(a)(3) are required to be maintained by the county for at least three years after the expiration of any such agreement and a copy must be filed with the State Controller.
NOTE
Authority cited: Section 77205, Government Code. Reference: Section 77205, Government Code.
HISTORY
1. New section filed 3-19-90 pursuant to Government Code section 77205(d); operative 4-18-90 (Register 90, No. 15).
Chapter 2.5. Commission on State Mandates
Article 1. General
§1181. Delegation of Certain Functions; Executive Director Appeals.
Note • History
(a) Whenever it is stated in these rules that the “commission” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the Commission on State Mandates specifically has reserved the same for its own exclusive action.
(b) Whenever it is stated the “executive director” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, or it is not expressly stated that the commission itself shall so act, the executive director of the commission has the authority to act thereon.
(c) Any party in interest may appeal to the commission for review of the actions and decisions of the executive director.
(1) The appellant shall submit the appeal in writing within ten (10) days of first being served written notice of the executive director's action or decision.
(2) The appellant shall file and serve the appeal in accordance with section 1181.2 of these regulations.
(3) The appeal shall explain the basis for the appeal, state the action being requested of the commission, and include all facts and materials the applicant believes are relevant to the appeal.
(4) The executive director shall schedule the appeal for hearing and vote by the commission as soon as practicable following receipt of the appeal.
(5) Other parties may submit comments to the commission on the appeal.
(6) The commission shall determine whether to uphold the executive director's decision by a majority vote of the members present. The decision shall be final and not subject to reconsideration.
(7) The executive director shall notify the appellant in writing within ten (10) days of the commission's decision.
(d) Nothing herein prohibits the executive director from delegating to his/her subordinates as provided in Government Code section 18572.
NOTE
Authority cited: Sections 17530 and 17531, Government Code. Reference: Section 17530, Government Code.
HISTORY
1. New Chapter 2.5 (Articles 1-4 and 6-8, Sections 1181-1189.5, not consecutive) filed 7-8-85; effective thirtieth day thereafter. Submitted to OAL for filing and printing only pursuant to Government Code Section 17517(g) (Register 85, No. 28). For history of former Chapter 2.5, see Registers 80, No. 17 and 77, No. 2).
2. Amendment of subsection (d) filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
3. Amendment of section heading and new subsections (c)(1)-(7) filed 11-16-2005; operative 12-16-2005. Submitted to OAL for printing only (Register 2005, No. 46).
4. Amendment of subsection (c)(2) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Note • History
Unless otherwise indicated, the definitions in this chapter and those found in Government Code sections 17510 through 17524 apply to Articles 1, 2, 3, 4.5, 5, 6, 7, 8, and 8.5 of this chapter:
(a) “Affected state agency” means a state department or agency that is responsible, in whole or in part, for implementation, enforcement, or administration of any statute(s) or executive order(s) that is the subject of a claim.
(b) “Amendment” of a test claim means the addition of new allegations based on new statutes or executive orders to an existing test claim. The addition or substitution of parties and supporting declarations based on the original statutes or executive orders alleged in an existing test claim is not an “amendment.”
(c) “Claim” means test claim or incorrect reduction claim.
(d) “Claimant” means the local agency or school district filing a test claim or incorrect reduction claim.
(e) “Commission staff” means the executive director, legal counsel, or other commission employee authorized by the commission or the executive director to represent the commission on a specific claim or request, or to receive filings at the commission office.
(f) “Completed” means that all requirements for filing a claim, proposed parameters and guidelines, request to amend parameters and guidelines, request for reconsideration, or request to review claiming instructions have been satisfied by the claimant or requestor.
(g) “Filing date” means the date of delivery to the commission's office during normal business hours. For purposes of meeting the filing deadlines required by statute, the filing is timely if:
(1) the filing was submitted via the e-filing link on the commission's web site or via facsimile during normal business hours no later than the time for its filing has expired, or
(2) the filing was mailed by first class mail no later than the expiration of the time for filing, or
(3) the filing was mailed by certified or express mail or a common carrier promising overnight delivery no later than the expiration of the time for filing, or
(4) the filing was hand-delivered to commission staff during normal business hours no later than the expiration of the time for filing.
(h) “Good cause” may include, but is not limited to, the following factors: (1) the number and complexity of the issues raised; (2) a party is new to the case, or other counsel is needed; (3) the individual responsible for preparing the document has other time-limited commitments during the affected period; (4) the individual responsible for appearing at the hearing has other time-limited commitments; (5) illness of a party; (6) a personal emergency; (7) a planned vacation that cannot reasonably be rearranged; (8) a pending public records request; and (9) any other factor, which in the context of a particular claim constitutes good cause. Good cause may be established by a specific showing of other obligations involving deadlines that as a practical matter preclude filing the document by the due date without impairing quality.
(i) “Incorrect reduction claim” means a claim alleging that the Office of State Controller incorrectly reduced the reimbursement claim of a local agency or school district.
(j) “Informational proceeding” means any hearing designed to gather and assess information to assist the commission in formulating policies, informing the public of commission actions, or obtaining public comment and opinion.
(k) “Interested party” means a local agency or school district; an organization or association representing local agencies or school districts; or a person authorized to represent a local agency or school district, having an interest in a specific claim or request other than the claimant.
(l) “Interested person” means any individual, local agency, school district, state agency, corporation, partnership, association, or other type of entity, having an interest in the activities of the commission.
(m) “Party” means the test claimant, the Department of Finance, Office of State Controller, or affected state agency.
(n) “Rulemaking proceeding” means any hearing designed to adopt, amend, or repeal any rule, regulation, or standard of general application that implements, interprets, or makes specific any provision of Title 2, Division 4, Part 7, beginning with Government Code section 17500 or any other statute enforced or administered by the commission.
(o) “Statewide cost estimate” means the approximate sum of money that local agencies or school districts may have incurred to implement a state-mandated program or any increased level of service of an existing mandated program. A statewide cost estimate submitted by a test claimant shall be an estimate of the first full fiscal year of actual or estimated costs based on the statutes and executive orders alleged in a test claim, except as provided in Government Code section 17557.1, subdivision (a). A statewide cost estimate adopted by the commission shall be an estimate based on the commission's determination of a test claim for the initial period of reimbursement to be reported to the Legislature.
(p) “Statewide estimate of costs” is based on a reasonable reimbursement methodology proposed by a test claimant and the Department of Finance, adopted by the commission, and reported to the Legislature pursuant to Government Code section 17557.2.
(q) “Subsequent change in law” means a change in law that requires a finding that an incurred cost is a cost mandated by the state, as defined by Government Code section 17514, or is not a cost mandated by the state pursuant to Government Code section 17556, or a change in mandates law. Amendments to Article XIII B, section 6 of the California Constitution that were approved by the voters on November 2, 2004 and changes in the statutes or executive orders that impose new state-mandated activities and require a finding pursuant to Government Code section 17551, subdivision (a) are not a “subsequent change in law.”
(r) “Teleconference” means a conference of individuals in different locations, connected by electronic means, through audio, video, or both.
(s) “Written material” shall include, but is not limited to, requests and correspondence on substantive and procedural matters, e.g., informal conferences, opposition, prehearing conferences, postponements of hearings, extensions of due dates for submission of opposition, recommendations, comments, reasonable reimbursement methodologies, responses, statewide estimates of costs, supplemental declarations, supporting documentation, stipulations, applications for subpoenas and subpoenas duces tecum, witness lists, etc. Test claims, proposed parameters and guidelines, incorrect reduction claims, requests to review claiming instructions, State Mandates Apportionment System requests, or amendments thereto, are not considered written material.
NOTE
Authority cited: Sections 17527(g), 17553(a) and 17570(d), Government Code. Reference: Sections 11123, 17516-17521, 17527(c), 17529, 17530, 17531, 17532, 17551, 17553, 17557, 17557.1, 17557.2, 17570, 17571, 17600, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
4. New subsection (o) and subsection relettering filed 2-23-2004; operative 2-23-2004. Submitted to OAL for printing only (Register 2004, No. 9).
5. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
6. Amendment of subsection (o), new subsection (p), subsection relettering and amendment of newly designated subsection (r) and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
7. Amendment of subsections (b) and (g)(1)-(2), new subsections (g)(3)-(4), amendment of subsection (r) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
8. New subsection (q) and amendment of Note filed 5-4-2011; operative 6-3-2011. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2011, No. 18).
§1181.2. Filing and Service of Written Materials.
Note • History
(a) For each completed claim or other filing, commission staff shall promulgate and make available a mailing list of the names, addresses, phone numbers, facsimile phone numbers, and e-mail addresses of the parties, interested parties, and interested persons who have requested inclusion on the mailing list for a specific claim. This mailing list shall be provided by commission staff to the parties and interested parties to the claim and to any person who requests a copy.
(b) Unless otherwise provided in this chapter, when a party or interested party files with commission staff any written material concerning a claim, it may do so electronically or by hard copy as described in subdivision (c) of this section and shall simultaneously serve a copy of the written material on the other parties, interested parties, and interested persons identified on the mailing list provided by commission staff. A proof of service shall be included with any written material filed with commission staff. Proof of personal service requires a declaration of the messenger of the time and place that that the document was served.
(c) Filing and service of any written material may be effected by delivering or simultaneously mailing the document by any of the following methods:
(1) By Electronic Mail (e-mail). Submit the original document to commission staff by saving the signed original in a PDF file and submitting it via the commission's e-file system, available on the commission's web site. The filing party is responsible for maintaining the paper document with original signature(s) for the duration of the test claim process, including any period of appeal. Following successful transmission or notification, commission staff shall notify all parties and interested parties that written material may be viewed on the commission's website. Notwithstanding any other provision in these regulations, if a document is e-filed, no additional copies shall be submitted to commission staff. The following shall apply to e-filing:
A. By providing an electronic mail (e-mail) address for the mailing list for a matter, a person consents to e-mail service of documents for that matter.
B. Documents e-filed with the commission must be in readable, downloadable, printable, and searchable formats. The subject line of the e-mail message must include in the following order (1) the case number for the matter, (2) a brief title for the matter, and (3) a brief identification of the document to be served, including the name of the serving person. The text of the e-mail message must identify whether the e-mail message is one of multiple e-mail messages transmitting the documents to be served and, if so, how many e-mails, and the name, telephone number, e-mail address, and facsimile transmission number of the person to whom problems with receipt of the document to be served should be directed.
C. An automated notice that the document was successfully sent is immediately available to the person tendering the document to the commission's e-filing system. Commission staff shall reply by e-mail confirming actual receipt of the document by the commission within two business days of receipt. In the absence of a confirmation e-mail from commission staff, it is the responsibility of the person tendering the document to obtain confirmation that the commission actually received it. E-mail service is complete upon successful transmission to the commission.
D. By using e-filing, the filing person agrees, in the event of failure of e-filing service, to re-file the document, no later than the business day after the business day on which notice of the failure of e-mail service is received by the filing party, by any means authorized by these rules. “Failure of e-filing” occurs when the filing person receives notification, in any manner, of non-receipt of an e-mail message, or of the receiving person's inability to open or download an attached document, or of any other inability of commission staff to access the document to be served. The filing person and commission staff may agree to any form for re-filing allowed by these rules.
E. Documents e-filed with the commission need not be otherwise served on persons that have provided an e-mail address for the mailing list. Nothing in this regulation excuses persons from serving hard copies of documents on persons who appear on the mailing list and have not provided an e-mail address for the mailing list.
F. The commission may serve any document by e-mail service, and/or by making it available at a particular URL, unless doing so would be contrary to state or federal law.
G. The Executive Director may issue any order consistent with these rules to govern e-mail service for a particular matter.
(2) By first class mail. Submit the original to commission staff and a copy to everyone whose name is on the commission's mailing list by first class mail. Service by mail is complete when the sealed envelope is deposited with the United States Postal Service with the postage fully prepaid mailed by first class mail.
(3) By overnight delivery. Submit the original to commission staff and a copy to everyone whose name is on the commission's mailing list by overnight delivery. Service by overnight delivery is complete when the documents are enclosed in an envelope or package provided by an overnight delivery carrier and the envelope or package is deposited for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
(4) By personal service. Hand the original to commission staff and a copy to each person whose name is on the commission's mailing list or leave it in a place where the addressee may reasonably be expected to obtain actual and timely receipt. Service by personal service is complete when the document is placed in an envelope and personally served or provided to a professional messenger service for service. (A declaration by the messenger must accompany the Proof of Service required pursuant to subdivision (b) of this regulation.)
(5) By facsimile. Submit the original to commission staff and a copy to everyone whose name is on the commission's mailing list by facsimile. Service by facsimile is complete upon the printing of verification of successful transmission. By using facsimile service, the serving person agrees, in the event of failure of facsimile transmission for any reason, to re-serve the document, no later than the business day after the business day on which notice of the failure of facsimile service is received by the serving party, by any means authorized by these rules, provided that facsimile service may be used for re-service only if (1) the receiving person consents to the use of facsimile service, or (2) the serving person determines that the cause of the failure of facsimile service has been rectified. “Failure of facsimile service” occurs when the serving person receives notification, in any manner, of non-receipt of a facsimile, or of the receiving person's inability to read the facsimiled document, or of any other inability of the receiving person to access the document to be served. The serving person and receiving person may agree to any form for re-service allowed by these rules.
The executive director may require more expeditious service or a particular form of service in appropriate circumstances.
(d) For the following new filings received by the commission, the executive director shall issue sequential case numbers, by fiscal year, as follows:
(1) Test Claim (TC)
(2) Incorrect Reduction Claim (I)
(3) Request to Amend Parameters and Guidelines (PGA)
(4) Joint Request for Reasonable Reimbursement Methodology (RRM)
(5) Request for Review of Claiming Instructions (CI)
(6) Request for Removal or Inclusion in State Mandates Apportionment System (SMAS)
(7) Joint Request for Legislatively Determined Mandate (LDM)
(8) Request to Adopt a New Test Claim Decision to Supersede an Existing Test Claim Decision (NTCD).
NOTE
Authority cited: Sections 17527(g), 17553(a), 17570(d) and 11104.5, Government Code. Reference: Sections 17530, 17551, 17553, 17554, 17557, 17557.1, 17557.2, 17570, 17571, 17573(b), 17573(g), 17574(c) and 17615.1, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (a) and (b) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of subsection (d) filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
4. Amendment of section heading and section filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
5. New subsections (e)-(e)7. and amendment of Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
6. Amendment of section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
7. Amendment of subsection (c)(1), new subsection (d)(8) and amendment of Note filed 5-4-2011; operative 6-3-2011. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2011, No. 18).
§1181.3. Submissions of Written Materials in Other Media. [Repealed]
Note • History
NOTE
Authority cited: Sections 17527(g) and 17553, Government Code. Reference: Sections 17530, 17553, 17554, 17557, 17557.1 and 17557.2, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
3. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of section and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
5. Repealer filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1181.4. Designees and Officers.
Note • History
(a) If a commission member, as defined by Government Code section 17525, with statutory authority to designate a deputy to represent him or her makes such a designation, that designee may continue to serve on the commission until the designation is revoked by the current commission member.
(b) Commission members as defined by Government Code section 17525 shall be officers. Duties of Officers:
(1) Duties of Chairperson. The chairperson shall preside over all meetings of the commission at which he or she is present. He or she has all the rights and responsibilities of the other members. He or she has the right to introduce motions or proposals and to speak and vote on them while he or she is presiding. The chairperson has the power to appoint one or more members of the commission as a subcommittee to investigate and report to the commission on any matter within the scope of the purposes of the commission or to form advisory groups to assist the commission or its subcommittees in fulfilling their purposes.
(2) Duties of Vice Chairperson. The vice chairperson shall preside over all meetings of the commission at which the chairperson is not present. He or she has all the rights and responsibilities of the other members. He or she has the right to introduce motions or proposals and to speak and vote on them while he or she is presiding.
(c) Time of Election. The commission shall elect a chairperson and vice chairperson at the January meeting of each year. In the calendar year following the statewide election of constitutional officers, the commission may postpone its election. The commission may authorize the executive director to conduct the election portion of its meeting.
(d) Vacancy. If an office (chairperson or vice-chairperson) held by a public member or local elected official becomes vacant, an election shall be conducted as soon as practicable to fill the vacant office.
(e) When Election Takes Effect. An election shall take effect immediately.
NOTE
Authority cited: Sections 17500 and 17527(g), Government Code. Reference: Sections 7.5, 7.6, 7.9, 17525, 17528 and 17530, Government Code.
HISTORY
1. New section filed 11-13-98; operative 11-13-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 46).
2. Amendment of section heading, repealer and new subsection (a), amendment of subsections (b) and (d) and amendment of Note filed 8-23-2006; operative 8-23-2006. Exempt for OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2006, No. 34).
3. Amendment of subsection (a) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Article 2. Commission Meetings
§1182. Quorum and Voting Requirements.
Note • History
(a) A majority of the existing membership of the commission shall constitute a quorum.
(b) All actions of the commission, with the exception of Requests to Reconsider and to Amend a Prior Final Decision as provided in sections 1188.4 and 1188.5, shall require the affirmative vote of at least a majority of the existing membership of the commission.
(c) In the case of a tie vote, the commission may:
(1) Re-hear the claim when the membership of the commission changes or when an abstaining member completes review of the administrative record;
(2) Assign the claim to a hearing panel or to a hearing officer, pursuant to section 1187.2 et seq., for hearing and preparation of a proposed statement of decision for consideration by the commission. If the commission assigns the claim to a hearing panel, the selection of the hearing panel shall be by lot, or other means of random and impartial selection; or
(3) Direct staff to prepare a proposed statement of decision based on the final staff analysis and evidentiary hearing for consideration by the commission.
(d) A majority of the votes cast by those members on a hearing panel assigned pursuant to sections 1187.2 and 1186.62 is required for the approval of a preliminary decision on claims and applications for a finding of significant financial distress.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 17525, 17527(c) and 17532, Government Code; and Section 17000.6, Welfare and Institutions Code.
HISTORY
1. Amendment filed 4-29-87; operative 5-29-87 (Register 87, No. 18).
2. Amendment of section heading, repealer and new section filed, and amendment of Note filed 2-18-97; operative 2-18-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 97, No. 8).
3. Amendment of subsection (b) and new subsections (c)-(d) filed 1-27-2000; operative 1-27-2000. Submitted to OAL for printing only (Register 2000, No. 4).
Note • History
(a) Time and distribution. Notices and agendas of meetings shall be given to all members, to all parties and interested parties to proceedings on the agenda, and to all persons who request in writing such notice. Such notice shall be provided no less than 10 days prior to the scheduled meeting.
(b) Agenda. The meeting agenda shall be prepared by the executive director and shall include any item proposed by any member, or the executive director.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 11125, 11125.1, 17527(b) and (c) and 17530, Government Code.
HISTORY
1. Repealer of former section 1182.1 and renumbering and amendment of former section 1182.2 to new section 1182.1 filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
Note • History
(a) Presiding Member. The chairperson shall preside over all meetings of the commission at which he/she is present. In his or her absence, the vice chairperson shall preside. If neither the chairperson nor the vice chairperson is in attendance, the member present who has the greatest seniority on the commission shall preside. The presiding member may yield the chair.
(b) Public Comments.
(1) Comments in Writing. Any person may submit comments in writing on any agenda item. Any person submitting such comments shall, if possible, provide the commission with ten (10) copies of such comments in advance of the meeting at which they are to be considered.
(A) Comments received at least 15 days in advance of the meeting shall be included in the commission's meeting binders.
(B) Comments received less than 15 days in advance of the meeting shall be included in the commission's meeting binders, if possible, or shall be provided to the commission when the item is called, unless otherwise agreed to by the commission or the executive director.
(C) Comments received on the day of the meeting before the item is taken up by the commission, shall be provided to the commission when the item is called.
(2) Oral Comments. Any person present and so desiring shall be given an opportunity to make oral comments on any agenda item, provided, however, that the presiding member may limit or preclude such comments as necessary for the orderly conduct of business.
(3) This subsection does not apply to submission of the following:
(A) State agency responses, opposition, and recommendations on a test claim;
(B) Test claimant and interested party rebuttals to state agency responses, opposition, and recommendations on a test claim.
(C) Comments by parties and interested parties on the draft of the staff analysis of a test claim.
NOTE
Authority cited: Sections 17527(g) and 17553, Government Code. Reference: Sections 11125.7 and 17526-17528, Government Code.
HISTORY
1. Renumbering of former section 1182.2 to new section 1182.1 and renumbering of former section 1182.3 to new section 1182.2 filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
Note • History
(a) The commission shall keep minutes of its meetings. Minutes shall be approved by the commission and, upon approval, shall be signed by the chairperson or other person designated by the chairperson. Signed minutes shall be the original evidence of actions taken at any meeting, including the text of any resolutions adopted.
(b) Commission public meetings shall be recorded by stenographic reporter or electronic recording or both. The transcript or recordings shall be kept for the period of time required by applicable law governing the retention of records of state agency public proceedings, or until conclusion of administrative or judicial proceedings, whichever is later.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17530, Government Code.
HISTORY
1. Renumbering of former section 1182.3 to new section 1182.2 and renumbering of former section 1182.4 to new section 1182.3 and amendment of Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
Note • History
In all cases not provided for by Government Code Section 17500 et seq., the Bagley-Keene Open Meetings Act (Government Code Section 11120 et seq.) and the commission's rules and regulations, the authority shall be Robert's Rules of Order (revised), unless otherwise designated by the commission at the annual election meeting.
NOTE
Authority cited: Sections 17500 and 17527(g), Government Code. Reference: Sections 11120 et seq. and 17526, Government Code.
HISTORY
1. New section filed 11-13-98; operative 11-13-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 46). For prior history, see Register 96, No. 30.
Note • History
The commission may hold an open or closed meeting by teleconference if it is difficult or impossible for the commission to achieve a quorum. A meeting held by teleconference shall be held subject to all of the following:
(a) A meeting held by teleconference shall comply with the Bagley-Keene Open Meetings Act.
(b) Each teleconference location shall be identified in the notice of the meeting and shall be accessible to the public.
(c) The portion of the teleconference meeting that is required to be open to the public shall be audible to the public at the location specified in the notice of the meeting.
(d) All votes taken during a teleconference meeting shall be by rollcall.
(e) The portion of the teleconferenced meeting that is closed to the public may not include the consideration of any agenda item pursuant to Section 11125.5 of the Government Code.
(f) At least one member of the commission shall be physically present at the location specified in the notice of the meeting.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 11123, 17527(b) and (c), Government Code.
HISTORY
1. Repealer and new section heading, section and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
Article 3. Test Claims
Note • History
(a) A local agency or school district shall file a test claim with the commission to obtain a mandate determination.
(b) Any test claim filed with the commission must allege increased costs as a result of the statute or executive order that exceed the amount set in Government Code section 17564.
(c) Except as provided in Government Code sections 17573 and 17574, any test claim or amendment filed with the commission must be filed not later than 12 months following the effective date of a statute or executive order, or within 12 months of incurring increased costs as a result of a statute or executive order, whichever is later. For purposes of this subsection, “within 12 months” means by June 30 of the fiscal year following the fiscal year in which increased costs were first incurred by the test claimant.
(d) All test claims, or amendments thereto, shall be filed on a form developed by the executive director and shall contain all of the elements and supplemental documents required by the form and statute. When an omnibus bill is pled, claimant shall file only the relevant pages of the statute, including the Legislative Counsel's Digest and the specific statutory changes at issue.
(e) The claimant shall file one original test claim, or amendment thereto, and accompanying documents with the commission. An “original” is either a signed hard copy or an Adobe PDF electronic copy thereof submitted through the e-filing system on the commission's web site. If the document is e-filed with the commission, the claimant is responsible for maintaining the paper document with original signature(s) for the duration of the test claim process, including any period of appeal. If a hard copy is submitted the original shall be unbound and single-sided, without tabs, and include a table of contents. If the original is filed in Adobe PDF format, the accompanying documents shall also be filed in Adobe PDF format.
(f) The claimant shall also file seven (7) copies of the test claim, or amendment thereto, and accompanying documents with the commission, if the original is filed in hard copy. The copies shall be double-sided and shall not include tabs. If the test claim, or amendment thereto is e-filed, no copies shall be filed.
(g) Within ten (10) days of receipt of a test claim, or amendment thereto, commission staff shall notify the claimant if the test claim is complete or incomplete and send a copy of these regulations unless a correct copy was previously provided. Test claims will be considered incomplete if any of the elements required in subsections (d), (e), or (f) of this section are illegible or are not included. If a complete test claim is not received within thirty (30) calendar days from the date the incomplete test claim was returned, the executive director may disallow the original test claim filing date. A new test claim(s) may be accepted on the same statute or executive order alleged to impose a mandate.
(h) Test claims may be prepared as a joint effort between two or more claimants and filed with the commission if the claimants attest to all of the following in the test claim filing:
(1) The claimants allege state-mandated costs result from the same statute or executive order;
(2) The claimants agree on all issues of the test claim; and,
(3) The claimants have designated one contact person to act as the resource for information regarding the test claim.
(i) Any test claim, or portion of a test claim, that the commission lacks jurisdiction to hear for any reason may be dismissed by the executive director with a written notice stating the reason for dismissal.
(j) Any party may appeal to the commission for review of the actions and decisions of the executive director under this section pursuant to section 1181 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553, Government Code. Reference: Sections 17521, 17530, 17551, 17553, 17557(e), 17564, 17573 and 17574, Government Code.
HISTORY
1. New subsection (f) and amendment of Note filed 4-29-87; operative 5-29-87 (Register 87, No. 18).
2. Amendment of section and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
3. Amendment filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
4. Amendment of section and Note filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
5. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
6. Amendment of subsection (c) and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
7. Amendment of subsections (d)-(f) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Note • History
(a) In computing any period of time prescribed by these regulations and applicable statutes, including the filing date as defined by section 1181.1, subdivision (g) of these regulations, the following rules shall apply:
(1) The day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or state holiday.
(2) Days representing extensions of time and postponements of hearings granted to the parties shall be tolled and may not be counted toward the date on which a statewide cost estimate must be adopted by the commission.
(3) Days following a test claimant's submission of incomplete information to the commission, from the date on which commission staff returns the incomplete information to the claimant up to the date on which the commission receives complete information from the test claimant, shall be tolled and may not be counted toward the date on which a statewide cost estimate must be adopted by the commission.
(4) If a party or interested party to a test claim notifies commission staff that a reasonable reimbursement methodology may be developed for inclusion in pending parameters and guidelines, the days following the date of the notification up to the date on which a reasonable reimbursement methodology is developed, shall be tolled and may not be counted toward the date on which a statewide cost estimate must be adopted by the commission. The days tolled shall not exceed sixty (60) days from the date of the notification.
(5) If the test claimant and the Department of Finance notify the commission staff in writing of their intent to develop a reasonable reimbursement methodology and statewide estimate of costs for the initial claiming period and budget year for reimbursement pursuant to Government Code section 17557.1, the days following the date of the notification up to the date on which a draft reasonable reimbursement methodology and proposed statewide estimate of costs are developed and submitted to the commission, shall be tolled and may not be counted toward the date on which a statewide cost estimate must be adopted by the commission. The days tolled shall not exceed 180 days from the date of the notification.
(6) Three (3) days shall be added to any prescribed period in which a party or interested party is required or permitted to do an act after service of a document upon that party or interested party by mail. The three (3) days added for mail service shall be tolled and may not be counted toward the date on which a statewide cost estimate must be adopted.
(7) Solely for the purpose of determining when a statewide cost estimate shall be adopted, test claims that are amended, severed, or consolidated shall be deemed received on the effective date of the last amendment, severance, or consolidation, unless otherwise stipulated by the parties and approved by the executive director.
(8) Days between the effective date of the parameters and guidelines and the date the initial reimbursement claims are due to the Office of the State Controller shall be tolled and may not be counted toward the date on which a statewide cost estimate must be adopted by the commission.
(b) The following timelines shall be used by commission staff as a reference for the timely processing of test claims, adoption of statewide cost estimates or statewide estimates of costs:
(1) Timeline for a Test Claim, Parameters and Guidelines, and Statewide Cost Estimate (12 Months)
PARTY/ACTIVITIES DAY NUMBER
TEST CLAIM
CLAIMANT files test claim with the commission. 0
COMMISSION staff begins counting days on the
first day after receipt. 1
COMMISSION staff reviews test claim to determine if
complete by 10
COMMISSION staff sends test claim to state agencies for review. by 10
COMMISSION staff convenes informal conference with parties,
if necessary. by 30
STATE AGENCIES file comments on test claim. by 40
CLAIMANT submits rebuttal. by 70
COMMISSION staff completes draft analysis of test claim and
serves on parties. by 100
PARTIES submit comments on staff's draft analysis of test claim. by 130
COMMISSION staff completes analysis and issues Proposed
Statement of Decision. by 160
COMMISSION hears test claim and adopts Proposed Statement
of Decision. by 180
COMMISSION staff issues Statement of Decision and serves
on parties. by 190
COMMISSION staff notifies Legislature of Statement
of Decision by 210
PARAMETERS AND GUIDELINES
CLAIMANT submits proposed Parameters and Guidelines. by 220
STATE AGENCIES AND PARTIES may file comments. by 235
CLAIMANT rebuts comments. by 250
COMMISSION staff completes draft Parameters and Guidelines
and serves on parties. by 265
PARTIES submit comments on staff's draft Parameters and
Guidelines. by 275
COMMISSION staff completes Parameters and Guidelines
and serves on parties. by 279
COMMISSION conducts hearing and adopts Parameters and
Guidelines by 293
COMMISSION staff issues adopted Parameters and Guidelines. by 303
STATEWIDE COST ESTIMATE
COMMISSION staff develops Statewide Cost Estimate. by 335
ALL PARTIES comment on Statewide Cost Estimate. by 345
COMMISSION staff revises Statewide Cost Estimate. by 350
COMMISSION conducts hearing and adopts Statewide
Cost Estimate. by 365
COMMISSION staff reports Statewide Cost Estimate
to the Legislature by 395
2. Timeline for a Test Claim, Reasonable Reimbursement Methodology, and Statewide Estimate of Costs
PARTY/ACTIVITIES DAY NUMBER
TEST CLAIM
PARTY/ACTIVITIES DAY NUMBER
CLAIMANT files test claim with the commission 0
COMMISSION staff begins counting days on the first day after
receipt. 1
COMMISSION staff reviews test claim to determine if complete. by 10
COMMISSION staff sends test claim to state agencies for review. by 10
COMMISSION staff convenes informal conference with parties, if
necessary. by 30
STATE AGENCIES file comments on test claim. by 40
CLAIMANT submits rebuttal. by 70
COMMISSION staff completes draft analysis of test claim and
serves on parties. by 100
PARTIES submit comments on staff's draft analysis of test claim. by 130
COMMISSION staff completes analysis and issues Proposed
Statement of Decision. by 160
COMMISSION hears test claim and adopts Proposed Statement of
Decision. by 180
COMMISSION staff issues Statement of Decision and serves on
parties. by 190
COMMISSION staff notifies Legislature of Statement of Decision. by 220
REASONABLE REIMBURSEMENT METHODOLOGY (RRM) AND STATEWIDE ESTIMATE OF COSTS (SEC)
CLAIMANT AND DOF notify Commission in writing of their
intent to follow the process in 17557.1 to develop a RRM
and SEC for the initial claiming period and budget year
(30 days after SOD). by 220
CLAIMANT AND DOF submit plan no later than 6 months
after the date of letter of intent and sixty (60) days
before hearing. by 400
COMMISSION staff notifies parties of comment period. by 410
PARTIES submit comments on the draft RRM and SEC. by 425
CLAIMANT AND DOF submit written rebuttal. by 432
COMMISSION staff issues review comments and
recommendation. by 450
COMMISSION conducts hearing, approves the draft
RRM, and adopts the proposed SEC for the initial
claiming period and budget year. by 460
COMMISSION staff submits RRM to the CONTROLLER. by 470
COMMISSION staff reports SEC to the Legislature. by 490
(c) Extensions of Time and Postponements of Hearings
(1) Any party or interested party may request an extension of time by filing a request with the executive director before the date set for filing of responses, opposition, recommendations, rebuttals, plan, informational update, or comments with commission staff. Such request shall fully explain the reason(s) for the extension, propose a new date for filing, and be simultaneously served in accordance with section 1181.2 of these regulations. Any request for extension of time to file comments that would necessitate rescheduling a hearing shall also include a request for postponement of the hearing, pursuant to section 1183.01(c)(2). Within forty-eight (48) hours of receipt of the request, the executive director shall make a determination and shall notify all parties and interested parties who are on the mailing list of the determination.
(A) A request filed by stipulation of the parties, including the claimant, shall be approved by the executive director for good cause.
(B) A request filed by the claimant, a state agency or interested party may be approved by the executive director for good cause.
(2) Any party may request the postponement of a hearing on a test claim, parameters and guidelines, or statewide cost estimate, until the next regularly scheduled hearing, or other date if specified. Such request shall fully explain the reason(s) for the postponement, and be filed and served in accordance with section 1181.2 of these regulations. Within forty-eight (48) hours of receipt of such a request, the executive director shall make a determination and shall notify all parties and interested parties who are on the mailing list of the determination.
(A) A request filed by the claimant at least fifteen (15) days before the hearing shall be approved by the executive director for good cause.
(B) A request filed by stipulation of the parties, including the claimant, shall be approved by the executive director for good cause.
(C) A request filed by the claimant less than fifteen (15) days before the hearing may be approved by the executive director for good cause.
(D) A request filed by a state agency may be approved by the executive director for good cause. If a state agency makes such a request before filing a response, opposition, or recommendation on the test claim, such request shall be accompanied by a notice of intent to oppose the test claim in whole or in part.
(3) The executive director may postpone a hearing on a test claim, parameters and guidelines, and a statewide cost estimate for good cause and shall notify all parties and interested parties who are on the mailing list.
NOTE
Authority cited: Sections 17527(g) and 17553, Government Code. Reference: Sections 17530, 17553, 17557 and 17557.1, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
4. Amendment of subsection (a)(2) and new subsections (a)(6)-(7) filed 2-23-2004; operative 2-23-2004. Submitted to OAL for printing only (Register 2004, No. 9).
5. Amendment of subsections (a)(1), (a)(4)-(7), (c)(1), (c)(2), (c)(2)(A) and (c)(2)(C) and amendment of Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
6. New subsection (a)(5), subsection renumbering and amendment of subsections (b)-(b)(1), (c)(1) and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
7. Amendment of subsections (a), (a)(6), (c)(1) and (c)(2) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.02. Review of Test Claim.
Note • History
(a) Within ten (10) days of receipt of a completed test claim, or amendment thereto, commission staff shall send a copy of the test claim or amendment to the Department of Finance, Office of the State Controller, any affected state agency, and any known interested parties, and shall post it on the commission's web site.
(b) The executive director shall notify the Department of Finance, Office of the State Controller, and any affected state agency that they shall have the opportunity to review and provide written response, opposition, or recommendations concerning the test claim within thirty (30) days and to present evidence at the hearing on the test claim.
(c) Content and Form. Written responses, opposition, or recommendations on the test claim shall contain the following documentary evidence, if applicable:
(1) If assertions or representations of fact are made, they must be supported by documentary evidence which shall be submitted with the state agency's response, opposition, or recommendations. All documentary evidence shall be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and must be based on the declarant's personal knowledge or information or belief.
(2) Include a copy of relevant portions of state constitutional provisions, federal statutes, and executive orders, and a copy of administrative decisions and court decisions that may impact the alleged mandate, unless such authorities are also cited in the test claim. The specific chapters, articles, sections, or page numbers must be identified. Published court decisions arising from state mandate determinations by the Board of Control and the Commission on State Mandates, article XIIIB, section 6 of the California Constitution, and Government Code sections 17500 and following are exempt from the requirements of this subsection.
(d) The written response, opposition, or recommendations and supporting documentation shall be signed at the end of the document, under penalty of perjury by an authorized representative of the state agency, with the declaration that it is true and complete to the best of the representative's personal knowledge or information or belief. The date of signing, the representative's title, address, and telephone number shall be included. If the authorized representative can be reached via facsimile machine or e-mail, the facsimile number and e-mail address shall also be included.
(e) Filing. An original and two (2) copies of a written response, opposition, or recommendations and supporting documentation concerning a test claim shall be filed with commission staff and served in accordance with section 1181.2 of these regulations. Proof of service shall be included with the response, opposition, or recommendations filed with commission staff.
(f) If a hard copy is submitted the original document shall be unbound and single-sided.
NOTE
Authority cited: Sections 17527(g) and 17553, Government Code. Reference: Sections 17530, 17553(a) and 17557(e), Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (a), (c)(2) and (e) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of subsections (a) and (d)-(f) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.03. Claimant's Rebuttal.
Note • History
(a) Test claimants and interested parties shall be given an opportunity to respond to state agencies' written responses, opposition, or recommendations concerning a test claim and to file written rebuttals within thirty (30) days of service of the responses, opposition, or recommendations.
(b) Content and Form. A written rebuttal shall contain the following documentary evidence, if applicable:
(1) If new assertions or representations of fact are made, they must be supported by documentary evidence which shall be submitted with the rebuttal. All documentary evidence must be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and must be based upon the declarant's personal knowledge or information or belief.
(2) Include a copy of relevant portions of state constitutional provisions, federal statutes, and executive orders, and a copy of administrative decisions and court decisions that are cited in the rebuttal, unless such authorities are also cited in the test claim and/or any opposition thereto. The specific chapters, articles, sections, or page numbers shall be identified. Published court decisions arising from state mandate determinations by the Board of Control and the Commission on State Mandates, article XIIIB, section 6 of the California Constitution, and Government Code sections 17500 and following are exempt from the requirements of this subsection.
(c) The original written rebuttal to state agencies' responses, opposition, or recommendations concerning a test claim shall be filed with commission staff in accordance with section 1181.2 of these regulations.
(d) The rebuttal shall be signed at the end of the document, under penalty of perjury by the claimant or its authorized representative, with the declaration that the rebuttal is true and complete to the best of the declarant's personal knowledge or information or belief. The date of signing, the declarant's title, address, and telephone number shall be included. If the declarant can be reached by facsimile machine or e-mail, the declarant's facsimile number and e-mail address shall also be included.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17530 and 17553(a), Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (b)(2) and (c) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of subsections (c)-(d) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.04. Informal Conference.
Note • History
(a) The executive director may schedule an informal conference with the test claimant, the Department of Finance, Office of the State Controller, other affected state agencies and interested parties upon request. With the consent of the parties, the informal conference may be a teleconference.
(b) The purpose of an informal conference may be to
(1) Set dates for receiving state agency responses, opposition, recommendations, or claimant rebuttal; completing the staff analysis; and hearing the test claim.
(2) Give the test claimant the opportunity to present the test claim and to respond to questions from commission staff and other state agency staff or representatives for the purpose of resolving or clarifying issues of fact or law.
(3) Consider whether a reasonable reimbursement methodology may be developed and included in the parameters and guidelines.
(4) Review a draft reasonable reimbursement methodology and proposed statewide estimate of costs that are jointly prepared by the test claimant and the Department of Finance pursuant to Government Code section 17557.1.
(c) Any party may notify the executive director of any interested parties who should be invited to attend an informal conference.
(d) Unless waived by the parties, commission staff shall provide at least ten (10) days notice of the informal conference by mail, facsimile transmission, e-mail, or by other electronic media.
(e) Anything said, any document disclosed, and any new assertions and representations of fact made during an informal conference shall not be made part of the administrative record of a test claim unless properly admitted into the record through the submission of an amendment to a test claim, a written response, opposition, recommendations, comments, rebuttal, and/or public testimony.
NOTE
Authority cited: Sections 17527(g), 17553(a), Government Code. Reference: Sections 17518.5, 17530, 17553(a) and 17557.1, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (b) and (d) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. New subsection (b)(4) and amendment of Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
§1183.05. Claimant's Motion to Consolidate or Sever Test Claims.
Note • History
Within thirty (30) days of filing a completed test claim, a claimant may file a motion with the executive director to consolidate part or all of any test claim with another test claim, or to sever any part of any test claim, if necessary to ensure the complete, fair, or timely consideration of any test claim.
(a) Any motion to consolidate or to sever shall be simultaneously served on all the parties and interested parties with the supporting documentation and proof of service.
(b) Within thirty (30) days after receipt of a motion to consolidate, the executive director may consolidate any test claims if they were submitted by two or more claimants and if the following exist in the filings: the test claimants allege state-mandated costs resulting from the same statute or executive order, and the claimants have designated one contact person to act as the resource for information regarding the test claim.
(c) Within thirty (30) days after receipt of a motion to sever, the executive director may sever part of any test claim.
(d) Any party may appeal to the commission for review of the actions and decisions of the executive director under this Section pursuant to Section 1181 of these regulations.
NOTE
Authority cited: Section 17527(g) and 17553(a), Government Code. Reference: Sections 17530, 17553, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsection (b) and new subsection (d) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of first paragraph and subsection (b) filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
§1183.06. Executive Director's Authority to Consolidate Test Claims.
Note • History
(a) The executive director may consolidate part or all of any test claim with another test claim, if necessary to ensure the complete, fair, or timely consideration of any test claim.
(b) At least ten (10) days before the action is taken, the executive director shall simultaneously serve on the parties and interested parties on the mailing list described in section 1181.2 of these regulations, and post on the commission's web site, a notice of any proposed action to consolidate.
(c) Any party may appeal to the commission for review of the actions and decisions of the executive director under this section pursuant to section 1181 of these regulations.
NOTE
Authority cited: Section 17527(g) and 17553, Government Code. Reference: Sections 17530, 17553 and 17554, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsection (c) and new subsection (d) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of subsection (b), repealer of subsection (c) and subsection relettering filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of subsection (b) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.07. Review of Completed Test Claim and Preparation of Staff Analysis.
Note • History
(a) Before the hearing on the test claim, commission staff shall prepare a final written analysis of the test claim, which shall include but not be limited to a review of the written responses, opposition, recommendations, and comments filed by other state agencies, interested parties, and the claimant. The final staff analysis shall describe and analyze the test claim to assist the commission in determining whether the alleged statutes or executive orders contain a reimbursable state-mandated program under Article XIII B, section 6 of the California Constitution.
(b) At least eight (8) weeks before the hearing, or at such other time as required by the executive director or stipulated to by the parties, commission staff shall prepare a draft staff analysis and distribute it to the parties, interested parties, and any person who requests a copy, and shall post it on the commission's web site.
(c) Any party or interested party may file written comments concerning the draft staff analysis with commission staff. Written comments shall be filed and served as described in section 1181.2 of these regulations, by the date determined and publicized by the executive director. A three (3) week period for comments shall be given, subject to the executive director's authority to expedite all matters pursuant to Government Code section 17530. All written comments timely filed shall be reviewed by commission staff and may be incorporated into the final written analysis of the test claim.
NOTE
Authority cited: Sections 17527(g) and 17553, Government Code. Reference: Sections 17514, 17530, 17551 and 17553, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (b)-(c) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.08. Withdrawal of Test Claims.
Note • History
A test claim, or any portion of a test claim, may be withdrawn by the claimant(s) upon written application to the executive director any time before a decision is adopted or after enactment of a legislatively determined mandate on the same statute or executive order pursuant to Government Code section 17574. The claimant(s) shall file and serve the written application in accordance with section 1181.2 of these regulations. Commission staff shall post a copy of the notice on the commission's web site for sixty (60) days prior to dismissal of the test claim. Except as provided in Government Code section 17574, if no other local agency or school district takes over a claim by substitution of parties within sixty (60) days of service and posting of the application to withdraw, the Executive Director shall issue a letter to everyone on the mailing list described in section 1181.2 of these regulations dismissing the claim.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17530, 17553(a) and 17574, Government Code.
HISTORY
1. New section filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
2. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
3. Amendment of section and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
4. Amendment of section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.081. Local Agency or School District “Abandonment” of Test Claim.
Note • History
(a) The executive director may deem a test claim “abandoned” if any of the following events occurs:
1. The test claimant does not respond, within thirty (30) days of service, to a written notification sent to the superintendent of the school district or chief administrative officer of the local agency from the executive director that the test claim will be deemed “abandoned”.
2. The local agency or school district provides written notification to the commission of their withdrawal as the test claimant from the test claim.
(b) If the executive director deems a test claim “abandoned” pursuant to subdivision (a), the executive director shall serve a copy of a written notice that a test claim has been “abandoned” on the original test claimant and any persons designated as their representative for the test claim, all parties, interested parties, and interested persons on the mailing list described in section 1181.2 of these regulations, and associations representing local agencies and school districts. Commission staff shall post a copy of the notice on the commission's web site for sixty (60) days prior to dismissal of the test claim. The first local agency or school district that requests in writing to the executive director to substitute for the original test claimant, within sixty (60) days of service and posting of the written notice of abandonment, shall be the test claimant for purposes of the test claim proceedings. Other local agencies or school districts which submit subsequent timely written requests will be included as co-claimants.
(c) The original test claimant may appeal to the commission for review of the actions and decisions of the executive director under this section pursuant to section 1181 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17530 and 17553(a), Government Code.
HISTORY
1. New section filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
2. Amendment of subsection (b) and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.09. Dismissal of Test Claims.
Note • History
(a) A test claim which has been postponed or placed on inactive status by the claimant for a period of more than one year may be dismissed by the commission on its own motion or by a motion of a party after notice and an opportunity to be heard has been made to the claimant, parties and interested parties to take over the claim by substitution of parties.
(b) Before scheduling a hearing for dismissal of a test claim which has been postponed or placed on inactive status by the claimant, the commission shall first notify the claimant, in writing, of its intention to initiate dismissal of the test claim. The claimant shall have 60 days from the date of the notice to either reactivate the test claim or to withdraw the claim in accordance with section 1183.08 of these regulations.
(c) If the claimant does not respond within 60 days after receipt of the notice, the test claim will be deemed to have been withdrawn in accordance with section 1183.08 of these regulations and the commission shall serve written notice to initiate dismissal of the claim to all parties, organizations or associations representing local agencies or school districts, and all potential claimants. A copy of the notice shall also be posted electronically. If no other local agency or school district takes over the claim by substitution of parties within 60 days of the issuance of the notice, the commission shall schedule a hearing for dismissal of the test claim.
(d) The hearing on a dismissal of a test claim shall be conducted in accordance with Article 7 of these regulations.
(e) Notice of a hearing to dismiss a test claim shall be made within 30 days of the date scheduled for hearing. The notice of hearing shall advise the claimant, parties, and interested parties that they shall have the opportunity to provide written comments on the motion to dismiss a test claim. The claimant, parties, and interested parties shall file and serve their written comments in accordance with section 1181.2 of these regulations.
(f) Delays or postponements under the following circumstances will not be considered for purposes of computing whether a test claim has been postponed or placed on inactive status by the claimant for more than one year:
1. Delays or postponements made at the request of the commission or other state agency or department;
2. Delays or postponements, made at the request of the claimant, pending the resolution of a matter currently before the commission of an issue similar to or related to the postponed test claim; and
3. Delays or postponements, made at the request of the claimant, pending the resolution of litigation of an issue similar to or related to the postponed test claim.
(g) The provisions of this regulation shall only apply to claims filed on or after the operative date of this regulation.
NOTE
Authority cited: Sections 17527(c) and (g) and 17532, Government Code. Reference: Sections 17525, 17527(c) and 17532, Government Code.
HISTORY
1. New section filed 4-5-2001; operative 5-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 2001, No. 14).
2. Amendment of subsections (b) and (e) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.1. Content of Parameters and Guidelines.
Note • History
(a) The parameters and guidelines shall describe the claimable reimbursable costs and contain the following information:
(1) Summary of the Mandate. A summary of the mandate identifying the statute(s) or executive order(s) that contain the mandate and/or the increased level of service and the activities found to be required under those statute(s) or executive order(s).
(2) Eligible Claimants. A description of the types and/or level(s) of local governmental entities that are eligible to file for reimbursement.
(3) Period of Reimbursement. A description of the period of reimbursement specifying the first and subsequent fiscal years that can be reimbursed.
(4) Reimbursable Activities. A description of the specific costs and types of costs that are reimbursable, including one-time costs and on-going costs, and a description of the most reasonable methods of complying with the mandate. “The most reasonable methods of complying with the mandate” are those methods not specified in statute or executive order that are necessary to carry out the mandated program.
(5) Claim Preparation. Instruction on claim preparation, including instructions for direct and indirect cost reporting, or application of a reasonable reimbursement methodology.
(6) Record Retention. Notice of the Office of the State Controller's authority to audit claims and the amount of time supporting documents must be retained during the period subject to audit.
(7) Offsetting Revenues and Reimbursements (if applicable).
Identification of:
i. Dedicated state and federal funds appropriated for this program.
ii. Non-local agency funds dedicated for this program.
iii. Local agency's general purpose funds for this program.
iv. Fee authority to offset partial costs of this program.
(8) Offsetting Savings (if applicable). Identification of any offsetting savings in the same program experienced because of the same statute(s) or executive order(s) found to contain a mandate.
(9) Claiming Instructions. Notice of the Office of the State Controller's duty to issue claiming instructions, which constitutes notice of the right of local agencies and school districts to file reimbursement claims, based upon the statement of decision and parameters and guidelines adopted by the commission.
(10) Remedies Before the Commission. Instructions for filing requests to review claiming instructions and requests to amend parameters and guidelines with the commission.
(11) Legal and Factual Basis. Notice that the legal and factual basis for the parameters and guidelines are found in the administrative record for the test claim, which is on file with the commission.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17518.5, 17530, 17553, 17556(e) and 17557, Government Code.
HISTORY
1. Amendment of section heading, section and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of section heading, section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
§1183.11. Submission and Review of Proposed Parameters and Guidelines; Submission of Comments.
Note • History
(a) Within thirty (30) days of adoption of the statement of decision on a test claim, or the early termination or expiration of a reasonable reimbursement methodology, the successful test claimant shall submit to commission staff an original and seven (7) copies of proposed parameters and guidelines, pursuant to Government Code section 17557, subdivision (a).
(b) If any of the elements described in section 1183.1 are missing or are not adequately addressed, commission staff shall, within ten (10) days of receipt, deem the proposed parameters and guidelines incomplete and shall return the proposal to the claimants with a description of the subjects that are to be redrafted or supplemented.
(c) Within ten (10) days of receipt of completed proposed parameters and guidelines, commission staff shall send a copy to the Department of Finance, Office of the State Controller, affected state agencies, and interested parties who are on the mailing list described in section 1181.2 of these regulations, and shall post it on the commission's web site.
(d) Commission staff shall notify all recipients that they shall have the opportunity to review and provide written comments or recommendations concerning the proposed parameters and guidelines within fifteen (15) days of service.
(e) State agencies and interested parties shall file and serve written response in accordance with section 1181.2 of these regulations.
(f) Within fifteen (15) days of service of the comments and recommendations prepared by state agencies and interested parties, the claimant and other interested parties may submit a written rebuttal to commission staff, and shall file and serve their rebuttals in accordance with section 1181.2 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17530, 17553(a), 17557 and 17557.2, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (b)-(d) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section heading, new subsections (a) and (b), subsection relettering and amendment of newly designated subsections (c)-(f) filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of subsection (a) and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
5. Amendment of subsections (c) and (e)-(f) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.12. Alternate Process for Proposed Parameters and Guidelines.
Note • History
(a) Within ten (10) days after adoption of a statement of decision on a test claim, commission staff may expedite the parameters and guidelines process by drafting proposed parameters and guidelines to assist the claimant. The draft proposed parameters and guidelines shall be served to everyone on the mailing list described in section 1181.2 of these regulations, and shall be posted on the commission's web site.
(b) In lieu of filing an original proposal pursuant to Government Code section 17557, subdivision (a), the successful test claimant may file modifications and/or comments on staff's draft proposal with commission staff. The claimant shall review all sections and if necessary may:
(1) Clarify the reimbursable activities identified by commission staff, and provide an explanation of why the clarification is necessary.
(2) Include additional descriptions of the most reasonable methods of complying with the mandate. “The most reasonable methods of complying with the mandate” are those methods not specified in statute or executive order that are necessary to carry out the mandated program. For each additional method proposed, the test claimant shall provide an explanation of why it is reasonably necessary.
(3) Indicate whether the commission should consider a reasonable reimbursement methodology for this program, and the basis for the recommendation.
(4) Identify offsetting revenues and reimbursements (if applicable), including:
i. Dedicated state and federal funds appropriated for this program.
ii. Non-local agency funds dedicated for this program.
iii. Local agency's general purpose funds for this program.
iv. Fee authority to offset partial costs of this program.
(5) Identify offsetting savings (if applicable), including any offsetting savings in the same program experienced because of the same statute(s) or executive order(s) found to contain a mandate.
(c) The successful test claimant shall file its proposed modifications and/or comments within twenty (20) days of receipt of commission staff's draft proposal.
(d) The opportunity for state agencies and interested parties to comment on staff's draft proposal and the claimant's modifications and/or comments, and the claimant and interested parties' opportunity for rebuttal will be conducted according to the timelines under section 1181.11 of these regulations.
NOTE
Authority cited: Sections 17527(g), 17530 and 17553(a), Government Code. Reference: Sections 17553(a), 17556(e), 17557 and 17564, Government Code.
HISTORY
1. Renumbering of former section 1183.12 to section 1183.14 and new section 1183.12 filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
2. Amendment of subsection (a) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.13. Reasonable Reimbursement Methodology.
Note • History
(a) Government Code section 17518.5 defines a “reasonable reimbursement methodology” as a formula for reimbursing local agencies and school districts for costs mandated by the state, as defined in Section 17514.
(b) For purposes of developing a reasonable reimbursement methodology pursuant to Government Code sections 17557 or 17557.1, the following definitions apply:
(1) “Costs to implement the mandate in a cost-efficient manner” include only those costs for the activities that were determined to be reimbursable by the commission in the Statement of Decision, and the costs for the most reasonable methods of complying with the mandate pursuant to Section 1183.1, subdivision (a)(4), of these regulations.
(2) An interested party may submit cost information or other cost projections that can be the basis of a reasonable reimbursement methodology, and letters in support of a draft reasonable reimbursement methodology submitted pursuant to Government Code section 17557.1.
(3) When surveying or otherwise gathering cost data to develop a formula, “representative sample of claimants” does not include eligible claimants that do not respond to surveys or otherwise participate in submitting cost data.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17518.5, 17557 and 17557.1, Government Code.
HISTORY
1. New section filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
2. New subsections (a)-(b)(2)(C) and subsection relettering filed 9-10-2007; operative 9-10-2007. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2007, No. 37).
3. Amendment of section and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
§1183.131. Reasonable Reimbursement Methodology, Included in Parameters and Guidelines.
Note • History
(a) If the claimant indicates in the proposed parameters and guidelines or comments that a reasonable reimbursable methodology, as defined in Government Code section 17518.5, should be considered for inclusion in the parameters and guidelines; or if the Department of Finance, Office of the State Controller, any affected state agency, claimant, or interested party proposes consideration of a reasonable reimbursement methodology, commission staff may schedule an informal conference to discuss the methodology and plan for submittal of a reasonable reimbursement methodology.
(b) Proposed reasonable reimbursement methodology, as described in Government Code section 17518.5, shall include any documentation or assumption relied upon to develop the proposed methodology. Proposals shall be submitted to the commission within sixty (60) days following the informal conference described in this section.
(c) Claimants, state agencies, and interested parties shall file and serve a proposed reasonable reimbursement methodology in accordance with section 1181.2 of these regulations.
(d) Commission staff shall notify all recipients that they shall have the opportunity to review and provide written comments or recommendations concerning the proposed reasonable reimbursement methodology within fifteen (15) days of service.
(e) Claimants, state agencies, and interested parties shall file and serve written responses in accordance with section 1181.2 of these regulations.
(f) Within fifteen (15) days of service of the written comments prepared by other parties and interested parties, the party that proposed the reasonable reimbursement methodology may submit a written rebuttal to commission staff, and shall file and serve the rebuttal in accordance with section 1181.2 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17518.5, 17557 and 17557.1, Government Code.
HISTORY
1. New section filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
2. Amendment of subsections (a), (c) and (e)-(f) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.14. Adoption of Parameters and Guidelines.
Note • History
(a) After review of the proposed parameters and guidelines, written comments, recommendations, and rebuttals submitted by state agencies and interested parties, commission staff shall prepare a staff analysis and recommend the adoption of the claimant's proposed parameters and guidelines or adoption of an amended, modified, or supplemented version of the claimant's proposed parameters and guidelines. Commission staff's recommendation may include a reasonable reimbursement methodology developed by a party pursuant to Government Code section 17518.5.
(b) A draft of commission staff's recommendation may be presented to the parties and interested parties at a prehearing or informal conference before presentation to the commission.
(c) The commission shall conduct a hearing in accordance with article 7 of these regulations before adoption of the parameters and guidelines.
(d) Within ten (10) days of the adoption of parameters and guidelines, the executive director shall send copies to the Office of the State Controller and to everyone on the mailing list described in section 1181.2 of these regulations, and shall post a copy on the commission's web site.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference cited: Sections 17518.5, 17530, 17553(a) and 17557, Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Editorial correction restoring inadvertently omitted subsection (d) (Register 99, No. 38).
3. Amendment of subsection (d) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
4. Renumbering and amendment of former section 1183.12 to section 1183.14 filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
5. Amendment of subsection (a) and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
6. Amendment of subsections (a) and (c)-(d) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.2. Amendments to Parameters and Guidelines.
Note • History
(a) All requests pursuant to Government Code section 17557 to amend, modify, or supplement parameters and guidelines shall include the proposed language for the specific sections of the existing parameters and guidelines that are to be changed, and include a narrative explaining why the amendment is required.
A request to amend parameters and guidelines may be filed to make any of the following changes to the parameters and guidelines:
(1) Delete any reimbursable activity that is repealed by statute or executive order after the adoption of the original or last amended parameters and guidelines.
(2) Update offsetting revenue and offsetting savings that apply to the mandated program and do not require a new legal finding that there are “no costs mandated by the state” under Government Code section 17556, subdivision (e).
(3) Include a reasonable reimbursement methodology for all or some of the reimbursable activities.
(4) Clarify reimbursable activities consistent with the original statement of decision.
(5) Add new reimbursable activities that are reasonably necessary for the performance of the original state-mandated program pursuant to section 1183.1, subdivision (a)(4) of these regulations.
(6) Define what is not reimbursable consistent with the original statement of decision.
(7) Consolidate the parameters and guidelines for two or more programs.
(8) Amend the “boilerplate” language.
(b) For purposes of this section, “boilerplate” language is defined as the language in the parameters and guidelines that is not unique to the state-mandated program that is the subject of the parameters and guidelines.
(c) The addition or substitution of requestors and supporting declarations based on the original facts alleged in an existing parameters and guidelines amendment request is not an “amendment.” However, new proposals for amendments must be submitted as a new parameters and guidelines amendment request.
(d) Number of copies. A claimant or state agency requesting an amendment to existing parameters and guidelines shall submit an original and seven (7) copies of proposed amendments to commission staff.
(e) Within ten (10) days of receipt of a request to amend, modify, or supplement parameters and guidelines, commission staff shall send a copy to the Department of Finance, Office of the State Controller, affected state agencies, and interested parties who are on the mailing list described in section 1181.2 of these regulations, and shall post the letter on the commission's web site.
(f) Commission staff shall notify all recipients that they shall have the opportunity to review and provide written comments or recommendations concerning the proposed amendment of the parameters and guidelines within thirty (30) days of service.
(g) Parties and interested parties shall file and serve written responses in accordance with section 1181.2 of these regulations.
(h) The requesting party and other interested parties may submit written rebuttals within thirty (30) days of service of the comments and recommendations prepared by parties and interested parties. Written rebuttals shall be filed and served in accordance with section 1181.2 of these regulations.
(i) An amendment shall be made only after the commission has conducted a hearing in accordance with article 7 of these regulations.
(j) A request to amend parameters and guidelines may be withdrawn by written application to the executive director any time before a decision is adopted, or by oral application at the time of hearing. The requestor(s) shall file and serve the written application in accordance with section 1181.2 of these regulations. Commission staff shall post a copy of the notice on the commission's web site for sixty (60) days prior to dismissal of request to amend parameters and guidelines. If no other claimant or state agency takes over the request to amend parameters and guidelines by substitution of parties within sixty (60) days of service and posting of the application to withdraw, the Executive Director shall issue a letter to everyone on the mailing list described in section 1181.2 of these regulations dismissing the request to amend parameters and guidelines and shall post the letter on the commission's web site.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17530, 17553, 17557 and 17560, Government Code.
HISTORY
1. Amendment of section and Note filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
2. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
3. Amendment of section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.21. Dismissal of Requests for Amendments to Parameters and Guidelines.
Note • History
(a) Requests to amend parameters and guidelines that have been postponed or placed on inactive status by the requesting party for a period of more than one (1) year may be dismissed by the commission on its own motion, or by a motion of a party after notice and an opportunity to be heard has been made to the parties and interested parties.
(b) The hearing on a dismissal of a request to amend parameters and guidelines shall be conducted in accordance with Article 7 of these regulations.
(c) Notice of a hearing to dismiss a request to amend parameters and guidelines shall be made within sixty (60) days of the date scheduled for hearing. A copy of the notice shall also be posted on the commission's web site. Commission staff shall notify the parties and interested parties that they shall have the opportunity to provide written comments on the motion to dismiss a request to amend parameters and guidelines within forty-five (45) days of receipt of the notice of the hearing. Parties and interested parties shall file and serve their written comments in accordance with section 1181.2 of these regulations.
(d) Delays or postponements under the following circumstances will not be considered for purposes of computing whether a request for amendments to parameters and guidelines has been postponed or placed on inactive status by the claimant for more than (1) one year:
1. Delays or postponements made at the request of the commission or other state agency or department;
2. Delays or postponements made at the request of the requesting party, because the resolution of a matter currently before the commission of an issue similar to or related to the proposed amendments to the parameters and guidelines is pending; and
3. Delays or postponements made at the request of the requesting party, because the resolution of litigation of an issue similar to or related to the proposed amendments to the parameters and guidelines is pending.
NOTE
Authority cited: Sections 17527(c) and (g) and 17532, Government Code. Reference: Sections 17525, 17527(c), 17532 and 17557, Government Code.
HISTORY
1. New section filed 4-5-2001; operative 5-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 2001, No. 14).
2. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
3. Amendment of subsection (c) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.25. Statewide Cost Estimate.
Note • History
(a) If the commission determines that there are state-mandated costs pursuant to Government Code sections 17514 and 17556, it shall adopt a statewide cost estimate of the amount within twelve (12) months after receipt of a completed test claim unless extended to eighteen (18) months by the commission or executive director. As provided in Section 1183.01, certain days may be tolled and may not be counted toward the date a statewide cost estimate must be adopted by the commission.
(b) Commission staff may develop the statewide cost estimate based on initial reimbursement claims filed with the Office of the State Controller, application of a reasonable reimbursement methodology, or use a different methodology based on recommendations from the test claimant, the Department of Finance, or other interested parties.
(c) Before presenting a statewide cost estimate to the commission for adoption, commission staff shall disclose to the parties and interested parties the methodology, basis for any assumptions made, and sources of any data used to develop the estimate. This information may be disclosed to the parties and interested parties to the test claim during an informal conference or prehearing conference.
(d) Before adopting the statewide cost estimate, the commission shall hold at least one (1) informational hearing.
(e) Upon adoption of the statewide cost estimate by the commission, a summary of the parameters and guidelines and the statewide cost estimate shall be included in the commission's report to the Legislature required by Government Code section 17600.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17518.5, 17553 and 17557(a), Government Code.
HISTORY
1. Renumbering of former section 1183.3 to new section 1183.25 filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
§1183.3. Statewide Cost Estimate. [Renumbered]
Note • History
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17518.5, 17553 and 17557(a), Government Code.
HISTORY
1. Editorial correction of printing error of subsection (a) (Register 86, No. 12).
2. Repealer of subsection (a), new subsections (a)-(f), subsection relettering, and amendment of Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
3. Amendment of subsections (a), (b) and (d) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
4. Amendment filed 2-23-2004; operative 2-23-2004. Submitted to OAL for printing only (Register 2004, No. 9).
5. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
6. Renumbering of former section 1183.3 to section 1183.25 filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
§1183.30. Reasonable Reimbursement Methodology and Statewide Estimate of Costs Developed by the Test Claimant and Department of Finance.
Note • History
(a) Notwithstanding Government Code section 17557, within thirty (30) days of the adoption of a statement of decision on a test claim, the successful test claimant and the Department of Finance may notify the executive director in writing of their intent to follow the process described in Government Code sections 17557.1-17557.2 to develop a reasonable reimbursement methodology and statewide estimate of costs.
(b) The written notification shall provide all information and filing dates, as specified in Government Code section 17557.1, subdivision (a).
(c) At the request of the test claimant and the Department of Finance, the executive director may provide for up to four extensions of the 180-day period for submittal of the draft reasonable reimbursement methodology and proposed statewide estimate of costs for the initial claiming period and budget year. Any request must be based on good cause as defined in section 1181.1 and also include an update of all information and filing dates provided in the original written notification submitted pursuant to Government Code section 17557.1, subdivision (a). If no submittal of a draft and no request for an extension has been made by the filing date specified in the notice of intent to develop a reasonable reimbursement methodology, or if all extensions have been exhausted, the Executive Director shall issue a letter notifying the test claimant of the duty to submit proposed parameters and guidelines within 30 days under Government Code section 17557, subdivision (a).
(d) The test claimant and Department of Finance shall file and serve any filings made pursuant to Government Code section 17557.1 in accordance with section 1181.2 of these regulations.
(e) Commission staff shall notify all recipients that they shall have the opportunity to review and provide written comments or recommendations concerning the draft reasonable reimbursement methodology and proposed statewide estimate of costs within fifteen (15) days of service.
(f) Claimants, state agencies, and interested parties shall file and serve written responses in accordance with section 1181.2 of these regulations.
(g) Within seven (7) days of service of the written comments prepared by other parties and interested parties, the test claimant and Department of Finance may submit written rebuttals which shall be filed and served in accordance with section 1181.2 of these regulations.
(h) At least ten (10) days prior to the next hearing, commission staff shall issue review comments and a staff recommendation on whether the commission should approve the draft reasonable reimbursement methodology and adopt the proposed statewide estimate of costs pursuant to Government Code section 17557.2.
NOTE
Authority cited: Sections 17527(c), 17527(g) and 17532, Government Code. Reference: Sections 17557.1 and 17557.2, Government Code.
HISTORY
1. New section filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
2. Amendment of subsections (c)-(d) and (f)-(g) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.31. Joint Request for Early Termination of Reasonable Reimbursement Methodology.
Note • History
(a) The test claimant and the Department of Finance may file a joint request for early termination of a reasonable reimbursement methodology with the commission by submitting a request made pursuant to Government Code section 17557.2, subdivision (e) which shall be filed and served in accordance with section 1181.2 of these regulations.
(b) Commission staff shall notify all recipients that they shall have the opportunity to review and provide written comments or recommendations on the joint request for early termination of a reasonable reimbursement methodology within fifteen (15) days of service.
(c) Claimants, state agencies, and interested parties shall file and serve written responses in accordance with section 1181.2 of these regulations.
(d) Within seven (7) days of service of the written comments prepared by other parties and interested parties, the test claimant and Department of Finance may submit written rebuttals which shall be filed and served in accordance with section 1181.2 of these regulations.
(e) At least ten (10) days prior to the next hearing, commission staff shall issue review comments and a staff recommendation on whether the commission should approve the joint request for early termination of a reasonable reimbursement methodology pursuant to Government Code section 17557.2, subdivision (e).
(f) If the commission approves a joint request for early termination, the commission shall notify the test claimant of the duty to submit proposed parameters and guidelines to the commission pursuant to subdivision (a) of Government Code section 17557, and section 1183.11 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17553(a), 17557 and 17557.2, Government Code.
HISTORY
1. New section filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
2. Amendment of subsections (a) and (c)-(d) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1183.32. Expiration of Reasonable Reimbursement Methodology.
Note • History
(a) At least one year before the expiration of a reasonable reimbursement methodology, commission staff shall notify the test claimant and the Department of Finance, that they may do one of the following:
1. Jointly propose amendments to the reasonable reimbursement methodology by submitting: (A) the draft reasonable reimbursement methodology, (B) A description of the steps the test claimant and the Department of Finance undertook to determine the level of support by local agencies or school districts for the draft reasonable reimbursement methodology, (C) an agreement that the reasonable reimbursement methodology developed and approved under Government Code section 17557.2 shall be in effect for a period of five years unless a different term is approved by the commission, and (D) an estimate of the mandate's annual cost for the subsequent budget year.
2. Jointly propose that the reasonable reimbursement methodology remain in effect.
3. Allow the reasonable reimbursement methodology to expire and notify the commission that the test claimant will submit proposed parameters and guidelines to the commission pursuant to subdivision (a) of Government Code section 17557 and section 1183.11 of these regulations to replace the reasonable reimbursement methodology.
(b) Copies of the notice provided under subdivision (a) shall be filed and served in accordance with section 1181.2 of these regulations.
(c) The test claimant and the Department of Finance may jointly propose amendments to the reasonable reimbursement methodology or the continuation of a reasonable reimbursement methodology by submitting a request made pursuant to Government Code section 17557.2, subdivision (f), which shall be filed and served in accordance with section 1181.2 of these regulations.
(d) Commission staff shall notify all recipients that they shall have the opportunity to review and provide written comments or recommendations on the jointly proposed amendments or request for continuation of the reasonable reimbursement methodology within thirty (30) days of service.
(e) Claimants, state agencies, and interested parties shall file and serve written responses in accordance with section 1181.2 of these regulations.
(f) Within fifteen (15) days of service of the written comments prepared by other parties and interested parties, the test claimant and Department of Finance may submit written rebuttals which shall be filed and served in in accordance with section 1181.2 of these regulations.
(g) At least ten (10) days prior to the next hearing, commission staff shall issue review comments and a staff recommendation on whether the commission should approve the jointly proposed amendments or the continuation of a reasonable reimbursement methodology pursuant to Government Code section 17557.2, subdivision (g).
(h) Within ten (10) days of the adoption of the jointly proposed amendments or the continuation of a reasonable reimbursement methodology, the executive director shall send copies to the Office of the State Controller, and to parties and interested parties who are on the mailing list described in section 1181.2 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553 (a), Government Code. Reference: Sections 17553(a), 17557, 17557.1 and 17557.2, Government Code.
HISTORY
1. New section filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
2. Amendment of subsections (b)-(c) and (e)-(f) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Article 4. Mandates Recognized by the Legislature [Repealed]
HISTORY
1. Repealer of article 4 (sections 1184-1184.2) and repealer of section filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
Article 4.5. State Mandates Apportionment System
§1184.5. Definitions: State Mandates Apportionment System.
Note • History
(a) Request for Inclusion. A Request for Inclusion is a factual statement about a mandated cost program and a petition for a review of the described program by the Commission on State Mandates. Such review is intended to result in a decision whether or not to include the program in the State Mandates Apportionment System.
(b) Stable costs. Stable costs are those costs incurred by local agencies or school districts as a result of implementing a mandated cost program which, when reviewed on a statewide basis over a three year period, have not fluctuated significantly.
(c) Request for Removal. A Request for Removal is a factual statement about significant modifications or amendments to a program which is part of the State Mandates Apportionment System. The statement is intended to result in the discontinuance of such program in the State Mandates Apportionment System.
NOTE
Authority and reference cited: Section 17615, Government Code.
HISTORY
1. New Article 4.5 (Sections 1184.5-1184.11) filed 4-21-86; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 86, No. 17).
§1184.6. Request for Inclusion.
Note
(a) Any local agency, school district, the Department of Finance or the State Controller's Office may request that the commission review a mandated cost program(s) for possible inclusion in the State Mandates Apportionment System in accordance with Section 17615.1 of the Government Code.
(b) In order to obtain a review and determination regarding inclusion in the system, a local agency, school district or state agency must file a “Request for Inclusion” with the commission.
(c) The request for inclusion must contain at least the following:
(1) the chapter number of the law which established the mandated cost program(s).
(2) a detailed narrative describing the mandated cost program with an explanation of the reasons why the mandated cost program should be included in the State Mandates Apportionment System.
(3) any other pertinent information which will substantiate the request or which would have a bearing on the decision of the commission in this matter.
(d) The commission shall consider the recommendation submitted from the Controller for each new mandate submitted for inclusion in the State Mandates Apportionment System in accordance with Section 17615.4(c) of the Government Code.
(e) Requests for inclusion will be considered incomplete if any of the preceding elements or documents required in subsection (c) of this section are illegible or not included. Incomplete requests for inclusion shall be returned to the requestor for completion.
(f) Requests for inclusion filings and any state agency recommendations shall be subject to the requirements of Article 7 of these regulations beginning at Section 1187.
NOTE
Authority and reference cited: Sections 17615 and 17615.1, Government Code.
§1184.7. Adoption of Finding for Request for Inclusion.
Note
(a) The commission, after reviewing the request for inclusion and conducting at least one (1) hearing in accordance with Article 7 of these regulations, shall adopt a finding that the mandated program(s) will or will not be included in the State Mandates Apportionment System.
(b) The primary criteria to be used by the commission in making such a determination will include a review of the mandated program to determine if the program has a history of stable costs for most claimants, if the mandated program has been recently modified and if inclusion would accurately reflect the costs of the state mandated program.
(c) Upon adoption of a finding that a mandated program should be included in the State Mandates Apportionment System, the commission shall direct the Controller to include the program in the system.
NOTE
Authority and reference cited: Section 17615.1, Government Code.
Note
(a) Any local agency, school district or state agency may request that the commission review a mandated program included in the State Mandates Apportionment System that has been modified or amended by the Legislature or an executive order for possible removal of the program from the system in accordance with Section 17615.7 of the Government Code.
(b) In order to obtain a review and determination regarding removal of a program from the system, a local agency, school district or state agency must file a “Request for Removal” with the commission.
(c) The request for removal must contain at least the following elements:
(1) the chapter number or executive order of the law which established the mandated cost program.
(2) the chapter number of the law or the executive order which significantly modified or amended the costs of the program or a detailed description of the circumstances or events which have caused such changes.
(3) a detailed narrative describing the mandated cost program with an explanation of the reasons why the mandated program should no longer be included in the State Mandates Apportionment System.
(4) any other information which will substantiate the request or which would have a bearing on the decision of the commission in this matter.
(d) Requests for Removal will be considered incomplete if any of the preceding elements or documents required in subsection (c) of this section are illegible or not included. Incomplete Requests for Removal shall be returned to the requestor for completion.
(e) Request for removal filings and any state agency recommendations shall be subject to the requirements of Article 7 of these regulations beginning at Section 1187.
NOTE
Authority and reference cited: Section 17615.7, Government Code.
§1184.9. Adoption of Finding for Request for Removal.
Note
(a) The commission, after reviewing the request for removal and conducting at least one (1) hearing in accordance in Article 7 of these regulations, shall adopt a finding that the mandated program(s) will or will not continue to be included in the State Mandates Apportionment System.
(b) The primary criteria to be used by the commission in making such a determination will include whether the mandated program was significantly modified or amended by the Legislature or by executive order so as to affect the ongoing costs of the program in a way that the historical costs of the program are no longer an accurate reflection of continuing costs.
(c) Upon adoption of a finding that a mandated program should be removed from the system, the commission shall direct the Controller to remove the program from the system. In that direction to the Controller, the commission shall specify if the program will be removed temporarily or for an indefinite period of time.
NOTE
Authority and reference cited: Section 17615.5, Government Code.
§1184.10. Reviewing an Apportionment or Base Year Entitlement.
Note
(a) Upon request of a local agency, school district or state agency the commission shall review the apportionment or base year entitlement pursuant to Section 17615.8(a) of the Government Code.
(b) In order to obtain a review of an apportionment or base year entitlement a “Request for Review” shall be filed with the commission.
(c) The request for review shall contain at least the following elements:
(1) Identification of the mandated program(s) that is alleged to require review.
(2) A detailed narrative describing the need to modify the apportionment or base year entitlement.
(3) A statement to the effect that the other mandated programs included in the local agency or school district's apportionment are not overfunded in an amount sufficient to offset any underfunding.
(4) Cost information that outlines the amount of the funding for the total apportionment and the calculations necessary to show that the program(s) needing modification either under or over reimburse the local agency or school district's actual costs by 20 percent or by one thousand dollars ($1,000), whichever is less.
NOTE
Authority and reference cited: Section 17615.8, Government Code.
§1184.11. Adjustment to Apportionment.
Note
(a) The commission, after reviewing an apportionment or base year entitlement and conducting at least one (1) hearing in accordance with Article 7 of these regulations, shall adopt a finding that the apportionment or base year entitlement will or will not be adjusted.
(b) If the commission determines that a local agency or school district's apportionment falls short of reimbursing for all mandates upon which the apportionment or base year entitlement is based by 20 percent or by one thousand dollars ($1,000), whichever is less, then the commission shall direct the Controller to adjust the apportionment accordingly.
(c) If the commission determines that a local agency or school district's apportionment adequately reflects the costs incurred by the local agency or school district for all mandates upon which that apportionment is based, the commission may, in its discretion, direct the Controller to withhold the costs of the commission's review from the next apportionment to the local agency or school district. Such a determination will be made only when the commission determines that the request to review an apportionment was frivolous and without merit.
NOTE
Authority and reference cited: Section 17615.9, Government Code.
Article 5. Incorrect Reduction Claims
§1185. Incorrect Reduction Claim Filing.
Note • History
(a) To obtain a determination that the Office of State Controller incorrectly reduced a reimbursement claim, a claimant shall file an “incorrect reduction claim” with the commission.
(b) If a claimant intends to pursue an incorrect reduction claim on behalf of a class of claimants, it must notify the commission of its intent to do so at the time it files its incorrect reduction claim and meet the requirements of section 1185.2 of these regulations.
(c) All incorrect reduction claims shall be filed with the commission no later than three (3) years following the date of the Office of State Controller's final state audit report, letter, remittance advice, or other written notice of adjustment notifying the claimant of a reduction.
(d) An incorrect reduction claim shall pertain to alleged incorrect reductions in a reimbursement claim(s) filed by one claimant. The incorrect reduction claim may be for more than one fiscal year.
(e) All incorrect reduction claims, or amendments thereto, shall be filed on a form provided by the commission.
(f) All incorrect reduction claims, or amendments thereto, shall contain at least the following elements and documents:
(1) A copy of the Office of State Controller's claiming instructions that were in effect during the fiscal year(s) of the reimbursement claim(s).
(2) A written detailed narrative that describes the alleged incorrect reduction(s). The narrative shall include a comprehensive description of the reduced or disallowed area(s) of cost(s).
(3) If the narrative describing the alleged incorrect reduction(s) involves more than discussion of statutes or regulations or legal argument and utilizes assertions or representations of fact, such assertions or representations shall be supported by testimonial or documentary evidence and shall be submitted with the claim. All documentary evidence must be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and be based upon the declarant's personal knowledge or information or belief.
(4) A copy of any final state audit report, letter, remittance advice, or other written notice of adjustment from the Office of State Controller that explains the reason(s) for the reduction or disallowance.
(5) A copy of the subject reimbursement claims the claimant submitted to the Office of State Controller.
(6) An incorrect reduction claim, or amendment thereto, shall be signed at the end of the document, under penalty of perjury by the claimant or its authorized representative, with the declaration that the incorrect reduction claim is true and complete to the best of the declarant's personal knowledge or information or belief. The date signed, the declarant's title, address, telephone number, and, if available, electronic mail address and facsimile number, shall be included.
(7) The claimant shall file one original incorrect reduction claim, or amendment thereto, and accompanying documents with the commission. An “original” is either a signed hard copy or an Adobe PDF electronic copy thereof submitted through the e-filing system on the commission's web site. If the document is e-filed with the commission, the claimant is responsible for maintaining the paper document with original signature(s) for the duration of the test claim process, including any period of appeal. If a hard copy is submitted the original shall be unbound and single-sided, without tabs, and include a table of contents. If the original is filed in Adobe PDF format, the accompanying documents shall also be filed in Adobe PDF format.
(8) The claimant shall also file two (2) copies of the incorrect reduction claim, or amendment thereto, and accompanying documents with the commission, if the original is filed in hard copy. The copies may be two-sided and shall not include tabs. If the incorrect reduction claim, or amendment thereto is e-filed, no copies shall be filed.
(g) Within ten (10) days of receipt of an incorrect reduction claim, commission staff shall notify the claimant if the incorrect reduction claim is complete or incomplete. Incorrect reduction claims will be considered incomplete if any of the elements required in subsections (c) through (e) of this section are illegible or not included. Incomplete incorrect reduction claims shall be returned to the claimant. If a complete incorrect reduction claim is not received by the commission within thirty (30) days from the date the incomplete claim was returned to the claimant, the executive director shall deem the filing to be withdrawn.
(h) Within ten (10) days of receipt of an incorrect reduction claim, commission staff shall send a copy of the incorrect reduction claim to the Office of the State Controller, and shall post it on the commission's web site.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 17530, 17551(d) and 17553(d), Government Code.
HISTORY
1. New Article 5 (Sections 1185 and 1185.1) filed 12-13-85; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 85, No. 50).
2. Amendment of Note filed 4-29-87; operative 5-29-87 (Register 87, No. 18).
3. Amendment of subsections (a), (b) and (c)(4)-(5) and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
4. Amendment of section and Note filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
5. Amendment of article heading and amendment of section and Note filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
6. Amendment of section and Note filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
7. New subsection (b), subsection relettering, amendment of newly designated subsections (f)(7)-(g), new subsection (h) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.01. Review of Incorrect Reduction Claims. [Renumbered]
Note • History
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17551(b), Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (a) and (b) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
4. Renumbering of former section 1185.01 to section 1185.1 filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
§1185.02. Review of Completed Incorrect Reduction Claims and Preparation of Staff Analysis. [Renumbered]
Note • History
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17551(b), Government Code.
HISTORY
1. New section filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
2. Renumbering of former section 1185.02 to section 1185.03 and new section 1185.02 filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
3. Renumbering of former section 1185.02 to section 1185.5 filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
§1185.03. Withdrawal of Incorrect Reduction Claims. [Renumbered]
Note • History
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17551(b), Government Code.
HISTORY
1. Renumbering of former section 1185.02 to section 1185.03 filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
2. Renumbering of former section 1185.03 to section 1185.6 filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
§1185.1. Review of Incorrect Reduction Claims.
Note • History
(a) Within ten (10) days of receipt of a complete incorrect reduction claim, commission staff shall provide a copy of the claim to the Office of State Controller.
(b) Commission staff shall notify the Office of State Controller that written oppositions or recommendations and supporting documentation in connection with an incorrect reduction claim shall be filed no more than ninety (90) days from the date the copy of the claim is provided to the Office of State Controller. The Office of State Controller shall simultaneously serve a copy of any opposition or recommendation regarding the claim on the claimant and their designated representative or, if a mailing list is provided by the commission, a copy of any opposition or recommendation on the claim, must be filed on all parties and interested parties on the mailing list. Proof of service must be filed with the oppositions or recommendations and supporting documentation pursuant to section 1181.2. If the oppositions or recommendations regarding an incorrect reduction claim involve more than the discussion of statutes, regulations or legal argument and utilizes assertions or representations of fact, such assertions or representations shall be supported by documentary evidence and shall be submitted with the response. All documentary evidence must be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and be based upon the declarant's personal knowledge or information or belief.
(c) The claimant and interested parties may submit written rebuttals to the Office of State Controller's comments. Written rebuttals shall be filed with the commission within thirty (30) days of service of the Office of State Controller's comments. The claimant shall simultaneously serve a copy of the written rebuttal on the Office of State Controller or, if a mailing list is provided by the commission, a copy of the rebuttal, must be served on all parties and interested parties on the mailing list. Proof of service shall be filed with the written rebuttal and supporting documentation pursuant to section 1181.2. If the written rebuttal involves more than discussion of statutes, regulations or legal argument and utilizes assertions or representations of fact, such assertions or representations shall be supported by documentary evidence and shall be submitted with the rebuttal. All documentary evidence must be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and be based upon the declarant's personal knowledge or information or belief.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 17551(d) and 17553(d), Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (a) and (b) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
4. Renumbering of former section 1185.01 to section 1185.1 and amendment of Note filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
§1185.2. Consolidation of Claims Initiated by an Individual Claimant.
Note • History
(a) On behalf of a class of claimants, an individual claimant may initiate the consolidation of claims alleging an incorrect reduction as described in Government Code section 17558.7, if all of the following apply:
(1) The method, act, or practice that the claimant alleges led to the reduction has led to similar reductions of other parties' claims, and all of the claims involve common questions of law or fact.
(2) The common questions of law or fact among the claims predominate over any matter affecting only an individual claim.
(3) The consolidation of similar claims by individual claimants would result in consistent decisionmaking by the commission.
(4) The claimant filing the consolidated claim would fairly and adequately protect the interests of the other claimants.
(b) A claimant that seeks to file a consolidated incorrect reduction claim shall notify the commission of its intent at the time of filing on a form provided by the commission.
(c) Within ten (10) days of receipt of a consolidated incorrect reduction claim, commission staff shall notify the claimant if the consolidated incorrect reduction claim is complete or incomplete pursuant to section 1185, and request the Office of the State Controller to provide the commission, within thirty (30) days, a list of claimants for whom the Controller has reduced similar claims under the same mandate, and the date each claimant was notified of an adjustment.
(d) Upon receipt of the list from the Office of the State Controller, the commission shall notify the list of other claimants experiencing similar reductions by the Controller under the same mandate and other interested parties of the original claimant's intent to consolidate an incorrect reduction claim.
NOTE
Authority cited: Sections 17527(g) and 17558.7(g), Government Code. Reference: Section 17558.7, Government Code.
HISTORY
1. New section filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19). For prior history, see Register 2003, No. 17.
2. Amendment of section heading and repealer of subsections (e)-(g) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.21. Joining a Consolidated Incorrect Reduction Claim.
Note • History
(a) Within thirty (30) days of receipt of the commission's notice regarding the original claimant's notice of intent to consolidate an incorrect reduction claim, any other eligible claimant may, on a form provided by the commission, file a notice of intent to join the consolidated incorrect reduction claim.
(b) All notices of intent to join a consolidated incorrect reduction claim shall comply with section 1185(c) and contain at least the following elements and documents:
(1) A copy of the final state audit report, letter, remittance advice, or other written notice of adjustment from the Office of State Controller that explains the reason(s) for the reduction or disallowance.
(2) A copy of the subject reimbursement claims submitted to the Office of State Controller.
(3) A notice of intent to join a consolidated incorrect reduction claim shall include a certification by the joining claimant authorizing the original claimant to act as its representative in the consolidated incorrect reduction claim, and a declaration under penalty of perjury that the filing is true and complete to the best of the declarant's personal knowledge or information or belief. The date signed, the declarant's title, address, telephone number, and, if available, electronic mail address and facsimile number shall be included.
(4) The joining claimant shall file one original notice of intent to join and accompanying documents with the commission. If a hard copy is submitted the original shall be unbound and single-sided, without tabs. An “original” is either a signed hard copy or an Adobe PDF electronic copy thereof submitted through the e-filing system on the commission's web site. If the document is e-filed with the commission, the claimant is responsible for maintaining the paper document with original signature(s) for the duration of the test claim process, including any period of appeal. If the original is filed in Adobe PDF format, the accompanying documents shall also be filed in Adobe PDF format.
(5) The joining claimant shall also file two (2) copies of the notice of intent to join and accompanying documents with the commission, if the original is filed in hard copy. The copies may be two-sided and shall not include tabs. If the notice of intent to join is e-filed, no copies shall be filed.
(c) Within ten (10) days of receipt of a notice of intent to join a consolidated incorrect reduction claim, commission staff shall notify the joining claimant if the notice of intent to join is complete or incomplete. Notices of intent to join a consolidated incorrect reduction claim will be considered incomplete if any of the elements required in subdivision (b) of this section are illegible or not included. Incomplete notices of intent shall be returned to the joining claimant. If a complete notice of intent to join a consolidated incorrect reduction claim is not received by the commission within thirty (30) days from the date the incomplete notice of intent was returned to the joining claimant, the commission shall deem the filing to be withdrawn.
NOTE
Authority cited: Sections 17527(g) and 17558.7(g), Government Code. Reference: Section 17558.7, Government Code.
HISTORY
1. New section filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.3. Opting Out of a Consolidated Incorrect Reduction Claim.
Note • History
Pursuant to Government Code section 17558.7(f), each claimant that files an intent to join a consolidated incorrect reduction claim may opt out and not be bound by any determination made on the consolidated claim.
(a) To opt out of a consolidated incorrect reduction claim, claimants shall file a written notice with the commission within fifteen (15) days of service of the Office of State Controller's comments. A copy of the notice must be served in accordance with section 1181.2.
(1) No later than one (1) year after opting out, or within the statute of limitations under section 1185(c), whichever is later, a claimant that opts out of a consolidated claim shall file an individual incorrect reduction claim pursuant to commission requirements in order to preserve its right to challenge a reduction made by the Controller on that same mandate.
(2) If a claimant opts out of a consolidated incorrect reduction claim and an individual incorrect reduction claim for that entity is already on file with the commission, the individual filing is automatically reinstated.
NOTE
Authority cited: Sections 17527(g) and 17558.7(g), Government Code. Reference: Section 17558.7, Government Code.
HISTORY
1. New section filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19). For prior history, see Register 99, No. 38.
2. Amendment of subsections (a)-(a)(1) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.4. Executive Director's Authority to Consolidate Incorrect Reduction Claims.
Note • History
(a) The executive director may consolidate part or all of any incorrect reduction claim with another incorrect reduction claim, if necessary to ensure the complete, fair, or timely consideration of any incorrect reduction claim.
(1) At least thirty (30) days before the action is taken, the executive director shall simultaneously serve on the parties and interested parties on the mailing list described in section 1181.2 of these regulations a notice of any proposed action to consolidate and shall post the notice on the commission's web site.
(2) During the thirty (30) day notice period, a claimant may serve and file a written request that an individual incorrect reduction claim be severed from the proposed consolidation. Timely requests to sever shall be approved by the executive director.
(3) Late requests for severing an individual incorrect reduction claim shall be denied. Any party may appeal to the commission for review of the actions and decisions of the executive director under this section pursuant to section 1181 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17558.8(b), Government Code. Reference: Sections 17530, 17554 and 17558.8, Government Code.
HISTORY
1. New section filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
2. Amendment of subsection (a)(1) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.5. Review of Completed Incorrect Reduction Claims and Preparation of Staff Analysis.
Note • History
(a) Before hearing an individual or consolidated incorrect reduction claim, commission staff shall prepare a written analysis of the incorrect reduction claim that shall include, but not be limited to, a review of any statements filed by the Office of State Controller and the claimant's rebuttal. The analysis shall also include a staff recommendation on whether the claimant's reimbursement claim was incorrectly reduced.
(b) At least eight (8) weeks before the hearing or at such other time as required by the executive director or stipulated to by the claimant and the Office of State Controller, commission staff shall distribute a draft staff analysis to the Office of State Controller and the claimant and their designated representative, or, if a mailing list is provided by the commission, a copy shall be distributed to all parties and interested parties on the mailing list.
(c) The Office of State Controller and the claimant may file written comments on the draft staff analysis with the commission. Written comments shall be filed with the commission at least five (5) weeks before the hearing or as otherwise stipulated to by the parties or determined and publicized by the executive director. If a mailing list is provided by the commission, a copy of the comments must be served on all parties and interested parties on the mailing list in accordance with section 1181.2 of these regulations. Written comments shall be reviewed by staff and may be incorporated into the final staff analysis presented to the commission.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17551(d), Government Code.
HISTORY
1. Renumbering of former section 1185.02 to section 1185.5, including amendment of section and Note, filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
2. Amendment of subsection (c) filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.6. Withdrawal of Incorrect Reduction Claims.
Note • History
(a) An incorrect reduction claim, except for a claim by the original claimant in a consolidated incorrect reduction claim, may be withdrawn by written application any time before a decision is adopted or by oral application at the time of hearing. If such an application is made, the Executive Director shall issue a letter to the claimant and the State Controller dismissing the claim.
(b) An incorrect reduction claim, by the original claimant in a consolidated incorrect reduction claim, may be withdrawn by written application any time before a decision is adopted or by oral application at the time of hearing. The original claimant shall file and serve the written application in accordance with section 1181.2 of these regulations and commission staff shall post a copy of the notice on the commission's web site for sixty (60) days prior to dismissal of the incorrect reduction claim. If one of the joint claimants takes over the claim, it shall, within sixty (60) days of providing notice of its intent to take over the claim, perfect the filing by submitting the written narrative as required by section 1185, subdivisions (e) (2) and (e) (3). If none of the joint claimants takes over the claim by substitution of parties within sixty (60) days of service and posting of the application to withdraw, the Executive Director shall issue a letter to everyone on the mailing list described in section 1181.2 of these regulations dismissing the claim and providing the joint claimants with an opportunity to perfect their individual claims within sixty (60) days of service by submitting the written narrative as required by section 1185, subdivisions (e) (2) and (e) (3). The commission shall also post the letter on the commission's web site.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 17530 and 17551(d), Government Code.
HISTORY
1. Renumbering of former section 1185.03 to section 1185.6, including amendment of Note, filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
2. Amendment of section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1185.7. Reinstatement of Costs.
Note • History
If the commission determines that a reimbursement claim was incorrectly reduced, the commission shall send the statement of decision to the Office of State Controller and request that the Office of State Controller reinstate the costs that were incorrectly reduced.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17551(d), Government Code.
HISTORY
1. Renumbering of former section 1185.1 to new section 1185.7, including amendment of Note, filed 5-8-2007; operative 5-8-2007 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2007, No. 19).
Article 6. Review of Office of State Controller's Claiming Instructions
§1186. Review of Office of State Controller's Claiming Instructions.
Note • History
(a) Upon request of a local agency or school district, the commission shall review claiming instructions issued by the Office of State Controller.
(b) A request to review claiming instructions shall include the following:
(1) A copy of the disputed claiming instructions.
(2) If available, correspondence or other documentation that verifies the local agency or school district sought to resolve the dispute through the Office of State Controller.
(3) A narrative that details the suggested changes(s) and the reasons why the local agency or school district finds the claiming instructions need to be modified.
(4) The name, address, telephone number, and if available the facsimile number and electronic mail address of the agency contact person.
(c) An original and three (3) copies of the request to review claiming instructions shall be submitted to the commission by the local agency or school district.
(d) Within ten (10) days of receipt of a request to review claiming instructions, commission staff shall notify the local agency or school district that submitted the request if the submittal is complete or incomplete. A request to review the claiming instructions shall be considered incomplete if any of the elements required in subdivision (b) or (c) of this section are illegible or not included. Incomplete requests shall be returned to the local agency or school district. If a complete request is not received by the commission within thirty (30) days from the date the incomplete request was returned, the commission shall deem the request to be withdrawn.
(e) Within ten (10) days of receipt of a request to review claiming instructions, commission staff shall send a copy to the Department of Finance, the Office of State Controller, affected state agencies and interested parties who are on the mailing list. Commission staff shall also notify the affected state agencies and interested parties on the mailing list that they may review and provide written comments or recommendations concerning the request to review claiming instructions within thirty (30) days of service. A copy of the notice shall also be posted on the commission's web site.
(f) State agencies and interested parties shall submit written responses to the commission which shall be filed and served in accordance with section 1181.2 of these regulations.
(g) Within thirty (30) days of service of the written responses by state agencies and interested parties, the local agency or school district that filed the request to review claiming instructions may submit a written rebuttal to the commission which shall be filed and served in accordance with section 1181.2 of these regulations.
(h) The commission shall conduct a hearing in accordance with Article 7 of these regulations on the request to review claiming instructions.
(i) If the commission determines that the claiming instructions need to be modified, the commission shall direct the Office of State Controller to modify the claiming instructions to conform to the parameters and guidelines.
(j) An approved change to the claiming instructions shall be subject to the following schedule:
(1) A request for review filed before the deadline for initial claims as specified in the claiming instructions shall apply to all years eligible for reimbursement as defined in the original parameters and guidelines.
(2) A request for review filed after the initial claiming deadline must be submitted on or before the annual reimbursement claim filing deadline set out in Government Code section 17560 following a fiscal year in order to establish eligibility for reimbursement for that fiscal year.
(k) A request to review claiming instructions may be withdrawn by written application to the executive director any time before a decision is adopted or by oral application at the time of hearing. The requestor(s) shall file and serve the written application in accordance with section 1181.2 of these regulations. Commission staff shall post a copy of the notice on the commission's web site for sixty (60) days prior to dismissal of the request to review claiming instructions. If no other local agency or school district takes over the request to review claiming instructions by substitution of parties within sixty (60) days of service and posting of the application to withdraw, the Executive Director shall issue a letter to everyone on the mailing list described in section 1181.2 of these regulations dismissing the request to review claiming instructions and shall post the letter on the commission's web site.
NOTE
Authority cited: Sections 17527(g) and (h), Government Code. Reference: Sections 17530, 17560 and 17571, Government Code.
HISTORY
1. Editorial correction of printing error of subsection (c)(4) (Register 86, No. 12).
2. Repealer of article 6 (sections 1186-1186.3) and section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
3. Amendment of article 6 heading and new article 6 (section 1186) and new section filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17). For prior history of article 6 (sections 1186-1186.3), see Register 96, No. 30.
4. Amendment of subsections (e)-(h) and (j)(2)-(k) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Article 6.5. Applications for a Finding of Significant Financial Distress
§1186.5. Reduction in Aid Levels; Definitions.
Note • History
When the county has made a compelling case that basic county services cannot be maintained without a reduction in the level of aid established by Welfare and Institutions Code section 17000.5, the commission shall make a finding of significant financial distress.
In making such a finding, the following definitions shall apply:
(a) “Application” means a county application filed pursuant to this article requesting the commission determine that the county has made a compelling case that basic county services cannot be maintained without a reduction in the level of General Assistance aid established by Welfare and Institutions Code section 17000.5, and finding that as a result, the county is in significant financial distress, as defined in Welfare and Institutions Code section 17000.6.
(b) “Applicant” means the county that filed the request for a finding of significant financial distress.
(c) A “compelling case” sufficient to cause a finding of significant financial distress must be established by clear and convincing evidence.
(d) “Basic county services” means those services which are fundamental or essential. Such services shall include, but are not limited to, those services required by state or federal law, and may vary from county to county.
(e) “Maintained” means the level of service which the county must provide in order to adequately or effectively furnish basic county services.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New article 6.5 and section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New article 6.5 and section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
4. New subsections (a) and (b) and subsection relettering filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.51. Filing of an Application for a Finding of Significant Financial Distress.
Note • History
(a) Pursuant to Welfare and Institutions Code section 17000.6, in order for the board of supervisors of any county to obtain a finding of significant financial distress, the board of supervisors must submit a written application to the Commission on State Mandates.
(b) The applicant shall file an original and seven (7) copies of the application, including supporting documents, with the commission.
(c) All applications shall contain at least the following:
(1) A table of contents, indicating page numbers.
(2) A copy of a resolution from the county board of supervisors stating that compliance with the standards set forth in Welfare and Institutions Code section 17000.5 will result in significant financial distress to the county for a specified period of time, up to 36 months.
(3) A written narrative, including a summary, detailing the relevant financial or other budgetary information and documents necessary for a county to make a compelling case that basic county services, including public safety, cannot be maintained without a reduction in the standard of aid as provided in Welfare and Institutions Code section 17000.5. The narrative shall also include:
(A) The monthly caseload of General Assistance recipients for each of the 12 months preceding the date the application is filed.
(B) The current monthly rate of the General Assistance Standard of Aid.
(C) The proposed reduced rate of the General Assistance Standard of Aid.
(D) An overview of county finances, including, but not limited to county revenue sources; budget reserve data; budget expenditures; mandated expenditures, and maintenance of effort costs.
(E) A detailed summary of program needs and expenditure flexibility, including, but not limited to department-by-department data on unmet program needs for basic county services.
(F) The County's total population at the time the application is filed, and the total county population for the two fiscal years prior to the year in which the application was filed.
(d) The written narrative shall be submitted under penalty of perjury. In addition, the financial and other budgetary documents shall be certified under penalty of perjury.
(e) Each page of the application, including all supporting documentation, shall be consecutively numbered.
(f) The original application, including all supporting documentation, shall be unbound and single-sided.
(g) The executive director shall notify an applicant within 10 days of receipt of an application whether its application is incomplete. If the application is incomplete, the executive director may return the application to the county. An application shall be considered incomplete if the elements in (b) through (f) of this section have not been satisfied, are illegible or are not included. The requirements for commission public hearings and decisions, as set forth in subdivision (c), of Welfare and Institutions Code section 17000.6, apply only to complete applications.
(h) Within ten days of receipt of a completed application, the executive director shall notify the applicant that the application is complete, and notify the applicant of the schedule. The executive director shall also send the application to interested persons located in the applicant county.
(i) Prior to filing an application, a county may request a tentative date for conducting the hearing in the county. If a complete application is not received by a specified date, a new tentative hearing date may be set.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 with amendment of subsection (b)(2) and filed 7-14-94 (Register 94, No. 28).
4. Amendment filed 1-26-99; operative 1-26-99. Submitted to OAL for printing only (Register 99, No. 5).
5. Amendment filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.52. Extension of Period for Preliminary and Final Decision and Current Period of Financial Distress.
Note • History
(a) If an application is filed while another county's application is pending, the executive director may extend both the preliminary decision period up to 120 days and the final decision period up to 150 days from the filing date of the application, unless otherwise provided in the current Budget Act. If the preliminary and final decision periods are extended, any current period of significant financial distress of the applicant that has been set, pursuant to subdivision (b), of Welfare and Institutions Code Section 17000.6, shall also be extended for the same period.
(b) Within ten (10) days of receipt of a county's application, the executive director shall provide written notice to the applicant of extensions of the preliminary decision and final decision periods and of any current period of significant financial distress of the applicant.
NOTE
Authority cited: Stats. 1998, c. 324, Prov. (2), p. 622 (and subsequent Budget Acts); Section 17527(g), Government Code; and Section 17000.6(b), Welfare and Institutions Code. Reference: Section 17000.6(c), Welfare and Institutions Code.
HISTORY
1. New section filed 1-26-99; operative 1-26-99. Submitted to OAL for printing only (Register 99, No. 5).
2. Amendment filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
Note • History
(a) Upon receipt of a complete application for a finding of significant financial distress, the commission shall provide to the applicant a written 30-day notice of the hearing, to be held in the county.
(b) The notice shall be publicly posted by the applicant at the county court house and one county welfare office where General Assistance recipients are generally present. The commission shall publish two notices in a newspaper of general circulation in the county. The first notice shall be published at least 30 days prior to the hearing date. The second notice shall be published at least ten days prior to the hearing date. The cost of publishing the notices shall be paid for by the commission.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. Renumbering and amendment of former section 1186.6 to section 1186.53 filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.54. Pre-Hearing Conference.
Note • History
A pre-hearing conference may be scheduled by the executive director for the purpose of identifying issues and determining methods of resolving such issues. The county, and other parties known to have an interest in the county's application shall be invited to participate. This conference shall not limit the issues that can be presented to or considered by the commission at public hearing.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. Renumbering and amendment of former section 1186.61 to section 1186.54 filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.55. Assignment to Hearing Panels/Hearing Officers.
Note • History
The chairperson may assign an application to a hearing panel consisting of one or more members of the commission, which shall act on behalf of the commission, or to a hearing officer for hearing and preparation of a preliminary decision. Assignments by the chairperson of members on such hearing panels shall be rotated among the members with the composition of the members so assigned being varied and changed to assure that there shall never be a fixed and continued composition of members.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. Renumbering of former section 1186.62 to section 1186.55 filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.6. Request for Supplemental Information.
Note • History
(a) The executive director may request supplemental information from the applicant to assist the commission in its review and analysis of the application. The applicant shall provide the supplemental information under the timeline established by the executive director.
(b) The supplemental information shall be submitted under penalty of perjury. Any attached financial or other budgetary documents shall be certified under penalty of perjury.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 with amendment of subsection (b) and filed 7-14-94 (Register 94, No. 28).
4. Renumbering of former section 1186.6 to section 1186.53 and new section 1186.6 filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.61. Review of Completed Application for a Finding of Significant Financial Distress and Preparation of Staff Analysis.
Note • History
(a) Before the hearing is conducted in the applicant county, the executive director shall prepare and distribute a staff analysis of the application, which shall include, but not be limited to, a review of written responses, opposition, recommendations and comments filed by interested persons, and rebuttals filed by the applicant. The staff analysis may also include a review of the applicant's revenue sources, including the applicant's flexibility in directing its resources; review of the applicant's budget expenditures, statutory relief, contingencies and fund balances, an analysis of the applicant's department-by-department evaluation of unmet need in basic county services; and a preliminary recommendation whether the commission should approve or deny the application. The staff analysis shall describe the application and assist the commission in determining whether or not to make a finding of significant financial distress.
(b) The executive director shall send the staff analysis out for comment at least ten (10) days prior to the hearing conducted in the applicant county.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
4. Renumbering of former section 1186.61 to section 1186.54 and new section 1186.61 filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
Note • History
The applicant and any interest persons may file written comments concerning the staff analysis with the commission. Written comments shall be filed with the commission and simultaneously served upon the applicant and any interest persons included on the mailing list under the timeline established by the executive director. The written comments shall be reviewed by the executive director and may be incorporated into any revised or supplemental staff analysis of the application.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
4. Amendment of subsection (a), including repeal of subsection (a) designator, and repealer of subsection (b) filed 1-26-99; operative 1-26-99. Submitted to OAL for printing only (Register 99, No. 5).
5. Renumbering of former section 1186.62 to section 1186.55 and new section 1186.62 filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
Note • History
(a) Each party shall have the right to present witnesses, to introduce exhibits, and to propose questions to the chairperson, hearing panel, or hearing officer for opposing witnesses in support or rebuttal of any matter relevant to the issues even though that matter was not covered in the direct examination.
(b) The hearings will not be conducted according to technical rules relating to evidence and witnesses. Any relevant non-repetitive evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant and unduly repetitious evidence shall be excluded. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
(c) The commission, hearing panel, or hearing officer may question any party or witness, may admit any relevant and material evidence, and may limit the length of testimony to a specific amount of time for any party or witness.
(d) The taking of evidence and testimony in a hearing shall be controlled by the commission, hearing panel, or hearing officer in the manner best suited to ascertain the facts.
(e) The commission, hearing panel, or hearing officer may require any person to testify under oath or affirmation.
(f) Public hearings, pursuant to this article, shall be recorded by stenographic reporter or electronic recording or both. The transcript or recordings shall be kept for the period of time required by applicable law governing the retention of records of state agency public proceedings, or until conclusion of administrative or judicial proceedings, whichever is later.
(g) The commission hearing will be conducted pursuant to the provisions of article 6.5.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
§1186.64. Representation at Hearing.
Note • History
(a) The board of supervisors of a county shall designate a county representative.
(b) The county representative shall be the lead spokesperson and shall present all matters respecting the interest of the county in the proceeding.
(c) Withdrawal of appearance of any representative may be effected by filing a written notice of withdrawal and by serving a copy on the commission.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
§1186.65. Continuance of Hearings and Further Hearings.
Note • History
(a) The commission, hearing panel, or hearing officer may continue a hearing to another time or place.
(b) Due to the strict time frames contained in subdivision (c) of Welfare and Institutions Code section 17000.6, continuances will be granted only under compelling and urgent circumstances.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
§1186.7. Preliminary and Final Decisions; Action on Decisions.
Note • History
(a) Within 60 days after receipt of an application, the executive director shall notify the county of the commission, hearing panel, or hearing officer's preliminary decision that the county did or did not make a compelling case that it will incur significant financial distress pursuant to Welfare and Institutions Code section 17000.6. If the time period is extended pursuant to Section 1186.52 of these regulations, notice of the preliminary decision shall be provided within 120 days after receipt of an application, or as otherwise provided by the current Budget Act.
(b) If an application is heard by a hearing panel, the panel shall direct staff to prepare the preliminary decision in such form that it may be adopted as the final decision by the commission. When an application is heard by a hearing officer, a preliminary decision shall be presented in such form that it may be adopted by the commission as its final decision on the application. When an application is heard before the commission itself the commission shall direct staff to prepare a final decision in accord with the commission's vote, which will be presented to the commission for adoption as its final decision.
(c) Within 90 days after receipt of an application, the executive director shall give notice to the county of the commission's final decision that the county did or did not make a compelling case that it will incur significant financial distress pursuant to Welfare and Institutions Code section 17000.6. If the time period is extended pursuant to Section 1186.52 of these regulations, notice of the final decision shall be provided within 150 days after receipt of an application, or as otherwise provided by the current Budget Act.
(d) If the preliminary decision prepared by the hearing panel or hearing officer is not adopted by the commission as its final decision, the commission may direct appropriate modification of the preliminary decision and thereafter adopt it as the commission final decision or decide the application upon the record, with or without taking additional evidence, or may refer the application to a hearing panel or hearing officer to take additional evidence. If the application is so assigned to a hearing panel or hearing officer, the hearing panel or hearing officer shall prepare a preliminary decision, as provided in subdivision (b), which shall be based upon the additional evidence and the transcript and other papers which are a part of the record of the prior hearing.
(e) The affirmative vote of at least a majority of the existing membership of the commission is required for the adoption of a final decision by the commission. A copy of the final decision shall be filed by the commission as a public record.
(f) A commission final decision which makes a finding of significant financial distress will be effective for a period not to exceed 36 months. The final decision shall specify whether the effective date of the period of significant financial distress shall commence on the date of the final decision or on a date no more than 60 days from the date of the final decision.
NOTE
Authority cited: Stats. 1998, c. 324, Prov. (2), p. 622 (and subsequent Budget Acts); Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Sections 17527(c) and 17532, Government Code; and Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
4. Amendment of section heading, section and Note filed 1-26-99; operative 1-26-99. Submitted to OAL for printing only (Register 99, No. 5).
Note • History
The final decision shall be based on the record, shall be in writing, and shall include a statement of reasons for the decision, findings, and conclusions. A copy of the final decision shall be mailed to or served on the applicant county.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
Note • History
(a) A county may file a reapplication for a finding of significant financial distress with the commission.
(b) The application and hearing procedures prescribed in Article 6.5 of these regulations shall also apply to reapplications. The applicant shall also provide the following information in its reapplication:
(1) How the applicant utilized the savings in reduction of the General Assistance Standard of Aid realized from the preceding finding of significant financial distress.
(2) The difference in the county's total population between the date the preceding application was filed and the date the reapplication is filed.
(3) Any staff changes, changes to working conditions, including but not limited to reduced work hours or salary increases or decreases that occurred since the date the preceding application was filed.
(4) Any statutes enacted since the date the preceding application was filed that change county revenue sources or expenditures, or impose new mandates upon the county.
(5) Tables that include the difference between proposed and approved unmet need in the preceding application, and the proposed unmet need in the reapplication. Tables may also be submitted by a predetermined computer medium.
(c) A county filing a reapplication of a previously approved finding of significant financial distress must present a compelling case of significant financial distress continuing since the last approved finding by the commission.
(d) For a previously denied application, a county may file a reapplication when the fiscal situation in the county has changed.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
4. Repealer and new subsection (b), new subsection (c) and subsection relettering filed 1-26-99; operative 1-26-99. Submitted to OAL for printing only (Register 99, No. 5).
5. Amendment of subsection (b), new subsections (b)(1)-(5) and amendment of subsection (c) filed 3-6-2001; operative 4-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2001, No. 10).
§1186.73. Withdrawal of Applications.
Note • History
An application may be withdrawn by written notice any time before a final decision is issued or upon request at the time of hearing. When the commission receives such notice or request to withdraw, the commission may issue a decision dismissing the application.
NOTE
Authority cited: Section 17527(g), Government Code; and Section 17000.6, Welfare and Institutions Code. Reference: Section 17000.6, Welfare and Institutions Code.
HISTORY
1. New section filed 12-16-93 as an emergency; operative 1-1-94. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 93, No. 51). A Certificate of Compliance must be transmitted to OAL by 5-1-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-26-94 as an emergency; operative 4-26-94 (Register 94, No. 17). Submitted to OAL for printing only. A Certificate of Compliance must be transmitted to OAL by 8-24-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 4-26-94 order transmitted to OAL 6-10-94 and filed 7-14-94 (Register 94, No. 28).
4. Amendment filed 1-26-99; operative 1-26-99. Submitted to OAL for printing only (Register 99, No. 5).
Article 7. Hearings and Decisions
§1187. Scheduling and Noticing the Hearing.
Note • History
(a) A “matter”, subject to hearings and decisions under article 7 of these regulations, shall include a test claim, proposed parameters and guidelines, request to amend parameters and guidelines, incorrect reduction claim, request for inclusion or removal from the State Mandates Apportionment System, request for review of apportionment or base year entitlement for programs included in the State Mandates Apportionment System, or a request for review of the Office of State Controller's claiming instructions.
(b) A matter is set for hearing when commission staff issues its draft staff analysis. A written notice of the date, time, and place of hearing shall be mailed to everyone on the mailing list described in section 1181.2 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Amendment filed 12-13-85; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 85, No. 50).
2. Editorial correction of Note (Register 86, No. 2).
3. Repealer and new section heading, section and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
4. Amendment of subsection (b) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
5. Amendment of section heading, section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
6. Repealer and new section filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1187.1. Notice of Hearing. [Repealed]
Note • History
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17553(a) and 17555, Government Code.
HISTORY
1. Amendment of subsections (a) and (b)(3), repealer of subsections (d)-(f) and repealer and new Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Repealer filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
§1187.2. Assignment to Hearing Panels/Hearing Officers.
Note • History
(a) After an informational hearing in accordance with Article 8 of these regulations, the commission's chairperson may assign a matter before the commission to a hearing panel consisting of one or more members or to a hearing officer for hearing and preparation of a proposed decision in such form that it may be adopted as the decision in the case.
(b) A matter shall be heard and decided by the commission itself at the request of any two (2) members of the commission.
NOTE
Authority cited: Sections 17527(c), 17527(g) and 17533(a), Government Code. Reference: Sections 17532, 17551, 17553 (a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Amendment of subsection (a) and Note filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
2. Amendment of subsection (a) filed 1-27-2000; operative 1-27-2000. Submitted to OAL for printing only (Register 2000, No. 4).
3. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1187.3. Objection to Hearing Panel, Hearing Officer, or Commission Member.
Note • History
(a) Any party may ask that a matter be heard by the commission itself rather than by a hearing panel or hearing officer.
(b) Any party may request the disqualification of any hearing officer or commission member before the taking of evidence at a hearing by filing an affidavit stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. Where the request concerns a commission member, the issue shall be determined by the other members of the commission. Where the request concerns the hearing officer, the issue shall be determined by the commission itself, if the commission itself hears the case with the hearing officer; otherwise the issue shall be determined by the hearing officer.
NOTE
Authority cited: Sections 17527(c), 17527(g) and 17553(a), Government Code. Reference: Sections 17527, 17532, 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Amendment of subsection (a) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
2. Amendment of section heading and subsection (b) filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
3. Amendment of subsection (a) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1187.4. Pre-Hearing Conference.
Note • History
(a) A pre-hearing conference may be scheduled by the commission or the executive director for the purpose of identifying issues and determining methods of resolving such issues. The claimant(s), Department of Finance, Office of the State Controller, affected state agencies, and other interested parties to a claim shall be invited to participate. This conference shall not limit the issues that can be presented to or considered by the commission at a public hearing.
(b) Parties and interested parties shall receive notice of any prehearing conference convened under this Section at least ten (10) days before the conference. The notice shall be served on the parties to the claim by mail, facsimile transmission, e-mail, or by other electronic media. With the agreement of the parties, the prehearing conference may be a teleconference.
(c) Anything said, any document disclosed, and any new assertions and representations of fact made during a prehearing conference shall not be made part of the administrative record of a claim unless properly admitted into the record through the submission of an amendment to a test claim, a written response, opposition, recommendations, comments, rebuttal, and/or public testimony.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17527(c), 17530, 17532, 17551, 17553(a), Government Code.
HISTORY
1. Amendment of section and repealer and new Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. New subsection (c) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
§1187.5. Evidence Submitted to the Commission.
Note
(a) The hearings will not be conducted according to technical rules relating to evidence and witnesses. Any relevant non-repetitive evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant and unduly repetitious evidence shall be excluded. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
(b) Oral or written testimony offered by any person shall be under oath or affirmation.
(c) Official notice may be taken in the manner and of such information as is described in Government Code Section 11515.
(d) Each party shall have the right to present witnesses, introduce exhibits, and propose questions to the chairperson for opposing witnesses. Evidence may be submitted to support or rebut any issue. If declarations are to be used in lieu of testimony, the party proposing to use the declaration shall comply with Government Code Section 11514.
NOTE
Authority and reference cited: Sections 17527(e), 17553, 17557, 17610, 17621 and 17622, Government Code.
Note • History
(a) Each party shall have the right to present witnesses, to introduce exhibits, and to propose questions to the chairperson for opposing witnesses in support or rebuttal of any matter relevant to the issues even though that matter was not covered in the direct examination.
(b) The presiding member, commission members, hearing panel member or hearing officer may question any party or witness and may admit any relevant and material evidence.
(c) The taking of evidence in a hearing shall be controlled by the commission or hearing officer in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the issues and the order of presenting evidence will be explained.
(d) The hearing will ordinarily proceed in the following manner. Staff of the commission will summarize the undisputed facts and the issues. The claimant will state its position and present its evidence. The Department of Finance and/or other affected state agency will thereafter state its position and present its evidence. The claimant will then be given an opportunity to reply.
(e) The commission or hearing officer may call a party, or any other person who is present, to testify under oath or affirmation. Any member of the commission, its executive director, or hearing officer may question witnesses.
(f) The commission or the executive director may require that prepared written testimony or other evidence be submitted in advance of any hearing, for the purpose of facilitating the orderly consideration of issues at the hearing.
(1) Written testimony received at least 15 days in advance of the hearing shall be included in the commission's meeting binders.
(2) Written testimony received less than 15 days in advance of the hearing shall be included in the commission's meeting binders, if possible, or shall be provided to the commission when the item is heard, unless otherwise agreed to by the commission or the executive director.
(3) Written testimony received on the day of the hearing, before the item is taken up by the commission, shall be provided to the commission when the item is called, unless otherwise agreed to by the commission or the executive director.
(g) Commission public hearings shall be recorded by stenographic reporter or electronic recording or both. The transcript or recordings shall be kept for the period of time required by applicable law governing the retention of records of state agency public proceedings, or until conclusion of administrative or judicial proceedings, whichever is later.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17527(c), 17532, 17551, 17553(a), and 17555, Government Code.
HISTORY
1. New subsections (f)-(f)(3) and subsection relettering and repealer and new Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
§1187.7. Witnesses and Subpoenas.
Note • History
(a) A party shall arrange for the presence of its own witnesses at a hearing on a claim.
(b) A subpoena may be issued upon a majority vote of the commission. A party requesting a subpoena shall submit a written application to the commission at least six weeks prior to the commission meeting at which the request will be considered.
(c) An application for a subpoena to compel the attendance of a witness shall be made by affidavit and shall give the name and address of the person to be subpoenaed, shall describe the matters to be testified on, shall set forth in detail the relevance to the issues involved in the claim, shall specify the date, time and place of the hearing on the claim and that, to the best of the applicant's personal knowledge or information or belief, the person to be subpoenaed has knowledge of such matters. If the applicant is unable to obtain the name of the person who has knowledge of such matters, the name of the director of the state or local agency or superintendent of a school district may be used for the application.
(d) An application for subpoena duces tecum for the production by a witness of books, papers, correspondence, memoranda, or other records, including records of the claimant, shall be made by affidavit and shall give the name and address of the person to be subpoenaed, shall describe the matters or things desired to be produced, shall set forth in detail the relevance to the issues involved in the claim, shall specify the date on which such matters shall be produced, and that, to the best of the applicant's personal knowledge or information or belief, the witness has such matters or things in his or her possession or under his or her control and that none of the matters or things desired to be produced are public records accessible to the public pursuant to Section 6250 and following, of the Government Code. If the applicant is unable to obtain the name of the person who has possession or control of such matters or things desired to be produced, the name of the director or superintendent or custodian of records of the state or local agency or school district may be used for the application.
(e) When a request for subpoena or subpoena duces tecum is approved by the commission, the subpoena or subpoena duces tecum shall be issued signed by the executive director, but otherwise in blank.
(f) Before service, all appropriate portions of the blank subpoena or subpoena duces tecum shall be completed by the requesting party, and the name, address, and telephone number of the requesting party shall be included on the form. Service of subpoenas and subpoenas duces tecum shall be made with a copy of the affidavit and shall be arranged for by requesting parties.
(g) Except as otherwise provided in this section, service of subpoenas or subpoenas duces tecum shall be in accordance with the provisions of Section 1985 and following of the Code of Civil Procedure.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 17527(d), 17551, 17553(a), Government Code.
HISTORY
1. Amendment of section and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
§1187.8. Representation at Hearing.
Note
(a) A party may appear in person or through a representative.
(b) A representative of a party shall be deemed to control all matters respecting the interest of such party in the proceeding.
(c) Withdrawal of appearance of any representative may be effected by filing a written notice of withdrawal and by serving a copy on all parties.
NOTE
Authority and reference cited: Sections 17527(c), 17551, 17553, 17555, 17620, 17621 and 17622, Government Code.
§1187.9. Continuance of Hearings and Further Hearings.
Note • History
(a) The commission may continue a hearing to another time or place on its own motion or, upon a clear showing of good cause, at the request of any party. Written notice of the time and place of the continued hearing, except as provided herein, shall be in accordance with section 1187.1 of these regulations. When a continuance is ordered during a hearing, oral notice of the time and place of the continued hearing may be given to each party present at the hearing.
Prior to the adoption of its written decision on the matter being heard, the commission on its own motion, or upon a showing of good cause, may order a further hearing. Notice of the next hearing on the matter shall be given in accordance with section 1187.1 of these regulations.
(b) In determining whether there is good cause for a continuance within the meaning of subdivision (1) the following policy should be taken into consideration: Continuances are not favored by the commission. The parties are expected to submit for decision all matters in controversy at a single hearing and to produce at such hearing all necessary evidence, including witnesses, documents and all other matters considered essential in the proof of a party's allegations. Continuances will be granted only upon a clear showing of good cause.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17527, 17532, 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Repealer and new Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1188. Oral and Written Arguments.
Note • History
At the request of any party made prior to the close of the hearing, the commission shall grant oral argument. If written argument is requested, it may be granted and the parties will be advised as to the time and manner within which their briefs are to be filed.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17527, 17532, 17551, 17553(a), 17557(e), 17615.1, 17571, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Repealer and new Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1188.1. Decision; Action on Proposed Decision.
Note • History
(a) If a matter is heard before the commission itself, or a panel of the commission, and a hearing officer presided, the hearing officer who presided at the hearing shall be present during consideration of the claim and, if requested, shall assist and advise the commission in preparation of the proposed decision.
(b) If a matter is heard before the commission itself, the executive director may prepare and present the proposed statement of decision to the commission and interested parties before the hearing. The commission may adopt the proposed statement of decision on the same day as the hearing if there is no objection from the claimant or interested parties.
(c) If a matter is heard by a hearing panel or a hearing officer alone, the panel or hearing officer shall prepare a proposed decision in such form that it may be adopted as the decision in the proceeding. When a matter is heard before the commission itself, without a hearing officer, the commission shall direct commission staff to prepare a proposed decision in accord with the commission's vote, which will be presented to the commission for adoption as its decision.
(d) A copy of the proposed decision shall be filed by commission staff as a public record and a copy of the proposed decision shall be served by commission staff on each party. The commission itself may adopt the proposed decision or decide the case itself as provided in subdivision (e) below.
(e) If the proposed decision of the hearing officer or hearing panel is not adopted by the commission, the commission itself may decide the matter upon the record, including the transcript, with or without taking additional evidence or may refer the matter to the same hearing panel or hearing officer to take additional evidence. If the matter is so assigned to a hearing panel or hearing officer, the hearing panel or hearing officer shall prepare a proposed decision as provided in subdivision (c) upon the additional evidence and the transcript and other papers which are a part of the record of the prior hearing. A copy of such proposed decision shall be furnished to each party as prescribed in subdivision (d).
The commission itself shall decide no matters provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the commission.
(f) If the proposed decision of commission staff is not adopted by the commission, as provided in subsections (b) or (c), the commission shall direct appropriate modification of the proposed decision and thereafter adopt it as the commission's decision.
(g) Except as provided for in subsection (b), the proposed decision shall be prepared within a reasonable time following submission of the matter to the hearing officer or panel or commission vote, and within a reasonable time after the evidentiary hearing. It shall be served on the parties promptly thereafter. The sole issue is whether the proposed decision accurately reflects the vote of the Commission.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17532, 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. New subsection (b), subsection relettering, and amendment of newly designated subsections (d)-(f) and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsections (b) and (g) and amendment of Note filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
4. Amendment of section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Note • History
(a) Any decision made pursuant to evidence introduced at an adjudicatory hearing shall be in writing, be based on the record, and shall include a statement of reasons for the decision, findings and conclusions. A copy of the decision shall be mailed to or served on each party or his representative.
(b) After a decision or proposed decision has been mailed or served it shall not be changed except to correct clerical errors, in which case a corrected decision or proposed decision shall be prepared and mailed or served.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17532, 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Repealer and new Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1188.3. Withdrawal of a Matter.
Note • History
A matter, or any portion of a matter, may be withdrawn by written application any time before a decision is adopted, or by oral application at the time of hearing. If the withdrawal is of a test claim or a proposed amendment of parameters and guidelines, or portion thereof, the procedures described in section 1183.08 or 1183.2, subdivision (i) must be followed before dismissal, except as provided in Government Code section 17574.
NOTE
Authority cited: Sections 17527(g), 17553, 17573 and 17574, Government Code. Reference: Sections 17551, 17553, 17557, 17571, 17573, 17574, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
2. Amendment of section and Note filed 4-24-2008; operative 4-24-2008 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2008, No. 17).
3. Amendment of section heading, section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1188.31. Dismissal of Matters.
Note • History
(a) Any matter, other than a test claim, subject to a hearing under Article 7, which has been postponed or placed on inactive status by the claimant or requesting party for a period of more than one year, may be dismissed by the commission on its own motion or by a motion of any party after notice and an opportunity to be heard has been made to the claimant, parties, and interested parties.
(b) The hearing on a dismissal of a matter shall be conducted in accordance with Article 7 of these regulations.
(c) Notice of a hearing to dismiss a matter shall be made within 60 days of the date scheduled for hearing. A copy of the notice shall also be posted on the commission's web site. The commission shall notify the claimant, parties, and interested parties that they shall have the opportunity to provide written comments on the motion to dismiss within 45 days of receipt of the notice of the hearing. The claimant, parties, and interested parties shall file and serve their written comments in accordance with section 1181.2 of these regulations.
(d) Delays or postponements under the following circumstances will not be considered for purposes of computing whether a matter has been postponed or placed on inactive status by the claimant for more than one year:
1. Delays or postponements made at the request of the commission or other state agency or department;
2. Delays or postponements, made at the request of the claimant or requesting party, pending the resolution of a matter currently before the commission of an issue similar to or related to the postponed matter; and
3. Delays or postponements, made at the request of the claimant or requesting party, pending the resolution of litigation of an issue similar to or related to the postponed matter.
(e) The provisions of this regulation shall only apply to claims or requests filed on or after the operative date of this regulation.
NOTE
Authority cited: Sections 17527(c), 17527(g) and 17553(a), Government Code. Reference: Sections 17525, 17527(c), 17532, 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. New section filed 4-5-2001; operative 5-5-2001. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 2001, No. 14).
2. Amendment of section heading, section and Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1188.4. Reconsideration of a Prior Final Decision.
Note • History
(a) Notwithstanding Section 1188.2(b) of these regulations, the commission may make substantive changes to a prior final decision under this Section or order a reconsideration of all or part of a test claim or incorrect reduction claim on petition of any party. The power to order a reconsideration or amend a test claim decision shall expire thirty (30) days after the statement of decision is delivered or mailed to the claimant. If additional time is needed to evaluate a petition for reconsideration filed before the expiration of the thirty (30)-day period, the commission may grant a stay of that expiration for no more than thirty (30) days, solely for the purpose of considering the petition. A request for reconsideration shall be deemed automatically stayed for the thirty (30)-day period. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied.
(b) Except as provided elsewhere in this Section, any interested party, affected state agency, or commission member may request that the commission reconsider or amend a test claim decision and change a prior final decision to correct an error of law.
(c) All requests for reconsideration shall be submitted to the commission, in writing, and shall contain the following:
(1) The name and address of the requesting party;
(2) A copy of the commission's prior final decision;
(3) A detailed statement of the reasons for the request, including:
(A) An explanation of the reasons for the request for reconsideration; and,
(B) All documentation the requestor intends to submit to support the request;
(4) A description of the proposed change to be made in the prior final decision; and,
(5) A statement that the request for reconsideration and all attachments, if any, have been sent to the original claimant, interested parties, and affected state agencies, including their names and addresses.
(d) Commission member requests may be made orally during a regularly scheduled commission meeting. Commission staff shall prepare such written request, as specified in subsection (c)(1-5) above.
(e) Any signatory to a written agreement that settles a claim may not request reconsideration of that claim if the claim is settled with prejudice.
(f) Before the commission considers the request for reconsideration, commission staff shall prepare a written analysis and recommend whether the request for reconsideration should be granted. The commission shall consider the request for reconsideration at a scheduled meeting. Five (5) affirmative votes shall be required to grant the request for reconsideration.
(g) If the commission grants the request for reconsideration, a hearing shall be conducted to determine if the prior final decision is contrary to law and to correct an error of law.
(1) The following procedures shall govern the commission's review of the prior final decision:
(A) Before the commission considers whether a prior final decision is contrary to law, commission staff shall prepare a written analysis regarding whether the prior final decision is contrary to law which shall include but not be limited to a review of the written responses, opposition, recommendations, and comments filed by other state agencies, interested parties, and the requestor. Commission staff analysis shall describe the request for reconsideration and assist the commission in determining whether the prior final decision is contrary to law.
(B) At least eight (8) weeks before the commission is scheduled to consider whether a prior final decision is contrary to law, or at such other time as required by the executive director, commission staff shall prepare a draft staff analysis and distribute it to the requestor, interested parties, affected state agencies, and any person who requests a copy.
(C) The requestor, interested parties, or affected state agencies may file written comments with commission staff concerning the draft staff analysis. Written comments shall be simultaneously served upon the requestor, interested parties, and affected state agencies on the mailing list by the date determined and publicized by the executive director. A three (3) week period for comments shall be given, subject to the executive director's authority to expedite all matters pursuant to Government Code section 17530. All written comments timely filed shall be reviewed by commission staff and may be incorporated into the written analysis regarding whether the prior final decision is contrary to law and presented to the commission before the scheduled meeting.
(2) The procedures set forth in Article 7 shall govern the commission's hearings and decisions process, except that five (5) affirmative votes shall be required to change a prior final decision.
(h) If the commission changes a prior final decision, the procedures set forth in Article 3, Sections 1183.1 through 1183.3, of these regulations shall govern the adoption of parameters and guidelines and the statewide cost estimate, if applicable.
(i) Failure to seek commission reconsideration of a prior final decision shall not affect a claimant's or state agency's right to seek judicial review pursuant to Government Code section 17559, subdivision (b).
(j) This Section only applies to reconsiderations requested pursuant to Government Code section 17759, subdivision (a); it does not apply to remands or reconsiderations directed by the courts or by statute.
NOTE
Authority cited: Sections 17500, 17527(c) and (g), 17553(a) and 17559(a), Government Code. Reference: Sections 17532, 17551 and 17559, Government Code.
HISTORY
1. New section filed 7-17-98; operative 7-17-98. Submitted to OAL for printing only (Register 98, No. 29).
2. Amendment of section and Note filed 2-2-2001; operative 3-4-2001. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 2001, No. 5).
3. Amendment filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
§1188.5. Amendment of a Prior Final Decision. [Repealed]
Note • History
NOTE
Authority cited: Sections 17500, 17527(c) and (g) and 17553(a), Government Code. Reference: Sections 17532, 17551 and 17559, Government Code.
HISTORY
1. New section filed 7-17-98; operative 7-17-98. Submitted to OAL for printing only (Register 98, No. 29).
2. Repealer filed 4-21-2003; operative 4-21-2003. Submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2003, No. 17).
Article 8. Rulemaking and Informational Hearings
§1189. Assignment of Matter to a Hearing Panel or Hearing Officer.
Note • History
(a) The commission shall hold at least one (1) informational hearing in accordance with Article 8 of these regulations before the assignment of any matter to a hearing panel or hearing officer. The commission shall provide notice to everyone who is on the mailing list described in section 1181.2 of these regulations before the informational hearing regarding the assignment of any matter to a hearing panel or hearing officer.
(b) Assignments by the commission chairperson of members on such hearing panels shall be rotated among the members with the composition of the members so assigned being varied and changed to assure that there shall never be a fixed and continued composition of members.
(c) Any party may ask that a matter be heard by the commission itself rather than by a hearing panel or hearing officer.
(d) A matter shall be heard and decided by the commission itself at the request of any two (2) members of the commission.
(e) For purposes of article 8, “matter” is defined to include: proposed parameters and guidelines, requests to amend parameters and guidelines, incorrect reduction claims, requests for inclusion or removal from the State Mandates Apportionment System, requests for review of apportionment or base year entitlement, and requests for review of the Office of State Controller's claiming instructions.
NOTE
Authority cited: Sections 17527(c), 17527(g) and 17553(a), Government Code. Reference: Sections 17525, 17527(c), 17532, 17551, 17553(a), 17557(e), 17571, 17615.1, 17615.4, 17615.7, 17615.8 and 17615.9, Government Code.
HISTORY
1. New section filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44). For prior history, see Register96, No. 30.
Note • History
(a) Any person may petition the commission to request rulemaking hearings. Such petition shall include:
(1) the name, address, and telephone number of the petitioner;
(2) the substance or nature of the regulation, amendment, or repeal requested;
(3) the reasons for the request;
(4) reference to the authority of the commission to take the action requested.
(b) Such petition shall be filed with the executive director who shall within seven (7) days after its filing determine whether the petition contains the information specified in subsection (a).
(1) If the executive director determines that the petition is complete, it shall be certified in writing as complete and the petitioner shall be so notified.
(2) If the executive director determines that the petition is not complete, it shall be returned to the petitioner accompanied by a statement of its defects. The petitioner may correct the petition and resubmit it at any time.
(c) Upon certification by the executive director, the commission shall, within sixty (60) days from the filing of the petition, deny the petition, stating the reason for the denial in writing, or grant the petition, directing the staff to prepare an appropriate order pursuant to Section 1189.2 of these regulations.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 11347, 11347.1, 17527(g) and 17530, Government Code.
HISTORY
1. Editorial correction of printing error of subsection (c) (Register 86, No. 12).
2. Repealer and new Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Note • History
(a) The commission may, upon its own motion or upon granting a petition filed pursuant to Section 1189.1 of these regulations, adopt an order to institute a rulemaking proceeding in accordance with the procedures of Sections 1346.2, 11346.4, 11346.8 and 11346.9 of the Government Code.
(b) The commission may, upon its own motion, adopt an order to institute an informational proceeding. The order shall include:
(1) the date of the first hearing;
(2) a statement indicating whether the commission or a committee thereof will hold additional hearings on the matter;
(3) a statement of the authority pursuant to which the hearing is ordered, and a reference to any code sections or other provisions of law pursuant to which the information is to be gathered or disseminated;
(4) a statement of the nature and purpose of the proceedings;
(5) a statement requiring the presence and participation of such persons as the commission may direct, consistent with the nature and purpose of the proceedings.
(c) In addition to the requirements of subsections (a) and (b) of this section, every order instituting hearings pursuant to this section shall contain:
(1) a statement indicating the time during which written comments will be received and the manner by which such comments shall be filed;
(2) a statement that any person may make oral comments on the subject of the proceedings;
(3) a statement setting forth additional procedures deemed necessary by the commission and not inconsistent with these regulations.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 11340.6, 11340.7, 17527(c) and (g) and 17551, Government Code.
HISTORY
1. Amendment of subsection (a) and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
Note • History
(a) Notice of a rulemaking proceeding shall be given in accordance with Government Code section 11346.4.
(b) At least ten (10) days prior to the first hearing in an informational proceeding ordered pursuant to section 1189.2 of these regulations, the executive director shall cause notice of the hearing to be mailed to every person requested to participate in such proceedings, and to any person who the executive director determines to be concerned with the subject matter of the proceeding, and shall post a copy of the notice on the commission's web site.
(c) In addition to the requirements of subsections (a) and (b) of this section, notice of additional hearing shall be required at least ten (10) days prior to the commencement of such hearing unless continuation is orally announced in a public hearing.
(d) Nothing in this section shall preclude the commission from publishing notice in such additional forms or media as the executive director may prescribe.
(e) A copy of the order adopted pursuant to section 1189.2 of these regulations shall accompany the initial notice prepared and mailed pursuant to this section, unless a copy of the order has been previously mailed to those persons who would receive such notice.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Sections 17527(g) and 11346.4, Government Code.
HISTORY
1. Amendment of subsection (b) and amendment of Note filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1189.4. Use of Testimony. [Repealed]
Note • History
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17527(e), 17551 and 17553(a), Government Code.
HISTORY
1. Amendment of section and Note filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Repealer filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
§1189.5. Questioning. [Repealed]
Note • History
NOTE
Authority and reference cited: Sections 17527 and 17532, Government Code.
HISTORY
1. Repealer filed 10-27-2010; operative 1-1-2011. Submitted to OAL for filing and printing only pursuant to Government Code section 11343.8 (Register 2010, No. 44).
Article 8.5. Forms
§1189.6. Development and Approval of Commission Forms.
Note • History
(a) In consultation with interested parties and in accordance with applicable law and these regulations, the executive director shall develop the test claim and other forms to simplify and improve the efficiency of the test claim process.
(b) The executive director may also develop additional forms to simplify and improve the efficiency of the incorrect reduction claims process.
(c) The executive director shall conduct at least one (1) workshop with interested parties, Department of Finance, Office of the State Controller, other affected state agencies, and interested persons before approval of a form.
(d) Upon development of a new form, the executive director shall notify claimants, interested parties, affected state agencies, and interested persons, and shall disseminate copies at least ten (10) days before a form's operative date.
(e) Any party may appeal to the commission for review of the actions and decisions of the executive director under this Section pursuant to Section 1181 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17553(a), Government Code. Reference: Sections 17530, 17553 and 17557(a), Government Code.
HISTORY
1. New article 8.5 (sections 1189.6-1189.61) and section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
2. Amendment of subsection (b) filed 9-13-99; operative 9-13-99. Submitted to OAL for printing only pursuant to Government Code section 17527 (Register 99, No. 38).
3. Amendment of section and Note filed 9-6-2005; operative 9-6-2005. Exempt from OAL review and submitted to OAL for printing only pursuant to Government Code section 17527(g) (Register 2005, No. 36).
§1189.61. Waiver of Forms Requirement.
Note • History
The executive director may waive a requirement to use any form specified by these regulations if the form has not yet been approved and promulgated by the commission.
NOTE
Authority cited: Section 17527(g), Government Code. Reference: Section 17530, 17553 and 17557(a), Government Code.
HISTORY
1. New section filed 7-23-96; operative 7-23-96. Submitted to OAL for printing only (Register 96, No. 30).
Article 9. Conflict-of-Interest Code for the Commission on State Mandates
Note • History
The Political Reform Act (Government Code Sections 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict-of-interest codes. The Fair Political Practices Commission has adopted a regulation (2 Cal. Code of Regs. §18730) that contains the terms of a standard conflict-of-interest code, which can be incorporated by reference in an agency's code. After public notice and hearing, the standard code may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations, Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendix, designating positions and establishing disclosure categories, shall constitute the conflict-of-interest code of the Commission on State Mandates (Commission).
Individuals holding designated positions shall file their statements of economic interests with the Commission, which will make the statements available for public inspection and reproduction. (Gov. Code, §81008.) Upon receipt of the statements for the Commission members, their alternates, and the Executive Director, the Commission shall make and retain a copy and forward the originals to the Fair Political Practices Commission. All other statements will be retained by the Commission.
NOTE
Authority cited: Sections 87300, 87301, 87302, 87304 and 87306, Government Code. Reference: Sections 81008, 82019, 87206, 87207, 87300, 87301, 87302, 87304 and 87306, Government Code.
HISTORY
1. New article 9 (section 1189.10 and Appendix) filed 12-27-85; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 11-5-85 (Register 85, No. 52).
2. Amendment filed 11-14-91; operative 12-16-91. Submitted to OAL for printing only (Register 92, No. 8).
3. Amendment of Appendix filed 9-8-99; operative 10-8-99. Approved by the Fair Political Practices Commission 7-22-99 (Register 99, No. 37).
4. Amendment of section and Appendix filed 6-25-2002; operative 7-25-2002. Approved by Fair Political Practices Commission 4-30-2002 (Register 2002, No. 26).
5. Change without regulatory effect amending Note filed 2-23-2004; operative 2-23-2004. Submitted to OAL for printing only (Register 2004, No. 9).
6. Amendment of article heading, section, Note and Appendix filed 3-6-2012; operative 4-5-2012. Approved by Fair Political Practices Commission 1-11-2012 (Register 2012, No. 10).
Appendix
Designated Positions Disclosure Categories
Members and alternates of the Commission on
State Mandates 1
Executive Director 1
Chief Legal Counsel (Career Executive Assignment) 1
Staff Counsel III 1
Staff Counsel 1
Staff Services Manager I, II 2, 3
Staff Services Analyst 2, 3
Associate Governmental Program Analyst 2, 3
Graduate Legal Assistant 1
Senior Information Systems Analyst 2
Staff Information Systems Analyst 2
Consultants/New Positions*
Disclosure Categories
Category 1 designated positions must disclose all investments, and business positions in business entities, interests in real property, and income, including gifts, loans, and travel payments, from any source.
Category 2 designated positions shall report all investments, business positions in any business entity, interests in real property, and income, including gifts, loans, and travel payments, from any source of the type which has contracted, or in the future may contract with the Commission to provide services, supplies, materials, machinery or equipment.
Category 3 designated positions shall report all business positions and income, including gifts, loans, and travel payments, from any school district, local governmental agency or special district which has received, or in the future may receive, state reimbursement under article XIII B, section 6 of the California Constitution.
*Consultants and new positions shall be included in the list of designated positions and shall disclose pursuant to the broadest disclosure category in the code, subject to the following limitation:
The Executive Director may determine in writing that a particular consultant or new position, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's or new position's duties and, based upon that description, a statement of the extent of disclosure requirements. The Executive Director's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict-of-interest code. (Gov. Code §81008.)
History
(a) The commission shall provide an ethics orientation course and establish a schedule for training employees designated in Appendix A by December 31, 2003 and every two calendar years thereafter.
(b) Not later than December 31, 2003, and every two calendar years thereafter, each designated employee shall complete ethics orientation training. Employees who become designated employees after January 1, 2004, shall complete the training within six months of appointment and thereafter according to the schedule established by the commission. Members and alternates of the commission may take training with their employing agency and certify to the commission that they have completed the training.
HISTORY
1. New section filed 2-23-2004; operative 2-23-2004. Submitted to OAL for printing only (Register 2004, No. 9).
Article 10. Mandate Redetermination Process
§1190. Filing a Request to Adopt a New Test Claim Decision.
Note • History
(a) A local agency or a school district, statewide association of local agencies or school districts, the Department of Finance, Office of the State Controller, or other affected state agency, may file a request to adopt a new test claim decision to supersede a previously adopted test claim decision by making a showing that the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution for the previously adopted test claim decision has been modified based on a “subsequent change in law” as defined by Government Code section 17570, subdivision (a)(2).
(b) All requests to adopt a new test claim decision shall be filed on a form developed by the executive director and shall contain a detailed analysis of how and why the state's liability for mandate reimbursement has been modified pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution and all of the elements and accompanying documents required by the form and Government Code section 17570, subdivision (d).
(c) The detailed analysis of how and why the state's liability for mandate reimbursement has been modified pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution based on a “subsequent change in law” as defined by Government Code section 17570 requires more than a written narrative or simple statement of the facts and law. It requires the application of the law (Gov. Code, §17570 (a) and (b)) to the facts (i.e. the alleged subsequent change in law) discussing, for each activity addressed in the prior test claim decision, how and why the state's liability for that activity has been modified. Specific references shall be made to chapters, articles, sections, or page numbers that are alleged to impose or not impose a reimbursable state-mandated program.
(d) The requester shall file one original request to adopt a new test claim decision and accompanying documents with the commission. An “original” is either a signed hard copy or a PDF electronic copy thereof submitted through the e-filing system on the commission's web site. If the request is e-filed with the commission, the requester is responsible for maintaining the paper request with original signature(s) for the duration of the redetermination process, including any period of appeal. If a hard copy is submitted, the original shall be unbound and single-sided, without tabs, and include a table of contents. If the request is filed in PDF format, the accompanying documents shall also be filed in PDF format.
(e) The requester shall also file seven (7) copies of the request to adopt a new test claim decision and accompanying documents with the commission, if the request is filed in hard copy. The copies shall be double-sided and shall not include tabs. If the request is e-filed, no copies shall be filed.
(f) Within ten (10) days of receipt of a request to adopt a new test claim decision, commission staff shall notify the requester if the request is complete or incomplete and refer the requester to these regulations. Requests to adopt a new test claim decision shall be considered incomplete if any of the elements required in subsections (b), (c), or (d) of this section are illegible or are not included. If a complete request to adopt a new test claim decision is not received within thirty (30) calendar days from the date the incomplete request was returned, the executive director shall disallow the original request filing date. New request(s) to adopt a new test claim decision may be accepted on the same subsequent change in law alleged to modify the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution.
(g) A request to adopt a new test claim decision shall be filed on or before June 30 following a fiscal year in order to establish eligibility for reimbursement or loss of reimbursement for that fiscal year.
(h) A requester may not add a new subsequent change in law to a request to adopt a new test claim decision after the request has been deemed complete.
(i) Any request to adopt a new test claim decision that fails to allege a “subsequent change in law” as defined by Government Code section 17570, shall be returned by the executive director with a written notice stating the reason that the request is being returned. Examples of such filings may include, but are not limited to, circumstances where the filing meets the requirements for a proposed parameters and guidelines amendment or a new test claim filing.
NOTE
Authority cited: Sections 17527(g) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
HISTORY
1. New article 10 (sections 1190-1190.05) and section filed 11-23-2010 as an emergency; operative 11-23-2010 (Register 2010, No. 48). Pursuant to Government Code section 17527 this is a deemed emergency and exempt from OAL review. A Certificate of Compliance must be transmitted to OAL by 5-23-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-23-2010 order transmitted to OAL 3-25-2011 and filed 5-4-2011. Exempt from OAL review pursuant to Government Code section 17527(g) (Register 2011, No. 18).
§1190.01. Review and Response.
Note • History
(a) Within ten (10) days of receipt of a completed request to adopt a new test claim decision, commission staff shall send a written notice to the Department of Finance, Office of the State Controller, any affected state agency, the original test claimant, and any known interested party, that:
(1) a copy of the request to adopt a new test claim decision has been posted on the commission's web site, and
(2) they shall have the opportunity to review and provide a written response concerning the request to adopt a new test claim decision within thirty (30) days and to present evidence at the hearing on the request to adopt a new test claim decision.
(b) Content and Form. Written responses on the request to adopt a new test claim decision shall contain the following documentary evidence, if applicable:
(1) If assertions or representations of fact are made, they must be supported by documentary evidence which shall be submitted with the response. All documentary evidence shall be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and must be based on the declarant's personal knowledge or information or belief.
(2) Include a copy of relevant portions of state constitutional provisions, state and federal statutes, and executive orders, and a copy of administrative decisions and court decisions that may impact the alleged mandate, unless such authorities are also cited in the request to adopt a new test claim decision. The specific chapters, articles, sections, or page numbers must be identified. Published court decisions arising from state mandate determinations by the Board of Control and the commission, article XIII B, section 6 of the California Constitution, and Government Code sections 17500 and following are exempt from the requirements of this subsection. When an omnibus bill is relevant to the response, only the relevant pages of the statute, including the Legislative Counsel's Digest and the specific statutory changes at issue shall be filed.
(c) The written response and supporting documentation shall be signed at the end of the document, under penalty of perjury by an authorized representative, with the declaration that it is true and complete to the best of the representative's personal knowledge or information or belief. The date of signing, the representative's title, address, and telephone number shall be included. If the authorized representative can be reached via facsimile machine or e-mail, the facsimile number and e-mail address shall also be included.
(d) Filing. An original and two (2) copies of a written response and supporting documentation concerning a request to adopt a new test claim decision shall be filed with commission staff and served in accordance with Section 1181.2 of these regulations. If a hard copy is submitted, the original document shall be unbound and single-sided. If the response is e-filed, no copies shall be filed. Proof of service shall be included with the response filed with commission staff.
(e) Everyone on the mailing list described in Section 1181.2 of these regulations shall be provided written notice that a copy of the response has been posted on the commission's web site.
NOTE
Authority cited: Sections 17527(g) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
HISTORY
1. New section filed 11-23-2010 as an emergency; operative 11-23-2010 (Register 2010, No. 48). Pursuant to Government Code section 17527 this is a deemed emergency and exempt from OAL review. A Certificate of Compliance must be transmitted to OAL by 5-23-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-23-2010 order transmitted to OAL 3-25-2011 and filed 5-4-2011. Exempt from OAL review pursuant to Government Code section 17527(g) (Register 2011, No. 18).
Note • History
(a) Parties and interested parties shall be given an opportunity to rebut written responses concerning a request to adopt a new a test claim decision by filing written rebuttals within thirty (30) days of service of the responses.
(b) Content and Form. A written rebuttal shall contain the following documentary evidence, if applicable:
(1) If new assertions or representations of fact are made, they must be supported by documentary evidence which shall be submitted with the rebuttal. All documentary evidence must be authenticated by declarations under penalty of perjury signed by persons who are authorized and competent to do so and must be based upon the declarant's personal knowledge or information or belief.
(2) A copy of relevant portions of state constitutional provisions, federal statutes, and executive orders, and a copy of administrative decisions and court decisions that are cited in the rebuttal, unless such authorities are also cited in the request to adopt a new test claim decision or any response thereto. The specific chapters, articles, sections, or page numbers shall be identified. Published court decisions arising from state mandate determinations by the Board of Control and the commission, article XIII B, section 6 of the California Constitution, and Government Code sections 17500 and following are exempt from the requirements of this subsection. When an omnibus bill is relevant to the rebuttal, only the relevant pages of the statute, including the Legislative Counsel's Digest and the specific statutory changes at issue shall be filed.
(c) The original written rebuttal to a response concerning a request to adopt a new test claim decision shall be filed with commission staff and served in accordance with Section 1181.2 of these regulations.
(d) The rebuttal shall be signed at the end of the document, under penalty of perjury by the requester or its authorized representative, with the declaration that the rebuttal is true and complete to the best of the declarant's personal knowledge or information or belief. The date of signing, the declarant's title, address, and telephone number shall be included. If the declarant can be reached by facsimile machine or e-mail, the declarant's facsimile number and e-mail address shall also be included.
(e) Everyone on the mailing list described in Section 1181.2 of these regulations shall be provided written notice that a copy of the rebuttal has been posted on the commission's web site.
NOTE
Authority cited: Sections 17527(g) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
HISTORY
1. New section filed 11-23-2010 as an emergency; operative 11-23-2010 (Register 2010, No. 48). Pursuant to Government Code section 17527 this is a deemed emergency and exempt from OAL review. A Certificate of Compliance must be transmitted to OAL by 5-23-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-23-2010 order transmitted to OAL 3-25-2011 and filed 5-4-2011. Exempt from OAL review pursuant to Government Code section 17527(g) (Register 2011, No. 18).
§1190.03. Informal Conference.
Note • History
(a) The executive director may schedule an informal conference with the requester, the Department of Finance, Office of the State Controller, other affected state agencies and interested parties upon request. With the consent of the parties, the informal conference may be a teleconference.
(b) The purpose of an informal conference may be to:
(1) Set dates for receiving responses or rebuttal; completing the staff analyses; and hearing the request.
(2) Give the requester the opportunity to present the request to adopt a new test claim decision to supersede a prior test claim decision and to respond to questions from commission staff and other state or local agency or school district staff or representatives for the purpose of resolving or clarifying issues of fact or law.
(c) Any party may notify the executive director of any interested parties who should be invited to attend an informal conference.
(d) Unless waived by the parties, commission staff shall provide at least ten (10) days notice of the informal conference by mail, facsimile transmission, e-mail, or by other electronic media.
(e) Anything said, any document disclosed, and any new assertions and representations of fact made during an informal conference shall not be made part of the administrative record of a request to adopt a new test claim decision unless properly admitted into the record through the submission of an amendment to a request to adopt a new test claim decision, a written response, rebuttal, and/or public testimony.
NOTE
Authority cited: Sections 17527(g) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
HISTORY
1. New section filed 11-23-2010 as an emergency; operative 11-23-2010 (Register 2010, No. 48). Pursuant to Government Code section 17527 this is a deemed emergency and exempt from OAL review. A Certificate of Compliance must be transmitted to OAL by 5-23-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-23-2010 order transmitted to OAL 3-25-2011 and filed 5-4-2011. Exempt from OAL review pursuant to Government Code section 17527(g) (Register 2011, No. 18).
§1190.04. Executive Director's Authority to Consolidate Requests to Adopt a New Test Claim Decision.
Note • History
(a) The executive director may consolidate a request to adopt a new test claim decision with another request to adopt a new test claim decision for the second hearing, if some or all of the same statutes, regulations or executive orders are at issue, if necessary to ensure the complete, fair, or timely consideration of any request to adopt a new test claim decision.
(b) At least ten (10) days before the action is taken, the executive director shall serve on the parties and interested parties on the mailing list described in Section 1181.2 of these regulations, and post on the commission's web site, a notice of any proposed action to consolidate.
NOTE
Authority cited: Sections 17527(g) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
HISTORY
1. New section filed 11-23-2010 as an emergency; operative 11-23-2010 (Register 2010, No. 48). Pursuant to Government Code section 17527 this is a deemed emergency and exempt from OAL review. A Certificate of Compliance must be transmitted to OAL by 5-23-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-23-2010 order transmitted to OAL 3-25-2011 and filed 5-4-2011. Exempt from OAL review pursuant to Government Code section 17527(g) (Register 2011, No. 18).
§1190.05. Hearing Process and Form of Decision.
Note • History
Notwithstanding any other provision of these regulations, mandate redetermination process hearings and decisions shall be subject to article 7 of these regulations. There shall be a two-step hearing process for requests to adopt a new test claim decision as follows:
(a) The First Hearing:
(1) The first hearing shall be limited to the issue of whether the requester has made an adequate showing which identifies a subsequent change in law as defined by Government Code section 17570, material to the prior test claim decision, that may modify the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution. The commission shall find that the requester has made an adequate showing if it finds that the request, when considered in light of all of the written responses and supporting documentation in the record of this request, has a substantial possibility of prevailing at the second hearing.
(2) At least eight (8) weeks before the hearing or at such other time as required by the executive director or stipulated to by the parties, commission staff shall prepare a draft staff analysis and distribute it to the parties, interested parties, and any person who requests a copy, and shall post it on the commission's web site. A request to adopt a new test claim decision is set for the first hearing when commission staff issues its draft staff analysis. A written notice of the date, time, and place of the first hearing shall be served on everyone on the mailing list described in Section 1181.2 of these regulations and posted on the commission's web site.
(3) Any party or interested party may file written comments concerning the draft staff analysis with commission staff. Written comments shall be filed and served as described in Section 1181.2 of these regulations, by the date determined and publicized by the executive director. A three (3) week period for comments shall be given, subject to the executive director's authority to expedite all matters pursuant to Government Code section 17530. All written comments timely filed shall be reviewed by commission staff and may be incorporated into the final written analysis of the request to adopt a new test claim decision.
(4) Before the first hearing on the request to adopt a new test claim decision, commission staff shall prepare a final written analysis limited to the issue of whether the requester has made a showing that identifies a subsequent change in law, material to the prior test claim decision, which may modify the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution. This analysis shall consider only a review of the request, written responses, written rebuttals and supporting documentation filed by the parties and interested parties. The final staff analysis for the first hearing shall find that the requester has made an adequate showing if staff finds that the request, when considered in light of all of the written responses and supporting documentation in the record of this request, has a substantial possibility of prevailing at the second hearing.
(5) If, at the first hearing, the commission finds that:
(A) the requester has not made an adequate showing, when considered in light of all of the written responses, rebuttals and supporting documentation in the record and testimony at the hearing, that the request to adopt a new test claim decision has a substantial possibility of prevailing at the second hearing, the commission shall publish a decision denying the request to adopt a new test claim decision.
(B) the requester has made an adequate showing, when considered in light of all of the written responses, rebuttals and supporting documentation in the record and testimony at the hearing, the commission shall publish a decision finding that an adequate showing has been made and setting the second hearing on the request to adopt a new test claim decision to supersede the previously adopted test claim decision.
Everyone on the mailing list described in Section 1181.2 of these regulations shall be provided written notice that the commission's decision has been posted on the commission's web site and, if applicable, that the date, time, and place of the second hearing has also been posted on the commission's web site.
(b) The Second Hearing:
(1) If the commission proceeds to the second hearing, it shall consider whether the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution has been modified based on the subsequent change in law alleged by the requester, thus requiring adoption of a new test claim decision to supersede the previously adopted test claim decision. If the commission finds that the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution has been modified based on the subsequent change in law alleged by the requester, it shall adopt a new statement of decision that reflects the modified liability of the state.
(2) Before the second hearing on the request to adopt a new test claim decision, commission staff shall prepare a final written analysis. At least eight (8) weeks before the hearing or at such other time as required by the executive director or stipulated to by the parties, commission staff shall prepare a draft staff analysis and distribute it to everyone on the mailing list described in Section 1181.2 of these regulations and post it on the commission's web site. The analysis shall consider only a review of the request, written responses, written rebuttals and supporting documentation filed by the parties and interested parties in the record of this request.
(3) Any party or interested party may file written comments concerning the draft staff analysis with commission staff. Written comments shall be filed and served as described in Section 1181.2 of these regulations, by the date determined and publicized by the executive director. A three (3) week period for comments shall be given, subject to the executive director's authority to expedite all matters pursuant to Government Code section 17530. All written comments timely filed shall be reviewed by commission staff and may be incorporated into the final written analysis of the request to adopt a new test claim decision.
(4) If, at the second hearing, the commission finds that the state's liability pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution:
(A) has not been modified based on a subsequent change in law as defined by Government Code section 17570, subdivision (a)(2), the commission shall publish a decision denying the request.
(B) has been modified based on a subsequent change in law, as defined by Government Code section 17570, subdivision (a)(2) the commission shall adopt a new statement of decision to supersede the prior statement of decision. The new statement of decision shall be prepared in writing, based on the record, and shall include a statement of reasons for the decision, findings and conclusions.
Everyone on the mailing list described in Section 1181.2 of these regulations shall be provided written notice that a copy of the decision has been posted on the commission's web site.
(5) After a decision or proposed decision has been served or posted on the commission's web site, it shall not be changed except to correct clerical errors, in which case a corrected decision or proposed decision shall be prepared and posted on the commission's web site. Everyone on the mailing list described in Section 1181.2 of these regulations shall be provided written notice that a copy of the revised decision has been posted on the commission's web site.
(6) If a new statement of decision is adopted which finds that there are costs mandated by the state pursuant to Article XIII B, section 6, subdivision (a) of the California Constitution, the amount and method of reimbursement shall be redetermined in accordance with sections 1183.1- 1183.32 of these regulations.
NOTE
Authority cited: Sections 17527(g) and 17570(d), Government Code. Reference: Sections 17530 and 17570, Government Code.
HISTORY
1. New section filed 11-23-2010 as an emergency; operative 11-23-2010 (Register 2010, No. 48). Pursuant to Government Code section 17527 this is a deemed emergency and exempt from OAL review. A Certificate of Compliance must be transmitted to OAL by 5-23-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-23-2010 order, including adoption of Note, transmitted to OAL 3-25-2011 and filed 5-4-2011. Exempt from OAL review pursuant to Government Code section 17527(g) (Register 2011, No. 18).
Chapter 3. Department of General Services
Subchapter 1. Department of General Services--Conflict of Interest Code
§1194. Conflict of Interest Code.
The Political Reform Act (Government Code Section 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation (2 California Code of Regulations Section 18730) which contains the terms of a standard conflict of interest code, which can be incorporated by reference in an agency's code. After public notice and hearing it may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendix designating officials and employees and establishing disclosure categories, shall constitute the conflict of interest code for the Department of General Services.
Designated employees shall file statements of economic interests with the Department of General Services. The Department shall make the statements available for public inspection and reproduction (Government Code Section 81008). Upon receipt of the Director's statement, the Department will retain a copy and forward the original to the Fair Political Practices Commission. Statements for all other designated employees will be retained by the Department.
Appendix A
List of Assigned Disclosure
Designated Positions Categories
EXECUTIVE DIVISION
Deputy Secretary (1230) 1
Associate Governmental Program Analyst (Asst. to
the Chief Dep. Dir.) (5393) 1
Director, Department of General Services (4601) 1
Informational Officer I/Spec (5601) 1
Seismic Safety Implementation Coordinator (6022) 1
Special Assistant to the Director, Interagency & Customer
Relations (1520) Reverted Back 1
Office of Small Business Certification and Resources (OSBCR)
CMA IV (7470) 2
CSA V (7448) 2
CSA III (7446) 2
CHIEF DEPUTY DIRECTOR
Chief Deputy Director (4603) 1
Audits
CMA IV (7470) 6
Legislation
Assistant Director, Legislation (6963) 1
CMA I (7467) 1
Staff Services Manager I (4800) 1
Office of Legal Services (OLS)
Assistant Chief Counsel (5934) 1
Chief Counsel, DGS (CEA) (5933) 1
Staff Counsel (5778) 1
Staff Counsel III (Specialist) (5795) 1
Staff Services Analyst (5157) 1
CSA III (7446) 1
MANAGEMENT SERVICES DIVISION
Deputy Director (CEA III) (7500) 1
Program Research & Evaluation Section (PRES)
CMA III (7469) 6
Office of Human Resources (OHR)
Personnel Officer (CEA I) (7500) 4
CMA III (7469) 4
CMA IV (7470) 4
Office of Fiscal Services (OFS)
CSA III (7446) 2
CSA V (7448) 2
CMA IV (7470) 2
Chief, Office of Fiscal Services (CEA II) (7500) 2
CSA V (7448) 2
CMA IV (7470) 2
CMA III (7469) 2
Office of Risk and Insurance Management (ORIM)
Associate Risk Analyst (4658) 9
Chief, Office of Risk and Insurance Management (CEA II) (7500) 9
CSA III (7446) 9
CSA V (7448) 9
Associate Governmental Program Analyst (5393) 9
Associate Industrial Hygienist (3856) 9
Staff Services Analyst (5157) 9
Associate Program Analyst (1579) 9
INTERAGENCY SUPPORT DIVISION
Deputy Director (4602) 1
Office of Administrative Hearings (OAH)
Administrative Law Judge I (6071) 1
Administrative Law Judge II (Specialist) (6068) 1
Pres Administrative Law Judge (CSA) (6133) 1
Director, OAH (6064) 1
Associate Gov Prog Analyst (5393) 1
Staff Counsel III (5795) 1
CSA III (7446) 1
Legal Counsel (5798) 1
Associate Information System Analyst/Spec (1470) 1
Office of Fleet Administration (OFA)
CMA I (7476) 10
Associate Governmental Program Analyst (5393) (306-110-5393-001) 10
Automobile Mechanic (Supervisor) (3176) 10
Automotive Pool Manager I (6895) 10
Automotive Pool Manager II (6883) 10
Chief, Office of Fleet Administration (CEA II) (7500) 10
Inspector of Automotive Equipment (6892) 10
Lead Auto Mechanic (6850) 10
Senior Equipment Materials Specialist (1542) 10
Senior Inspector of Automotive Equipment (6855) 10
Staff Services Analyst (General) (306-129-5157-002) 10
CSA III (7446) 10
Associate Information System Analyst/Spec (306-110-1470-001) 10
Office of Public School Construction (OPSC)
CMA V (7471) 1
Assistant Executive Officer, State Allocation Board (5366) 1
Deputy Executive Officer, OPSCD (CEA II) (7500) 1
Executive Officer, OPSC (4238) 1
CMA IV (7470) 1
CSA V (7448) 1
CMA I (7467) 1
Office of State Publishing (OSP)
Associate Governmental Program Analyst (5393) 8
Associate Printing Plant Superintendent (7222) 8
Business Service Assistant (Specialist) (4707) 8
CSA I (7444) 8
CMA I (7467) 8
CSA II (7445) 8
Staff Services Analyst (5157) 8
CSA III (7446) 8
CMA III (7469) 8
State Printer, DGS (7220) 8
Staff Information System Analyst/Spec (1312) 8
CMA IV (7470) 8
Associate Information System Analyst/Spec (1470) 8
PROCUREMENT DIVISION
Procurement Officer (4884) 1
Office of Procurement (OP)
Associate Information System Analyst (Specialist) (1470) 2
Associate Programmer Analyst (Specialist) (1579) 2
Chief, Office of Information Services (CEA II) (7500) 2
Data Processing Manager I (1381) 2
Data Processing Manager II (1834) 2
CMA IV (7470) 2
CSA III (7446) 2
CMA II (7468) 2
CSA III (7446) 2
Staff Info Sys Analyst/Spec (1312) 2
Sys Software Spec I (1587) 2
Business Services Assistant (4707) 2
Warehouse Manager II (1500) 2
Sr Information System Analyst (Sup) (1337) 2
Area Sup I (6811) 2
Area Sup II (6942) 2
Assistant Procurement Engineer (3395) 2
CSA V (7448) 2
Associate Governmental Program Analyst (5393) 2
Associate Information System Analyst Specialist (1470) 2
Associate Materials Analyst (4901) 2
Associate Procurement Engineer (3396) 2
Associate Transportation Analyst (4535) 2
Bus Services Officer II (4970) 2
CSA I (7444) 2
Buyer II (4891) 2
CSA IV (7447) 2
CMA I (7467) 2
CMA IV (7470) 2
CSA I (7444) 2
CMA IV (7470) 2
CSA V (7448) 2
Senior Electronic Data Processing Acquisition (Technical) (1368) 2
Senior Procurement Engineer (3393) 2
Staff Electronic Data Processing Acquisition (Specialist) (1361) 2
Staff Services Analyst (5157) 2
Staff Services Manager I (4800) 2
CSA V (7448) 2
CMA IV (7470) 2
Surplus Property Officer (4917) 2
Warehouse Manager (1501) 2
REAL ESTATE SERVICES DIVISION
Planning Officer, Deputy Director (5038) 1
Assistant Deputy Director, RESD (7500) 1
Buildings and Property Management (BPM)
CMA V (7471) 12
CSA VI (7449) 12
Chief, Buildings and Property Management (CEA III) (7500) 12
CSA III (7446) 12
CSA III (7446) 12
CSA IV (7447) CSA II (7445) 12
CMA III (7469) 12
Staff Services Manager I (4800) 12
CSA V (7448) 12
Project Management Branch (PMB)
CMA V (7471) 5
Chief, Project Management Branch (CEA III) (7500) 5
CSA III (7446) 5
Project Director II (4020) 5
Project Director III (4023) 5
Senior Environmental Planner (4713) 5
Senior Estimator of Building Construction (4063) 5
Associate Construction Analyst (4106) 5
Senior Real Estate Officer (9597) 5
CSA VIII (7446) 5
CSA V (7448) 5
Staff Services Analyst (5157) 5
Associate Governmental Program Analyst (5393) 5
Asset Planning and Enhancement Branch (APE)
CMA V (7471) 1
CMA IV (7470) 1
CSA V (7448) 1
Developmental Officer (3333) 1
CEA (7500) 1
Senior Real Estate Officer (9597) 1
Business Operations, Policy & Planning (BOPP)
CSA III (7446) 1
CSA V (7448) 1
Customer Account Management Branch (CAM)
CMA III (7469) 1
CMA IV (7470) 1
RESD Professional Services Branch (PSB)
CEA III (7500) 1
Professional Services Cost Control (PSCC)
CMA V (7471) 1
CSA VIII (7451) 1
CSA V (7448) 2
CSA III (7446) 2
Professional Services Environmental Services (PSES)
CMA IV (7440) 1
Senior Environmental Planner (4713) 2
Associate Environmental Planner (4711) 2
Professional Services Energy Assessments (PSEA)
CMA V (7471) 1
Energy Resources Specialist I (4807) 1
Energy Resources Specialist II (4806) 1
CMA II (7468) 1
CMA III (7469) 1
Professional Services Real Estate Services (PSRES)
CMA V (7471) 1
Chief, Real Estate Services (7380) 1
Senior Real Estate Officer (9597) 1
CSA V (7448) 1
CMA IV (7470) 1
CMA IV (7470) 1
Professional Services Special Programs (PSSP)
CMA V (7471) 1
CSA VIII (7451) 1
CSA VI (7449) 1
Senior Electrical Engineer (3600) 2
Senior Mechanical Engineer (3579) 2
Senior Architect (3961) 2
Senior Sanitary Engineer (3822) 2
Senior Structural Engineer (3336) 2
Senior Waste Management Engineer (3790) 2
Professional Services Design Services (PSDS)
CMA V (7471) 2
Senior Architect (3961) 2
Senior Civil Engineer (3120) 2
Senior Electrical Engineer (3600) 2
Senior Landscape Architect (3983) 2
Senior Mechanical Engineer (3579) 2
Senior Sanitary Engineer (3822) 2
Senior Structural Engineer (3336) 2
CSA V (7448) 1
CSA VIII (7451) 1
CMA IV (7440) 1
CSA IX (7455) 1
Professional Services Construction Services (PSCS)
Chief, Construction Services (CEA III) (7500) 1
Construction Supervisor I (4031) 1
Construction Supervisor II (4030) CMA V (7471) 1
CSA VIII (7451) CSA IX (7455) 1
CSA II (7445) 1
Electrical Inspector II (4034) 1
CSA III (7446) 1
Senior Electrical Engineer (3600) 1
Senior Estimator of Building Construction (4063) 1
Mechanical Inspector II (4037) 1
Restoration Supervisor I (6644) 1
CSA V (7448) 1
Construction Inspector II (4032) 1
Senior Mechanical Engineer (3579) 1
STATE ARCHITECT DIVISION
Division of the State Architect (DSA)
Chief of Administrative Operations (9885) 3
Chief Deputy to the State Architect (3943) 3
Senior Architect, DGS (3961) 3
State Architect, DGS (3940) 3
Office of Regulation Services
Chief, Regulation Services (CEA III) (7500) 3
Fire & Life Safety Officer, OSA (4351) 3
CMA V (7471) 3
CEA I (7500) 3
Senior Structural Engineer (3336) 3
CSA IX (7455) 3
District Structural Engineer (3332) 3
TELECOMMUNICATIONS DIVISION (OT)
Deputy Director (0787) 11
Office of Telecommunications
CEA (7500) 11
CSA VII (7450) 11
CSA III (7446) 11
CMA V (7471) 11
CSA VI (7449) 11
CSA VII (7450) 11
Telecommunications System Manger I (Specialist)
(306-181-5135-002) 11
CSA III (7446) 11
CMA IV (7470) 11
Assistant Deputy Director, Network Services (0806) 11
CONSULTANTS* 1
____________
*Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:
The Director may determine in writing that a particular consultant, although a “designated position”, is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Director's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
Appendix B
Category 1
A designated employee in this category must report all sources of income, interests in real property, investments and business positions in business entities.
Category 2
A designated employee in this category must report investments and business positions in business entities, and sources of income, which provide services, supplies, materials, machinery or equipment of the type utilized by the department.
Category 3
A designated employee in this category must report investments and business positions in business entities, and sources of income of the type which provide services, equipment, supplies, or training for or under the supervision of the Office of the State Architect.
Category 4
A designated employee in this category must report investments and business positions in business entities, and sources of income of the type which provide training services and/or consultant services in the field of training.
Category 5
A designated employee in this category must report investments and business positions in business entities, and sources of income of the type which engage in land development, construction or acquisition or sale of real property, and all interests in real property.
Category 6
A designated employee in this category must report investments and business positions in business entities, and sources of income of the type which provide services, supplies, equipment, or training in the area of data processing, microfilm or records management.
Category 7
A designated employee in this category must report investments and business positions in business entities and income from sources of the type which sell, rent, or service office machines, copiers, and reproduction equipment.
Category 8
A designated employee in this category must report investments and business positions in business entities and income from sources of the type which provide any of the following: graphic arts supplies, pressroom equipment, bindery equipment, trucking services, printing and machinery equipment, or any other paper or printing supplies.
Category 9
A designated employee in this category must report investments and business positions in business entities and income from any type of insurance company, brokerage firm or firms dealing in film and projection equipment.
Category 10
A designated employee in this category must report investments and business positions in business entities and income from sources of the type which provide vehicles, parts, services, supplies, or any other product or service for the Office of Fleet Administration.
Category 11
A designated employee in this category must report investments and business positions in business entities and income from sources of the type which provide electronic, two-way radio, telephone, or any other telecommunication equipment, parts or service for the Telecommunications Division.
Category 12
A designated employee in this category must report investments and business positions in business entities and income from sources of the type which provide services, equipment, supplies, or training for the Office of Buildings and Grounds.
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New Subchapter 1 (Articles 1-5, Sections 1194-1199) filed 7-11-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-15-77 (Register 77, No. 29).
2. Repealer of Subchapter 1 (Articles 1-5, Section 1194-1199) and new Subchapter 1 (Section 1194 and Appendix) filed 3-18-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 12).
3. Editorial correction providing correct addresses for the Department of General Services and the Fair Political Practices Commission and providing separate listing for appendices A and B (Register 96, No. 46).
4. Amendment of General Provisions and appendices A and B filed 11-13-96; operative 12-13-96. Approved by Fair Political Practices Commission 9-13-96 (Register 96, No. 46).
5. Amendment printing the conflict of interest code in full and amendment of Appendix A filed 1-11-2001; operative 2-10-2001. Approved by Fair Political Practices Commission 11-6-2000 (Register 2001, No. 2).
Subchapter 1.5. Contract Protest Procedures; Protest Procedures for Consulting and Services Contracts
Note • History
As used in this article:
(a) “Department” shall mean the Department of General Services.
(b) An “interested party” shall be defined as one of the following:
(1) The State agency which proposed the protested award;
(2) A protestant claiming to be the lowest responsible bidder meeting specifications, or, in any other instance, where the protestant claiming that the protestant would have been the awardee if the prescribed procedure for making the award had been followed.
(3) The proposed contract awardee.
(c) “Protestant” shall be an interested party who files a protest.
(d) “Detailed Statement of Protest” shall mean the written document filed with the department by the protestant within five days of the notice of protest. It shall contain all of the grounds upon which the protestant bases the protest.
(e) “Good Cause” shall be defined only as one of the following events or conditions:
(1) Death of a party, representative or attorney of a party, or witness to an essential fact, or the parent, child or member of the household of such person, when it is not feasible to substitute another representative, attorney or witness because of the proximity of the hearing date.
(2) Incapacitating illness of a party, representative or attorney of a party, or witness to an essential fact when it is not feasible to substitute another representative, attorney or witness because of the proximity of the hearing date.
(3) Lack of notice of hearing as provided in Section 1194.2.
(4) Stipulation for continuance signed by the protestant and awarding agency which is timely communicated with request for continuance to the Department of General Services.
(5) Substitution of the representative or attorney of a party upon showing that the substitution is required.
(6) Unavailability.
(A) Unavailability of a party, representative, attorney or witness to an essential fact on account of conflicting and required appearance in a judicial matter if:
1. When the hearing date was set, the person did not know and could neither anticipate nor at any time avoid the conflict.
2. The conflict with request for continuance is immediately communicated to the Department of General Services.
(B) The unavailability of a party, representative or attorney or material witness due to an unavoidable emergency.
NOTE
Authority cited: Sections 10376, 10378, 10343 and 10345, Public Contract Code. Reference: Sections 10376, 10378, 10343 and 10345, Public Contract Code.
HISTORY
1. New Subchapter 1.5 (Sections 1195-1195.6, not consecutive) filed 4-19-85; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 85, No. 16).
§1195.2. Disposition Procedures.
Note
Following receipt of a protest filed as prescribed by these regulations, the department shall determine whether the protest is to be resolved by written submission of material or by public hearing. In the event a public hearing is to be held, the department shall set a date, time and place for the hearing and shall so notify all interested parties not less than 5 calendar days in advance of the hearing. The department may, in its discretion upon notice to all interested parties, change the date of, postpone or continue the hearing at the request of an interested party upon a showing of good cause or upon its own motion.
The location of the hearing shall be at the discretion of the hearing officer and situated for the convenience of all parties.
In the event the protest is to be determined through written submissions, notice shall be sent to all interested parties, each of whom may submit written argument in support of its position in accordance with the deadline established by the hearing officer. The determination that the protest hall be determined through written submission shall be made upon the hearing officer's evaluation that oral or additional testimony would be unnecessary to a full understanding of the issues.
Any written submission to the department including that submitted for purposes of the hearing shall be in an original and two copies, together with proof of service of a copy to each interested party.
At any time the department finds that a protest is clearly insufficient on its face, entirely without merit, or outside the scope of the jurisdiction of the department, it may make final disposition of the protest forthwith.
NOTE
Authority cited: Sections 10376, 10378, 10343 and 10345, Public Contract Code. Reference: Sections 10376, 10378, 10343 and 10345, Public Contract Code.
§1195.4. Powers and Responsibilities of the Hearing Officer.
Note
The hearing officer shall have the following powers when conducting a hearing:
(a) issue orders;
(b) rule on requests and motions;
(c) grant extensions of time, upon showing of good cause;
(d) examine witnesses;
(e) waive or modify these rules to accommodate the needs in a specific case, upon notice to the parties;
(f) set time for submission of any written material.
NOTE
Authority cited: Sections 10376, 10378, 10343 and 10345, Public Contract Code. Reference: Sections 10376, 10378, 10343 and 10345, Public Contract Code.
Note
The department shall make its decision on any protest within thirty (30) calendar days after submission for decision to the department and shall serve a copy thereof, on all interested parties.
NOTE
Authority cited: Sections 10376, 10378, 10343 and 10345, Public Contract Code. Reference: Sections 10376, 10378, 10343 and 10345, Public Contract Code.
Note
Any notice required by, or made pursuant to, this article shall be in writing and shall be served in person or by deposit in the United States mail properly addressed with sufficient postage affixed.
NOTE
Authority cited: Sections 10376, 10378, 10343 and 10345, Public Contract Code. Reference: Sections 10376, 10378, 10343 and 10345, Public Contract Code.
Subchapter 2. California State Police Division
(Originally Printed 3-22-45)
Article 1. General
Note • History
As used in this article:
(a) “Department” means the Department of General Services of the State of California.
(b) “Director” means the Director of the Department of General Services.
(c) “State buildings and grounds” and “state buildings or grounds” are synonymous with “State Capitol buildings and grounds” and with “Capitol buildings and grounds” and include all property owned, leased, rented, controlled, used, or occupied by any Department or part thereof of the Government of the State of California.
(d) “Shall” is mandatory and “may” is permissive.
(e) “Park” is synonymous with “State Capitol Park” or “State Capitol Grounds” and includes the area located in the blocks bounded by 9th and 10th, L and N Streets and 10th and 15th, L and N Streets, in the City of Sacramento, State of California.
(f)“Vehicle” means any device in, upon, or by which any person or property is or may be propelled, moved, or drawn.
(g) “Commercial Vehicle” means a vehicle of a type used or maintained for the transportation of persons for hire, compensation or profit or designed, used or maintained primarily for the transportation of property.
(h) “State Police” means the California State Police Division of the Department of General Services.
NOTE
Authority cited: Section 14685, Gov. Code.
HISTORY
1. Repealer of subchapter 2 (sections 1201-1214) and new subchapter 2 (sections 1201 through 1216) filed 10-1-68 as an emergency; effective upon filing (Register 68, No. 37). For prior history, see Registers 28, No. 7; 63, No. 2; 65, No. 4 and 66, No. 40.
2. Certificate of Compliance--section 11422.1, Gov. Code, filed 12-6-68 (Register 68, No. 46).
3. Editorial correction of printing error in subsection (c) (Register 93, No. 29).
§1202. Rules and Regulations for the Government of State Police Division.
The Chief of the California State Police Division may, with the approval of the Director, establish such rules and regulations for the government of the State Police as are necessary to properly execute the duties and functions of his office consistent with accepted police methods, procedures and administrative policies connected therewith.
History
No person shall remain in or upon any of the State buildings or grounds after having been ordered or directed by a member or security officer of the California State Police Division or a State building manager to leave said building or grounds, provided, said order or direction to leave is issued after determination of one or more of the following:
(a) (Reserved)
(b) Said persons, alone, or in conjunction with others, is creating loud and unusual noises which impede or disturb the public employees in the performance of their duties or which otherwise impede or disturb the general public from obtaining the administrative services provided on the property.
(c) Said person, alone, or in conjunction with others, obstructs or interferes with the usual use of entrances, foyers, corridors, offices, elevators, stairways, garages, or parking lots, or creates a health and/or safety hazard in such use.
(d) Said person is in or on a building or grounds, or area thereof, or during the hours when, said building or grounds is not open to the general public, and said person does not have authority or lawful reason to be there.
(e) Said person refuses to comply with an emergency order.
HISTORY
1. Amendment filed 11-29-72 as an emergency; designated effective 11-29-72 (Register 72, No. 49).
2. Certificate of Compliance as to 11-29-72 filing filed 3-7-73 (Register 73, No. 10).
3. Amendment of subsection (a) filed 3-7-73 as an emergency; effective upon filing. Certificate of Compliance included (Register 73, No. 10).
4. Order of Repeal of subsection (a) filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
No person shall, or shall attempt to build, construct, set up, place or maintain, in or upon any of the State buildings or grounds, any tent, platform, booth, bench, table, building or other structure, without first having the written permission of the Director or the Chief of State Police, to do so.
§1205. Parking, State Capitol Grounds.
(a) No person shall stop, park or leave standing any vehicle on the State Capitol grounds located in the blocks bounded by 9th and 10th, L and N Streets, and 10th and 15th, L and N Streets, in the City of Sacramento, State of California, except:
(1) Members of the State Legislature.
(2) The operator of any vehicle which vehicle displays in plain view while so stopped, parked or left standing on said grounds, a valid parking permit issued by the Chief of State Police under the authority and direction of the Director or by the State Senate Rules Committee or the State Assembly Rules Committee.
(3) Persons stopping or parking a vehicle when necessary to avoid conflict with other traffic or in compliance with a traffic control signal device or the direction of the State Police or a State Police Officer or State Security Officer in control of traffic.
(4) Persons stopping or parking a vehicle temporarily in areas designated by the Chief of State Police for the purpose of loading or unloading merchandise or picking up or discharging passengers, and then only for the period of time required to load or unload, pick up or discharge such merchandise or passengers.
(5) Persons temporarily stopping, parking or leaving a vehicle where such vehicle is disabled in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle.
(b) Unless otherwise directed by the Chief of State Police, or by a State Police Officer, or State Security Officer, no person shall stop, park or leave standing any vehicle on said State Capitol grounds unless such vehicle is parked, stopped or left standing in areas designated for public parking and in conformance with such signs as may be posted on said grounds from time to time
(c) Parking permits shall be issued by the Chief of State Police under the authority of and under such conditions as may be prescribed by the Director. Said parking permits shall be subject to revocation or suspension at any time. Unless sooner revoked or suspended, such permits shall expire at the end of the calendar year in which issued.
(d) No person shall stop, park or leave standing any vehicle on any part of the driveways running from L Street to the State Capitol Garage and from N Street to said garage.
(e) No person shall stop, park or leave standing any vehicle on any part of the loading area adjacent to the State Capitol Garage and west of the driveway from N Street to said garage except persons who have obtained permits from the Chief of State Police for parking spaces designated by him or persons who are actually loading or unloading merchandise at the loading dock.
(f) No person shall stop, park or leave standing any vehicle on any property of the State of California, except where such vehicle displays in plain view a valid parking permit issued by the authorized employee or officer of the State, or the person shall have received permission to so park from the Agency in control of said property.
(g) Where parking is permitted pursuant to the payment of a stipulated parking fee, based on an hourly or daily rate, the Agency shall use in quadruplicate the following form of agreement in lieu of collecting the parking fee due in the event a person parking a vehicle is unable to pay the parking fee due because such person is without funds.
Embedded Graphic 02.0021
Note • History
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Repealer filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
§1207. Dogs, Cats, and Other Animals.
Note • History
(a) Dogs, cats, and other animals are prohibited in the Capitol Park, for other than official or authorized purposes, except when held by the custodians thereof, or on a leash. Unleashed dogs or cats shall be subject to impounding in a manner consistent with the applicable municipal, county and state laws and ordinances.
(b) Dogs, cats, and other animals are prohibited in State buildings and grounds, except:
(1) Seeing eye dogs.
(2) Animals held or leashed as described in paragraph (a) within the confines of Capitol Park or other State grounds.
(3) Animals which are authorized for exhibit or used for official or authorized purposes.
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Amendment filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
§1208. Demonstrations, Gatherings, or Public Assemblies and Parades.
Note • History
The holding or conducting of any demonstration, gathering, public assembly or parade on or in State buildings and grounds is prohibited unless a permit for such activity has been issued by the Chief of the State Police Division or his designate. The Chief of the California State Police or his designate shall issue a permit within five days of receipt of a complete and proper application therefor providing all of the following criteria are met:
(a) The subject activity is not a “commercial activity” as defined in subsection (g).
(b) The activity planned can be conducted in the area designated without creating or causing a risk of injury or illness to persons or risk of danger to property and will not impede the performance of public business to be conducted in the area.
(c) There is no conflict as to time, place, manner, and/or duration of the subject activity with activities for which permits have been issued or are pending issuance. Said permit will not be issued earlier than sixty (60) days prior to the planned activity.
(d) An application for said permit must be received by the California State Police not later than five (5) working days prior to the date of the planned activity and must contain the following minimum information:
(1) The name of the individual or group conducting the activity; and
(2) The date of the planned activity; and
(3) The specific requested location for the activity; and
(4) A general description of the activity, including equipment and facilities to be used, and approximate starting and concluding times; and
(5) Approximate number of persons expected to be in attendance;
(6) Names, addresses and telephone numbers of the chief monitors who will be designated to coordinate and direct the activity.
One (1) monitor shall be designated for each fifty (50) persons expected to be in attendance. Said monitors shall wear some uniform distinctive emblem, insignia, or article of wearing apparel at all times during the activity for identification purposes. Said emblem, insignia, or article shall be described or indicated on the application; and
(7) Name(s), address(es), and telephone number(s) of persons who are responsible for clean-up of the area after the activity.
(e) Upon the demonstration by the applicant of a showing of good cause, a permit may be issued with less than five (5) working days notice provided the other criteria are met.
(f) No exclusive rights to permits for designated events shall be issued for consecutive future years to any one applicant.
(g) For the purposes of this section of the regulations, the term “Commercial Activity” shall mean an activity undertaken with a primary purpose of obtaining a profit for the benefit of an individual or business entity organized for profit, as opposed to an activity whose purpose is an expression of ideas or causes, whether of a religious, artistic, political, charitable, educational or cultural nature, where the commercial aspects involved are incidental to the activity.
(h) For the purposes of this section of the regulations, the term “demonstration” shall be defined in the following manner: “Demonstration” includes demonstrating, picketing, the sale of non-commercial printed matter or materials, marching, moving in procession, holding of vigils, and other like forms of activity which involve the communication of expression, orally or by conduct, of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers.
(i) For the purposes of this section of the regulations, the term “gatherings” shall mean an assemblage of more than two persons whose purpose for meeting is for other than the conducting of legitimate state business and whose organizing will have the effect, intent or propensity to draw a crowd or onlookers.
NOTE
Authority cited: Section 14685, Government Code. Reference: Section 14685, Government Code.
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26). For prior history, see Register 73, No. 10.
2. New section filed 6-24-85 as an emergency; designated effective 7-3-85 (Register 85, No. 26). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-31-85.
3. Certificate of Compliance as to 6-24-85 order transmitted to OAL 10-24-85 and filed 11-26-85 (Register 85, No. 48).
§1209. Operation and Use of Bicycles, Rollerskates, Skateboards, and Other Wheeled Conveyances.
Note • History
(a) The riding, operation or use of bicycles, rollerskates, skateboards, tricycles, or other wheeled conveyances is prohibited on State buildings and grounds except as follows:
(1) That portion of Capitol Park known as the “Thirteenth Street Walk” and described as that portion of Thirteenth Street between L and N Streets.
(2) Wheeled conveyances used by handicapped persons.
(3) Rollerskating is permitted, from dusk to dawn, seven days a week, on paths, walks and driveways in that portion of the State Capitol grounds extending from 13th Street to 15th Street and from L Street to N Street.
(4) Rollerskating is permitted from 6 p.m. to dusk, Monday through Friday and from dawn to dusk on Saturdays, Sundays and holidays on the State Capitol grounds extending from 10th Street to 13th Street and from L Street to N Street.
In no event shall rollerskating be permitted upon the steps of the Capitol, or in the interior of the Capitol or in the interior of any other state building, or in the driveway extending from L and N Streets into the State Capitol Garage.
(b) The parking of bicycles on State buildings and grounds is prohibited except at designated bicycle parking racks or facilities established by the Department.
(c) Otherwise permissible riding or operation of wheeled conveyances under this section shall be prohibited if such conveyance is operated or ridden in a manner other than is reasonable or prudent having due regard for pedestrians, weather, visibility, the traffic on, and the surface and width of the area's grounds.
In no event shall a wheeled conveyance be operated or ridden at a speed which endangers the safety of persons or property.
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Amendment filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
Note • History
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Repealer filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
Note • History
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Repealer filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
(a) The walking on or crossing over or through flower beds or other areas within the park where plants, shrubs, trees or any other growing things, other than lawns, are located is prohibited.
(b) The picking of or in any way damaging, mutilating or destroying flowers, plants, shrubs or any other growing thing in the park is prohibited.
(c) The walking on or crossing over lawns or terraces within the park is prohibited where such walking or crossing over is likely to cause damage to said lawns and terraces.
Note • History
The playing of games which involve running, jumping, tackling, strenuous activity or physical contact between players, including but not limited to football, baseball, frisbee, golf, catch, and soccer, in the State Capitol is prohibited.
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Amendment filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
Note • History
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Repealer filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
§1215. Dangerous Weapons or Articles.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§1216. Signs, Posters, Placards, Banners.
Note • History
(a) Carrying, transporting or using signs, posters, placards or banners exceeding thirty inches (30”) by thirty inches (30”) in size in or on any State building or grounds is prohibited unless prior written permission has been obtained from the Director or the Chief of the State Police or his designate whose review, under this section, shall not be made on the basis of content.
(1) The size of the handles or supports for such signs, posters, placards or banners shall be limited to one-fourth inch (1/4”) in thickness by three-fourth inch (3/4”) in width and shall extend no more than eighteen inches (18”) beyond a single exterior edge of such sign, poster, placard or banner except with the prior written permission of the Director or the Chief of the State Police.
(2) All such handles or supports shall be of wood without exception.
(b) All such signs, posters, placards or banners shall be hand carried and not in any way affixed, fastened, or attached to the premises; nor self-supporting and placed for display; nor leaned against any wall, partition, or other portion of a State building or grounds.
(c) The carrying of such signs, posters, placards or banners in a way that obstructs freedom of passage over or through, or in State buildings or grounds is prohibited.
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. Amendment filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
§1219. Review of Denial or Cancellation of Permits.
Note • History
The denial or cancellation of a permit under Section 1208 shall state the reasons for such denial or cancellation. Within five days of the notification of the denial or cancellation the applicant or permittee may apply to the Department of General Services for a review of the reasons for the denial or cancellation. The proceedings for review shall be held within five working days thereafter before the Director of the Department or his/her delegate.
NOTE
Authority and reference cited: Section 14685, Government Code.
HISTORY
1. New section filed 1-20-83; effective thirtieth day thereafter (Register 83, No. 4).
Subchapter 3. Fairs and Expositions Division
HISTORY
1. Subchapter 3 (Sections 1300-1329, not consecutive) repealed by operation of Chapter 1152, 1973 Statutes. For prior history, see Register 18, No. 1 and Register 63, No. 18.
Subchapter 4. Office of Public School Construction
Group 1. State Allocation Board
Subgroup 1. State Allocation Board--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
STATE ALLOCATION BOARD
1130 K STREET, SUITE 400
SACRAMENTO, CA 95814
SECRETARY OF STATE
(ARCHIVES)
1020 “O” STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95804-0807
The Conflict of Interest Code is designated as Subgroup 1, Group 1, Subchapter 4, Chapter 3, Division 2 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Subgroup 1. State Allocation Board--
Conflict of Interest Code
Section
1550. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. Repealer of Subgroups 1-3 (Sections 1550-1745, not consecutive) filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1). For prior history see Registers 2; 4; 10, Nos. 1 and 5; 18, No. 3; 19, Nos. 1 and 3; 58, Nos. 10 and 13.
2. New Subgroup 1 (Sections 1550-1557; Appendices A and B) filed 4-13-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-3-79 (Register 79, No. 15).
3. Repealer of Subgroup 1 (Articles 1-5, Sections 1550-1557 and Appendices A and B) and new Subgroup 1 (Section 1550 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
4. Editorial correction of section number (Register 98, No. 49).
5. Amendment of subchapter 4 heading filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
6. Amendment of subchapter 4 heading refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
8. Editorial correction adding History 8 (Register 2001, No. 14).
9. Amendment of addresses for the State Allocation Board and the Fair Political Practices Commission and amendment of Appendix filed 4-4-2001; operative 5-4-2001. Approved by Fair Political Practices Commission 2-15-2001 (Register 2001, No. 14).
Subgroup 2. State Allocation Board Regulations
Article 1. State Allocation Board Meetings
§1555. State Allocation Board Quorum.
Note • History
There are ten persons that are constitutionally or statutorily empowered to vote and act upon matters coming before the State Allocation Board which pertain to the allocation and apportionment of funds to school districts for the purpose of school construction or purposes related thereto pursuant to Government Code Section 15490.
Any six such persons shall constitute a quorum. A consensus vote of at least six such persons is required for all decisions or actions of the Board which expressly pertain to the apportionment or allocation of funds for the purpose of school construction or purposes related thereto.
NOTE
Authority cited: Section 15503, Government Code; and Section 16009, Education Code. Reference: Section 1, Article 16, California Constitution; Sections 7.8 and 15490, Government Code; and Section 16009, Education Code.
HISTORY
1. New section filed 6-23-87; operative 7-23-87 (Register 87, No. 26).
2. Amendment of section and Note filed 2-11-2003 as an emergency; operative 2-11-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-11-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment of section and Note refiled 6-12-2003 as an emergency; operative 6-12-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-10-2003 or emergency language will be repealed by operation of law on the following day.
4. Amendment of section and Note refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-1-2004 (Register 2004, No. 10).
Subgroup 3. Selection Process for Private Architectural, Engineering Land Surveying or Environmental Services Firms
Article 1. General Provisions
Note • History
As used in these regulations:
(a) “Small business” firm is one which meets the definition of small business firm as set forth in Title 2, California Code of Regulations, section 1896(n) as may be amended by the Department of General Services.
(b) “Board” means the State Allocation Board.
(c) “Officer” is the Executive Officer of the State Allocation Board or any person delegated by the Officer to act on behalf of the Officer.
(d) “Firm” means any individual, firm partnership, corporation, association, joint venture, or other legal entity permitted by law to practice the profession of architecture, engineering, land surveying or environmental services.
(e) “Architectural, engineering, environmental or land surveying services” are those services to be procured outside State of California Civil Service procedures and of a character necessarily rendered by an architect, engineer, environmentalist or land surveyor, but may include ancillary services logically or justifiably performed in connection therewith.
(f) “Contract” shall mean those contracts let by the Board for architectural, engineering, environmental and land surveying services.
NOTE
Authority cited: Section 4526, Government Code. Reference: Sections 4525-4529, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
Article 2. Specific Provisions
§1601. Establishment of Criteria.
Note • History
The Officer shall establish criteria which will comprise the basis for selection for each contract. The criteria shall include such factors as professional excellence, demonstrated competence, specialized experience of the firm, education and experience of key personnel to be assigned, staff capability, workload, ability to meet schedules, nature and quality of completed work, reliability and continuity of the firm, location, and other considerations deemed relevant. Such factors shall be weighed by the Board according to the nature of the contract, the needs of the State and complexity and special requirements of the specific contract for which the services will be provided.
NOTE
Authority cited: Section 4526, Government Code. Reference: Section 4526, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
§1602. Request for Qualifications.
Note • History
(a) Where a project requires architectural, engineering, land surveying and environmental services the Officer shall make a statewide announcement through the publications of the respective professional societies, in a construction trade journal and in other appropriate publications.
(b) The announcement shall contain the following information: The nature of the work, the criteria upon which the award shall be made, and the time within which statements of interest, qualification and performance data will be received.
(c) The Officer shall endeavor to provide to all small business firms who have indicated an interest in receiving such, a copy of each announcement for projects for which the Officer concludes that small business firms could be especially qualified. A failure of the Officer to send a copy of an announcement to any firm shall not operate to preclude any contract.
NOTE
Authority cited: Section 4526, Government Code. Reference: Section 4527, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
§1603. Selection of Architects, Engineers, Land Surveyors and Environmentalists.
Note • History
After expiration of the period stated in the publications, the Officer shall evaluate statements of qualifications and performance data which have been submitted to the Board. Discussions shall be conducted with no less than three firms regarding the required service. From the firms with which discussions are held, the Officer shall select, for contract negotiation, no less than three, in order of preference, based upon the established criteria, which are deemed to be the most highly qualified to provide the services required. Where three firms cannot be found which could provide the required service, the Officer may then select from the available, applicant firms. Selections based on less than three firms, must be documented with the names and addresses of firms contacted by the Officer and the reasons why the provisions of this section could not be met. This documentation shall be maintained in the State Allocation Board's contract file.
NOTE
Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
§1604. Conflict of Interest/Unlawful Activity.
Note • History
Governmental agency employees who are related to persons or have interests in business entities seeking to contract under these regulations, shall not participate in any aspect of the contract review or selection process.
Further, any practice that results in an unlawful activity including, but not limited to rebates, kickbacks or any other unlawful consideration, shall be prohibited.
NOTE
Authority cited: Section 4526, Government Code. Reference: Sections 4526 and 87100, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
Note • History
In instances where the Board effects a necessary change in the project during the course of performance of the contract, the contractor's compensation may be adjusted by negotiation of a mutual written agreement in a fair and reasonable amount where the amount of work to be performed by the contractor is changed from that which existed previously in the contemplation of the parties.
NOTE
Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
Note • History
Should the Board determine that is necessary or desirable to have a given project performed in phases, it will not be necessary to negotiate the total contract price or compensation provisions in the initial instance, provided that the Board shall have determined that the firm is best qualified to perform the whole project at a fair and reasonable cost, and the contract contains provisions that the State, at it option, may utilize the firm for other phases and that the firm will accept a fair and reasonable price for subsequent phases to be later negotiated and reflected in a subsequent written instrument. The procedure with regard to negotiation provided for in section 6106, of the Public Contract Code shall be applicable.
NOTE
Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code.
HISTORY
1. New section filed 5-17-91; operative 6-16-91 (Register 91, No. 26).
Subgroup 3.5. Regulations Relating to Surplus School Property; Use of Proceeds
Note • History
For the purpose of the provisions of Education Code Section 17462, the terms set forth below shall have the following meanings, subject to the provisions of the Act:
“One-time Expenditures” means costs paid by the general funds of a school district that are nonrecurring in nature and do not commit the school district to incur costs in the future, and are exclusive of Ongoing Expenditures.
“Ongoing Expenditures” means costs paid by the general or special funds of a school district in support of employee salaries, benefits and other costs that are associated with ongoing and sustained operations and services except, if approved by the State Allocation Board, a single and one-time payment reducing a district's existing unfunded liability for postemployment benefits other than pensions will be considered a one-time expenditure and not an ongoing expenditure if the following conditions are also met: (1) the unfunded liability was incurred prior to January 1, 2007, (2) the unfunded liability has been determined using actuarial measurement methods as defined in Governmental Accounting Standards Board Statement 45, and (3) the payment is consistent with any plan made by the district according to Assembly Bill 1802, Chapter 79, Section 43(a)(6)(A), Statutes of 2006 (Committee on Budget), as amended by Senate Bill 1131, Chapter 371, Statutes of 2006 (Committee on Budget and Fiscal Review), or a similar plan adopted by the district's governing board.
NOTE
Authority cited: Section 17462, Education Code. Reference: Sections 17462 and 17463.8, Education Code.
HISTORY
1. New subgroup 3.5 (section 1700) and section filed 8-2-2007; operative 8-2-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 31).
2. Amendment of definition of “Ongoing Expenditures” filed 12-8-2008; operative 12-8-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 50).
Subgroup 4. State School Building Aid
(Printed 3-18-50)
NOTE
Authority cited for Subgroup 4: Section 15503, Government Code. Authority cited for Section 1748: Section 15705, Education Code. Reference: Sections 15700-15795, Education Code.
HISTORY
1. Repealer of Subgroup 4 (Sections 1748-1786, not consecutive) and new Subgroup 4 (Sections 1748-1751) filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1). For prior history, see Registers 19, No. 16; 21, No. 5; 22, No. 1; 23, No. 2; 24, No. 3; 26, No. 4; 29, No. 2; and 30, No. 4.
2. Amendment of subsection (a) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
3. Repealer of Subgroup 4 (Sections 1748-1751) filed 10-27-82; effective thirtieth day thereafter (Register 82, No. 44).
Subgroup 5. Relating to the State School Building Law of 1952
Article 1. Definitions
Note • History
(a) For the purposes of these regulations, the terms set forth below shall have the following meanings, subject to the provisions of the Act:
(1) The Act.
Chapter 8, Part 10 of Division 1, Education Code, and amendments thereto.
(2) Application.
A request for an apportionment for a specific purpose or purposes as provided by the Act and these regulations, on forms prescribed by the State Allocation Board, properly executed, together with such other information as may be required.
(3) Attendance Center.
A school maintained at a given location within a school district.
(4) Authorized Agent.
An official or staff member of the school district or the office of the county superintendent of schools, appointed and authorized by resolution of the governing board of the school district to represent that body in all matters pertaining to the Act other than those requiring action by the governing board of the school district.
(5) Available Funds.
All funds of a school district except those received by gift or bequest; amounts in the general funds of the district which are apportionments from the State School Fund, or which are proceeds of a tax levy not earmarked for any purposes for which school district bonds may be issued and sold; or funds derived from Public Laws 864 of 1964 and Public Laws 874 and 815 of 1950.
(6) Board.
The State Allocation Board.
(7) District.
An applicant school district.
(8) Executive Officer.
The Executive Officer of the State Allocation Board.
(9) Facility. All or a portion of any parcel of land, site improvement, utilities, buildings or other building area, furniture, and equipment.
(10) Project. Notwithstanding any other provision in these regulations, the term “project” shall be deemed to include any or all of the purposes for which a school district has applied for an apportionment or apportionments under the provisions of the Act and these regulations.
(11) Replacement. The acquisition or construction of a facility through an apportionment to replace one that is to be sold, destroyed, or otherwise disposed of or removed from use for any school purpose.
(12) Rehabilitation. The structural reconstruction, renovation, alteration, and/or conversion of a building.
NOTE
Authority cited for Subgroup 5: Section 15503, Government Code. Authority cited for Section 1800: Section 16009, Education Code. Reference: Sections 16000-16207, Education Code.
HISTORY
1. Amendment of subsection (a)(5) filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1). For prior history, see Register 69, No. 7.
2. Amendment of subsection (a)(1) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Article 2. Application Procedure
Note • History
(a) To secure an apportionment a school district shall submit the following in addition to the requirements of Section 16024 of the Act:
(1) A resolution of the governing board of the district, authorizing the application.
(2) An analysis of the funds used or available for capital outlay purposes by the district in such detail as may be prescribed by the Director of General Services. Such analysis shall include information on funds currently available with respect to amounts obligated by contract, set aside or encumbered for given purposes, or free of any encumbrance.
(3) In the event the acquisition of a site is proposed, a copy of the written report of the local planning commission pursuant to the provisions of Section 53091 of the Government Code.
(4) Evidence satisfactory to the Director of General Services regarding the status of the title to any real property that is to be acquired or abandoned for school purposes or upon which school facilities are to be constructed as the result of an apportionment.
(5) A complete inventory of all real property and furniture and equipment owned by the school district.
(6) Environmental impact documents prepared in accordance with the requirements of Section 1850.1 et seq. of these regulations.
(7) Such other information as may be required by the Director of General Services, the Director of Education, or the Board.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16009, Education Code.
HISTORY
1. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 75, No. 27.
§1802. Filing and Review of Applications.
Note • History
(a) A complete application shall be filed with the Board. Upon receipt thereof, the Executive Officer shall transmit copies to:
(1) The Director of Education for his report, recommendation, and approval of the enrollment estimates and the facilities included in the application as they relate to school planning.
(2) The Director of General Services, for report and recommendation to the Board after reviewing and making the investigations and determinations deemed necessary pursuant to administering the provisions of the Act.
(3) Such other department or agency as the Board or Executive Officer may deem appropriate, for comment and recommendation.
NOTE
Authority cited: Section 15503, Government Code; and Section 16009, Education Code. Reference: Section 16005, Education Code.
HISTORY
1. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
§1803. Changes in Application After Original Approval.
(a) An applicant for an apportionment may, after approval of an application, request approval by the Board of changes within any project applied for, including a change in the location of a site. Such changes may be approved by the Board provided:
(1) That the changes are deemed necessary by the Board to properly achieve the essential purposes of the application as originally approved.
(2) That, except for changes made under the provisions of Section 1814 hereof, the changes do not increase the total building area of the project application as originally approved by the Board.
(b) Any approval by the Board of such changes shall be deemed to relate back to the date of the original approval and shall have the same effect as if made at the time of such original approval.
Note • History
(a) The Board determines it is in the interests of the pupils of the state generally to give priority consideration to those districts which will not have their resources diminished by deductions from the State School Fund attributable to apportionments which they are unable to recoup because of the limiting effect of Article XIII.A of the Constitution.
(b) Notwithstanding any other provisions of these regulations, for the purpose of making apportionments or of the release of funds under apportionments already made where such latter funds have been encumbered by binding obligations on the part of the districts, applicant districts shall be divided into Groups A, B and C.
(1) Group A shall consist of those districts which the Executive Officer reasonably determines will be able to levy offset taxes over and above the 1% limitation provided by Section 1(a) of Article XIII.A of the Constitution to replace the full amount of deductions from the State School Fund apportionments attributable to the apportionments requested or to the release of apportioned funds.
(2) Group B consists of those districts which do not fall within Group A but which have legally binding obligations or commitments with respect to funds not yet released and those districts which have filed applications prior to June 20, 1978 for exceptional children facilities pursuant to Education Code Section 16196.
(3) Group C consists of districts which do not fall within Group A or B.
(c) Groups A and B shall have first and equal priority and shall be accommodated on a first come first served basis subject to the provision of Subsection (d) hereof.
(d) In any cases when the Board finds that the application of this regulation inequitable or would result in an undue hardship on the pupils of the districts affected as compared with pupils of other districts, irrespective of the group in which such other districts fall, the Board may make exceptions to this regulation.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16007, Education Code.
HISTORY
1. Repealer and new section filed 6-26-78 as an emergency; effective upon filing (Register 78, No. 26). For prior history, see Register 77, No. 18.
2. Certificate of Compliance filed 9-21-78 (Register 78, No. 38).
§1805. Priority Points for Construction.
History
HISTORY
1. Repealer filed 6-26-78 as an emergency; effective upon filing (Register 78, No. 26).
2. Certificate of Compliance filed 9-21-78 (Register 78, No. 38).
Article 3. Eligible Facilities
§1809. Estimated Average Daily Attendance.
Note • History
(a) The estimated average daily attendance of a school district as required by Section 16044 of the Act for determining the allowable area of adequate school construction shall be computed as prescribed by this section.
(b) For purposes of this section, the following definitions shall apply:
(1) “Enrollment” means the graded enrollment of minors of the district for the end of the first school month as reported by the school district to the Department of Education on CBEDS or any successor form. CBEDS enrollment or acceptable equivalent data shall be verified by the appropriate County Superintendent of Schools. Comparable enrollment data for the end of the sixth school month is acceptable when verified by the County Superintendent of Schools.
Enrollment shall include only those students who actually reside in the school district and any students who reside in the district but attend school in other than the district of residence. Enrollment shall exclude high school pupils who attend continuation classes.
(2) “Projected enrollment” means graded enrollment as projected by the cohort survival projection method as described in subsection (c), for a period of two years with respect to the elementary grades of the district and for a period of three years with respect to the high school grades of the district. For purposes of this section the term “high school grades of the district” refers to enrollment in grades maintained by the senior high schools of the district and by those junior high schools which maintain classes above the eighth grade.
(3) “Pupil Units attending continuation classes” is a figure computed as follows: First determine the average number of pupil hours of high school attendance in continuation classes per school day in the highest three months of the latest 12 months, then divide said average by six. In making this computation, pupil hours during the regular school day in excess of 15 per week shall be included. Pupil hours for evening or Saturday classes shall be excluded. Multiply the final figure obtained in the preceding calculation by a growth factor which is computed by dividing the “projected enrollment” by the applicable “enrollment” for the most recent year. The figure obtained is the number of “Pupil Units attending continuation classes.” In the event the district is applying for a continuation high school facility and has students who have not yet been screened and assigned to continuation classes because of lack of suitable space, the district may submit an identified list of such pupils. The average number of pupil hours of high school attendance in continuation classes per school day as computed above may be augmented by the pupil hours obtained by multiplying the number of names on said list by three, or in the event the district can prove that continuation high school pupils attend classes for an average of more than three hours per day, such larger multiplier may be used. When an identified list of prospective continuation high school pupils is used, the number of pupils on such list shall be excluded from the graded enrollment reported in accordance with Subsections (b)(1) and (c)(1).
(4) “Ungraded pupils assigned to special education classes” means the number of pupils assigned to such classes on the date of the latest reported enrollment, plus a verified count of such pupils who are not attending classes of the district but will become a part of the attendance of the district when approved facilities for such pupils have been completed.
(5) “Estimated average daily attendance” means the projected enrollment multiplied by .97, plus the ungraded pupils assigned to special education classes, plus the pupil units of high school pupils attending continuation classes.
(6) “Housecount” mean an enumeration of new housing units that are under construction, i.e. units that have at least reached the stage of foundations in place, and have not yet been completed and occupied, classified by type of housing unit as the Board may prescribe. Such housing units shall not include hotel or motel accommodations or other living quarters generally used as transient or short-term accommodations, but may include spaces under construction for mobile homes which the Board determines to be essentially for long-term occupancy. The definition of housecount prescribed herein may be modified from time to time as may be necessary to classify new housing units in the most appropriate manner for the purpose of measuring the pupil yield of such units.
(c) The projected enrollment shall be determined by the cohort survival method in accordance with the following, and by the use of such forms and instructions as the Board may prescribe.
(1) List either the latest enrollment for the end of the second school month or the subsequent sixth school month and the enrollments for the same period for three preceding years. All applications approved by the Board after April 30 of any given year may be based on either the enrollment from the sixth month of the current school year or the preceding second school month of the current school year. Such enrollment shall be listed by level for each grade included in the application. High school applications shall also list the three highest grades of the component elementary districts.
(2) Determine the numerical change in enrollment between each given grade in one year and the next higher grade in the succeeding year for each period and grade listed in (1) above. With respect to kindergarten enrollment (or first grade enrollment if no kindergarten is maintained), determine the numerical change in kindergarten (or first grade) enrollment between each period listed in (1) above, or alternatively, annual changes in enrollment based on a local census or survey of preschool children conducted according to such procedures as the Board may prescribe.
(3) Compute the average annual change in enrollment for each grade maintained at the grade level of the application, said average being a weighted average computed by multiplying the most recent annual change in enrollment by three, the next most recent change by two, and the earliest change by one, and dividing the sum of such weighted changes by six.
(4) Progress the latest reported enrollment through the applicable two or three year projection period modifying the grade progression each year by the average annual change for each grade as computed in (3) above.
(d) From the projected enrollment compute the estimated average daily attendance as defined in Subsection (b)(5), above.
(e) In the event that the land area of the district is less than 75 percent developed and that there is good reason to believe the number of pupils being added from construction of new housing units exceeds the number implicit in the cohort survival computation, the Board may, at its discretion, modify the estimated average daily attendance as follows:
(1) Determine the graded enrollment one year from the latest reported enrollment by a one-year grade progression, adjusted for dropouts at the high school level.
(2) Determine the enrollment derived from new homes implicit in the cohort survival computation as follows: (i) subtract the enrollment computed in (1) above from the one-year projection of enrollment as determined by the cohort survival method; (ii) to the remainder, add two percent of the latest enrollment for the end of the first or sixth school month, whichever is applicable. If the foregoing computations result in a negative number, such number shall be deemed to be zero.
(3) Determine the pupil yield per housing unit of housecount, as established by a survey of all occupied housing units in the district, for the current year and the two preceding years. The survey shall take into consideration the different pupil yields of multiple and single family housing units or other significant yield characteristics. The current year yield factor for each type of housing unit shall be modified by the average annual difference of the factor for each type for the two preceding years.
(4) In the event that prior year data referred to in (3) is unavailable, the current yield factor shall be modified as the Board shall prescribe.
(5) Establish the pupil yield of the housecount by multiplying the number of housing units in the housecount by the applicable yield per housing unit as determined above. Subtract the enrollment from new homes determined in (2) above from the yield of the housecount; the result of this computation is the amount by which the graded enrollment computed under the cohort survival method shall be changed.
(6) The housecount and surveys described in (3) and (4) shall be conducted by the district in accordance with methods, procedures, and standards which are approved by the Office of Local Assistance with respect to each specific case.
NOTE
Authority cited: Section 15503, Government Code; and Section 16009, Education Code. Reference: Sections 16004 and 16044, Education Code.
HISTORY
1. Repealer of subsection (e) filed 8-12-76 as an emergency; effective upon filing (Register 76, No. 33). For prior history, see Register 75, No. 33.
2. Certificate of Compliance filed 11-17-76 (Register 76, No. 47).
3. New subsection (e) filed 4-26-77; effective thirtieth day thereafter (Register 77, No. 18).
4. Amendment of subsection (a) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
5. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
§1809.1. Estimated Average Daily Attendance--Sites and/or Plans.
Note • History
(a) The estimated average daily attendance of a school district for establishing eligibility for site purchase and/or plans preparation applications in advance of an application for construction on such site pursuant to Section 16039 of the act, shall be determined as provided by Section 1809 of these regulations except as follows:
(1) The enrollment projection described in Subsection 1809(c) shall be for a period of four years with respect to elementary schools and for five years with respect to high schools.
(2) The term “housecount” may include, in addition to the enumeration specified in Subsection 1809(b)(6), residential lots not yet built upon which are included in a tentative tract map that has been filed and has been approved by the appropriate agencies of local government.
(b) In those instances where a district has filed an application and received approval for construction which includes the purchase of a site within the acreage guidelines published by the Department of Education in a publication entitled “School Site Analysis and Development” dated 1966, the Board may concurrently approve an application under Education Code Section 16039 for advance purchase of such additional acreage as is necessary to enlarge the site to the size justified by such guidelines for the master planned site for this location.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16044, Education Code.
HISTORY
1. New section filed 6-16-72 as an emergency; effective upon filing (Register 72, No. 25).
2. Certificate of Compliance filed 7-20-72 (Register 72, No. 30).
3. Amendment of subsection (a)(2) filed 12-3-76; effective thirtieth day thereafter (Register 77, No. 1).
4. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1809.3. Estimated Average Daily Attendance--Alternate Method for Construction Project.
Note • History
(a) The estimated average daily attendance of a school district as required by Section 16044 of the Act for determining the allowable area of adequate school construction may be computed as prescribed by this section under the following conditions:
(1) That the school district has available financing equal to the total estimated cost of the project. Such financing can be either in the form of proceeds from bonds or unsold bonding capacity which has been authorized for sale by the voters of the district.
(b) For the purposes of this section, the following special definition shall apply:
(1) “Projected enrollment” means graded enrollment as determined by the cohort survival projection method described in subsection 1809(c). For elementary grades of the district, enrollment is projected for three years; for high school grades, a four-year projection is made. For purposes of this section, “high school grades” of the district refers to enrollment in senior high schools and in those junior high schools beyond eighth grade.
All other definitions as provided in subsection 1809(b) shall relate to this section.
(c) For the purposes of this section, the projected enrollment shall be determined according to subsection 1809(c) with the following exception:
(1) Progress the latest reported enrollment through the applicable three- or four-year period, modifying each grade progression by the appropriate annual change.
Subsections 1809(d), 1809(e), and 1809(f) shall also apply to this section.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16044, Education Code.
HISTORY
1. Amendment of subsections (a) and (c) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 76, No. 47.
§1809.4. Estimated Average Daily Attendance--Alternate Method for Site and/or Plans Project.
Note • History
(a) The estimated average daily attendance of a school district for site purchase and/or plans preparation applications in advance of an application for construction on such site pursuant to Section 16039 of the Act may be computed as prescribed by this section under the following conditions:
(1) That the school district has available financing equal to the total estimated cost of the project. Such financing can be either in the form of proceeds from bonds or unsold bonding capacity which has been authorized for sale by the voters of the district.
(2) That whenever a site and/or plans application is approved by the Board pursuant to this section, the Board shall make an apportionment to cover the cost of the entire project. The Board shall then require that available district financing be applied either to reduce apportionments previously made or as a district contribution toward any previously approved project, whichever the Board may determine.
(b) For the purposes of this section, the projected enrollment shall be determined according to subsection 1809(c) with the following exception:
(1) The enrollment projection shall be made for five years in the case of elementary grades and for seven years in the case of high school grades.
(c) All other subsections of Sections 1809 and 1809.1 shall also apply to this section.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16044, Education Code.
HISTORY
1. New section filed 3-21-75 as an emergency; effective upon filing (Register 75, No. 12).
2. Certificate of Compliance filed 7-3-75 (Register 75, No. 27).
3. Amendment of subsection (a) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1810. Allowable School Building Area.
Note • History
(a) The allowable school building area for a school district as a whole, including building area that is located other than at an attendance center, shall not exceed the sum of the allowable building area for the attendance centers of the district as determined in accordance with the provisions of Section 16044 through 16056 of the Act and these regulations.
(b) In computing the allowable building area of an applicant district for the purposes of the Act, the building area for which applications have been approved, building area which has been otherwise financed or any building area which has been acquired under the terms of a lease-purchase agreement shall be included as existing adequate school building area, except:
(1) The area of any portable building being acquired under a lease-purchase agreement through the use of general funds of the district shall not be included as adequate school building area until (a) the end of ten (10) years from execution of the original lease-purchase agreement, or (b) the district has acquired title pursuant to said agreement, whichever occurs first; and
(2) The area of portable classrooms being acquired under an apportionment made pursuant to Section 16015 of the Education Code shall not be charged as adequate building area.
(c) For the purpose of determining the allowable square footage of building area for which an apportionment may be made under the Act, all calculations shall be based on the total adequate building area of the district and the estimated average daily attendance of all the schools of the district.
(d) For the purpose of computing the allowable building area permitted to a district, the following shall apply:
(1) The estimated average daily attendance of the district shall be as determined in accordance with Section 16044 of the Act and Section 1809 of these regulations.
(2) Existing and proposed building area shall be computed in accordance with the following:
(A) All measurements shall be made from exterior rough wall lines.
(B) Totally enclosed space shall be counted as full area. Among the various types of space to be included shall be areas such as:
1. Basement rooms and basement boiler rooms.
2. Heater rooms, including those above the normal floor level.
3. Each floor of multi-story buildings.
(C) Certain partially enclosed areas shall be counted as full area and shall include:
1. Open, covered areas which provide shelter between buildings that are less than 20 feet apart.
2. Mezzanines open on one or more sides which may easily and readily be used or converted to use as instructional space or passageways.
3. Each floor of library stacks.
(D) Covered unenclosed space shall be counted as one-half of the actual area. Included in such space are:
1. Open, covered passages, arcades, lunch shelters, porches, and planting areas.
2. Open, covered areas which provide shelter between buildings that are 20 feet apart or more.
3. Overhangs and sun control devices which are so designed and located that they function as, and in lieu of, covered walks or other shelter areas.
4. Mezzanines for storage purposes.
(E) Areas which shall not be counted include:
1. Eaves and sun control devices except as specified above.
2. Unsheltered platforms and steps.
3. When isolated from building structures, the area of incinerators, pumphouses, transformer vaults, and service yards.
4. Elevator shafts where constructed in order to comply with Chapter 7 of Division 5 of the Government Code (commencing with Section 4450), relating to facilities for handicapped persons.
5. The area of completely enclosed stairs for each floor level served.
(3) All of the existing building area owned or operated by the district, regardless of conditions or purpose for which it is used, shall be reported to the board by the district as prescribed in this regulation.
(4) The existing school building area for the purpose of computing the allowable building area shall include only the adequate school building area of the district, except that which may be exempted pursuant to the provisions of Section 16042 of the Act.
NOTE
Authority cited: Section 15503, Government Code; and Section 16009, Education Code. Reference: Section 16045, Education Code.
HISTORY
1. Amendment of subsection (d)(1) filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1). For prior history, see Register 75, No. 17.
2. Amendment of Section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
3. Amendment of subsection (d) filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
§1810.1. Allowable School Building Area for Facilities for Exceptional Children.
Note • History
(a) With respect to projects for which application is made under Article 3, Chapter 8, Part 10, Division 1 of the Education Code, and in conformity with the requirements of Section 16198 of the Education Code, the board establishes allowable building areas for the education of physically handicapped, educationally handicapped, and mentally retarded minors, to be computed as follows:
(1) Divide the number of eligible pupils by the maximum class size established by law for special day classes for the type of pupils to be enrolled, and increase the quotient to the next highest integer where a fractional amount is produced.
(2) Multiply the number computed in (1) by the maximum building area allowance shown below when the facility is planned for the following types of exceptional children:
Embedded Graphic 02.0022
(3) When the chronological age span of educable mentally retarded minors is greater than four years, the maximum class size shall be 15 pupils.
(4) When facilities to be constructed will include occupational therapy, physical therapy, and related auxiliary spaces for orthopedically handicapped minors, additional building area allowances for such spaces of up to 5,200 square feet shall be made if the facility is designed for one to three classes and up to 7,000 square feet for four to eight classes.
(5) When facilities are to be constructed for deaf blind multihandicapped, a one time additional building area allowance of 500 square feet per school will be made for the initial construction of facilities.
(6) When facilities are to be constructed for blind or partially seeing minors served in an integrated instructional program which is housed in two or more schools, the building area allowance may be allocated among the schools when approved by the Department of Education. No area of instruction shall be allowed which is less than 200 square feet.
(7) When facilities are to be provided for minors having speech defects or disorders, additional building area per school is permitted by Education Code Section 16195(c). This additional area allowance is limited to:
(A) 200 square feet of new building area per school in schools constructed after July 1, 1968, where such schools are designed to permit utilization for remedial and other special services.
(B) 200 square feet of new building area per school in schools constructed between July 1, 1933 and July 1, 1968, where such additional area allowance is used for the construction of a new speech facility.
(C) Conversion of existing facilities or a combination of new construction and conversion of such existing facilities to provide housing for such minors having speech defects or disorders, provided the cost does not exceed the computed cost for 200 square feet of new classroom construction based upon cost standards adopted by the board.
(D) The acquisition of mobile speech therapy facilities, provided the cost does not exceed the combined computed cost for 200 square feet of new classroom construction, based upon cost standards adopted by the board, at all such schools which will be served by the mobile facility.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16198, Education Code.
HISTORY
1. Amendment of subsection (a) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 74, No. 38.
2. Amendment filed 4-27-78; effective thirtieth day thereafter (Register 78, No. 17).
§1810.2. Allowable Building Area for Small Elementary Schools.
Note • History
(a) For the purpose of computing the building area allowance for small elementary schools in accordance with Section 16047 of the Education Code, the following shall apply:
(1) In an applicant district maintaining any combination of grades kindergarten through 6 with an estimated average daily attendance of less than 300 in such grades:
Estimated ADA Maximum
in Kindergarten Total Building
and Grades 1-6 Area (Sq. Ft.)
6-25 1,600
26-50 3,800
51-75 5,700
76-100 7,200
101-133 8,415
134-166 10,200
167-199 12,000
200-232 13,360
233-285 15,675
286-299 16,500
(2) In an applicant district maintaining any combination of grades kindergarten through 8 with an estimated average daily attendance of less than 300 in grades kindergarten through 6, there shall be allowed, in addition to the maximum total building area shown above, a maximum area of 75 square feet for each attendance unit in grades 7 and 8.
NOTE
Authority cited: Section 16009 Education Code. Reference: Section 16047, Education Code.
HISTORY
1. New section filed 3-17-72 as an emergency; effective upon filing (Register 72, No. 12).
2. Certificate of Compliance filed 6-16-72 (Register 72, No. 25).
3. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1810.3. Allowable Building Area for Continuation High Schools.
History
The estimated average daily attendance for continuation high schools shall be based on those pupil units attending continuation classes (as defined in Section 1809 of these regulations) which are assigned to the continuation high school.
Building area shall be allowed for the continuation high school in accordance with the following schedule.
Pupil Units
of Square Feet of
Continuation High School Building Area
21 to 40 4,800
41 to 60 4,800 + 120 for each pupil unit over 40
61 to 90 7,200 + 115 for each pupil unit over 60
91 to 120 10,650 + 105 for each pupil unit over 90
121 to 150 13,800 + 90 for each pupil unit over 120
Over 150 16,500 + 60 for each pupil unit over 150
For purposes of this section a continuation high school is defined as a continuation high school which is physically and operationally distinguishable from other schools. If the continuation high school shares space with another type of school, it can be considered to be a continuation high school within the meaning of this section only if the district can show conclusively that the continuation facility is in fact a separate institution with its own administration, teaching staff, and course of study, located in a clearly identifiable building area.
HISTORY
1. New section filed 12-22-72 as an emergency; effective upon filing (Register 72, No. 52).
2. Certificate of Compliance filed 3-19-73 (Register 73, No. 12).
§1810.4. Apportionments Under Education Code Section 16015 for Leasing Portable Classrooms During Construction of Permanent Facilities.
Note • History
(a) The Board shall determine the allowable area and number of portable classrooms for the leasing of which it may make an apportionment pursuant to Education Code Section 16015. For this purpose, the Board may take into account any facilities which the district has already leased or otherwise acquired which are not considered as chargeable area under the Board's regulations.
(b) No apportionment pursuant to this section shall be made for portable classrooms that exceed the number of classrooms in the previously approved construction project referred to in Education Code Section 16015 nor for any that individually exceed 1,000 square feet. The allowable cost of such leasing pursuant to such an apportionment shall not extend beyond a period from the date the construction apportionment for the aforesaid project becomes final to the completion date specified in the construction contract, plus any authorized contract time extensions.
(c) The portable classrooms shall be located on one or more existing school sites with existing school facilities.
(d) Utilities and site development (service and general) shall be limited to the minimum necessary to make the portable classrooms function.
(e) Necessary furniture and equipment to temporarily equip the portable classrooms may be acquired under the previously approved construction application with such furniture and equipment being subsequently returned to the permanent facilities when completed.
(f) Portable classrooms leased on one or successive leases for one or more different projects for a total time in excess of three years pursuant to an apportionment under this section must comply with the requirements of Education Code Section 39243. For the purpose of the preceding sentence, a lease shall be deemed to be successive to a previous lease if from the termination of the previous lease, the portable classrooms leased have not been removed from the premises. “Factory-built” school buildings leased pursuant to Education Code Section 16015 must comply with the requirements of Article 5, Chapter 2, Part 23, Division 3, Title 2 (commencing with Section 39190 of the Education Code).
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16015, Education Code.
HISTORY
1. Amendment of subsection (b) filed 11-25-77; effective thirtieth day thereafter (Register 77, No. 48). For prior history, see Register 77, No. 18.
§1811. Method for Computing Existing Building Area.
Note • History
(a) For the purposes of this regulation, “service area” may be defined as:
(1) Buildings which when constructed were intended to be used for a purpose to which the provisions of Education Code Sections 39140 to 39155, inclusive, would not apply, whether or not such sections were in effect at the time when the building was constructed; or
(2) Buildings which when constructed were intended to be used for a purpose to which Education Code Sections 39140 to 39155, inclusive, would apply, whether or not such sections were in effect when the building was constructed, but which building has been converted or is intended to be converted, as shown by the application, to be used for purposes to which such sections would not apply.
(b) Service area may include but is not limited to construction used as bus garages, maintenance shops, centrally located district storage and warehouses, custodial houses, utility shelters, transformer vaults, service yards, and administration offices.
(c) Any area constructed for district administrative purposes shall be counted as full area except:
(1) Administrative facilities acquired by the conversion of existing inadequate school facilities. Building area computations for such facilities shall be in accordance with the schedule adopted pursuant to subsections (h)(1) of this regulation or as may be determined by the Director of General Services.
(2) Existing buildings, other than inadequate school facilities, acquired by the district and converted to administrative offices. Such facilities shall be allowed an adjustment in area only where the school district has financing equal to the cost of acquisition and conversion. Such financing can be from either:
(A) The district's General Fund.
(B) Proceeds from the sale of school district bonds. Such bond funds shall not then be considered as “eligible bonded debt service” as defined in Sections 16070(d) and 16084 of the Act. Building area computations for such facilities shall be in accordance with the schedule adopted pursuant to subsection (h)(2) of this regulation or as may be determined by the Director of General Services.
(d) In the event that a school district has expended funds for the purpose of constructing buildings used for housing certificated employees of the district and their families, the area of such buildings and the funds expended therefor shall be accounted for in the following manner:
(1) The area of such buildings constructed or acquired with the proceeds of a tax levied under Chapter 3 (commencing with Section 14200), Part 9, of the Education Code, shall be excluded from the building area of the district.
(2) The area of such buildings constructed or acquired with the proceeds from the sale of school district bonds prior to July 1, 1961, shall be excluded from the building area of the district; however, such bond funds shall not be considered as “eligible bonded debt service” as defined in Sections 16071(d) and 16084 of the Act.
(e) The following shall not be included in any computation of the area of adequate school construction existing in any applicant school district under these regulations:
(1) The area of any building which is or will be used exclusively for a parent cooperative nursery education facility, and for no other purpose, and which building at the time of acquisition thereof by the district was incidental to the purchase of a school site and unsuitable for classroom purposes or which was acquired by the district without expenditure of school district funds.
(2) The area of any building constructed by a school district after September 11, 1957, with funds given or bequeathed to the district after such effective date, and the area of any building given, devised, or bequeathed to a school district after such effective date, including any building given to a district by any city, county, or political subdivision of this Sate.
(3) The area of any building, the construction of which was financed by the proceeds from a tax levied pursuant to Section 10914 of the Education Code, relating to children's centers.
(4) The area of any building which has not been constructed or reconstructed under the provisions of Sections 39140 to 39155, inclusive, Education Code, provided that such area is being used exclusively for adult education classes during the regular school day and that the operation of such classes has been approved by the Department of Education.
(5) Any building area excluded from the computation of adequate school building construction by adjustments made under Section 16045 of the Act which is subsequently converted to usable instructional area used exclusively for vocational educational programs, provided the conversion was accomplished with federal or district funds.
(6) The area of any building which is or will be used exclusively for a preschool educational program facility pursuant to the provisions of Section 16045, Paragraph 5, Subsection (b) of the Act, provided that the building was constructed, leased or purchased with local general funds, or Federal or State funds allocated specifically for a preschool educational program.
(f) The area of adequate school construction existing in a district at the time of application shall be initially computed as all of the construction area of a district except:
(1) Such area as are to be replaced under standards established by the Board; and
(2) Such areas in an existing structurally inadequate building for which an application has been filed for structural rehabilitation or in a building previously structurally rehabilitated under Sections 16000 to 16207, inclusive, of the Act, as exceed the maximum building area allowed by Section 16044 of said Act for a number of pupils, equivalent to those that could be housed in the building after rehabilitation.
(g) To compute the number of adequately housed pupils for the purposes of subsection (f) above, the following schedule shall apply:
(1) The number of pupils which can be housed in an elementary classroom shall be determined by assigning units of average daily attendance in accordance with the following schedule:
Estimated Average
Type of Classroom Daily Attendance
Kindergartens, double session 55
Kindergartens, single session 27
Classrooms, grades 1 through 3 29
Classrooms, grades 4 through 8 33
Classrooms in separate 7-8 grade school 30
(2) The number of pupils which can be housed in secondary school classrooms shall be determined by assigning units of average daily attendance to such classrooms in accordance with a space adequacy survey and the following average class sizes:
Type of Classroom Average Class Size
Academic Classrooms, grades 7-9 or 7-12 30
Academic Classrooms, grades 9-12 28
Laboratory Classrooms, grades 7-12 26
Laboratory Classrooms, grades 9-12 24
(h) If such adequate school building area, when added to the minimum facilities needed by the district, results in a total building area in excess of the amount prescribed in Section 16044 of the Act,then the Board may make the following adjustments to the initial computation or such revisions thereof as the Board, in its discretion, deems desirable:
(1) Service areas constructed prior to July 19, 1947, shall be excluded, except that if any inadequate nonservice area constructed prior to July 19, 1947, is, or will be converted to a service area, such area shall be recomputed by multiplying said area by the percentage determined by dividing the depreciated value of said area by the replacement cost as such value and cost are determined by the Director of General Services. For the purposes of such determination, the Director of General Services shall prepare a schedule setting forth the percentage of usable life remaining in a facility which may be counted as existing adequate service area to be used in making the recomputation of allowable building area under the provisions of this subsection. After the Director of General Services has determined the adjusted area of a building as prescribed in this subsection, the adjusted area of such building shall not thereafter be recomputed or revised.
(2) Service area constructed or acquired on or after July 19, 1947, may be recomputed by multiplying the building area by a factor determined by dividing the original cost of such building area by the computed allowance for standard elementary classrooms for the same building area (excluding any adjustment for small buildings) using the Board's schedule of allowances which was in effect on the date the construction contract was let for the service area or on the date of acquisition of such service area.
If the Director of General Services has determined the adjusted area of a building as prescribed herein, or as this subsection provided heretofore, such adjusted area shall not thereafter be recomputed or revised. The recomputation prescribed by this subsection shall not apply to facilities constructed pursuant to apportionments made under any State School Building Aid Law.
(3) If, after the revised computation of service areas is made as prescribed under subsections (h) (1) and (2) of this regulation, the existing and requested building area of the district is in excess of the schedule set forth in Section 16044 of the Act, the existing building area of nonservice facilities may be determined on the basis of the number of pupils housed by such facilities at an allowance per pupil which is not more than 25 percent in excess of the amount per pupil prescribed in Section 16044 of the Act. For computing the number of adequately housed pupils for the purposes of this subsection, the schedule set forth under subsections (g) (1) and (2) of this regulation shall apply.
(i) If any of the recomputations prescribed by Section 16045 of the Act or by the foregoing provisions of this regulation result in a greater adjustment to the area of existing facilities than is required to permit the district to apply for the minimum additional facilities needed by it as determined by the Department of Education, the adjusted area shall be so increased that the sum of the adjusted area, plus the building area of the minimum additional facilities required by the district will be less than or equal to the maximum permitted by Section 16044 of the Act.
(j) In the event the adjusted existing area of the district as determined pursuant to Section 16045 of the Act or the preceding provisions of this regulation results in a district being unable to apply for the minimum amount of essential instructional facilities required, the adjusted existing area may be reduced, with the approval of the Board, by an amount sufficient to permit such essential instructional facilities to be constructed under the Act. The provisions of Section 16045 of the Act or the preceding provisions of this subsection (j) shall not be interpreted so as to nullify the preceding provisions of this regulation, but instead shall be construed as being for the purpose of alleviating any substantial hardship which might otherwise occur.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16045, 16070, 16084 and 39140-39155, Education Code.
HISTORY
1. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 75, No. 43.
§1812. Building Cost Standards.
Note • History
(a) For the purposes of establishing current building cost standards for new construction in accordance with Section 16024 of the Education Code, a study and report thereon shall be made to the Board by the Director of General Services.
(b) Pursuant to the report submitted under Subsection (a) of this regulation, the Board shall establish allowable school building cost standards, which cost standards shall be effective until next revised.
(c) After the initial adoption of allowable building cost standards by the Board, a continuing study of such costs shall be conducted by the Director of General Services. Whenever a finding is made that a one percent or more increase or decrease exists, he shall recommend appropriate revision to the allowable building cost standards.
(d) No application or bid shall be approved and no apportionment shall be made for any construction which exceeds the allowable costs established as provided herein. In the event, however, that it is conclusively shown from any studies by the Director of General Services that actual building costs in an area or portion of an area differ substantially from the allowable costs established for the area, the Board may at any time revise the allowable building cost standards for the area or create additional areas and establish appropriate allowable cost standards for such additional areas.
(e) The Director of General Services shall determine whether the cost of building construction included in any bid is within the allowable building cost. The district shall provide all information the Director of General Services may require in order to properly segregate building costs from other construction costs.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16024, Education Code.
HISTORY
1. Amendment file 2-13-69; effective thirtieth day thereafter (Register 69, No. 7).
2. Amendment of subsection (a) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Note • History
(a) An existing school facility may be replaced pursuant to Section 16017 of the Act if, upon investigation, the Board finds that:
(1) The structural stability of the facility, or health or fire hazards constituted a serious threat to the safety of those using the facility, and it would not be economical or good practice to remedy such conditions by repairing or reconstructing the facility; or
(2) The continued use of the facility would be seriously detrimental to the proper education of the children of the district, and it would not be economical or good practice to remedy such conditions by repairing or reconstructing the facility; or
(3) It would not be economical or good practice to rehabilitate and/or use the existing facility because of location or other extenuating circumstances.
(b) All requests for replacement of existing facilities shall be accompanied by:
(1) Full detail prepared by competent authority regarding the existing condition and deficiencies of such facilities, together with complete information regarding any other circumstances involved that would justify replacement;
(2) A statement of the estimated cost and the practicability of embodying the deficiencies of each facility in line with reconstruction standards established by the Board as compared with the replacement costs;
(3) A certified resolution of the governing board of the district, to which is attached a full legal description of the facility to be replaced, together with a title report and plat in the event real property is involved, and containing:
(A) A statement that the facility described in the attachment is the facility which is to be replaced.
(B) A plan, satisfactory to the Director of General Services, for disposition of the facility to be replaced, setting forth the proposed manner of disposition and the date by which disposition is to be accomplished.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16017, Education Code.
HISTORY
1. Amendment of subsection (a) and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1814. Rehabilitation Considered As Replacement.
(a) Where the Board has approved an application which includes rehabilitation of school building facilities, and the Board thereafter makes a finding that by reason of bids actually received, or for other good cause, it would not be economical or good practice to rehabilitate such facilities or portions thereof, such application and approval shall be considered, retroactive to the original dates thereof, to be an application for, and an approval of, the replacement rather than the rehabilitation of such facilities or portions thereof.
§1815. Site Development Standards.
History
(a) The Board shall establish standards for allowable utility services, off-site development, service site development, and general site development to insure that such site development will be within the limits of that which it deems necessary for the adequate operation of the school plant in accordance with good engineering practices. the Director of general Services, after consultation with the Department of Education, shall make such studies and reports as may be required to assist the board in establishing these standards.
(b) For the purposes of this regulation, site development shall be classified as follows:
(1) Utility Services may include but are not limited to facilities required to bring such water, sewer, electricity, telephone, and fuel supply services to such suitable point on the site as may be necessary for the functioning of a project.
(2) Off-Site Development may include but is not limited to such street improvements as are in line with the approved standards of the Board and as are determined by the director of general services to be necessary. In the event a city, county, or city and county requests a high standard of improvement, or improvements in excess of that determined by the Director of General Services to be necessary, the resultant excess costs shall be borne by said city, county, or city and county with or without recourse to the provisions of Section 2117 of the Street and Highways Code.
(3) Service Site Development may include but is not limited to site clearance, rough grading, and drainage which may be required to make a site usable in accordance with standards established by the Board.
(4) General Site Development may include but is not limited to any other development of a site, including such items as grading (except roughgrading), walks, curbs, roadways, parking areas, fencing, flagpoles, incinerators, hard--surfaced and turfed play areas, and playground equipment.
(A) In the event the proposed construction consists of an addition to an existing school plant (whether financed by State funds or by other means) the countable existing construction area and the existing site development shall be evaluated by the Director of General Services in determining any allowance for general site development.
HISTORY
1. Amendment of subsection (b)(2) filed 2-13-69; effective thirtieth day thereafter (Register 69, No. 7).
§1816. Furniture and Equipment Standards.
Note • History
(a) Furniture and equipment within the meaning of Section 16014 of the Act means any article for furnishing and equipping a school plant which:
(1) Meets all the following criteria (to distinguish from supplies)
(A) It retains its original shape and appearance in use.
(B) It is nonexpendable; that is if the article is damaged or some of its parts are lost or worn out, it is usually more feasible to repair it than to replace it with an entirely new unit.
(C) It does not lose its identity through incorporation into a different or more complex unit or substance.
(D) It represents an investment of money which make it feasible and advisable to capitalize the item.
(E) Any item which cannot readily be classified as equipment rather than supplies according to the preceding criteria, shall be deemed to be an item of supplies.
(F) It is not built-in and fixed equipment as determined by the Director of General Services.
(G) It is not classified, pursuant to the Board's direction, as an item, the cost of which is to be paid out of the building cost allowance, irrespective of whether the item in any given instance is a part of the construction contract or is purchased separately from the construction contract.
(b) For the purpose of making apportionments for furniture and equipment and to establish cost standards therefor, the term “classroom or pupil station” as used in Section 16034 of the Act means any space or other facility ordinarily utilized by students, and any auxiliary or general service facilities of the district that the Board determines should be equipped to facilitate proper functioning of instructional facilities or to provide for the health and welfare of the pupils.
(c) Cost standards for furniture and equipment established by the Board shall be based upon the kinds, quality, quantities, unit costs, and total costs of furniture and equipment usually or most commonly supplied by non-State-aided school districts for comparable facilities, and shall include the effect of cost differentials due to location and periodic changes in the cost of such typical furniture and equipment.
(d) The Director of General Services shall consult with the Department of Education and may independently, or jointly with the Department of Education, make such studies as may be appropriate for the purpose of developing suitable cost standards and revisions thereto. He shall report to the Board thereon once each calendar quarter and at such other times as he may deem warranted.
(e) After the initial adoption of furniture and equipment cost standards by the Board, each such standard shall be reviewed by the Board and continued in effect or revised once each calendar quarter, except that in the event of a substantial omission or error, or in the event of a rapid change in the cost of furniture and equipment, the Board may, at any time, revise the cost standards so affected.
(f) In the event the district has usable equipment on hand, or has encumbered district funds for furniture and equipment in sufficient quantity to equip all or a part of any eligible construction project, the Director of General Services shall determine the value of such furniture and equipment and the amount thereof shall be deducted from the amount otherwise allowable for furniture and equipment. In determining such deduction, the value assigned shall be based on the current value of commonly used new items of average quality and cost which have essentially the same general classification or function. The value assigned to any article may be deemed to be as computed in determining cost standards for furniture and equipment. Where the foregoing is deemed not to be feasible or good practice, alternate methods may be used for determining the adjustment for existing furniture and equipment, provided such methods conform to the intent of this paragraph.
(g) Applications for furniture and equipment shall be submitted to the Board by including such furniture or equipment as may be necessary to:
(1) Furnish or equip facilities appearing in an application for construction filed pursuant to the Act, or to furnish or equip (though not necessarily with the same articles) facilities previously constructed, the furniture or equipment for which will be utilized in whole or in part for the construction applied for; or
(2) Furnish or equip facilities which have been constructed with funds under a grant from the Federal Public Works Act of 1976, where the district would have been eligible for an apportionment of funds for construction of such facilities under the Act.
(h) Apportionments may be made by the Board for furniture and equipment that are substantially in accord with the quality, quantities, unit costs, and total costs of furniture and equipment utilized by the Board in determining cost standards. If any space or function is not equipped, or is equipped on a substantially lesser standard than is prescribed by this paragraph, the Director of General Services shall delete or reduce the allowance approved for such space or function, and shall reduce the project budget and any applicable apportionments accordingly.
(i) The district shall submit a preliminary and a final cost estimate for furniture and equipment requested in an application, complying with the cost standards and allowances established by the Board and containing such detail as the Director of General Services and the Department of Education may require.
(j) The preliminary cost estimate shall accompany the application of the district. A final cost estimate shall be submitted before the final plans and specifications for a construction project are approved by the Director of General Services unless the application is a separate application for furniture and equipment, or the Director of General Services determines that there is good cause for submitting the final cost estimate at a later time. Such final cost estimate shall detail the specific items the district proposes to acquire and the estimated cost thereof. The Director of General Services may approve the final cost estimate and authorize the district to proceed with acquisition of the items therein to the extent that the items in such estimate conform with law and with cost standards and with all requirements of the Board. Such approval shall further be contingent upon first receiving the approval of the Department of Education with respect to the items contained in the final cost estimate, which approval specifies the relative importance or necessity of the items contained in the estimate.
(k) The Director of General Services may approve expenditures for items in order according to their importance or necessity as shown by the final cost estimate, and shall proceed no further than the point where the amount approved equals the amount provided by the cost standards. In the event the total amount approved or expended is less than the amount permitted by the cost standards, the amount of the project budget and the amount apportioned to the district may be reduced accordingly in the manner prescribed by Section 1826 of these regulations.
(l) The Director of General Services shall not authorize the use of funds apportioned for furniture and equipment which he may deem to be for the use of school attendance in excess of the estimated average attendance allocated to the construction project unless he determines, on the basis of a supplemental estimate of average daily attendance submitted by the district within two years of the date of the original estimate approved with the application, that the apportionment for such furniture and equipment is justified by reason of the increased attendance shown by such estimate.
(m) Other provisions of this regulation notwithstanding, the Director of General Services may, prior to the time he approves the final plans for a construction project, authorize the purchase of all or a portion of the tables, desks, and chairs requested in the application for such construction project, provided such furniture, because of increased attendance in the district, is required for temporary use in classrooms unit said furniture can be installed in the completed construction project.
(n) Nothing in this regulation shall be construed as a prohibition on the Board or the Director of General Services from requiring competitive bids in any case where, in the judgment of the Board or of the Director of General Services, competitive bids would result in a lower cost for furniture and equipment than would other methods of purchase permitted to school districts.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16014 and 16034, Education Code.
HISTORY
1. Repealer of subsection (g)(2) and amendment of subsection (j) filed 5-29-75; effective thirtieth day thereafter (Register 75, No. 22).
2. Amendment of subsections (a) and (b) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
3. Amendment of subsection (g) filed 4-4-78 as an emergency; effective upon filing (Register 78, No. 14).
Article 4. District Financial Requirements
§1820. District Financial Requirements.
Note • History
(a) In addition to any other requirements of the Act, these regulations, and the apportionment resolution a district shall contribute the following funds as soon as they become available to the district toward the cost of the project or, if the project be completed, toward the reduction of any apportionments previously made:
(1) The net proceeds from the sale, or the fair value as determined by the Director of General Services, whichever is greater, or the net revenue derived from the lease or rental of the following:
(A) Facilities required by the Board to be disposed of, including but not limited to any real property, inadvertently or otherwise not declared in the application, which the Board may deem to be in excess of the needs of the district.
(B) Improvements, materials, crops, and natural resources on a site or sites owned by a district.
(C) Furniture and equipment owned by the district which is replaced, or which is required by the Board to be disposed of or is otherwise disposed of, as the result of an apportionment.
(2) Federal grants of any kind contributable toward the cost of a project approved by the Board, including but not limited to grants that may be made available to a district for the purpose of preparing plans and/or for providing any facility included in an approved application when the enrollment upon which such a Federal grant was justified is substantially the same as that included in an application for State aid.
(3) Any funds (other than specified in (5) below) encumbered for capital outlay purposes, but not subsequently expended for the purposes for which encumbered.
(4) Reimbursements from any company, organization, firm, individual, or public entity for utility construction, installation, connection, or service charges paid by a district with any funds available for the project pursuant to a construction project for which an apportionment has been made.
(5) District funds authorized for any project or projects previously approved by the Board which are in excess of the final costs thereof.
(6) Interest earned on any funds available for costs of a project including interest reasonably attributable to such funds where the same are commingled with other funds earning interest.
(7) Any other financial resources of a district which the Board may deem to be available for the purposes of the application.
(b) The Director of General Services shall determine on behalf of the Board the amount of funds a district is required to contribute under Subsections (1) through (7) above.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 19572, Education Code.
HISTORY
1. Amendment of subsection (b) filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1). For prior history, see Register 71, No. 51.
§1821. Prior Use or Encumbrance of District Funds Outside Intent of Act.
Note • History
(a) In considering an application for an apportionment, the Board may review the purposes for which the district has expended or encumbered proceeds from the sale of district bonds authorized to be issued at an election held on or after September 3, 1952. In the event the Board finds that such funds have been expended or encumbered outside the scope and intent of the Act and in contemplation of filing an application under the Act, but that the requirement for contribution of the amount so expended or encumbered in line with the provisions of Section 16031 of the Act will work a hardship on the district, the Board instead may reduce the amount of the requested apportionment by the amount so expended or encumbered, covering such portion of the project as it deems warranted.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16031, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1823. Additional Off-Set Credit for Purposes of State Loan Repayments for Year Round Operation.
Note • History
(a) Additional off-set credit for purposes of State loan repayments under Chapter 8 may be computed by the Director of General Services provided the district:
(1) Files justification documents under Articles 1, 2 and 3 of Chapter 8 justifying eligible new facilities.
(2) Establishes a year round school operation to house the justified unhoused eligible pupils.
(3) Continues to house the justified eligible pupils in year round schools each fiscal year thereafter.
(b) Any fiscal year in which the year round school operation is not used to house the justified eligible pupils no additional off-set credit will be certified to the State Controller.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16025, Education Code.
HISTORY
1. New section filed 3-17-72 as an emergency; effective upon filing (Register 72, No. 12).
2. Certificate of Compliance filed 6-16-72 (Register 72, No. 25).
3. Amendment of subsection (a) and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Article 5. Project Budget
§1825. Contents of Project Budget.
Note • History
(a) The project budget prescribed by the Board shall be set up under seven major categories as follows: Sites; Plans; Construction; Tests; Inspection; Furniture and Equipment; and Contingencies. Within these major categories, the following limitations shall apply:
(1) Sites:
(A) Actual costs for the acquisition of a site in excess of the estimated cost as originally approved shall be allowed only after specific approval of the Board in accordance with the provisions of Section 16035 of the Act.
(B) In the event the Board determines that excess site costs allowed under subsection (A) above shall be paid in full as a condition of making an additional apportionment for such excess site costs pursuant to the provisions of Section 16035 of the Act, the amount so apportioned shall be paid in full with interest thereon, whether or not the site is combined with a construction project. The amount repayable during each fiscal year on the unpaid balance shall be the greater of:
1. The amount which would be required to provide an annual payment equal to .074 of the principal amount of the apportionment subject to repayment in full provided, however, that any principal and interest charges not repaid in 20 years shall be added to the twentieth annual repayment.
2. The amount which would be produced by a tax rate of five cents per hundred dollars on the assessed valuation of the district as determined by the last equalized assessment occurring during the fiscal year preceding that in which the deductions are to be made by the State Controller. For a unified district receiving an apportionment at both the elementary and high school levels, the aforementioned computation shall be based on a tax rate of ten cents rather than five cents.
(C) For the purpose of this subsection (1825(a)(1)(C)), the term “district” shall include any person or entity with whom the district contracts under Section 7261.5, Government Code, acting on behalf of the district. Relocation costs to landowners or persons displaced pursuant to Sections 7260 et seq. of Chapter 16, Division 7, Title 1 of the Government Code, hereinafter referred to as the “Relocation Assistance Law,” in conjunction with an acquisition of a site for which an apportionment is made, may be deemed to be a part of the cost of acquisition subject to the following conditions:
1. The school district shall certify that it has adopted regulations pursuant to the Relocation Assistance Law, as required by Section 7267.8, Government Code, or has contracted with a party or entity specified in Section 7261.5, Government Code, for the performance of services under said law.
2. A request for payment under the Relocation Assistance Law shall be accompanied by:
a. A citation to the pertinent portions of the law and regulations to the extent the latter are applicable.
b. A copy of any such pertinent portion of the regulations, and
c. Any factual justification that may be applicable in connection with the citation referred to in “a.,” including, where applicable, justification by the district, subject to the written approval of the Executive Officer, of the reasonableness of any cost of expense applied for by the district under Sections 7262 and 7263, Government Code, that is required to be “reasonable” by said sections.
3. That any offer by the district for said site as specified in Section 7267.2 or 7267.7, Government Code, shall not exceed the highest qualified appraisal of such site made for the purposes of obtaining an apportionment from the Board for the acquisition thereof.
4. That any decision by the district under Section 7266, Government Code (pertaining to the reviewing of the application of an aggrieved person) shall not be in contravention of this subsection (1825(a)(1)(C)).
5. That any cost in conjunction with Section 7264.5, Government Code (relating to the actual provision of housing) shall be justified in writing by the district and approved in writing by the Executive Officer.
6. Nothing in this section shall be deemed to impose upon a school district a fiscal burden in connection with an obligation to a landowner or displaced person that did not exist prior to the adoption of this section.
(D) Relocation assistance in connection with the acquisition of real property shall be administered by the Board in accordance with State Relocation Guidelines adopted by the California Commission of Housing and Community Development.
(E) Before funds are released for any portion of a construction project, evidence shall be presented, satisfactory to the Director of General Services, that good title to the site for said project is vested in the school district, or will be vested in the school district, when the purchase of the site is completed. A use permit deemed by the Director of General Services to be valid, may be considered to be good title for the purpose of this subsection (E).
(2) Plans:
(A) Fees for architectural and engineering services, including architectural supervision, shall not exceed the customary percentage of the final construction cost as approved by the Director of General Services, except that when a previously authorized portion of a project is not constructed, the architect shall be paid only for the fair value, as approved by the Director of General Services, of services actually rendered.
(B) Any cost for or incidental to redesigning or replanning, incurred as a result of bids in excess of allowable construction cost standards, shall not be eligible for reimbursement by the State under the Act.
(3) Construction:
(A) The amount for construction shall be limited to the lowest responsible bid as approved by the Director of General Services.
(4) Tests:
(A) The amount for tests and related inspection shall be limited to the actual costs of tests which are required by Title 21 of the California Administrative Code or other applicable provisions of law, or which are in accordance with good or accepted practice as approved by the Director of General Services.
(5) Inspection:
(A) The amount for inspection shall be limited to the actual costs for the legal duration of the construction contract which shall be deemed to terminate on the date of completion of the work as specified in the contract or as it is changed through such valid extensions as may be granted. Additional inspection costs beyond such date shall be allowed only on a time-worked basis upon evidence, satisfactory to the Director of General Services, that the school district took appropriate action to exercise a claim for damages, and as a result a determination was made that the contractor was not liable.
(6) Furniture and Equipment:
(A) The amount for furniture and equipment shall be that determined pursuant to Section 1816 hereof.
(7) Contingencies:
(A) An amount may be included for contingencies which shall not exceed such maximums as the Board or the Director of General Services may prescribe for any class of application or value of facilities in a project budget.
(B) Contingency funds may be used only after specific approval by the Director of General Services for items of construction or other approved project costs where the cost increase or the item required is necessary for the completion of a facility which has been approved by the Board.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16035, Education Code.
HISTORY
1. Amendment of subsection (a)(1) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77 No. 18). For prior history, see Register 74, No. 12.
§1826. Revision of a Project Budget.
History
(a) The Director of General Services may revise any item, within a site, plans, site and plans, furniture and equipment, or construction project budget upward or downward, and pursuant to his determination under Section 1820(b) may increase the contribution of the district with a corresponding reduction in State aid and/or apportionment, provided that no revision authorized under this subsection results in an increase in the total amount of the project budget prescribed by the Board or contemplates an expenditure not otherwise permitted by the Act or these regulations.
(b) The Director of General Services may reduce any apportionment or State aid as may be necessary to reflect any revision or contribution made by him pursuant to (a) above. Such reduction shall be deemed to be immediately effective, but the district may to the extent thereof appeal the same to the Director of General Services or to the Board as hereinafter provided, within six months of such revision. If in the judgment of the Director of General Services the basis of the appeal is valid in whole or in part, he may, by appropriate revision of his previous action acquiesce in whole or in part in such appeal. To the extent he does not acquiesce in such appeal, the district may further appeal to the Board either orally or via written documents. The Board shall affirm or modify the reduction of the Director of General Services. The latter shall thereupon revise the project budget and/or financing in any manner necessary to accord with such determination of the Board.
(c) No change order shall be approved or become a basis for revising a construction project if such change order would increase the amount of the construction contract because of additional work performed or to be performed after the notice of completion has been filed or the project has been accepted by the governing body of the school district, whichever first occurs.
(d) The Executive Officer shall not issue authorizations for expenditure of any remaining funds apportioned for the approved purposes of a construction project and/or furniture and equipment after one year has elapsed from the date of completion of the project as determined by the date notice of completion is filed or the date the project is accepted by the governing body of the school district, whichever first occurs, unless the Board specifically so directs after determining that good cause exists therefor.
HISTORY
1. Amendment of subsections (a) and (b) filed 9-17-71 as an emergency; effective upon filing (Register 71, No. 38).
(a) In instances where a school district is not required by the provisions of the Education Code to make purchases or have other work performed by contracts which have been let pursuant to competitive bids, the Director of General Services nevertheless may require such competitive bids whenever he deems it to be in the best interests of the State.
Article 6. Apportionments
§1830. Conditional Apportionment.
Note • History
(a) In addition to complying with any other requirements of these regulations or the Act, the Board, at the time of making a conditional apportionment, shall:
(1) Specify the amount of bonds to be issued and sold by the school district as a condition of an apportionment.
(2) Specify the amount of funds to be contributed by the district.
(3) Approve a total estimated cost and a budget for the project.
(4) Prescribe the purposes for which an apportionment may be expended.
(5) Prescribe the manner, terms, and conditions for releasing the apportionment to the district.
(6) Fix the rate of interest to be paid by the district on the sum apportioned to it in accordance with the provisions of Section 16065 of the Act.
(b) Pursuant to Regulation 1830(a)(1) and Education Code Section 16058(a), the amount of bonds specified to be issued and sold shall be such as will bring the total amount of bonds outstanding in excess of 95% of, and to within five thousand dollars ($5,000) of the basic bond requirement of Section 16002.5 for the grade level or grade levels maintained by the district as defined in Sections 16002 and 16003. In any instance where an extreme hardship would otherwise result, the board may specify the issuance and sale of a lesser amount of bonds but in no event less than that required by Section 16058(a).
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16058(a) and 16065, Education Code.
HISTORY
1. Amendment of subsection (a)(6) and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
2. New subsection (b) filed 1-24-78; effective thirtieth day thereafter (Register 78, No. 4).
§1831. Modification of Apportionment.
(a) Notwithstanding anything to the contrary in these regulations, the Board shall have power:
(1) To modify any apportionment or resolution of apportionment, either conditional or final, to provide for an increase in the contribution required of a district to a project, where it appears to the satisfaction of the Board that at the time the conditional apportionment was made, funds were available to a district for the project which were not declared so available, irrespective of any culpability on the part of the district in failing to declare the same.
(2) To require a district to retain and not expend, commit, or encumber funds which the Board finds are available for contribution toward a project as a condition of receiving a future apportionment. For this purpose the Board may regard as available any funds which a district has expended after written notice was given it by the Director of General Services that such funds may be considered as available by the Board.
(3) To modify any apportionment or resolution of apportionment, either conditional or final, where the Board determines that good cause exists therefor.
§1832. Apportionment for Multipurpose Rooms.
Note • History
(a) The portion of any apportionment to be allocated to the cost of a multipurpose room as required under Section 16077 of the Act shall be determined as follows:
(1) Compute the allowable construction cost for the construction project as prescribed by Section 16024 of the Act and Section 1812 of these regulations.
(A) With respect to a reconstruction project, the actual cost of said reconstruction, as determined by bid, shall be deemed to be the allowable construction cost.
(2) Compute the allowable construction cost for the area of the multipurpose room in the manner prescribed by Section 16024 of the Act and Section 1812 of these regulations.
(3) Determine the ratio of the allowable cost of the multipurpose room to the allowable construction cost of the entire project.
(4) Compute the cost of construction for the construction project as the sum of:
(A) The amount of the charge for architectural and engineering services, based on the amount of the construction contract.
(B) The amount of the construction contract.
(C) The cost of construction inspection.
(D) The cost of tests.
(5) Multiply the actual cost of construction as computed under subsection (4) above by the ratio computed under subsection (3) above and add the cost of any furniture and equipment for the multipurpose room.
(6) The portion of the apportionment allocated to the cost of the multipurpose room shall be the amount computed under subsection (5) above or the total amount of the apportionment, whichever is the lesser.
(b) For the purpose of determining the cost of a multipurpose room, the building area of a multipurpose room shall include all appurtenant areas incorporated in, or attached to, the multipurpose room, as shown on the final plans for the construction project, including but not limited to kitchens, snack bars, dining areas, sanitary facilities, arcades required because of the multipurpose room, and separate snack bars or any other facilities determined by the Director of General Services properly to be a part of the cost of a multipurpose room.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16077, Education Code.
HISTORY
1. Amendment of subsection (a) and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1833. Apportionment for Facilities for Exceptional Children.
(a) The portion of an apportionment to be allocated to the cost of facilities for exceptional children pursuant to Article 3 of the Act shall be determined by making the computations for said determination pursuant to Section 1832, and substituting the term, “facilities for exceptional children,” wherever the term “multipurpose room” appears in said Section 1832.
§1834. Apportionment Procedure, Multipurpose Rooms and Facilities for Exceptional Children.
(a) If a construction project includes a multipurpose room within the meaning of the Act and/or facilities for exceptional children pursuant to Article 3 of the Act, apportionments may be made with respect to the construction project as a whole, without making separate apportionments for such special facilities. At the time an apportionment is made for construction costs, the portions of an apportionment allocated to such special facilities shall be provisionally set forth and identified, and shall be finally determined by the Director of General Services upon the completion of the construction project.
§1834.5. Apportionment for Interim Use Lease Portable Classrooms.
Note • History
(a) Any apportionment made to a school district pursuant to Section 16015 of the Education Code shall be added to the final apportionment for the previously approved project specified in subdivision (a) of above mentioned Education Code section and the repayment thereof by the school district shall be made under the same terms and conditions as described for the final apportionment.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16015, Education Code.
HISTORY
1. New section filed 1-24-75 as an emergency; effective upon filing (Register 75, No. 4).
2. Certificate of Compliance filed 4-24-75 (Register 75, No. 17).
3. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1835. Method of Payment to School Districts.
(a) Each apportionment upon becoming final shall be certified by the Executive Officer to the State Controller, who shall draw warrants therefor in favor of the county treasurer of the county having jurisdiction over the district, in the manner prescribed by law.
§1836. Unencumbered Balance in the State School Building Fund of a School District.
(a) Except as otherwise provided by the Act, any money advanced by the State in the State School Building Fund of a school district which remains an unencumbered balance in excess of the amount required to liquidate all approved costs or expenditures necessary to complete a project shall be returned by the district to the State within sixty days after notice of completion of the construction project has been filed or the project has been accepted by the governing body of the school district, whichever first occurs. The Director of General Services, for good cause, may grant such exceptions to this regulation as he may deem warranted.
§1837. Disposition of Property Pursuant to Section 16105--Application of Funds.
Note • History
(a) For the purposes of this section, the following definitions shall apply:
(1) “Site Only.” As used in this section, the term “site only” shall refer to a particular site for which an apportionment is made pursuant to Section 16039, Education Code, together with any concurrent or subsequent apportionment for plans for said site, where such site has not been subsequently used in a construction project for which an apportionment is made.
(2) “Site Only” Apportionment. An apportionment made for a site only.
(3) “Non-Site Only” Apportionment. An apportionment made for sites, buildings, or facilities, other than a “site only” apportionment defined above.
(4) Apportionment “Balance.” Unpaid principal and interest.
(5) “Monetary Consideration.” Money or a instrument promising to pay money.
(b) “Site Only” Apportionments.
(1) If a district has previously repaid an apportionment for a site only, it may dispose of such site at a later date and retain the proceeds therefrom without the consent of the Board.
(2) If the district has not previously repaid an apportionment for a site only, it may not dispose of such site without the written consent of the Executive Officer as to the disposition and terms thereof, providing that his authority in that regard extends only to a disposition for a 100% monetary consideration. However, the Board, upon application to it by the district prior to such disposition, may consent to such disposition for a non-monetary consideration in whole or part, as for example other property. The entire net monetary proceeds from such disposition shall, in any case, be applied to the reduction of, or to the extent needed, the elimination of, the balance due on said site only apportionment, except to the extent the Board, upon application to it by the district, either before or after such disposition, allows the district to retain any portion thereof for any purpose of the district. Where the district discharges in full the balance due on said site-only apportionment from the net proceeds of such disposition, it may retain any excess from such proceeds over such amount. Where an application is made to the Board under this sub-paragraph, the Executive Officer shall make such recommendation to the Board respecting its action as it deems appropriate.
(c) “Non-Site Only” Apportionments.
(1) If all non-site only apportionments outstanding for which the district is liable have been repaid in full, the district may dispose of any property acquired through any non-site only apportionment, and retain the net proceeds thereof, without the consent of the Board.
(2) As long as a district has any balance due on any non-site only apportionment, no property acquired through a non-site only apportionment may be disposed of without the written consent of the Executive Officer as to its disposition and terms thereof, provided that his authority in that regard extends only to a disposition for a 100% monetary consideration. However, the Board, upon application to it prior to such disposition, may consent to such disposition for a non-monetary consideration in whole or in part, as for example other property. The entire net monetary proceeds from the foregoing disposition shall in any case be applied to the reduction of, or to the extent needed, the elimination of, all outstanding balances for which the district is liable on all non-site only apportionments, except to the extent the Board, upon application to it by the district, either before or after such disposition, allows the district to retain any portion thereof for any purpose of the district. In any case, however, where the district discharges in full the balances due on all outstanding non-site only apportionments from the proceeds of such disposition, it may retain any excess from such proceeds over such amount. Where an application is made to the Board under this sub-paragraph, the Executive Officer may make such recommendation to the Board respecting its action as he deems appropriate.
(d) Nothing contained in Subsections (b) or (c) shall be deemed to supersede any procedure otherwise required under Section 16019.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16015 and 16019, Education Code.
HISTORY
1. New section filed 10-18-74 as an emergency; effective upon filing (Register 74, No. 42).
2. Certificate of Compliance filed 1-24-75 (Register 75, No. 4).
3. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1838. Title to Real Property.
Note • History
(a) Title to real property acquired, developed, or improved through the expenditure of an apportionment shall be recorded in the name of the district. The district shall furnish satisfactory evidence of good title to all such property.
NOTE
Authority cited: Section 16009, Education Code.
HISTORY
1. New section filed 3-21-75 as an emergency; designated effective 4-1-75 (Register 75, No. 12).
2. Certificate of Compliance filed 7-3-75 (Register 75, No. 27).
§1839. Disposition of Replaced Facilities.
Note • History
(a) Property, real or personal, replaced through an apportionment shall be disposed of pursuant to these regulations in a manner approved by the Executive Officer and the net proceeds therefrom contributed as a reduction of any apportionment pursuant to Education Code Section 16012.
(b) For the purposes of Education Code Section 16012, “disposed of” is defined as one of the following:
(1) Sale to others of replaced real property and buildings thereon at market value.
(2) Demolition of the buildings, where no real property has been replaced.
(3) Sale to others at market value of the buildings and physical removal from the site, where no real property has been replaced.
(4) Conversion of the use of the building to other than a “school building” as set forth in Section 39214 or conversion to a recreational or community use or which the building is not a “school building” as defined by Section 39141. Such conversion may be approved by the Executive Officer only upon contribution by the district of a sum to be applied as a reduction of the apportionment of not less than $1.00 for each square foot of building area so converted plus the fair market value of any replaced property to be retained with the building. Any building so converted shall have posted in a conspicuous place on such building, a public notice stating that such building does not meet the structural standards imposed by law for earthquake safety for a school building.
(5) Physical conversion of the building to a school building by reconstruction or alteration pursuant to the requirements of the Field Act, Article 3, Chapter 2, Part 23, Division 3, Title 2 of the Education Code (commencing with Section 39140).
(c) Any school district which has received an apportionment for he replacement of a school building or real property and has not submitted a plan acceptable to the Executive Officer for disposition of such replaced property within 2 years of such apportionment or by June 30, 1976, whichever occurs later, shall be deemed to have elected to dispose of such replaced property pursuant to Regulation 1839(b)(4), unless the State Allocation Board deems otherwise, and shall be required to contribute as a reduction of its apportionment the sum to be computed by that regulation.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16012, Education Code.
HISTORY
1. New section filed 3-21-75 as an emergency; designated effective 4-1-75 (Register 75, No. 12).
2. Certificate of Compliance filed 7-3-75 (Register 75, No. 27).
3. Amendment filed 4-30-76; effective thirtieth day thereafter (Register 76, No. 18).
4. Amendment of subsections (a) and (b) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Article 7. Advance Purchase of Sites and Plans
§1840. Advance Purchase of Sites and Preparation of Plans.
Note • History
(a) Except as otherwise provided by the Act or these regulations, the provisions of these regulations shall apply to applications for sites and/or plans and specifications made pursuant to Section 16039 of the Act.
(b) The Executive Officer shall not certify any payment pursuant to an apportionment made under this Section 16039 of the Act and this regulation other than for preliminary or incidental costs of site acquisition, unless the Director of General Services has first approved the purchase price of the property to be acquired and the conditions of the purchase agreement.
(c) Whenever an apportionment is made for the purchase of a site, the district shall, as soon as possible thereafter, undertake to acquire the same by negotiation or otherwise, if it has not already done so. If, during the 30 day period commencing with the date such apportionment becomes final, the district is unable to reach an agreement for the purchase of said site, or any required portion thereof or interest therein (each of which is hereafter referred to as “property”) which would be binding except for the approval of the Director of General Services, the district shall forthwith request its legal counsel to commence condemnation proceedings for the acquisition of such property prior to the end of the 30 day period, if it has not already done so. Where the district feels it to be a hardship to complete negotiations within the aforesaid 30 day period, it may apply to the Director in writing, prior to the end of such period, for an extension thereof, which extension or any portion thereof the Director shall grant or refuse in writing.
Whenever this procedure has not been complied with, the Director may refuse to approve the purchase price of property reached by negotiation, even though manifested by a stipulated judgment, or he may, so far as is permitted by Chapter 8, Part 10, Division 1 of the Education Code and to the extent that he deems the failure to comply with this section has increased the cost to the State, require the district to contribute toward the cost of the property funds which would not be otherwise contributable toward any project. The provisions of this section shall be deemed to be a part of every site apportionment.
(d) In the event a school site consists of more than one parcel of property, the Director of General Services may use a condemnation award for a single parcel of the site as the basis of recommending an apportionment in excess of the higher appraisal for the remaining parcels if he finds that it is warranted; and
(1) Time is the essence in the acquisition of school sites and that any delays in the acquisition of approved school sites may result in increased cost of acquisition.
(2) Apportionments for the increased cost of site acquisition will be conditioned upon the school district making special repayments for the excess apportionments as permitted by Education Code 16035 in the following instances:
(A) Where a school district has failed to file condemnation within 30 days of the apportionment becoming final.
(B) Where a school district has failed to acquire the site within one year of the date of filing condemnation.
(3) If for good cause, the applicant is unable to comply with the limitations set forth in recommendation 2B, it may request consideration by the Board of a time extension.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16035 and 16039, Education Code.
HISTORY
1. New subsections (c) and (d) filed 9-18-74; effective thirtieth day thereafter (Register 74, No. 38).
2. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1841. Repayment Procedure--Sites and Plans.
Note • History
(a) All apportionments for sites, comprehensive master plans, or final plans and specifications made pursuant to Section 16039 of the Act (except as provided in subsection (d) hereafter) shall be repaid with interest thereon in full. The amount repayable in accordance with subsection (c) below during each fiscal year on the unpaid balance and accrued interest on the sum of all apportionments made to a district under said Section 16039 of the Act shall be the greater of:
(1) The amount which would be produced by a tax rate of five cents per hundred dollars on the assessed valuation of the district as determined by the last equalized assessment occurring during the fiscal year preceding that in which deductions are to be made by the Controller, as hereafter provided, for the repayment of the aforesaid apportionment. For a unified district receiving an apportionment at both the elementary and high school levels, the aforementioned computation shall be based on a tax rate of ten cents rather than five cents.
(2) The amount which would be required to provide an annual payment equal to .058 of the principal amount of the apportionment subject to repayment under Section 16039 of the Act provided, however, that any principal and interest charges not repaid within 30 years shall be added to the thirtieth annual repayment; and provided further, that if more than one apportionment is made under Section 16039 of the Act, the amount payable under this subsection (2) shall be the sum of the amounts which would be payable on each apportionment if computed separately.
(b) In the event more than one apportionment is made under Section 16039, any amount repaid under subsections (a) (1) and (2) above during any fiscal year shall be applied to each such apportionment for which a repayment would be otherwise due during such fiscal year, in the order in which each such apportionment was made until each such apportionment has been repaid in full with interest.
(c) Except as otherwise provided, the sequence and timing of repayment operations required by this regulation shall be in accordance with applicable provisions of Sections 16070, 16072, 16080, 16088 and 16089 of the Act.
(d) Upon the application of the district affected, or its duly authorized agent, the balance due under any site apportionment heretofore made pursuant to Section 16039 of the Act shall, at any time prior to the time it has been combined with any construction apportionment as provided by said section, be repaid in annual installments as provided in this regulation. Although only the unpaid balance, with interest, shall be paid by the district, the annual installment computed under subsection (a) (2) above shall be that which would apply if no repayment on said apportionment had previously been made.
(e) If a site or final plans and specifications for which an apportionment is made pursuant to Section 16039 of the Act is later used for a construction project for which an apportionment is received under other provisions of the Act, then, as of the date such apportionment becomes final, the balance of the apportionment made under Section 16039 which has not been repaid, and the accrued interest thereon, shall be added to the apportionment for the construction project as provided by Section 16039 (d) of the Act and thereafter no further repayment shall be required pursuant to subsections (a) or (b) of this regulation. If less than all of the plans and specifications are used for a construction project, the Director of General Services shall determine the value of the portion of the plans and specifications used for the construction project. Such value, not exceeding the amount apportioned and unpaid, and the applicable amount of accrued interest shall be added to the apportionment for the construction project as prescribed herein.
(f) A district, if it so desires, may at any time make payments over and above those required by this regulation. Such payments shall, however, not affect the necessity for making, or the amount of, annual repayments otherwise required by this regulation prior to the time repayment is made in full.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16039, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Article 8. Exceptional Pupils
§1845. Exceptional Pupils--General Provisions.
Note • History
(a) Except as otherwise provided by law or these regulations, the provisions of these regulations shall apply to applications for State School Building Aid for Exceptional Pupils, pursuant to Article 3, Chapter 8, Part 10, Division 1, of the Education Code.
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 16190, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Article 8.5. Year Round School
Note • History
(a) In connection with the administration of the provisions of Sections 16026, 16027, and 16028 of Article 1, Chapter 8, Part 10, Division 1, Education Code, and for the purposes of these regulations, the terms set forth below shall have the following meanings:
(1) Application. A request for the Board to provide financial assistance in the form of (a) an apportionment pursuant to Section 16024 of the Education Code,
(b) an authorization to use proceeds from the sale of district bonds, or
(c) an authorization to use proceeds derived from the sale of unused school sites, for the purpose, or purposes, as provided by Code Sections referred to in subparagraph (a) and these regulations, on forms provided by the State Allocation Board, properly executed, together with such other information as may be required.
(2) Project. Notwithstanding any other provisions in these regulations, the term “project” shall be deemed to include the provision of financial assistance in furnishing and installing an air cooling system in those facilities, so long as the construction of any such facility was commenced prior to December 31, 1972, which will be operated under year-round school operation plans or continuous school programs, for which a school district has applied for an apportionment or authorization under the provisions of Education Code Sections 16026, 16027, 16028 and these regulations.
(3) “Year-Round School” defined. A year-round school operation or continuous school program consists of a school schedule in which students in any one school are divided into groups of pupils who attend school in rotating shifts of sessions. A year-round school schedule or continuous school schedule shall consist of not less than 240 days per year in which the school is open. For purposes of State school support, a pupil shall attend school for not less than 175 days.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16026, 16027 and 16028, Education Code.
HISTORY
1. New Article 8.5 ( §§ 1846, 1846.1-1846.4) filed 10-17-73 as an emergency; effective upon filing (Register 73, No. 42).
2. Certificate of Compliance filed 1-18-74 (Register 74, No. 3).
3. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1846.1. Application Procedure.
Note • History
(a) Form of Application. To secure an apportionment or an authorization to use the proceeds from the sale of district bonds, or an authorization to use proceeds from the sale of unused school sites, a school district shall submit the following in addition to the requirements of Section 16024 of the Act:
(1) A resolution of the governing board of the applicant district authorizing the application.
(2) A resolution of the governing board of the applicant district which indicates the board has adopted and put into effect a year-round school operation plan or continuous school program as defined in these regulations, or has adopted such a plan or program for operation in the following school year.
(3) A copy of the year-round school operation plan or continuous school program adopted by the governing board of the applicant district.
(4) An analysis of the funds used or available for capital outlay purposes by the district in such detail as may be prescribed by the Director of General Services. Such analysis shall include information on funds currently available with respect to amounts obligated by contract, set aside or encumbered for given purposes, or free of any encumbrance.
(5) A statement of the estimated cost of the project certified by a licensed architect or structural engineer currently employed or retained by the district.
(6) Layout (preliminary) plans showing the entire construction project, including the specific location thereof, for which a district desires an apportionment or authorization.
(7) Authorized agent's certification to ownership of site upon which facilities are located that will have the air cooling systems furnished and installed as the result of an apportionment or an authorization.
(8) Such other information as my be required by the Director of General Services.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16026, 16027 and 16028, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Note • History
(a) In accordance with Section 16026 of the Act, the Board shall establish allowable cost standards for furnishing and installing air cooling systems in exiting schools, which cost standards shall be effective until next revised.
(b) Such cost standards as established and eligible work thereunder shall be limited to furnishing and installing of air cooling systems only. Costs for incidental or supplemental work such as, but not limited to, replacing or modifying existing heating systems, insulating, closure of window spaces, and changing lighting fixtures shall not be eligible, unless such incidental work will result in a cost equal to or less than air cooling only.
(c) After the initial adoption of such cost standards by the Board, a continuing study of such costs shall be conducted by the Director of General Services.
(d) No application or bid shall be approved and o apportionment or authorization shall be made by the Board for any construction which exceeds the allowable cost standard established for such apportionment or authorization. In the event, however, that it is conclusively shown from any studies by the Director of General Services that actual costs of furnishing and installing air cooling systems in an area or portion of an area differ substantially from the allowable costs established for the area, the Board may at any time revise the allowable cost standards for such construction for the area.
(e) The Director of General Services shall determine whether the cost of furnishing and installing air cooling systems included in the application or bid is within the allowable cost for such construction. The district shall provide all information the Director of General Services may require for this purpose.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16026, 16027 and 16028, Education Code.
HISTORY
1. Amendment of subsections (a) and (b) file 4-17-74 as an emergency; effective upon filing (Register 74, No. 16).
2. Certificate of Compliance filed 7-22-74 (Register 74, No. 30).
3. Amendment of subsection (a) and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1846.3. District Financial Requirements.
Note • History
For the purposes of this Article of these regulations, the district financial requirements shall be as specified under Sections 16027 and 16028 of the Education Code.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16026, 16027 and 16028, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1846.4. Applicable Regulation Provisions.
Note • History
Articles 1, 2, 5, 6 and 10 (Sections 1830, 1831, 1835, 1836, 1838, and 1839), of these regulations shall be applicable to the administration of this article except as the context of this article requires otherwise.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 19571.3, Education Code.
HISTORY
1. Amendment filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1).
Article 9. Environmental Impact Requirements
Note • History
These requirements are set forth in the following sections of Title 14, of the California Administrative Code:
SECTION NUMBERS
15001 - 15007 15231
15020 - 15021 15233
15041 - 15045 15261 - 15262
15050 15269
15052 15274
15060 - 15065 15300
15070 - 15074 15300.2
15080 - 15096 15300.4
15100 - 15112 15302
15120 - 15132 15314
15140 - 15153 15350 - 15368
15162 - 15170 15370 - 15376
15201 - 15205 15378 - 15385
15207 - 15227
NOTE
Authority cited: Sections 21001, 21082, 21083 and 21087, Public Resources Code. Reference: Sections 21082, 21083 and 21087, Public Resources Code.
HISTORY
1. Repealer of Article 9 (Sections 1849-1851) and new Article 9 (Sections 1850.1-1850.19) filed 3-21-75 as an emergency; designated effective 4-1-75 (Register 75, No. 12). For history of former sections, see Registers 67, No. 50; 73, Nos. 12 and 25; and 74, Nos. 25 and 38.
2. Certificate of Compliance filed 7-3-75, except as to Section 1850.3 (Register 75, No. 27).
3. Repealer of former Article 9 (Sections 1850.1-1850.19) and new Article 9 (Section 1850.1) filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.2. Definitions. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.3. CEQA Officer. [Repealed]
Note • History
NOTE
Reference: Section 1500 et seq., Resources Code.
HISTORY
1. Amendment filed 7-3-75 as an emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 27).
2. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.4. Applicability of These Rules. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.5. Applicability of CEQA and Guidelines. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.6. Required Filing by a District. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.7. Categorical Exemptions. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.8. Notice of Exemption-Rejection by Executive Officer. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.9. Non-Exempt Projects--Initial Study. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.10. Negative Declaration--Requirements and Attachments. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.11. Negative Declaration--Rejection by Executive Officer If Not in Conformity with Law. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.12. Negative Declaration-Non-Rejection If in Accordance with Law. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.13. EIR--General Requirements. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.14. EIR Attachments. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.15. EIR for More Than One Project. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.16. EIR--Rejection by Executive Officer for Non-Conformity with Law. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.17. EIR Evaluation by the Board. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.18. Feasibility Studies. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1850.19. Exceptions to Current Requirements. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
Article 10. General
§1853. Director of General Services.
(a) The Director of General Services shall perform all acts necessary to carry out the provisions of the Act except such functions as are reserved to the Board and to other agencies by law or by these regulations and shall provide such staff assistance to the Board as may be necessary.
(b) He shall adopt such policies and operating procedures as he deems essential to carrying out the provisions of the Act that are not in conflict with said Act.
§1854. Department of Education.
(a) An application may be approved and an apportionment made only after the Board has received the reports, recommendations, and approvals from the Department of Education which are required by the Act.
(a) All laws, ordinances, rules and regulations otherwise applicable to any project undertaken pursuant to an apportionment made under the Act shall remain applicable to said project otherwise provided by the Act or these regulations.
§1856. Limitation of State Responsibility.
(a) In making an apportionment, neither the State nor any department or agency thereof, shall be required to assume any responsibility not otherwise imposed upon it by law.
§1857. References to Education Code Prior to Recodification of 1977.
Note • History
(a) Reference in any document, instruction, procedure, or policy action to any part of the Education Code prior to its recodification in 1977 shall be deemed applicable to the corresponding provisions of such recodified code.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16000-16207, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1858. Unforeseen Emergency Conditions Justifying an Emergency Meeting of the Board with Less Than One Week's Notice. [Repealed]
Note • History
NOTE
Authority cited: Section 16009, Education Code. Reference: Section 1125, Government Code.
HISTORY
1. New section filed 6-29-76 as an emergency; effective upon filing (Register 76, No. 27).
2. Repealed by operation of Section 11422.1(c), Government Code (Register 76, No. 44).
Subgroup 5.5. Regulations Relating to the Leroy F. Greene School Facilities Act of 1998: (School Facility Program)
Article 1. General Provisions and Definitions
Note • History
These regulations implement the Leroy F. Greene School Facilities Act of 1998, which establishes a State program to provide State per pupil funding for new construction and modernization of existing school facilities.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.10 and 17070.35, Education Code.
HISTORY
1. New subgroup 5.5 (articles 1-11), article 1 (sections 1859-1859.2) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New subgroup 5.5 (articles 1-11), article 1 (sections 1859-1859.2) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New subgroup 5.5 (articles 1-11), article 1 (sections 1859-1859.2) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
§1859.1. General Services Director.
Note • History
The General Services Director, or his or her legal designee shall perform all acts necessary to carry out the provisions of the Act except such functions as are reserved to the Board and to other agencies by law or by Sections 1859 through 1859.107 inclusive. The acts to be performed include, but are not limited to, entering into contracts to administer the Act.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17070.20, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
Note • History
For the purpose of these regulations, the terms set forth below shall have the following meanings, subject to the provisions of the Act:
“Academic Achievement” means to improve one's ability to engage in academic endeavors and to accomplish study in core curriculum areas such as reading, writing, mathematics, fine arts, science, vocational education, technology, history or social science.
“Act” means the Leroy F. Greene School Facilities Act of 1998.
“Adjacent” means the HSAAs that will make up the Super HSAA are adjoining, touching, or share a common geographical boundary.
“Alternative District Owned Site” means a district owned site that is deemed available for the project by the California Department of Education.
“Alternative Education” means community day, county community, county community day, and continuation high schools.
“Alternative Enrollment Projection” means a calculation of projected enrollment by eligible school districts as authorized by Education Code Section 17071.75(a)(1).
“Application” means a request pursuant to the Act to receive an eligibility determination and/or funding for a school project.
“Apportionment” shall have the meaning set forth in Education Code Section 17070.15(a).
“Approved Application(s)” means a district has submitted the application and all documents to the Office of Public School Construction that are required to be submitted with the application as identified in the General Information Section of Forms SAB 50-01, Enrollment Certification/Projection; SAB 50-02, Existing School Building Capacity; SAB 50-03, Eligibility Determination, (Revised 03/09); and SAB 50-04, Application for Funding, as specified in Section 1859.2 “Form SAB 50-04”, and the Office of Public School Construction has completed and accepted a preliminary approval review pursuant to Education Code Section 17072.25(a).
“Approved Application for Career Technical Education Facilities Project Funding” means an applicant has submitted an Application for Career Technical Education Facilities Funding, Form SAB 50-10, including all required supporting documents as identified in the General Information Section of that Form, to the OPSC and the OPSC has accepted the application for processing.
“Approved Application for Joint-Use Funding” means a district has submitted an Application for Joint-Use Funding, Form SAB 50-07, including all required supporting documents as identified in the General Information Section of that Form, to the OPSC and the OPSC has accepted the application for processing.
“Attendance Area” shall have the meaning set forth in Education Code Section 17070.15(b).
“Authority” shall have the meaning set forth in Education Code Section 17078.52(d)(1).
“Board” means the State Allocation Board as established by Section 15490 of the Government Code.
“Career Technical Education Facilities Project” means a project approved by the Board pursuant to Education Code Section 17078.72.
“CBEDS Report” means the enrollment information provided through the California Basic Educational Data System (CBEDS) by school districts to the CDE.
“California Department of Education” (CDE) means the offices within that department that have responsibility for school facilities matters.
“CDE Source School List” means a list developed and published by the CDE that identifies districts and Critically Overcrowded Schools pursuant to Education Code Section 17078.18(c).
“Certification” means the act of affirmatively representing, asserting or verifying circumstances, data or information as required by the Act or this subgroup.
“Charter School” shall mean a school established pursuant to Education Code, Title 2, Division 4, Part 26.8, Section 47600, et seq.
“Charter School Agreements” mean a memorandum of understanding, a funding agreement and a use agreement as established by the California School Finance Authority (CSFA).
“Charter School Facility Account” means the fund for new construction Charter School projects authorized by Education Code Sections 100620(a)(1)(A), 100820(a)(1)(A) and 101012(a)(2).
“Charter School Facilities Program Rehabilitation” shall mean work that includes, but will not be limited to, structural changes or other types of work on an existing district facility that extends the useful life of or enhances the physical environment of the school, and as provided in Education Code Section 17078.58(a).
“Charter School General Location” shall mean a minimum of a one mile radius to a maximum of a three mile radius from the present or proposed location of the Charter School project as identified in the chartering agreement.
“Childcare” means any program that is operated less than 24-hours per day, in which non-medical, licensed care and supervision are provided to children in a group setting.
“Class B Construction Cost Index” is a construction factor index for structures made of reinforced concrete or steel frames, concrete floors, and roofs, and accepted and used by the Board.
“Classroom” means a teaching station that has the same meaning as the term used in Education Code Section 17071.25(a)(1).
“Classroom-Based Instruction” shall have the meaning set forth in Education Code Section 47612.5(e)(1).
“Classroom Provided” means a classroom acquired by lease, lease-purchase, or purchase for which a contract has been signed for the construction or acquisition of the classroom.
“Committee” shall have the meaning set forth in Education Code Section 17070.15(d).
“Conversion Increase Fund” shall be the fund in either the 2002 or 2004, as appropriate, Charter School Facilities Accounts to set aside Preliminary Charter School Apportionment amounts rescinded on or before April 25, 2007, for a Final Charter School Appointment, pursuant to Section 1859.167.
“County Fund” shall have the meaning set forth in Education Code Section 17070.15(e).
“Critically Overcrowded School (COS)” means a school that has a pupil population density greater than 115 pupils per useable acre in grades Kindergarten through six, or a pupil population density greater than 90 pupils per useable acre in grades seven through twelve based on the 2001 CBEDS enrollment.
“Current Replacement Cost” means $346.60 per square foot for Toilet Facilities and $192.60 per square foot for all other spaces. The amounts shown will be adjusted annually in the manner prescribed in Section 1859.71.
“Date of Occupancy” means the date the grant deed is recorded with the County Recorder's Office.
“Demographic Research Unit” (DRU) means this office within the California Department of Finance.
“Department” shall have the meaning set forth in Education Code Section 17070.15(f).
“District Representative” means a member of a school district staff or other agent authorized to serve as “District Representative” to execute and file an application with the Board on behalf of the district and/or act as liaison between the Board and the district.
“Division of the State Architect (DSA)” means the State office within the Department of General Services that reviews school building plans and specifications for structural, fire safety and access compliance.
“Elementary School Pupil” means a student housed in a school serving Kindergarten through sixth grade, or any combination of Kindergarten through sixth grade.
“Encumbered for Specific Purposes” means a commitment of funds by the school district to meet a legally binding obligation.
“Energy Audit” means an energy analysis and report which sets forth the utility savings that could be generated if the proposed project was designed, constructed, and equipped with energy efficiency and renewable technologies that would make the proposed project exceed the minimum building energy-efficiency standards mandated for new public buildings pursuant to the applicable California Building Standards Code.
“Energy Efficiency Account” means the funds set aside by the Board for purposes of Education Code Section 17077.35.
“EnergyPro 3.1” means a computer program approved by the State Energy Resources Conservation and Development Commission that calculates energy efficiency standards.
“Environmental Hardship” means the State funding for site acquisition as authorized by Section 1859.75.1.
“Excessive Cost Hardship Grant” means the funding provided by Section 1859.83.
“Executive Officer” means the individual appointed by the Governor to direct the Office of Public School Construction, and who concurrently serves as Executive Officer to the Board.
“Existing School Building Capacity” means the district's total capacity to house pupils as calculated pursuant to Sections 1859.30 through 1859.33.
“Existing School Site” for purposes of Joint-Use, means real property that has a public school with any grades K-12 and that has at minimum administration and classroom facilities for any grades K-12 and has been assigned a county district school (CDS) code, which meets the criteria of Regulation Section 1859.23.
“Extra Cost” means the added costs to complete a Type II Joint-Use Project as determined in Section 1859.125.1.
“Facility” means all or a portion of any real property, site improvements, utilities and/or buildings or other improvements contained in the project.
“Facility Hardship” means new or replacement facilities authorized by Section 1859.82(a) or (b).
“Field Act Facility” means a school building meeting the requirements contained in Education Code Section 17280, et seq.
“Final Apportionment” means an apportionment made pursuant to Education Code Section 17070.15 by submittal of an application pursuant to Section 1859.21.
“Final Apportionment Unfunded List” means a list of projects where the entire Final Apportionment request was not converted to a Final Apportionment.
“Final Charter School Apportionment” shall mean a Preliminary Charter School Apportionment that has been converted to a Final Charter School Apportionment in accordance with Section 1859.165.
“Financial Hardship” means State funding for all or a portion of the district's matching share required by Section 1859.77.1 or 1859.79.
“Financially Sound” shall have the meaning set forth in Education Code Section 17078.52(d)(4) and Title 4, California Business Regulations commencing with Section 10151, et seq.
“Form SAB 50-01” means the Enrollment Certification/Projection, Form SAB 50-01 (Revised 05/09) and, when utilizing HSAA residency reporting, the High School Attendance Area Residency Reporting Worksheet (New 06/08), which are incorporated by reference.
“Form SAB 50-02” means the Existing School Building Capacity, Form SAB 50-02 (Revised 12/10), which is incorporated by reference.
“Form SAB 50-03” means the Eligibility Determination, Form SAB 50-03 (Revised 12/10), which is incorporated by reference.
“Form SAB 50-04” means the Application For Funding, Form SAB 50-04 (Revised 06/12), which is incorporated by reference.
“Form SAB 50-05” means the Fund Release Authorization, Form SAB 50-05 (Revised 12/11), which is incorporated by reference.
“Form SAB 50-06” means the Expenditure Report, Form SAB 50-06 (Revised 12/10), which is incorporated by reference.
“Form SAB 50-07” means the Application for Joint-Use Funding, Form SAB 50-07 (Revised 12/11), which is incorporated by reference.
“Form SAB 50-08” means the Application for Preliminary Apportionment, Form SAB 50-08 (Revised 12/11), which is incorporated by reference.
“Form SAB 50-09” means the Application for Charter School Preliminary Apportionment, Form SAB 50-09 (Revised 12/11), which is incorporated by reference.
“Form SAB 50-10” means the Application for Career Technical Education Facilities Funding, Form SAB 50-10 (Revised 12/11), which is incorporated by reference.
“Form SAB 50-11” means the Overcrowding Relief Grant District-Wide Eligibility Determination, Form SAB 50-11, (New 02/07), which is incorporated by reference.
“Fund” shall have the meaning set forth in Education Code Section 17070.15(g).
“General Location” means the proposed location of a new school as set forth in Education Code Section 17078.22 and Section 1859.142.
“General Site Development” means on-site hard surfaced areas for foot traffic, driveways, walks, parking, curbs and gutters; outdoor instructional play facilities such as turfed or paved areas, permanent playground equipment, outdoor places of assembly, tennis/handball courts, running tracks and baseball, football and soccer fields; applicable landscaping of building frontages and outdoor facilities noted above.
“Government Agency” shall include but is not limited to a public entity as defined in Government Code Section 7260(a) including California federally recognized or historically established tribal governments.
“Hazardous Material/Waste Removal Fund” shall mean the fund established pursuant to Section 1859.163.3, in order to set aside funding at the time Preliminary Charter School Apportionments are approved by the Board for hazardous material waste removal that will be provided at the Final Charter School Apportionment when actual costs are known.
“High Performance Base Incentive Grant” means the $150,000 State share portion of the high performance incentive grant provided as part of a New Construction Adjusted Grant for a new school, or the $250,000 State share portion of the high performance incentive grant provided as part of a New Construction Adjusted Grant for an addition to an existing site or a Modernization Adjusted Grant.
“High Performance Rating Criteria” (HPRC) means the standard used to evaluate the costs of designs and materials that promote high performance schools. The HPRC will be using the Collaborative for High Performance Schools (CHPS) rating criteria model as identified in the CHPS Best Practices Manual Volume III 2002 Edition and 2006 Edition, as incorporated by reference. For the purposes of the SFP, the HPRC contained in these regulations have been modified to focus on facility related components.
“High Performance School Account” means the funds set aside by the Board for purposes of Education Code Section 101012(a)8.
“High School Attendance Area (HSAA)” means an attendance area that serves a currently operated high school, other than a continuation school or a community school.
“High School District” means a school district that serves any combination of grades seven through twelve exclusively.
“High School Pupil” means a student in a school serving ninth through twelfth grade or any combination of ninth through twelfth grade.
“Higher Education” means an entity that is a public community college; a public college; a public university; or a non-profit/accredited organization of higher education.
“In Escrow, Governmental Entities” means the approval and signature of instrument(s) that will convey a specified school parcel or site from the public/government entity including the federal government for a determinable sum, and for a determinable date of acquisition which may be based on the district's receipt of funding from the State.
“Inactive Preliminary Apportionment” means an apportionment for a project, based on a finding by the SAB, that meets all of the following criteria: 1) received a Preliminary Apportionment prior to December 17, 2008; 2) A complete request to convert a Preliminary Apportionment to a Final Apportionment has not been made; 3) the time limit under Education Code Section 17078.25(a) or (b) will expire on or after December 17, 2008.
“Inactive Preliminary Charter School Apportionment” means an apportionment for a project, based on a finding by the SAB, that meets all of the following criteria: 1) received a Preliminary Charter School Apportionment prior to December 17, 2008; 2) A complete request to convert a Preliminary Charter School Apportionment to a Final Charter School Apportionment has not been made; 3) the time limit under Education Code Sections 17078.25(a) or (b) and 17078.52(c)(3) will expire on or after December 17, 2008.
“In Escrow, Non-Governmental Entities” means the deposit of signed instrument(s) and/or funds with instructions with a title company or escrow agent to carry out the provisions of an agreement or contract to acquire a specified school parcel or site for a determinable sum, and for a determinable date of acquisition which may be based on the district's receipt of funding from the State.
“Inactive Apportionment” means an apportionment made to a project, based on a finding by the SAB, that meets all of the following criteria: 1) received a SAB apportionment prior to December 17, 2008; 2) State bond funds have not been released for that apportionment; and, 3) the time limit under Education Code Section 17076.10(d) will expire on or after December 17, 2008.
“Inadequate” means, for purposes of Joint-Use Projects, the square footage of the existing facility is less than 60 percent of the square footage entitlement shown in the Chart in Section 1859.124.1.
“Independent Audit” means an examination and report of the district's accounts by a certified public accounting firm.
“Individual with Exceptional Needs” shall have the meaning set forth in Education Code Section 56026 as further defined and classified in 34 Code of Federal Regulations Part 300.5.
“Instrument” means a written, legally enforceable agreement, approved and signed by all parties to the escrow, for the conveyance to the district of real estate for a specified parcel or site, that includes a compensation clause and either a purchase option agreement, a purchase agreement, promissory note, lease agreement, installment sales contract, gift, or other real estate conveyance valid in the State of California for property conveyed from a public/government entity, including the federal government.
“Interim Housing” means the rental or lease of classrooms used to house pupils temporarily displaced as a result of the modernization of classroom facilities.
“Joint-Use Project” means a project approved by the Board pursuant to Education Code Sections 17050, 17051, or 17077.40.
“Joint-Use Partner(s)” means an entity or entities that has entered into a joint-use agreement pursuant to the provisions of Education Code Section 17077.42.
“Labor Compliance Program (LCP)” shall be as described in subdivision (b) of Labor Code Section 1771.5 and approved by the Department of Industrial Relations (DIR).
“Large Charter School” shall be defined as a school in which the enrollment is greater than 351 pupils, based on the latest available CBEDS report or if a CBEDS report is unavailable, the registration list for the Charter School may be used.
“Lease-Purchase Program (LPP)” means the Leroy F. Greene State School Building Lease-Purchase Law of 1976, commencing with Education Code Section 17000.
“Linear Regression” means a mathematical procedure for finding the best fitting line to a given set of data-points by minimizing the difference between the actual data points and the regressed data points shown on the line.
“Low-income” shall be the percentage of pupils deemed eligible for free/reduced lunch as identified in the most recent Free and Reduced Price Meals data on file at the CDE. The data on file with CDE shall be determined to be the information collected for the month of October, and any errors and omissions amendments to that information for that time period that have been received and approved by the CDE.
“Major Maintenance” shall have the meaning set forth in Education Code Section 17070.77(b).
“Material Inaccuracy” means any falsely certified eligibility or funding application related information submitted by school districts, architects or other design professionals that allowed the school district an advantage in the funding process.
“Median Cost” means, for purposes of a Preliminary Apportionment, the middle number in a given sequence of property value numbers, or the average of the middle two property value numbers when the given sequence of property value numbers has an even number of numbers.
“Medium Charter School” shall be defined as a school with an enrollment of 176 pupils to 350 pupils, based on the latest available CBEDS report or if a CBEDS report is unavailable, the registration list for the Charter School may be used.
“Mello-Roos Bonds” means the bonds that are authorized under the provisions of the Mello-Roos Community Facilities Act of 1982, commencing with Government Code Section 53311.
“Middle School Pupil” means a student in a school serving sixth through eighth grade, or seventh and eighth grades.
“Modernization” shall have the meaning set forth in Education Code Section 17070.15(f) for purposes of projects subject to Subgroup 5.5, Article 2, commencing with Section 1859 or Education Code Section 17021 under the Lease-Purchase Program.
“Modernization Adjusted Grant” means the Modernization Grant, plus any other funding provided by these Regulations.
“Modernization Grant” means the funding provided pursuant to Education Code Section 17074.10(a) and Sections 1859.78, 1859.78.3, 1859.78.6, and 1859.78.8.
“Modernization Eligibility” means the result of the calculation contained in either Option A or B of the Form SAB 50-03.
“Most Vulnerable Category 2 Buildings” means the building meets the criteria outlined in Section 1859.82(a)(1)(C) and is one of the following building types:
C1 -- Concrete Moment Frame,
C1B -- Reinforced Concrete Cantilever Columns with Flexible Diaphragms,
C2A -- Concrete Shear Wall with Flexible Diaphragms,
C3A -- Concrete Frame with Infill Masonry Shear Walls and Flexible Diaphragms,
PC1 -- Precast/Tilt-up Concrete Shear Wall with Flexible Diaphragms,
PC1A -- Precast/Tilt-up Concrete Shear Wall with Rigid Diaphragms,
PC2A -- Precast Concrete Frame without Concrete Shear Walls and with Rigid Diaphragms,
PC2 -- Precast Concrete Frame and Roofs with Concrete Shear Walls,
URM -- Unreinforced Masonry Bearing Wall Buildings,
RM1 -- Reinforced Masonry Bearing Wall with Flexible Diaphragms,
URMA -- Unreinforced Masonry Bearing Wall with Rigid Diaphragms,
S1B -- Steel Cantilever Columns with Flexible Diaphragm,
S3 -- Steel Light Frame Metal Siding and/or Rod Bracing, or
M -- Mixed construction containing at least one of the above structures types.
“Multi-Track Year-Round Education (MTYRE)” means a school education program in which the students are divided into three or more groups on alternating tracks, with at least one group out of session, and the other groups in session during the same period.
“New Construction Adjusted Grant” means the New Construction Grant, plus any other funding provided by these Regulations.
“Net School Building Capacity” means the capacity of a school building to house pupils after excluding the pupils housed in a Classroom which was demolished and replaced in the project and, for schools operating on a multi-track year-round education calendar as defined in Education Code Section 42260(d)(1), after including the maximum enrollment attending the school at one time.
“New Construction Eligibility” means the result of the calculation determined in Education Code Section 17071.75.
“New Construction Grant” means the funding provided pursuant to Education Code Section 17072.10(a) and Sections 1859.71 and 1859.71.1.
“Nonclassroom-Based Instruction” shall have the meaning set forth in Education Code Section 47612.5 (d)(1) and (e)(2).
“Non-Profit Entity” means an entity that is organized and operated for purposes of not making a profit under the provisions of the federal Internal Revenue Code Section 501(c)(3), or is organized as/operated by a nonprofit public benefit corporation, pursuant to State Corporations Code, Title 1, Division 2, Part 2, Section 5110, et seq.
“Non-Profit Organization” as used in this section and for the purposes of the Joint-Use Program, means an entity that is organized and operated for purposes of not making a profit under the provisions of the Revenue and Taxation Code and further meets the requirements set forth below:
1. Other than a School District passing a local bond, under Section 1859.127 herein, the source of funds being contributed by the Non-Profit Organization Joint-Use Partner, must be independent of the partner School District, and
2. The Non-Profit Organization must be a recognized nationally chartered organization. If the partner is not a nationally chartered non-profit organization, then it must have an independence in governance, which for purposes of this section shall be defined as the Non-Profit Organization and School District having no more than one common board member, ex-officio board member, officer, management or staff irrespective of whether voting or non-voting and whether employee, contractor, or agent. These restrictions will only apply to the extent that the employee, contractor or agent has managerial authority on one or both entities. For purposes of this section, a recognized nationally charted organization is a non-profit organization which is recognized by the Office of Public School Construction or the State Allocation Board as operating on a national basis and having charters issued by a national headquarter or governing body, and
3. The Non-Profit Organization must operate programs or services, aside from programs or services for the School District, for the community and pay for the additional ongoing operational costs or program services associated with the joint-use purposes and/or a minimum of 25 percent of an eligible Joint-Use Project facility's cost.
“Non-Severely Disabled Individual with Exceptional Needs” means an individual with exceptional needs not defined in Education Code Section 56030.5 but included in 34 Code of Federal Regulations Part 300.8.
“Occupancy” means the point at which pupils occupy a classroom as evident by district documents such as the school board's adopted calendar, classroom attendance rosters, fire marshal approval of the classroom, etc.
“Office of Public School Construction (OPSC)” means the State office within the Department of General Services that assists the Board as necessary and administers the Act on behalf of the Director.
“Overcrowded School District” for purposes of determining preference points is any district that demonstrates eligibility in excess of two percent of their unhoused pupils.
“Overcrowding Relief Grant” (ORG) means the funding provided pursuant to Education Code Section 17079, et seq.
“Overcrowding Relief Grant Eligibility Determination” means the form that is submitted to the California Department of Education for purposes of determining whether a school site is eligible for Overcrowding Relief Grant funding and the maximum number of pupils that are eligible to receive funding at a school site.
“Overcrowding Relief Grant Pupil Eligibility” means the result of the calculation determined in Section 1859.182(a).
“Permanent Area” means any area not included in a portable classroom.
“Permanent Classroom” means any classroom not meeting the definition of portable classroom.
“Phase C Approval” means the construction approval by the Board under the Lease-Purchase Program.
“Phase One Environmental Site Assessment (POESA)” shall have the meaning set forth in Education Code Section 17210(g).
“Phase P Approval” means the planning approval by the Board under the Lease-Purchase Program.
“Phase S Approval” means the site approval by the Board under the Lease-Purchase Program.
“Piggyback Contract” means a contract for acquisition of personal property, without advertising for bids, as authorized by Public Contract Code Section 20118.
“Portable Classroom” shall have the meaning set forth in Education Code Section 17070.15(k).
“Preliminary Application” means the district has submitted Form SAB 50-08, including all documents that are required to be submitted with the application as identified in the General Instructions Section of that Form to the OPSC and the OPSC has accepted the application for processing.
“Preliminary Apportionment” means an apportionment made pursuant to Education Code Section 17078.10(c).
“Preliminary Charter School Application” means a district filing on behalf of a charter school or the charter school submitting directly on Form SAB 50-09, including all supporting documents as identified in the General Instructions Section of that Form submitted to the OPSC and the OPSC has accepted the application for processing.
“Preliminary Charter School Apportionment” means an apportionment made pursuant to Education Code Section 17078.52(d)(3).
“Preliminary Endangerment Assessment (PEA)” shall have the meaning set forth in Education Code Section 17210(h).
“Preliminary Plans” means a set of architectural drawings not approved by the DSA that provide a preliminary design.
“Priority One” shall have the meaning set forth in Education Code Section 17017.7(a)(1).
“Priority Two” shall have the meaning set forth in Education Code Section 17017.7(a)(2).
“Project Information Worksheet” means the Project Information Worksheet (Revised 05/10), which is incorporated by reference.
“Property” shall have the meaning set forth in Education Code Section 17070.15(g).
“Proposition 1A” means the Initiative Measure (Prop. 1A) enacted by passage at the November 4, 1998 general election.
“Proposition 1 D” means the Kindergarten-University Public Education Facilities Bond Act of 2006.
“Proposition 39” means the Initiative Measure (Prop. 39) enacted by passage at the November 7, 2000 general election which amended Sections 15102, 15106, 35233, and 72533 and added Chapter 1.5 (commencing with Section 15264) to Part 10, of the Eduction Code, and added applicable sections of the California Constitution relating to passage of local school bonds with a 55 percent vote of the electorate at a primary or general election, a regularly scheduled local election, or a statewide special election.
“Proposition 47” means the Kindergarten-University Public Education Facilities Bond Act of 2002.
“Proposition 55” means the Kindergarten-University Public Education Facilities Bond Act of 2004.
“Pupil” means a student enrolled in any grade Kindergarten through grade twelve.
“Qualifying Pupils” means enrollment in excess of 86 pupils per useable acre for Kindergarten through sixth grade or 68 pupils per useable acre for grades seven through twelve.
“Quarterly Basis” means a three-month period commencing on January 1, April 1, July 1 and October 1 of each calendar year.
“Ready for Apportionment” means a final review of an Approved Application has been completed by the OPSC and it has been determined that it meets all requirements of law for an apportionment or eligibility determination, and the OPSC will recommend approval to the Board.
“Reconfigure” for the purposes of the Career Technical Education Facilities Program means remodeling an existing school building within its current confines and/or the expansion of the square footage of the existing building.
“Reconfigure” for the purposes of the Joint-Use program means remodeling an existing school building within its current confines and/or the expansion of the square footage of the existing building and any necessary replacement of displaced classrooms or other minimum essential facilities.
“Region One” shall consist of the following counties: Alpine, Amador, Butte, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Marin, Mendocino, Modoc, Napa, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sonoma, Sutter, Tehama, Trinity, Yolo, and Yuba.
“Region Two” shall consist of the following counties: Alameda, Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Mono, Monterey, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, Stanislaus, Tulare, and Tuolumne.
“Region Three” shall consist of the following counties: Los Angeles, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura.
“Region Four” shall consist of the following counties: Imperial, Orange, Riverside, and San Diego.
“Rehabilitation Cost” means health and safety mitigation cost that is less than 50 percent of the current replacement cost of the facility.
“Relocation/DTSC Fee Fund” shall mean the fund established pursuant to Section 1859.163.3, in order to set aside funding at the time Preliminary Charter School Apportionments are approved by the Board for relocation expenses and/or DTSC fees that will be provided at the Final Charter School Apportionment when actual costs are known.
“Remedial Action Plan (RAP)” means a plan approved by the Department of Toxic Substances Control (DTSC) pursuant to Health and Safety Code Section 25356.1.
“Resolution of Necessity” means a school board resolution to acquire property by eminent domain as requireed by California Code of Civil Procedure section 1245.220.
“Resource Specialist Program” means pupils that meet the definition of Non-Severely Disabled Individual with Exceptional Needs as defined in Section 1859.2 that are not enrolled in a special day class.
“Response Action (RA)” means the removal of hazardous materials and solid waste, the removal of hazardous substances, and other remedial actions in connection with hazardous substances at the site.
“Restricted Charter School Fund” means the funds in the 2002 (or 2004, as appropriate) Charter School Facility Account approved for a Preliminary Charter School Apportionment.
“Restricted Fund” means the funds in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account approved for a Preliminary Apportionment(s).
“Rural Area” shall be a school with a locale code of 41, 42 or 43 as classified by the National Center for Education Statistics (NCES).
“School Building Capacity” shall have the meaning set forth in Education Code Section 17070.15(l).
“School District” shall have the meaning set forth in Education Code Sections 17070.15(m) and 17073.25.
“School Facilities Improvement District” means a legal entity authorized by Education Code Section 15300, to generate school facilities funding.
“School Facility Program (SFP)” means either the new construction or modernization programs implemented under the Act, by these Subgroup 5.5 regulations.
“SFP New Construction Account” means the fund for new construction projects authorized by Education Code Sections 100620(a)(1) and 100820(a)(1).
“Secondary School Pupil” means a student in the seventh through the twelfth grade.
“Section” means a section in these Subgroup 5.5 regulations.
“Service Region” means one of the eleven service regions of the California County Superintendents Educational Services Association.
“Severely Disabled Individual with Exceptional Needs” means an individual with exceptional needs as defined in Education Code Section 56030.5.
“Small Charter School” shall be defined as a school with an enrollment of not more than 175 pupils, based on the latest available CBEDS report or if a CBEDS report is unavailable, the registration list for the Charter School may be used.
“Small School District” means a school district with current districtwide enrollment reported in Part A, the continuation high pupils reported in Part C, and the Special Day Class pupils reported in Part D on the latest Form SAB 50-01, used to determine or adjust the district's baseline eligibility pursuant to Sections 1859.50 and 1859.51 or submitted separately to the OPSC, that is 2,5000 or less.
“Source School” means a Critically Overcrowded School included on the CDE Source School List that has Qualifying Pupils.
“Special Day Class” means a class that has pupils enrolled that are individuals with exceptional needs.
“Square Footage” means the enclosed area measured from the outside face of exterior structural walls of the building. For interior areas or portions of building areas, the enclosed area shall be measured from the centerline of the interior demising wall.
“Student Yield Factor” means the number of students each dwelling unit will generate for purposes of an enrollment augmentation.
“Substantial Enrollment Requirement (SER)” means a district that is operating on a Multi-Track Year- Round Education basis pursuant to Education Code Sections 17017.6 and 17017.7(c).
“Suburban Area” shall be a school with a locale code of either 21, 22, 23, 31, 32 or 33 as classified by the NCES.
“Super High School Attendance Area (Super HSAA)” means two or more HSAAs that are adjacent to each other.
“Teacher Education” means courses for credential programs or enhancement courses that are professional growth courses for elementary, secondary, higher education and special education instructors.
“Toilet Facilities” means restroom area, shower/locker area or physical therapy area for Individuals with Exceptional Needs.
“Total Projected Bond Apportionment” means the total State bond funds to be apportioned for the project, including any Financial Hardship apportionment pursuant to Section 1859.81, any funds authorized by the Authority pursuant to Section 1859.168, and any funds provided pursuant to Section 1859.194, but excluding the prevailing wage monitoring and enforcement costs grant amount provided pursuant to Section 1859.71.4(c) or 1859.78.1(b).
“Type I Joint-Use Project” means a project that meets the criteria of Education Code Section 17077.40(b)(1).
“Type II Joint-Use Project” means a project that meets the criteria of Education Code Section 17077.40(b)(2).
“Unfunded List” means an information list of unfunded projects, with the exception of the unfunded list defined below as “Unfunded List (Lack of AB 55 Loans)”.
“Unfunded List (Lack of AB 55 Loans)” means an information list of unfunded projects that was created due to the State's inability to provide interim financing from the Pooled Money Investment Account (AB 55 loans) to fund school construction projects as declared in the Department of Finance Budget Letter #33 issued on December 18, 2008.
“Unrestricted Charter School Fund” means the funds in the appropriate Charter School Facility Account not approved for a Preliminary Charter School Apportionment(s).
“Unrestricted Fund” means the funds in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account not approved for a Preliminary Apportionment(s).
“Urban Area” shall be as a school with a locale code of 11, 12 or 13 as classified by the NCES.
“Useable Acres” means the gross acreage of a school site less any portion of the site publicly dedicated for off-site street improvements and any portion of the site not available for school purposes as determined by the CDE because of topological impediments or because of other unique circumstances.
“Zone Improvement Project (ZIP) Code” means the area as determined by the United States Postal Service.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17009.5, 17017.6, 17017.7, 17021, 17047, 17050, 17051, 17070.15, 17070.51(a) 17070.71, 17070.77, 17071.10, 17071.25, 17071.30, 17071.33, 17071.35, 17071.40, 17071.75, 17071.76, 17072.10, 17072.12, 17072.18, 17072.33, 17073.25, 17074.10, 17074.30, 17075.10, 17075.15, 17077.40, 17077.42, 17077.45, 17078.52, 17078.56, 17078.72(k), 17079, 17079.10, 17280, 56026 and 101012(a)(8), Education Code; Section 53311, Government Code; and Sections 1771.3 and 1771.5, Labor Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of definition ``Modernization Eligibility” filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
8. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
9. Editorial correction adding definition of ``Unfunded List” (Register 2001, No. 6).
10. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
11. Amendment of definition ``Approved Applications,” new definitions ``Governmental Agency,” ``In Escrow, Governmental Agencies,” ``In Escrow, Non-Governmental Agencies” and ``Instrument” and amendment of Note filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
12. Amendment of definition of ``Approved Application(s)” filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
13. New definition of ``Proposition 39” filed 12-21-2001; operative 12-21-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 51).
14. Amendment of section and Note filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment of definition of ``Approved Applications,” new definitions of ``Major Maintenance” and ``Material Inaccuracy” and amendment of Note filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
17. Amendment of definitions of ``Approved Application(s)” and ``Form SAB 50-04” and new definition of ``General Site Development” filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
18. Amendment of section and Note filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
19. Amendment of definitions of “Approved Application(s),” “Approved Application for Joint-Use Funding,” “Form SAB 50-03,” “Form SAB 50-04,” “Form SAB 50-05,” “Form SAB 50-07,” “Form SAB 50-08” and “School District,” new definition of “Net School Building Capacity” and amendment of Note filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
20. Amendment of section and Note refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
21. Amendment of definitions of “Approved Application(s),” “Approved Application for Joint-Use Funding,” “Form SAB 50-03,” “Form SAB 50-04,” Form SAB 50-05,” “Form SAB 50-07,” “Form SAB 50-08” and “School District,” new definition of “Net School Building Capacity” and amendment of Note refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
22. Amendment of definition of “Form SAB 50-04” filed 7-7-2003 as an emergency; operative 7-7-2003 (Register 2003, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
23. Amendment of definitions of “Approved Applications,” “Approved Application for Joint-Use Funding,” “Form SAB 50-04,” “Form SAB 50-05,” and “Form SAB 50-07,” new definition of “Labor Compliance Program” and amendment of Note filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
24. Amendment of section and Note refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
25. Amendment of definitions of “Approved Application(s),” “Approved Application for Joint-Use Funding,” “Form SAB 50-03,” “Form SAB 50-04,” Form SAB 50-05,” “Form SAB 50-07,” “Form SAB 50-08” and “School District,” new definition of “Net School Building Capacity” and amendment of Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
26. Amendment of definition of “Form SAB 50-04” refiled 11-3-2003 as an emergency; operative 11-3-2003 (Register 2003, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-2-2004 or emergency language will be repealed by operation of law on the following day.
27. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
28. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
29. Amendment of definition of “Form SAB 50-04” refiled 3-2-2004 as an emergency; operative 3-2-2004 (Register 2004, No. 10). A Certificate of Compliance must be transmitted to OAL by 6-30-2004 or emergency language will be repealed by operation of law on the following day.
30. Certificate of Compliance as to 10-9-2003 order, including further amendment of section, transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
31. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
32. Amendment of definitions of “Approved Application for Joint-Use Funding” and “Form SAB 50-07,” new definition of “Reconfigure” and repealer of definition of “Type III Joint-Use Project” filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
33. New definitions of “Charter School Facility Account,” “Hazardous Material/Waste Removal Fund,” “Relocation/DTSC Fee Fund,” “Restricted Charter School Fund” and “Unrestricted Charter School Fund” and amended definitions of “Financially Sound,” “Form SAB 50-05,” “Form SAB 50-09,” “Large Charter School,” “Low-income,” “Medium Charter School,” “Region Two,” “Region Three” and “Small Charter School” filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
34. Amendment of definition of “Form SAB 50-08” filed 7-2-2004; operative 7-2-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 27).
35. Amendment of definition of “Form SAB 50-04,” new definition of “Occupancy” and amendment of Note filed 7-22-2004 as an emergency; operative 7-22-2004 (Register 2004, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-19-2004 or emergency language will be repealed by operation of law on the following day.
36. Certificate of Compliance as to 3-2-2004 order transmitted to OAL 6-28-2004 and filed 8-9-2004 (Register 2004, No. 33).
37. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
38. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
39. Amendment of definitions of “Approved Applications” and “Form SAB 50-04” and amendment of Note filed 12-6-2004; operative 12-6-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 50).
40. Certificate of Compliance as to 7-22-2004 order transmitted to OAL 11-12-2004 and filed 12-16-2004 (Register 2004, No. 51).
41. Amendment of definitions of “Approved Applications,” “Approved Application for Joint-Use Funding,” “Form SAB 50-04,” “Form SAB 50-05,” “Form SAB 50-07,” “Form SAB 50-08” and “Form SAB 50-09,” new definition of “Labor Compliance Program” and amendment of Note filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
42. New definition of “Alternative Education” and amendment of definitions of “Approved Application(s),” “Form SAB 50-04” and “Form SAB 50-05” filed 1-31-2005; operative 1-31-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
43. Amendment of definitions of “Approved Application(s),” “Form SAB 50-03,” “Form SAB 50-04” and “Modernization Grant” filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 6).
44. Amendment of definition of “Form SAB 50-05” filed 2-23-2005; operative 2-23-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 8).
45. Amendment of definition of “Class B Construction Cost Index” filed 2-28-2005 as an emergency; operative 2-28-2005 (Register 2005, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-2005 or emergency language will be repealed by operation of law on the following day.
46. Amendment of definitions of “Approved Application(s)” and “Form SAB 50-01” and new definition of “Date of Occupancy” filed 4-26-2005; operative 4-26-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 17).
47. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
48. New definition of “Existing School Site” filed 5-24-2005 as an emergency; operative 5-24-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-21-2005 or emergency language will be repealed by operation of law on the following day.
49. Editorial correction of definition of “Alternative Education” (Register 2005, No. 21).
50. Amendment of definitions of “Approved Applications,” “Approved Application for Joint-Use Funding,” “Form SAB 50-04,” “Form SAB 50-07” and “Form SAB 50-09” filed 5-26-2005 as an emergency; operative 5-26-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-23-2005 or emergency language will be repealed by operation of law on the following day.
51. Certificate of Compliance as to 2-28-2005 order transmitted to OAL 5-11-2005 and filed 5-27-2005 (Register 2005, No. 21).
52. Certificate of Compliance as to 5-24-2005 order transmitted to OAL 9-16-2005 and filed 10-24-2005 (Register 2005, No. 43).
53. Amendment of definitions of “Approved Application(s)” and “Form SAB 50-01” filed 10-27-2005; operative 10-27-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 43).
54. Certificate of Compliance as to 5-26-2005 order transmitted to OAL 9-19-2005 and filed 10-31-2005 (Register 2005, No. 44).
55. Amendment of definitions of “Approved Application(s)” and “Form SAB 50-04,” new definitions of “Reconfiguration,” “Small High School” and “Small High School Program” and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
56. New definitions of “Alternative Enrollment Projection” and “Demographic Research Unit” and amendment of definitions of “Approved Application(s)” and “Form SAB 50-04” filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
57. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
58. Repealer of definition of “CEC,” amendment of definition of “EnergyPro 3.1” and new definition of “Proposition 55” filed 8-21-2006 as an emergency; operative 8-21-2006 (Register 2006, No. 34). A Certificate of Compliance must be transmitted to OAL by 12-19-2006 or emergency language will be repealed by operation of law on the following day.
59. Amendment of definitions of “Form SAB 50-04” and “Form SAB 50-09” filed 9-5-2006 as an emergency; operative 9-5-2006 (Register 2006, No. 36). A Certificate of Compliance must be transmitted to OAL by 1-3-2007 or emergency language will be repealed by operation of law on the following day.
60. Certificate of Compliance as to 8-21-2006 order transmitted to OAL 11-9-2006 and filed 12-18-2006 (Register 2006, No. 51).
61. Certificate of Compliance as to 9-5-2006 order, including further amendment of definition of “Form SAB 50-04,” amendment of “Form SAB 50-05” and new definition of “Piggyback Contract,” transmitted to OAL 1-3-2007 and filed 2-16-2007 (Register 2007, No. 7).
62. New definitions of “Charter School Agreements,” “Charter School Facilities Program Rehabilitation” and “High Performance School Account,” amendment of definitions of “Charter School Facility Account,” “Charter School General Location,” “Form SAB 50-04,” “Form SAB 50-06,” “Form SAB 50-09,” “Low-income,” “Rural Area,” “Suburban Area,” “Unrestricted Charter School Fund” and “Urban Area” and amendment of Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
63. Editorial correction of History 61 (Register 2007, No. 28).
64. New definitions of “Approved Application for Career Technical Education Facilities Project Funding,” “Career Technical Education Facilities Project,” “Reconfigure,” “Service Region” and “Form SAB 50-10,” amendment of definitions of “Form SAB 50-04” and “Form 50-05” and repealer of definitions of “Comprehensive High School,” “Large New Construction Project” and “Large Modernization Project” filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
65. Change without regulatory effect amending definitions of “Form SAB 50-04” and “Form SAB 50-05” filed 7-17-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 29).
66. Amendment of definitions of “Approved Application(s),” “Form SAB 50-03,” “Form SAB 50-04” and “Form SAB 50-05” filed 7-18-2007; operative 7-18-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 29).
67. Amendment of definitions of “Form SAB 50-04” and “Form SAB 50-06,” new definitions of “Form SAB 50-11,” “Overcrowding Relief Grant,” “Overcrowding Relief Grant Eligibility Determination” and “Overcrowding Relief Grant Pupil Eligibility” and amendment of definition of “School District” and of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
68. New definition of “High Performance Rating Criteria” filed 10-1-2007; operative 10-1-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
69. Amendment of definition of “Charter School Facility Account” and new definition of “Conversion Increase Fund” filed 10-3-2007; operative 10-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
70. Editorial correction of History 64 (Register 2007, No. 52).
71. Amendment of definition of “Form SAB 50-01” filed 1-7-2008; operative 2-6-2008 (Register 2008, No. 2).
72. Certificate of Compliance as to 7-13-2007 order, including further amendment of definitions of “Form SAB 50-04,” “Form SAB 50-05” and “Form SAB 50-10,” transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
73. Amendment of definitions of “Approved Application(s)” and “Form SAB 50-04,” new definition of “Most Vulnerable Category 2 Buildings” and amendment of Note filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
74. Amendment of definition of “Non-Profit Organization” filed 8-14-2008; operative 8-14-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 33).
75. Amendment of definitions of “Committee,” “County Fund,” “Department,” “Form SAB 50-01,” “Fund,” “Non-Severely Disabled Individual with Exceptional Needs,” “SFP New Construction Account” and “Small School District” and new definitions of “Linear Regression,” “Proposition 1D” and “Zone Improvement Project (ZIP) Code” filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
76. Amendment of definitions of “Approved Application(s),” “Form SAB 50-03” and “Form SAB 50-05” and new definition of “Resolution of Necessity” filed 1-21-2009; operative 1-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 4).
77. New definition of “Inactive Apportionment” filed 4-9-2009 as an emergency; operative 4-9-2009 (Register 2009, No. 15). A Certificate of Compliance must be transmitted to OAL by 10-6-2009 or emergency language will be repealed by operation of law on the following day.
78. New definitions of “Inactive Preliminary Apportionment” and “Inactive Preliminary Charter School Apportionment” filed 4-22-2009 as an emergency; operative 4-22-2009 (Register 2009, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-19-2009 or emergency language will be repealed by operation of law on the following day.
79. Certificate of Compliance as to 4-9-2009 order transmitted to OAL 9-24-2009 and filed 11-3-2009 (Register 2009, No. 45).
80. Certificate of Compliance as to 4-22-2009 order transmitted to OAL 9-29-2009 and filed 11-9-2009 (Register 2009, No. 46).
81. Amendment of definitions of “Approved Application(s),” “Form SAB 50-02,” “Form SAB 50-03” and “Form SAB 50-04” filed 11-24-2009; operative 11-24-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 48).
82. Amendment of definition of “Most Vulnerable Category 2 Buildings” filed 11-24-2009 as an emergency; operative 11-24-2009 (Register 2009, No. 48). A Certificate of Compliance must be transmitted to OAL by 5-24-2010 or emergency language will be repealed by operation of law on the following day.
83. Amendment of definitions of “Form SAB 50-01” and “Form SAB 50-02” filed 2-24-2010; operative 2-24-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 9).
84. Certificate of Compliance as to 11-24-2009 order transmitted to OAL 4-1-2010 and filed 5-6-2010 (Register 2010, No. 19).
85. Amendment of definition of “Unfunded List” and new definition of “Unfunded List (Lack of AB 55 Loans)” filed 10-4-2010 as an emergency; operative 10-4-2010 (Register 2010, No. 41). A Certificate of Compliance must be transmitted to OAL by 4-4-2011 or emergency language will be repealed by operation of law on the following day.
86. Amendment of definition of “Form SAB 50-04”filed 11-22-2010; operative 11-22-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 48).
87. Change without regulatory effect amending definitions of “Form SAB 50-02,” “Form SAB 50-03,” “Form SAB 50-04,” “Form SAB 50-06,” “Form SAB 50-07,” “Form SAB 50-08,” “Form SAB 50-09” and “Form SAB 50-10” filed 1-13-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 2).
88. Amendment of definition of “Form SAB 50-04” and new definitions of “High Performance Base Incentive Grant” and “Project Information Worksheet” filed 1-25-2011; operative 1-25-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).
89. Amendment of definition of “Unfunded List” and new definition of “Unfunded List (Lack of AB 55 Loans)” refiled 4-5-2011 as an emergency; operative 4-5-2011 (Register 2011, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-5-2011 or emergency language will be repealed by operation of law on the following day.
90. Certificate of Compliance as to 4-5-2011 order transmitted to OAL 6-10-2011 and filed 7-6-2011 (Register 2011, No. 27).
91. Amendment of definition of “Most Vulnerable Category 2 Buildings” filed 9-8-2011 as an emergency; operative 9-8-2011 (Register 2011, No. 36). A Certificate of Compliance must be transmitted to OAL by 3-6-2012 or emergency language will be repealed by operation of law on the following day.
92. Amendment of definition of “Most Vulnerable Category 2 Buildings” refiled 3-13-2012 as an emergency; operative 3-13-2012 (Register 2012, No. 11). A Certificate of Compliance must be transmitted to OAL by 6-11-2012 or emergency language will be repealed by operation of law on the following day.
93. Amendment of definitions of “Form SAB 50-04,” “Form SAB 50-05,” “Form SAB 50-07,” “Form SAB 50-08,” “Form SAB 50-09,” “Form SAB 50-10” and “Labor Compliance Program (LCP),” new definition of “Total Projected Bond Apportionment” and amendment of Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
94. Certificate of Compliance as to 3-13-2012 order transmitted to OAL 4-5-2012 and filed 5-10-2012 (Register 2012, No. 19).
95. Amendment of definition of “Form SAB 50-04” filed 5-15-2012; operative 5-15-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 20).
96. Amendment of definition of “Form SAB 50-04,” repealer of definitions of “Reconfiguration,” “Small High School” and “Small High School Program” and amendment of Note filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
Article 2. Program Transition
§1859.10. Lease-Purchase Program and School Facility Program.
Note • History
Projects approved under the LPP are subject to the regulations contained in Title 2, California Code of Regulations, commencing with Section 1865.1, and the SFP transition rules contained in this Article 2.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New article 2 (sections 1859.10-1859.16) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 2 (sections 1859.10-1859.16) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New article 2 (sections 1859.10-1859.16) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
§1859.11. Previously Approved Joint Use Projects.
Note • History
Joint Use projects that were approved by the Board prior to November 4, 1998, shall be eligible for funding pursuant to the LPP for all remaining approved but unfunded project costs.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
§1859.12. Priority One New Construction.
Note • History
Priority One new construction projects will be funded under the provisions of the LPP if the project received either: 1) Phase C approval by the Board prior to November 4, 1998; or 2) either Phase P or Phase P and Phase S, approvals, and DSA plan approval prior to November 4, 1998.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
§1859.13. Priority Two New Construction.
Note • History
Districts with Priority Two new construction projects which received either: 1) Phase C approval by the Board prior to November 4, 1998; or 2) either a Phase P or a Phase P and Phase S approval with DSA plan approval prior to November 4, 1998, must declare to the Board that it intends to convert the entire project to Priority One status by January 31, 1999 to receive funding for all remaining costs in accordance with the LPP provisions.
If the district has not declared its intention to convert the entire project to Priority One status by January 31, 1999, the project shall be deemed withdrawn under the provisions of the LPP and the district must submit a new application under the provisions of the SFP, pursuant to Section 1859.20. If the project is eligible for further funding under the SFP, the New Construction Adjusted Grant provided under the SFP will be reduced by any previous apportionments, with the exception of apportionments made for site acquisition, made under the LPP.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of second paragraph filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
§1859.14. Priority One Modernization.
Note • History
Priority One modernization projects that have either Phase C approval by the Board prior to November 4, 1998, or have Phase P approval by the Board and DSA plan approval prior to November 4, 1998, may proceed under either (a) or (b). Districts may either:
(a) Receive funding under the provisions of the LPP; or,
(b) By January 31, 1999, withdraw the Priority One modernization LPP project and submit a new application for funding under the provisions of the SFP, pursuant to Section 1859.20. The project approval date under the LPP will be retained for the project approval date under the SFP. If the project is eligible for further funding under the SFP, the Modernization Adjusted Grant provided under the SFP will be reduced by any previous apportionments made under the LPP.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of subsection (b) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
§1859.15. Priority Two Modernization.
Note • History
Districts with Priority Two modernization projects that have either Phase C approval by the Board prior to November 4, 1998, or have Phase P approval by the Board and DSA plan approval prior to November 4, 1998, must declare to the Board that it intends to convert the entire project to Priority One status by January 31, 1999 to receive funding for all remaining costs in accordance with the LPP provisions.
If the district has not declared its intention to convert the entire project to Priority One status by January 31, 1999, the project shall be deemed withdrawn under the provisions of the LPP and the district must submit a new application under the provisions of the SFP pursuant to Section 1859.20. The project approval date under the LPP will be retained for the project approval date under the SFP. If the project is eligible for further funding under the SFP, the Modernization Adjusted Grant provided under the SFP will be reduced by any previous apportionments made under the LPP.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
§1859.15.1. Application Deadline.
Note • History
Districts with LPP or SFP conversions from LPP new construction and modernization projects that meet the provisions of Sections 1859.12, 1859.13, 1859.14 or 1859.15 shall receive first funding priority upon submittal of a complete eligibility and funding application through July 5, 1999. After this date, LPP or SFP conversions from LPP new construction and modernization projects shall be funded in the order of the date of receipt of a complete application which complies with all pertinent LPP and SFP statutes and regulations.
NOTE
Authority cited: Section 17070.35, Education Code; and Section 15503, Government Code. Reference: Sections 17009.3 and 17009.5, Education Code.
HISTORY
1. New section filed 6-14-99 as an emergency; operative 6-14-99 (Register 99, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-12-99 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-14-99 order transmitted to OAL 8-31-99 and filed 10-13-99 (Register 99, No. 42).
§1859.16. Projects Not Eligible for Further LPP Funding.
Note • History
A district with projects not meeting the requirements of Sections 1859.11, 1859.12, 1859.13, 1859.14 and 1859.15 must submit a new application under the provisions of the SFP pursuant to Section 1859.20 in order to receive funding. If the project is eligible for further funding under the SFP, the:
(a) New Construction Adjusted Grant provided under the SFP will be reduced by any previous apportionments, with the exception of apportionments made for site acquisition, made under the LPP.
(b) Modernization Adjusted Grant provided under the SFP will be reduced by any previous apportionments made under the LPP.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17009.5, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph and new subsections (a) and (b) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
Article 3. SFP Application Procedure
§1859.20. SFP Application for Determination of Eligibility.
Note • History
A School District seeking a determination of eligibility for a SFP project shall complete and file the following documents with the OPSC:
(a) For new construction, either districtwide, HSAA, or Super HSAA, or for modernization projects, the Form SAB 50-03.
(b) For new construction projects, either districtwide, HSAA or Super HSAA, the Form SAB 50-01.
(c) For new construction projects, the Form SAB 50-02.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17070.50, 17070.80, 17071.10, 17071.25, 17073.10 and 17073.25, Education Code.
HISTORY
1. New article 3 (sections 1859.20-1859.21) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. Change without regulatory effect amending subsection (a) filed 12-23-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 52).
3. New article 3 (sections 1859.20-1859.21) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
4. New article 3 (sections 1859.20-1859.21) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Amendment of subsections (a)-(c) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of subsections (a) and (c) filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
9. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
11. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
12. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
13. Amendment of first paragraph and amendment of Note filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
14. Amendment of first paragraph and amendment of Note refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
15. Amendment of first paragraph and amendment of Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
17. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.21. SFP Application for Funding.
Note • History
A School District seeking funding for a modernization or new construction project shall complete and file with the OPSC, the Form SAB 50-04.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17070.63, 17072.30, 17073.25 and 17074.15, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
8. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
10. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
12. Amendment filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
13. Amendment of form SAB 50-04 (incorporated by reference) and amendment of section filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
14. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
17. Amendment of section and Note filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
18. Amendment of section and Note refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
19. Amendment of section and Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
20. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
21. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.22. SFP Application for Funding on Leased Land.
Note • History
In addition to meeting the requirements of Sections 1859.20 and 1859.21 or 1859.120, a district may receive SFP funds for facilities that are or will be located on real property leased by the district provided all the following are met:
(a) The real property is leased from a governmental agency.
(b) The term of the lease for the land for which the district is requesting SFP funding at the time the Approved Application is accepted is one of the following:
(1) At least 25 years if the lease is for real property owned by the federal government.
(2) At least 40 years if the lease is for real property owned by a governmental agency other than the federal government.
(3) At least 30 years if the lease is for real property owned by a governmental agency other than the federal government and the district has certified to all the following:
(A) There are no other educationally adequate sites for new construction available under a 40-year lease.
(B) The cost per year to lease the real property for no less than 30 years is no greater than the cost per year to lease the real property for 40 years.
(4) At least 30 years if the lease is for real property owned by a governmental agency other than the federal government and the district has provided other evidence satisfactory to the Board that a shorter lease term is necessary.
A district seeking modernization funding on land or facilities leased by the district pursuant to this Section is subject to the adjustment in the district's baseline eligibility pursuant to Section 1859.51(c).
A district seeking new construction funding on land or facilities leased by the district pursuant to this Section is subject to the adjustment in the district's baseline eligibility pursuant to Section 1859.51(a) and (i).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17070.71, Education Code.
HISTORY
1. New section filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
2. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.23. SFP Application for Funding on District-Owned Land.
Note • History
Prior to the district requesting SFP funds for facilities, the district must hold title to the real property where the facilities will be located, unless the project meets the requirements of Regulation Section 1859.22.
NOTE
Authority cited: Sections 17070.35 and 17070.70, Education Code. Reference: Section 17070.70, Education Code.
HISTORY
1. New section filed 5-24-2005 as an emergency; operative 5-24-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-21-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-24-2005 order transmitted to OAL 9-16-2005 and filed 10-24-2005 (Register 2005, No. 43).
Article 4. Determining Existing School Building Capacity
§1859.30. Calculations to Determine Existing School Building Capacity.
Note • History
For new construction projects the district shall complete, on a one-time basis, the classroom inventory pursuant to Sections 1859.31 and 1859.32 and report that inventory on the Form SAB 50-02. Completion of the calculations made on this Form shall represent the district's new construction Existing School Building Capacity.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17071.10, Education Code.
HISTORY
1. New article 4 (sections 1859.30-1859.35) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 4 (sections 1859.30-1859.35) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New article 4 (sections 1859.30-1859.35) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
8. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
10. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
11. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.31. Gross Classroom Inventory.
Note • History
The district shall prepare a gross inventory consisting of all classrooms owned or leased in the district, the HSAA or Super HSAA as appropriate. For the purpose of this gross classroom inventory, the following shall be considered a classroom. Any classroom:
(a) for which a contract was signed for the construction or acquisition of facilities or for which construction work has commenced at the time the SFP application for determination of eligibility is submitted to the OPSC;
(b) constructed with funds from the LPP;
(c) used for Special Day Class or Resource Specialist Programs;
(d) that are standard classrooms, shops, science laboratories, computer laboratories, or computer classrooms;
(e) acquired or created for Class Size Reduction purposes;
(f) used for preschool programs;
(g) converted to any non-classroom purpose including use by others;
(h) with Housing and Community Development or Department of Housing insignia;
(i) acquired for interim housing for a modernization project;
(j) leased or purchased under the State Relocatable Program pursuant to Chapter 14 of Part 10 of the Education Code;
(k) that have a waiver for continued use by the Board for Field Act exemptions;
(l) used for Community School purposes;
(m) included in a closed school.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.25 and 17071.30, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.32. Adjustments to Gross Classroom Inventory.
Note • History
After the gross classroom inventory has been prepared pursuant to Section 1859.31, it will be reduced by the following. Any classrooms:
(a) abandoned and approved for replacement as a hardship under the provisions of the LPP;
(b) at a school operated on a year-round schedule that has been used continuously for at least 50 percent of the time for preschool programs in the five years preceding the receipt of the application for determination of eligibility;
(c) included in any new construction LPP project that has not received a Phase C apportionment;
(d) that is portable and owned or leased by the district for 20 years or more that was approved for abandonment in a LPP project and the plans for the project had DSA approval prior to November 4, 1998;
(e) that is a trailer and is transported/towed on its own wheels and axles;
(f) used exclusively for regional occupational centers, regional occupational programs, child care, preschool and/or Adult Education Programs, and was built or acquired with funds specifically available for those purposes;
(g) of less than 700 interior square feet;
(h) originally built for instructional use, but converted to one of the following:
(1) used continuously for school administration for at least five years prior to the submittal of the application to the OPSC for determination of eligibility.
(2) used continuously for central or main district administration for at least five years prior to the submittal of the application to the OPSC for determination of eligibility.
(3) used for school library purposes during the previous school year.
(i) owned but leased to another district.
(j) any portable classroom excluded by Education Code Section 17071.30.
(k) that is permanent space and leased for less than five years.
(l) any permanent classroom contained in a project for which the construction contract was signed between August 27, 1998 and November 18, 1998 and for which the district did not have full project eligibility under the LPP.
(m) that was acquired with joint-use funds specifically available for that purpose.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17052, 17071.25, 17071.30 and 17077.40, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. New subsection (l) filed 1-10-2000; operative 1-7-2000 pursuant to Government Code section 11349.3(a) (Register 2000, No. 2).
6. Amendment of section heading filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. New subsection (m) and amendment of Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.33. Classroom Identification and Determination of Existing School Building Capacity.
Note • History
The district shall identify by grade level, based on its most typical use for grades K-6, 7-8 or 9-12, or non-severe or severe Special Day Class education, each classroom included in the classroom inventory determined pursuant to Section 1859.31 and not excluded pursuant to Section 1859.32. These classrooms shall be reported on the Form SAB 50-02.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.25, 17071.30, 17071.33, 17071.35 and 17071.40, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
8. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
10. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
11. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
13. Amendment filed 1-31-2005; operative 1-31-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
§1859.35. Calculation of Existing School Building Capacity.
Note • History
The district's existing school building capacity shall be determined by totaling the amounts calculated in (a) and (b).
(a) With the exception of classrooms for Special Day Class pupils for which the multiplier is indicated on the Form SAB 50-02, multiply the number of available classrooms in the district, the HSAA or the Super HSAA by the following: 25 for each K-6 classroom and 27 for each 7-12 classroom. Available classrooms shall be determined by the reduction of classrooms identified in Section 1859.32 from the gross classroom inventory prepared pursuant to Section 1859.31 and the inclusion of portable classrooms as provided pursuant to Education Code Section 17071.30 (a) or (b).
(b) Multiply the K-6 pupil capacity of the elementary district, the unified district, the HSAA or the Super HSAA in a unified district as determined by the results of the calculations in (a) at the time of the initial determination of eligibility by six percent. When the elementary or unified district meets the Substantial Enrollment Requirement (SER) or qualifies for a waiver of the SER authorized by Education Code Sections 17017.6 and 17017.7 (c), the amount reported in (b) shall be zero. For High School Districts, the amount reported in (b) shall be zero.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.10, 17071.25, 17071.33, 17071.35, 17071.40 and 42270, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. Change without regulatory effect amending subsection (b) filed 3-10-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 11).
3. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Amendment of subsection (b) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of subsections (a)-(b) filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
9. Amendment filed 1-31-2005; operative 1-31-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
10. Amendment of first paragraph, repealer of subsection (c) and amendment of Note filed 11-24-2009; operative 11-24-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 48).
Article 5. Enrollment Projections
§1859.40. Enrollment Projections Used to Determine a District's Eligibility for New Construction Grants.
Note • History
The district shall provide an enrollment Certification and report enrollment data, on the Form SAB 50-01. The information provided on this Form shall serve as the basis for determining a district's eligibility for New Construction funding. The enrollment projections generated by completing the Form SAB 50-01 shall be known as Cohort Projections for purposes of this section.
(a) In addition, a School District that meets the eligibility criteria as specified in Education Code Section 17071.75(a)(1) and has applied for determination of eligibility pursuant to Section 1859.20, may submit a request for review of an Alternative Enrollment Projection to the OPSC and the DRU.
(b) The request must contain all of the following to substantiate the Alternative Enrollment Projection methodology:
(1) provide a description to the OPSC on how the district cannot adequately meet its housing needs at the impacted school sites, after considering all existing eligibility mechanisms available from the Cohort Projections;
(2) a written explanation of the methodology for calculating the enrollment projections;
(3) an electronic copy of the calculations used in determining the enrollment projections;
(4) a disclosure of any assumptions that support the calculations of enrollment projections;
(5) a minimum of three years or more, as determined necessary by the DRU, of historical data used in calculating the enrollment projections. The data must be verifiable, annually based, and geographically organized if the school district's boundaries have changed since the 2000 Census conducted by the United States Census Bureau.
(6) a list of source(s) used to collect all applicable data with contact information for each data source;
(7) a separate enrollment projection for each grade level;
(8) a district-wide enrollment projection for any district that reports district-wide enrollment on the Form SAB 50-01; or HSAA enrollment projection(s) for any district that reports enrollment for one or more HSAA(s) on the Form SAB 50-01; or Super HSAA enrollment projection(s) for any district that reports enrollment for one or more Super HSAA(s) on the Form SAB 50-01.
The eligibility generated by an Alternative Enrollment Projection shall be made available to eligible school districts pursuant to Education Code Section 17071.75(a)(1), that received the OPSC's and the DRU's approval of the Alternative Enrollment Projection, until the combined Apportionments for all funding requests utilizing eligibility available from the Alternative Enrollment Projection reaches $500 million or the Board has no funds to apportion from the Kindergarten-University Public Education Facilities Bond Act of 2004.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.75 and 17071.76, Education Code.
HISTORY
1. New article 5 (sections 1859.40-1859.43) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 5 (sections 1859.40-1859.43) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New article 5 (sections 1859.40-1859.43) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
8. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
11. Amendment of first paragraph and new subsections (a)-(b)(8) filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
§1859.41. High School Attendance Area Reporting.
Note • History
(a) A district may request that its eligibility determination for a New Construction Grant be based on a HSAA or Super HSAA basis if it meets all the following criteria:
(1) The district demonstrates that the eligibility determination for a New Construction Grant in at least one of the district's HSAA or Super HSAA results in negative eligibility for maximum funding at any grade level within the HSAA or Super HSAA.
(2) The New Construction Grant eligibility determination for the HSAA or Super HSAA is based on the existing boundaries of the HSAA or Super HSAA and the capacity and projected enrollment of the HSAA or Super HSAA as shown in the Form SAB 50-03.
(3) The eligibility determination for the HSAA or Super HSAA includes a currently operated high school that serves any combination of grades nine through twelve and that high school is not a continuation high school or a community school.
(b) An elementary school district may request that its eligibility determination for a new construction grant be based on this section if the district meets the criteria in subsection (a) and meets all of the conditions set forth in Education Code Section 17071.76(c).
(c) If a district meets the criteria in subsection (a) or (b) and requests its eligibility determination to be based on an HSAA or Super HSAA, eligibility for a future New Construction Grant, with the exception of community school pupil grants for a county superintendent, in that HSAA or Super HSAA must be filed on the same basis for a period of five years from the date the district received an apportionment that was justified by eligibility under that HSAA or Super HSAA. A county superintendent reporting on the basis of one or more HSAA basis may file applications by utilizing HSAA or Super HSAA boundaries of any district within the county. A county superintendent may report enrollment and file eligibility for a future New Construction Grant separately for special education pupils or for community school pupils.
If a district requests to re-file its eligibility determination from HSAA or Super HSAA to district-wide after the five year time period has elapsed, the existing school building capacity in the district will be determined based on classrooms available in the HSAA or Super HSAA at the time of initial request for eligibility determination and the current classrooms in the remaining portion of the district. Once the baseline eligibility has been determined for the district, it will be adjusted for classrooms constructed, funded or acquired in that HSAA or Super HSAA as provided by Section 1859.51.
Existing boundaries of a HSAA or Super HSAA may only be changed as a result of Section 1859.51(f).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17071.75 and 17071.76, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
6. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
8. Amendment of subsection (b) filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
9. New subsection (b), subsection relettering and amendment of newly designated subsection (c) filed 2-24-2010; operative 2-24-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 9).
§1859.41.1. Pupil Reporting Options for Projecting High School Attendance Area Enrollment.
Note • History
A district that qualifies to have its eligibility determination for a New Construction Grant made on a HSAA or Super HSAA basis pursuant to Section 1859.41 must report pupil enrollment for all HSAAs and/or Super HSAAs for which the district wishes to establish or update eligibility in the same manner as outlined in either (a) or (b) below:
(a) Report pupils attending schools in the HSAA or Super HSAA. When only a portion of the enrollment at a feeder school actually contributes to the HSAA or Super HSAA, the district shall report, as a percentage, only that portion of the enrollment.
(b) Report pupils residing in all HSAA or Super HSAA by completing the High School Attendance Area Residency Reporting Worksheet (New/06/08). A district that reports pupils by residence shall only report pupils residing within the boundaries of the HSAA or Super HSAA that were included in the CBEDS Report of the district for the same enrollment year.
Eligibility for a New Construction Grant, once established using (b) above, must be filed on the same basis until the district has submitted a final Form SAB 50-06 for all projects for which the district has received an apportionment justified by eligibility determined using the residency reporting option. This restriction would not prevent a HSAA or Super HSAA district from re-filing its eligibility on districtwide basis after the expiration of the five-year period per Section 1859.41.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17071.75 and 17071.76, Education Code.
HISTORY
1. New section filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
§1859.42. Projecting Non-Special Day Class Enrollment.
Note • History
The district enrollment, as reported on the Form SAB 50-01, shall be used to calculate the district's projected enrollment other than Special Day Class enrollment. The OPSC shall use either (a) or (b) to determine the district's projected enrollment:
(a) Fifth-year projected enrollment with the exception of Special Day Class enrollment shall be calculated pursuant to the cohort survival enrollment projection system which is described as follows:
(1) For all grades, using the current and three previous years of enrollment, determine the numerical change in enrollment between the current grade and the next lower grade in the previous year; determine the numerical change in enrollment between the previous year grade and the next lower grade in the second previous year; determine the numerical change in enrollment between the second previous year grade and the next lower grade in the third previous year. Determine the numerical change of kindergarten enrollment on the second previous and third previous year respectively. A district utilizing a fifth-year enrollment projection may calculate the kindergarten enrollment projection in accordance with Section 1859.42.1(b).
(2) Compute the annual change in enrollment as explained in (1) for each grade. The annual change shall then be weighted by multiplying the most recent annual change in enrollment by three, the next most recent annual change by two, and the earliest annual change by one, and dividing the sum of the annual weighted changes for each grade by six. The result shall be the average annual change.
(3) Calculate enrollment for each projection year by advancing the enrollment in each grade level through the five-year projection period, modifying the grade progression each year by the average annual change for each grade as computed in (2).
(b) Tenth-year projected enrollment with the exception of Special Day Class enrollment shall be calculated pursuant to the cohort survival enrollment projection system which is described as follows:
(1) For all grades, using the current and seven previous years of enrollment, determine the numerical change in enrollment between:
(A) The current grade and the next lower grade in the first previous year;
(B) The first previous year grade and the next lower grade in the second previous year;
(C) The second previous year grade and the next lower grade in the third previous year;
(D) The third previous year grade and the next lower grade in the fourth previous year;
(E) The fourth previous year grade and the next lower grade in the fifth previous year;
(F) The fifth previous year grade and the next lower grade in the sixth previous year;
(G) The sixth previous year grade and the next lower grade in the seventh previous year;
(H) Determine the numerical change of kindergarten enrollment using the previous year's kindergarten enrollment in place of the next lower grade in the previous year for each step in (A) through (G), respectively.
(2) Compute the annual change in enrollment as explained in (1) for each grade. The annual change shall then be weighted by multiplying the most recent annual change in enrollment by seven, the next most recent annual change by six, the next most recent annual change by five, the next most recent annual change by four, the next most recent annual change by three, the next most recent annual change by two, and the earliest annual change by one, and dividing the sum of the annual weighted changes for each grade by 28. The result shall be the average annual change.
(3) Calculate enrollment for each projection year by advancing the latest enrollment in each grade through the ten-year projection period, modifying the grade progression each year by the average annual change for each grade as computed in (2).
(c) The projected enrollment of a HSAA or Super HSAA shall be computed in the same manner as that set forth in this section, except that the enrollment used in such computation shall be that of the HSAA or Super HSAA rather than the entire district.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.75 and 17071.76, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph and subsections (b), (b)(1) and (b)(4) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of first paragraph and subsections (b), (b)(1) and (b)(4) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
8. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment of first paragraph and subsections (b), (b)(1), (b)(4) and (c) filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
11. Amendment of subsections (b) and (b)(4) filed 4-26-2005; operative 4-26-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 17).
12. Amendment filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
§1859.42.1. Supplements to the Fifth-Year Projection of Non-Special Day Class Enrollment.
Note • History
A district utilizing a fifth-year enrollment projection pursuant to Section 1859.42(a), except when reporting on a HSAA or Super HSAA basis pursuant to Section 1859.41.1(b), may supplement the enrollment projection with any of the following:
(a) The number of pupils as reported by the district on Form SAB 50-01, that will reside in dwelling units included in an approved and valid tentative or final subdivision map that exceed the number of pupils projected as a result of the cohort survival method for that tentative or final subdivision map. The augmentation shall be calculated as follows:
(1) Calculate a first year projection by advancing the current enrollment as reported on Form SAB 50-01 by one year for each grade level without applying the average annual change. For kindergarten, the first year projection shall be the same as the reported current enrollment.
(2) Subtract the current enrollment progressed one year for each grade level as determined in (1) from the one-year projection of enrollment for each grade level as determined in Section 1859.42(a). If the computation results in a negative number, the number shall be zero.
(3) Divide the current enrollment progressed one year for each grade level by the sum of the current enrollment progressed one year in all grade levels.
(4) Multiply the number of housing units in the approved and valid tentative or final subdivision maps by the pupil yield factor provided on the Form SAB 50-01.
(5) Multiply the number of pupils determined in (4) by the percentages determined in (3) for each grade.
(6) Subtract five times the value determined in (2) from the value determined in (5). If the computation results in a negative number, the number shall be zero.
(7) Add the value in (6) to the fifth year of projected enrollment as computed in Section 1859.42(a) to establish the augmented projection of enrollment.
(8) For districts with HSAA reporting, the augmentation as provided in this section may include only dwelling units located in the HSAA or Super HSAA.
(b) The number of children born as reported on the Form SAB 50-01 that will attend kindergarten within the district or HSAA in the enrollment year that begins during the fifth calendar year following the year in which the children were born, as determined through the birth-attendance rate. For the purposes of this section, children born in a given calendar year will be considered to all begin school in the same enrollment year. For the purposes of this section, the number of children born shall be referred to as births. The augmentation shall be calculated as follows:
(1) For current and each of the three previous years of enrollment reported on the Form SAB 50-01, determine the yearly birth-attendance rate by dividing the kindergarten enrollment by the number of births from the fifth preceding calendar year. Add the four yearly birth-attendance rates together and divide by four. The result will be the average birth-attendance rate.
(2) The number of births must be as reported by the Department of Health Services by place of residence. A district may utilize one of the following:
(A) Births as reported by County.
(B) Births as reported by Zip Code. The district must report the ZIP Codes the district or HSAA will serve for the current year and three previous years. If a district serves only a portion of a ZIP Code, and if less than 10 percent of the population of that ZIP Code resides within the portion served by the district, the district must report that ZIP Code, but may choose not to count the births within that ZIP Code for the purposes of this section.
(3) Calculate the kindergarten enrollment projection by multiplying the average birth-attendance rate by the number of births five years prior to the applicable projected enrollment year.
(4) For years in which the Department of Health Services has not yet reported the number of births, the number of births shall be determined by:
(A) Adding the three previous years' number of births and dividing by three.
(B) For years in which more than one year of births has not yet been reported, the first birth number shall be calculated per (A), and subsequent years shall be calculated using (A), with the previous averaged births acting as the previous year births.
(c) Modified weighting that best represents the enrollment trends of the district to supplant the weighting method used to calculate the average annual change in Section 1859.42(a)(2). The modified weighting shall be calculated as follows:
(1) A district choosing to utilize a modified weighting method must submit enrollment data from 14 years immediately prior to those included on the Form SAB 50-01. In total, 18 consecutive years of enrollment must be submitted. Any enrollment information submitted in addition to the Form SAB 50-01 must meet all the requirements as provided for Parts A and C on the Form SAB 50-01.
(2) Utilizing the 18 years of enrollment data, calculate three sets of ten historical enrollment projections. These projections cannot be supplemented with (a) and (b) above and are made as follows:
(A) For each of the ten enrollment projections determine the numerical change in enrollment utilizing the calculations in Section 1859.42(a)(1), starting with the 14th previous year as the current year, progressing one year for each of the projections with the tenth projection being made with the fifth previous year as the current year. When calculating the ten enrollment projections, the five most recent enrollment years shall not be used.
(B) Compute the average annual change for each of the ten projections utilizing the calculations per Section 1859.42(a)(2). Calculate enrollment for each projection year by advancing the enrollment in each grade level through the five-year projection period, modifying the grade progression each year by the average annual change for each grade as computed in this paragraph. This set of ten projections shall be the “1-2-3” projections.
(C) Repeat (A) above, but calculate the average annual change by multiplying the most recent annual change in the enrollment by one, the next most recent annual change by two, and the earliest annual change by three, and dividing the sum of the annual weight changes for each grade by six. Calculate enrollment for each projection year by advancing the enrollment in each grade level through the five-year projection period, modifying the grade progression each year by the average annual change for each grade as computed in this paragraph. This set of ten projections shall be the “3-2-1” projections.
(D) Repeat (A) above, but calculate the average annual change by dividing the sum of the annual changes for each grade by three. Calculate enrollment for each projection year by advancing the enrollment in each grade level through the five-year projection period, modifying the grade progression each year by the average annual change for each grade as computed in this paragraph. This set of ten projections shall be the “1-1-1” projections.
(3) For the ninth previous year through the current year as reported on the Form SAB 50-01 determine the actual enrollment for that year per grade category. For the purposes of this section, grade category shall mean kindergarten through sixth grade, seventh grade through eighth grade, and ninth grade through twelfth grade. Determine the actual enrollment for each grade category by totaling the enrollment from the grades within that grade category,
(4) For each of the ten enrollment projections within each of the three projection types, “1-2-3”, “3-2-1” and “1-1-1”, determine the percentage of accuracy. The percentage of accuracy shall be the projected total enrollment for a grade category minus the actual total enrollment for that grade category five years after divided by the actual grade category total five years later and multiplied by 100, rounded to two significant figures.
(5) Calculate the absolute value of the percentage of accuracy as determined in (4) above.
(6) Determine the (x,y) coordinate for each percentage of accuracy as determined in (5), with x being the distance from the y-axis and representing time, and y being the distance from the x-axis and representing the percentage of accuracy, as follows:
(A) The x coordinate shall be assigned based on 30 enrollment projections made in (2). Projections made with the fourteenth previous year as the current year shall have an x value of one, progressing one year for each of the projections with the tenth projection being made with the fifth previous year as the current year and having an x value of ten.
(B) The y coordinate shall be the distance from zero as calculated in (5), above.
(7) Using Microsoft Office Excel 2003 or a similar tool, plot each point from (6) onto graphs. Districts must only generate graphs for the grade categories that are reported on the Form SAB 50-01. The points shall be graphed as follows:
(A) Graph one shall be all kindergarten through sixth grade comparisons for “1-2-3” projections.
(B) Graph two shall be all seventh grade through eighth grade comparisons for “1-2-3” projections.
(C) Graph three shall be all ninth grade through twelfth grade comparisons for “1-2-3” projections.
(D) Graph four shall be all kindergarten through sixth grade comparisons for “3-2-1” projections.
(E) Graph five shall be all seventh grade through eighth grade comparisons for “3-2-1” projections.
(F) Graph six shall be all ninth grade through twelfth grade comparisons for “3-2-1” projections.
(G) Graph seven shall be all kindergarten through sixth grade comparisons for “1-1-1” projections.
(H) Graph eight shall be all seventh grade through eighth grade comparisons for “1-1-1” projections.
(I) Graph nine shall be all ninth grade through twelfth grade comparisons for “1-1-1” projections.
(8) For each of the graphs in (7), using Microsoft Office Excel 2003 or a similar tool, determine the Linear Regression equation.
(9) For each projection type, “1-2-3”, “3-2-1” and “1-1-1”, determine the average Linear Regression equation:
(A) Each equation shall be in the format y= (m * x) + b, where m is the slope and b is the y-axis intercept.
(B) Determine the average m for each projection type by adding the m's together and dividing by the number of m's. The number should be one to three and equal to the number of grade categories a district reports on the Form SAB 50-01.
(C) Determine the average b for each projection type by adding the b's together and dividing by the number of b's. The number should be one to three and equal to the number of grade categories a district reports on the Form SAB 50-01.
(D) Generate the average Linear Regression equation as show in (A) above, for each projection type by creating three new equations using the average m and b from (B) and (C) above.
(10) Determine the modified weighting that best represents the trends of the district by:
(A) Calculate the three average Linear Regression equations by replacing the x variable with 15.
(B) Determine the absolute value of y for the three results
(C) The projection type with the result closest to zero, or the smallest number, shall be the modified weighting method that best represents the trends of the district. For the purposes of (c), this shall be the weighting method used when determining the district's projection in Section 1859.42(a)(2).
(11) Additionally, a district may propose a fourth weighting method for consideration. The alternative weights shall be only positive whole numbers. The district must follow steps (2) through (10) in this Section using the proposed additional alternative weighting method and determine that the result of (10) is closer to zero than any of the three projection types, “1-2-3”, “3-2-1” and “1-1-1”.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.75 and 17071.76, Education Code.
HISTORY
1. New section filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
§1859.43. Projecting Special Day Class Enrollment.
Note • History
The district enrollment, as reported on the Form SAB 50-01, shall be used to calculate the district's projected Special Day Class enrollment. The OPSC shall use the following methodology to determine the district's projected enrollment:
(a) For the purposes of this section the final year shall refer to the fifth or tenth-year as determined in projection method used for projecting non-Special Day Class enrollment in Section 1859.42. The projected enrollment of Special Day Class students served by a school district shall be computed by multiplying the total reported enrollment of Special Day Class students by the final-year projection of the same grade level of students as determined by Section 1859.42. The resulting value shall be divided by the current enrollment of the same students as provided on Form SAB 50-01.
(b) The projected enrollment of Special Day Class students served by a county office of education shall be computed using either (1) or (2). A county office of education that utilized a fifth-year projection when projecting non-Special Day Class enrollment per Section 1859.42 must utilize a fifth-year projection for projecting its Special Day Class enrollment. A county office of education that utilized a tenth-year projection when projecting its non-Special Day Class enrollment per Section 1859.42 must utilize a tenth-year projection for its Special Day Class enrollment.
(1) Fifth-year projection enrollment shall be calculated as follows:
(A) Determine the percentage change in total Special Day Class enrollment from the previous year to the current year; determine the percentage change in total Special Day Class enrollment in the second previous year to the previous year; determine the percentage change in total Special Day Class enrollment in the third previous year to the second previous year. To determine the average annual change, add the three percentage changes and divide by three.
(B) The current Special Day Class enrollment provided by the county office of education as reported on Form SAB 50-01, shall be adjusted by the average annual percentage change in (A) for each year until the five-year projected enrollment has been determined.
(2) Tenth-year enrollment projection shall be calculated as follows:
(A) Calculate the average annual change as follows:
1. Determine the percentage change in total Special Day Class enrollment from the previous year to the current year;
2. Determine the percentage change in total Special Day Class enrollment in the second previous year to the previous year;
3. Determine the percentage change in total Special Day Class enrollment in the third previous year to the second previous year;
4. Determine the percentage change in total Special Day Class enrollment in the fourth previous year to the third previous year;
5. Determine the percentage change in total Special Day Class enrollment in the fifth previous year to the fourth previous year;
6. Determine the percentage change in total Special Day Class enrollment in the sixth previous year to the fifth previous year;
7. Determine the percentage change in total Special Day Class enrollment in the seventh previous year to the sixth previous year.
8. To determine the average annual change, add the seven percentage changes and divide by seven.
(B) The current Special Day Class enrollment provided by the county office of education as reported on Form SAB 50-01, shall be adjusted by the average annual percentage change in 8. above, for each year until the tenth-year projected enrollment has been determined.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.75 and 17071.76, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
8. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment of first paragraph and subsections (a) and (b)(2) filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
11. Amendment of subsection (b)(1) filed 1-7-2008; operative 2-6-2008 (Register 2008, No. 2).
12. Amendment filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
Article 6. New Construction Eligibility Determination
§1859.50. Calculations to Determine New Construction Baseline Eligibility.
Note • History
The district shall calculate its eligibility determination by completion of the Form SAB 50-03. Eligibility determination for New Construction Grant(s) may be requested on either a district-wide basis, a HSAA or Super HSAA basis.
If a district requests to have its eligibility determination made on a district-wide basis, eligibility for future grants in the district must be filed on the same basis for a period of five years from the date the district received an apportionment that was justified by eligibility determined on a district-wide basis.
If a district requests to re-file its eligibility determination from district-wide to HSAA to Super HSAA after the five year time period has elapsed, the existing school building capacity in the HSAA or Super HSAA will be determined based on the classrooms available in the HSAA or Super HSAA at the time of the initial district-wide request for eligibility determination. Once the baseline eligibility has been determined for the HSAA or Super HSAA, it will be adjusted for classrooms constructed, funded or acquired in that HSAA or Super HSAA as provided by Section 1859.51.
If the district requests to have its eligibility determination made on a HSAA or Super HSAA, it must meet the criteria of Section 1859.41.
The calculated eligibility on the Form SAB 50-03, is the initial eligibility of the district, the HSAA or Super HSAA and shall be referenced as the baseline eligibility for future SFP funding. The baseline eligibility is the basis for filing Form SAB 50-04, for a new construction SFP grant.
If a special education program and the title to the related facilities is transferred between a school district and county office of education after the baseline eligibility was established by the Board, the following shall be required if the title transfer took place after January 1, 2007, or if requested by the school district and county office of education due to a title transfer that took place prior to January 1, 2007:
(a) The sending School District's existing school building capacity shall be adjusted pursuant to Section 1859.51(r).
(b) The receiving School District's existing school building capacity shall be adjusted pursuant to Section 1859.51(i).
(c) The sending School District's enrollment projection shall be adjusted pursuant to Education Code Section 17071.75(f).
(d) The receiving School District shall remit to the State a proportionate share of any financial hardship assistance provided for the project as described in Section 1859.106.
For purposes of this paragraph, the transfer of title to facilities shall also include:
(1) A pre-existing lease, for the duration of more than five years whether in a single lease or cumulative total of several leases, of the receiving School District's facilities by the sending School District that is terminated after transfer of the special education program takes place.
(2) A lease, for the duration of more than five years whether in a single lease or cumulative total of several leases, of the sending School District's facilities by the receiving School District.
There shall not be any further adjustments made as result of any subsequent transfers of that program for a period of five years from the date of the initial transfer or before all applicable funds have been remitted to the State as a result of the initial transfer. Both School Districts shall submit a Form SAB 50-01 for enrollment changes immediately upon transfer of title.
A district affected by a reorganization election on or after November 4, 1998 may file an application for a determination of new construction baseline eligibility after a successful reorganization election.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.10, 17071.25, 17071.30, 17071.33, 17071.40, 17071.75 and 17071.76, Education Code.
HISTORY
1. New article 6 (section 1859.50-1859.51) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. Change without regulatory effect amending section filed 12-23-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 52).
3. New article 6 (sections 1859.50-1859.51) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
4. Amendment of second paragraph filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
5. New article 6 (sections 1859.50-1859.51) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
7. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
8. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
9. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
11. Amendment of second paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 1-2-2001 order, including amendment of first paragraph, transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
13. Amendment of second paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
14. Amendment of second paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
15. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
16. Amendment of penultimate paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
17. Amendment of penultimate paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
18. Amendment of first and fourth paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
19. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
20. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
21. Amendment filed 1-7-2008; operative 2-6-2008 (Register 2008, No. 2).
§1859.51. Adjustments to the New Construction Baseline Eligibility.
Note • History
The baseline eligibility for new construction determined on the Form SAB 50-03, will be adjusted as follows:
(a) Reduced by the number of pupils provided grants in a new construction SFP project and by the number of pupils that received a Preliminary Apportionment pursuant to Section 1859.140 or a Preliminary Charter School Apportionment pursuant to Section 1859.162.2.
(b) Reduced by the number of pupils housed, based on the loading standards pursuant to Education Code Section 17071.25(a)(2)(A), in a new construction LPP project funded under the provisions of the LPP pursuant to Sections 1859.12 or 1859.13.
(c) Reduced by the number of pupils housed in additional classrooms constructed or purchased based on the loading standards, pursuant to Education Code Section 17071.25(a)(2)(A), in a modernization SFP project.
(d) Adjusted as a result of the audit findings made pursuant to Sections 1859.90 and 1859.105.
(e) Increased/decreased by changes in projected enrollment in subsequent enrollment reporting years for all districts except decreases as provided in (j) below:
(1) Utilizing a fifth-year projection.
(2) Utilizing a tenth-year projection.
(f) Adjusted as a result of errors or omissions by the district or by the OPSC.
(g) Adjusted as a result of amendments to these Regulations that effect the eligibility.
(h) Increased by the number of pupils eligible for grants pursuant to Section 1859.82(a).
(i) Reduced by the number of pupils housed, based on loading standards pursuant to Education Code Section 17071.25(a)(2)(A), in any Classroom Provided after the baseline eligibility was determined by the Board with the exception of those pupils housed or to be housed in a classroom:
(1) That is a trailer and transportable/towed on its own wheels and axles.
(2) Of less than 700 interior square feet.
(3) That is a portable classroom, leased pursuant to Chapter 14 (commencing with Section 17085) of the Education Code.
(4) That is a portable classroom leased for a period of less than five years, whether in a single lease or cumulative total of several leases.
(5) That is a portable classroom that needs to be leased beyond five years to provide interim housing in a modernization or new construction project provided the cumulative lease term does not exceed a specified time period as determined by the SAB not to exceed three years on each qualifying project. For this purpose, a project means all work contained in a single set of construction plans.
(6) Where the contract for the lease, lease-purchase, purchase, or construction of the classroom was made prior to January 1, 2000.
(7) That is included in a SFP project where the district has funded a portion of the project beyond its required district contribution and the pupil capacity of the classroom does not exceed 150 percent of the number of pupils receiving a new construction grant (rounded up) for the SFP project.
(8) That was acquired with joint-use funds specifically available for that purpose.
(9) That was acquired with career technical education funds specifically available pursuant to Education Code Section 17078.72.
(10) That was built or acquired exclusively for regional occupational centers, regional occupational programs, child care, preschool and/or Adult Education Programs, and with funds specifically available for those purposes.
(11) That replaces a classroom, previously included in the determination of the district's new construction eligibility pursuant to Education Code Section 17071.75, in a project funded by the district without participation from the State and the district permanently removes the replaced facility from classroom use immediately after the replacement classroom is occupied.
(12) That was constructed with Overcrowding Relief Grant funds specifically available for that purpose.
(j) For Small School Districts, decreased:
(1) By any reduction in projected enrollment that follows a three-year period after the district's eligibility was approved by the Board.
(k) Adjusted for any change in classroom inventory as a result of a reorganization election.
(l) For classroom loading standards adopted by the Board for non-severely disabled individuals with exceptional needs and severely disabled individuals with exceptional needs.
(m) As directed by the Board due to a finding of a Material Inaccuracy pursuant to Regulation Section 1859.104.1.
(n) Increased by the number of pupils that received a Preliminary Apportionment that was rescinded pursuant to Section 1859.148 or a Preliminary Charter School Apportionment that was rescinded pursuant to Section 1859.166.
(o) Adjusted for operational grant changes as determined/provided by the California Department of Education.
(p) For a HSAA district with Preliminary Apportionments within the 2002 or 2004 Critically Overcrowded School Facilities Account as follows:
(1) Decreased by the number of pupils that received a Preliminary Apportionment, distributed proportionately among HSAAs in which the pupils used to justify the conversion of the Preliminary Apportionment were enrolled but did not reside.
(2) In the subsequent enrollment reporting year after verification of Occupancy of a project, increased by the number of pupils equal to the reduction due to Section 1859.51(p)(1), for the project which was occupied.
(3) Increased by the number of pupils equal to the reduction due to Section 1859.51(p)(1), for a Preliminary Apportionment rescinded pursuant to the provisions of Section 1859.148.
(q) Adjusted by the difference between the Alternative Enrollment Projection for the current enrollment reporting year and the projected enrollment determined pursuant to Section 1859.42 for the current enrollment reporting year, or by the eligibility remaining from this calculation that can no longer be utilized if the funds made available pursuant to Education Code Section 17071.75(a)(1)(A) have been exhausted.
(r) Adjusted pursuant to Education Code Section 17071.75(b)(2) by the number of pupils housed, based on the loading standards pursuant to Education Code Section 17071.25(a)(2)(A), in any classroom(s) where title was relinquished to the School District receiving the transferred classroom(s).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17052, 17070.51, 17071.25, 17071.75, 17071.76, 17072.20, 17077.40, 17078.72, 17079.20, 42268 and 42270, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. Change without regulatory effect amending first paragraph filed 12-23-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 52).
3. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section and Note, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Amendment of section and Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of first paragraph, subsections (e) and (i)(5) and new subsection (l) filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
9. Amendment of first paragraph and subsections (i)(5) and (i)(6) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
11. Amendment of first paragraph filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
12. New subsection (m) and amendment of Note filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
13. Amendment of first paragraph and subsection (a), new subsections (i)(7) and (n) and amendment of Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
14. Amendment of subsections (a), (j) and (n) filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
15. Amendment of subsections (a), (j) and (n) refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
16. Amendment of subsections (a), (j) and (n) refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
17. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
18. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
19. Amendment of subsection (i), repealer of subsection (i)(5) and subsection renumbering filed 7-22-2004 as an emergency; operative 7-22-2004 (Register 2004, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-19-2004 or emergency language will be repealed by operation of law on the following day.
20. Amendment of subsections (j)(1)-(2) filed 11-2-2004; operative 11-2-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 45).
21. New subsection (o) filed 12-6-2004; operative 12-6-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 50).
22. Certificate of Compliance as to 7-22-2004 order transmitted to OAL 11-12-2004 and filed 12-16-2004 (Register 2004, No. 51).
23. New subsections (p)-(p)(3) filed 10-27-2005; operative 10-27-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 43).
24. New subsection (q) filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
25. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
26. Amendment of subsection (a) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
27. New subsection (i)(7) and amendment of Note filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
28. Repealer of subsection (i)(3), new subsections (i)(3)-(5) and (i)(10)-(11), subsection renumbering and amendment of Note filed 7-18-2007; operative 7-18-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 29).
29. New subsection (i)(12) and amendment of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
30. Editorial correction of History 27 (Register 2007, No. 52).
31. Amendment of subsection (p) and new subsection (r) filed 1-7-2008; operative 2-6-2008 (Register 2008, No. 2).
32. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
33. Amendment of subsection (e) and new subsections (e)(1)-(2) filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
34. Repealer of subsection (j)(2) and amendment of Note filed 11-24-2009; operative 11-24-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 48).
§1859.51.1. Baseline Adjustments for Locally Funded Facilities.
Note • History
For any pupils that were reduced from the district's New Construction Eligibility in accordance with Section 1859.51(i) due to the construction contract being signed prior to the submission of the Approved Application, the district may request an increase to the new construction baseline eligibility pursuant to one of the following:
(a) By the number of pupils in which the district received a second reduction of pupils due to receiving State funding for classrooms included in a construction contract signed more than 180 days from the date the Approved Application was received by the OPSC. This request may be submitted in writing to the OPSC by the authorized District Representative no later than 120 days after this proposed regulation is in effect.
(b) By the number of pupils previously reduced from the baseline due to the construction contract exceeding 180 days from filing an Approved Application for those classrooms in the project and that are included in a request for State funding pursuant to Section 1859.70.2.
(c) By the number of pupils previously reduced from the baseline due to the District reporting the signing of contracts for construction or acquisition of classrooms prior to filing an Approved Application for those classrooms and where those classrooms are included in a current request for State funding pursuant to Section 1859.70.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.51, 17071.25, 17071.75 and 17071.76, Education Code.
HISTORY
1. New section filed 7-22-2004 as an emergency; operative 7-22-2004 (Register 2004, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-19-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-22-2004 order transmitted to OAL 11-12-2004 and filed 12-16-2004 (Register 2004, No. 51).
Article 7. Modernization Eligibility Determination
§1859.60. Calculation to Determine Modernization Baseline Eligibility.
Note • History
The district shall calculate its modernization eligibility for each school site with the completion of the Form SAB 50-03. The eligibility determination may be made by either identifying all classrooms on the site pursuant to (a) or by the identification of all square footage on the site pursuant to (b), as follows:
(a) Identify all classrooms at the school site that would have been included in the Gross Classroom Inventory pursuant to Section 1859.31 that are:
(1) Permanent and at least 25 years old.
(2) Portable and at least 20 years old.
(3) The remaining classrooms not reported in (1) or (2) above.
(b) Identify all square footage at the school site that is:
(1) Permanent area and at least 25 years old.
(2) Portable classroom area and at least 20 years old.
(3) The remaining square footage on the site not reported in (1) or (2) above.
The age of the classroom or square footage shall begin 12 months after the plans for the building were approved by the DSA; or in the case of permanent or portable classrooms that were previously modernized with State funds or rehabilitated under the Charter School Facilities Program, the 25/20 year period shall begin on the date of its previous apportionment. For purposes of identifying square footage at a school site, include the total enclosed exterior square footage of the school buildings. For multilevel buildings, include the square footage at each level.
Enrollment at the school shall be the latest CBEDS report for K-6, 7-8 and 9-12 pupils. If the school is closed at the time of application for eligibility determination for modernization, and the district intends to reopen it and use it as a school for at least the next five years, the enrollment may be estimated based on district demographic data.
The calculated eligibility determined on the Form SAB 50-03, shall be referred to as the modernization baseline eligibility for the specific school site.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17073.15, 17073.20 and 17074.10, Education Code.
HISTORY
1. New article 7 (sections 1859.60-1859.61) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. Change without regulatory effect amending first and last paragraphs filed 12-23-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 52).
3. New article 7 (sections 1859.60-1859.61) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
4. New article 7 (sections 1859.60-1859.61) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Amendment of first and last paragraphs filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of first and last paragraphs filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
9. Amendment of first and last paragraphs filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
11. Amendment of first and last paragraphs filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
12. Amendment of first and last paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
13. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
14. Amendment of first paragraph and subsections (a)(1)-(2), (b)(1)-(2) and penultimate paragraph filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 6).
15. Amendment of subsection (b)(3) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.61. Adjustments to the Modernization Baseline Eligibility.
Note • History
The baseline eligibility for modernization as provided in Section 1859.60 for a specific site will be adjusted as follows:
(a) Reduced by the number of pupils provided grants in a modernization SFP project or a CSFP Rehabilitation project at the specific site.
(b) Reduced by the number of pupils housed, based on the loading standards pursuant to Education Code Section 17071.25(a)(2), in a modernization LPP project funded under the LPP pursuant to Sections 1859.14 and 1859.15.
(c) Increased by changes in projected enrollment in subsequent enrollment reporting years.
(d) Increased for additional facilities not previously modernized with State funds, that become 25 years old, if permanent, or 20 years old, if portable or as a result of audit findings made pursuant to Sections 1859.90 and 1859.105.
(e) Adjusted as a result of errors or omissions by the district or by the OPSC.
(f) Adjusted as a result of amendments to these Subgroup 5.5 Regulations that affect the eligibility.
(g) For classroom loading standards adopted by the Board for non-severely disabled individuals with exceptional needs and severely disabled individuals with exceptional needs.
(h) As directed by the Board due to a finding of a Material Inaccuracy pursuant to Regulation Section 1859.104.1.
(i) Increased for facilities previously modernized with State funds, which qualify for an additional modernization apportionment pursuant to Section 1859.78.8.
(j) Decreased for facilities that were deemed eligible for modernization pursuant to Sections 1859.60 and 1859.61(d) and subsequently replaced, or will be replaced under a signed contract for construction or acquisition of facilities, in a project funded by the district without participation from the State.
(k) Adjusted as a result of replaced eligible portables funded with the Overcrowding Relief Grant, pursuant to Education Code Section 17079, et seq.
l Adjusted as a result of classrooms demolished and replaced pursuant to Regulation Section 1859.82.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.51, 17071.25, 17072.15, 17072.20, 17073.15, 17074.10, 17075.10 and 17079.30, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section and Note, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. New subsection (g) filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
7. New subsection (h) and amendment of Note filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
8. Amendment of subsection (d) filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
9. Amendment of subsection (d) refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
10. Amendment of subsection (d) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
12. New subsection (i) and amendment of Note filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 6).
13. New subsection (j) and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
14. Amendment of subsection (a) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
15. New subsection (k) filed 7-18-2007; operative 7-18-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 29).
16. New subsection (l) and amendment of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
17. New subsection (m) and amendment of Note filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
18. Repealer of subsection (j) and subsection relettering filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
Article 8. New Construction and Modernization Grant Determinations
Note • History
A district seeking New Construction or Modernization funding shall complete and file Form SAB 50-04, concurrently or after completing the applicable requirements in Sections 1859.20 and 1859.40. The Board shall only provide New Construction funding if the Approved Application was received by the OPSC prior to the date of Occupancy for any classrooms included in the construction contract. After the date of Occupancy of any classroom in the construction contract, a district will be ineligible to seek New Construction funding and the classrooms will be reduced from the baseline eligibility pursuant to Section 1859.51(i) if not previously reduced.
A district affected by a reorganization election on or after November 4, 1998 may not file an application for New Construction funding after the notification of the reorganization election until a new calculation of the district's baseline eligibility has been determined on the Form SAB 50-03, or the district certifies that the reorganization election will not result in a loss of eligibility for the project for which the district is requesting new construction grants.
A district that is newly created as a result of a reorganization election may file an application for funding after approval of the election has been made by the State Board of Education.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.10, 17071.75, 17072.10 and 17074.10, Education Code.
HISTORY
1. New article 8 (sections 1859.70-1859.79.2) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 8 (sections 1859.70-1859.79.2) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New article 8 (sections 1859.70-1859.72) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment of section and Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
8. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
10. Amendment of first and second paragraphs filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
12. Amendment of first paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
13. Amendment of first paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
14. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment of first paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment of first paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
17. Amendment of first and second paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
20. Amendment of first paragraph and amendment of Note filed 7-22-2004 as an emergency; operative 7-22-2004 (Register 2004, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-19-2004 or emergency language will be repealed by operation of law on the following day.
21. Certificate of Compliance as to 7-22-2004 order transmitted to OAL 11-12-2004 and filed 12-16-2004 (Register 2004, No. 51).
22. Amendment of first paragraph filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
23. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
§1859.70.1. Available Funding for Energy Efficiency.
Note • History
(a) The Board shall set aside $20 million pursuant to Education Code Section 100620(e) and $20 million pursuant to Education Code Section 100820(e) for energy conservation adjustments authorized by Education Code Section 17077.35. The $20 million from each set aside shall be transferred to the Energy Efficiency Account from the following sources:
(1) The funds made available by Education Code Section 100620(a)(1) and 100820(a)(1), as appropriate.
(2) The funds made available by Education Code Section 100620(a)(2) and 100820(a)(2), as appropriate.
(b) The funds from each set aside in (a) shall be apportioned for either of the following:
(1) New Construction Additional Grants for Energy Efficiency authorized by Section 1859.71.3.
(2) Modernization Additional Grants for Energy Efficiency authorized by Section 1859.78.5.
If the Board makes a finding that the funds are not needed for the purposes of Sections 1859.71.3 or 1859.78.5, the Board shall transfer the funds back to the original funding source(s) identified in (a)(1) and (a)(2) above.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17077.35, 100620 and 100820, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment filed 8-21-2006 as an emergency; operative 8-21-2006 (Register 2006, No. 34). A Certificate of Compliance must be transmitted to OAL by 12-19-2006 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-21-2006 order transmitted to OAL 11-9-2006 and filed 12-18-2006 (Register 2006, No. 51).
§1859.70.2. Funding of Previously Ineligible Projects.
Note • History
For any classrooms that were previously ineligible for State funding due to the construction contract being signed more than 180 days prior to the submission of the Approved Application, the district may request funding for the project if all the following conditions are met:
(a) The Approved Application for funding must be filed with the OPSC no later than 120 days after this proposed regulation is in effect; and,
(b) The Approved Application meets all requirements of Chapter 12.5, the Leroy F. Greene School Facilities Act of 1998; and,
(c) The contract for the lease, lease-purchase, purchase or construction has been signed on or after January 1, 2000; and,
(d) The grants for the projects funded pursuant to this Section shall be limited to actual eligible expenditures and the funding provided will be calculated based on the grant amounts at the time the construction contract was signed. The project will not be eligible to receive project savings as provided for in Section 1859.103; and,
(e) The district has new construction eligibility for the project. If the capacity of the project is included in the district's baseline, the district may exclude the capacity from its existing school building capacity for purposes of determining eligibility for this project; and,
(f) All project approvals required for a new construction funding application were obtained prior to the construction contract date.
If the Approved Application meets all criteria except (f) above, the district may request a case-by-case approval from the Board.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.10, 17071.75, 17072.10 and 17072.20, Education Code.
HISTORY
1. New section filed 7-22-2004 as an emergency; operative 7-22-2004 (Register 2004, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-19-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-22-2004 order transmitted to OAL 11-12-2004 and filed 12-16-2004 (Register 2004, No. 51).
§1859.70.3. Available Funding for the Small High School Program. [Repealed]
Note • History
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.10, 17074.32 and 101012(a)(5), Education Code.
HISTORY
1. New section filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
2. Amendment of subsection (b) and Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
3. Repealer filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.70.4. Available Funding for High Performance.
Note • History
The Board shall set aside $100 million pursuant to Education Code Section 101012(a)(8) for the costs of designs and materials that promote in new construction and modernization projects, the efficient use of energy and water, the maximum use of natural lighting and indoor air quality, the use of recycled materials and materials that emit a minimum of toxic substances, the use of acoustics conducive to teaching and learning and other characteristics of high performance schools.
NOTE
Authority cited: Sections 17070.35 and 101012, Education Code. Reference: Section 101012(a)(8), Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.71. Adjustment to the New Construction Grant.
Note • History
The new construction per-unhoused-pupil grant amount, as provided by Education Code Section 17072.10(a), will be adjusted annually based on the change in the Class B Construction Cost Index as approved by the Board each January. The base Class B Construction Cost Index shall be 1.30 and the first adjustment shall be January, 1999.
The new construction per unhoused-pupil grant amount, as provided by Education Code Section 17072.10(a), may be increased by an additional amount not to exceed six percent in a fiscal year, or decreased, based on the analysis of the current cost to build schools as reported on the Project Information Worksheet (New 09/07) which shall be submitted with the Forms SAB 50-05 and 50-06 and as approved by the Board.
For any changes or additions to the regulations adopted by the Board in 1999, those changes shall be adjusted in accordance with this Section at the time the regulations are adopted.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.10 and 17072.11, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
7. Amendment of section, new Project Information Worksheet (incorporated by reference) and amendment of Note filed 7-10-2008; operative 7-10-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 28).
§1859.71.1. New Construction Grant for Individuals with Exceptional Needs.
Note • History
In lieu of the funding provided in Subdivision (a) of Education Code Section 17072.10, the Board shall provide the following amounts for each pupil included in an approved project for new construction funding:
(a) $16,573 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(b) $11,084 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
The amounts shown shall be adjusted annually in the manner prescribed in Section 1859.71. The grant is eligible for any new construction grant augmentation for which the project is otherwise eligible under the law and regulations.
NOTE
Authority cited: Sections 17070.35, 17072.10 and 17074.10, Education Code. Reference: Sections 17072.10 and 17074.10, Education Code.
HISTORY
1. New section filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
3. Amendment of section heading and first and last paragraphs filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
5. Amendment of section heading and first and last paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.71.2. New Construction Additional Grant for Fire Code Requirements.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide the following grant amounts for each pupil included in an application for new construction if the project includes an automatic fire detection and alarm system as described in Education Code Section 17074.52:
(1) $7.12 for each elementary school pupil.
(2) $9.79 for each middle school pupil.
(3) $16.03 for each high school pupil.
(4) $20.42 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(5) $30.41 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(b) In addition to the funding provided by Subdivision (a) of Education Code Section 17072.10 and Section 1859.71.1, the Board shall provide the following grant amounts for each pupil included in an application for new construction if the project includes an automatic sprinkler system as required in Education Code Section 17074.52:
(1) $98.83 for each elementary school pupil.
(2) $117.53 for each middle school pupil.
(3) $121.98 for each high school pupil.
(4) $209.77 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(5) $312.40 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(c) Pursuant to Subdivision (c) of Education Code Section 17074.56, the Board shall provide the grant amounts shown in (a) and (b) above, if applicable, in addition to any other funding authorized by these Regulations, for each pupil included in an application for new construction if all the following criteria are met:
(1) The final plans for the new construction project were submitted to the Division of the State Architect for review and approval between September 1, 2001 and June 30, 2002.
(2) The final plans for the new construction project included an automatic fire detection and alarm system and/or an automatic sprinkler system as described in Education Code Section 17074.52 or the project will include the system(s) prior to the completion of the project.
(3) The new construction project did not receive the entire New Construction Adjusted Grant apportionment by June 30, 2002.
The amounts shown in (a) and (b) above shall be adjusted annually in the manner prescribed in Section 1859.71.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17074.50, 17074.52, 17074.54 and 17074.56, Education Code.
HISTORY
1. New section filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
2. Amendment of subsections (a) and (c) filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 8-12-2002 order, including amendment of subsection (c), transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of subsections (a)(1)-(5) and (b)(1)-(5) filed 11-4-2004; operative 11-4-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 45).
§1859.71.3. New Construction Additional Grant for Energy Efficiency.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide the grant amounts identified in (b) if all the following are met:
(1) The project includes energy efficiency components that conform to Subdivision (b) of Education Code Section 17077.35.
(2) The average energy efficiency score of all the buildings in the project, as determined by EnergyPro 3.1 or a similar computer program approved by the State Energy Resources Conservation and Development Commission, exceeds the nonresidential building energy efficiency standards specified in Part 6 of Title 24 of the California Code of Regulations by at least 15 percent.
(3) The DSA has reviewed the proposed project and concurs with the percentage of energy efficiency that exceeds the nonresidential building energy efficiency standards specified in Part 6 of Title 24 of the California Code of Regulations.
(4) No portion of the project will be funded with funds made available from the Renewable Energy Program administered by the State Energy Resources Conservation and Development Commission.
(5) There are funds remaining in the Energy Efficiency Fund as prescribed in Section 1859.70.1 to apportion some or the entire additional grant provided in (b).
(b) An amount equal to the lesser of the following:
(1) The New Construction Grant multiplied by one percent if the percentage of energy efficiency as concurred by the DSA in (a)(3) is 15 percent, or by one percent plus 0.04 percent for each 0.1 percent increment of increased energy efficiency up to 25 percent. The multiplier may not exceed five percent.
(2) The funds available in the Energy Efficiency Account set aside for this Section.
If there are no funds remaining in the Energy Efficiency Account or the funds remaining in the Energy Efficiency Account are insufficient to fully fund the additional grant authorized in (b)(1), the district may either withdraw its application and resubmit it when additional funds are available in the Energy Efficiency Account or continue with the new construction project and accept a full and final apportionment without the additional grant authorized by (b)(1) or the lesser apportionment authorized by (b)(2).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17077.35, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of subsections (a)(2) and (b)(1) and repealer of subsections (b)(1)(A)-(E) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
4. Amendment of subsections (a)(2) and (a)(4) filed 8-21-2006 as an emergency; operative 8-21-2006 (Register 2006, No. 34). A Certificate of Compliance must be transmitted to OAL by 12-19-2006 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 8-21-2006 order transmitted to OAL 11-9-2006 and filed 12-18-2006 (Register 2006, No. 51).
§1859.71.4. New Construction Additional Grant Increase for Labor Compliance Program or Prevailing Wage Monitoring and Enforcement Costs.
Note • History
(a) After determining all other funding authorized by these Regulations, for any project funded in whole or in part from Proposition 47 or Proposition 55 for which the construction contract is awarded prior to January 1, 2012, and for which the district is required under Labor Code Section 1771.7(a) and (b) to initiate and enforce a LCP, the Board shall increase the per-unhoused pupil grant by 50 percent of the following calculation:
(1) Using the chart in (b) of this Section, determine the total amount of funding to be provided for the increased costs of a new construction project due to the initiation and enforcement of a LCP.
(2) Divide the amount determined in subsection (a)(1) by the total number of pupils, or by one if no pupils are assigned, in the approved application.
(b) The funding provided for a new construction project to initiate and enforce a LCP shall be calculated on the total project cost, exclusive of site acquisition costs, as follows:
$16,000 For the first $1 million or any part thereof, plus
1.6 percent Of the next $1 million or any part thereof, plus
0.25 percent Of the next $1 million or any part thereof, plus
0.15 percent Of the next $1 million or any part thereof, plus
0.32 percent Of the next $2 million or any part thereof, plus
0.31 percent Of the next $2 million or any part thereof, plus
0.46 percent Of the next $5 million or any part thereof, plus
0.44 percent Of the next $5 million or any part thereof, plus
0.42 percent Of the next $30 million or any part thereof, plus
0.4 percent Of any remaining portion
(c) After determining all other funding authorized by these Regulations, the Board shall increase the grant by 50 percent of one-fourth of one percent of the Total Projected Bond Apportionment for any project for which the construction contract is awarded on or after January 1, 2012.
(d) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the State and for which the construction contract is awarded on or after January 1, 2012, is subject to the DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(e) Any school district failing to meet the requirements in subsection (d) above shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(f) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in (e), for any construction projects for which the violations occurred.
NOTE
Authority cited: Section 17070.35, Education Code; and Section 1771.3, Labor Code. Reference: Sections 17072.10 and 17072.30, Education Code.
HISTORY
1. New section filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 2004, No. 9.
2. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
3. Amendment of section heading and subsection (a), new subsections (c)-(f) and amendment of Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.71.5. New Construction Grant Increase for the Small High School Program. [Repealed]
Note • History
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.10, Education Code.
HISTORY
1. New section filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
2. Repealer filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.71.6. New Construction Additional Grant for High Performance Incentive.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide the grant amounts identified in Subsection (b) if all the following are met:
(1) The project meets the mandatory measures of the California Green Building Standards, California Code of Regulations Title 24, Part 11, as applicable.
(2) The project includes all the prerequisites in each of the five HPRC to include Sustainable Sites, Water, Energy, Materials and Indoor Environmental Quality and related subcategory credits.
(3) Once the prerequisites in (a)(1) and (a)(2) have been met, the district may select the criteria and credits it wishes to pursue to determine point award. Category, criteria and associated points are as follows:
(A) Sustainable Sites.
1. Site Selection:
a. Code compliance is a prerequisite.
b. Avoiding environmentally sensitive land equals one point;
c. Central location equals one point;
d. Joint-use of facilities equals one point;
e. Joint-use of parks equals one point;
f. Reduced footprint equals one point.
2. Transportation:
a. Public transportation equals one point;
b. Bicycles/Human-powered transportation equals one point;
c. Minimize parking equals one point.
3. Stormwater Management:
a. Construction site runoff control is a prerequisite.
b. Limit stormwater runoff equals one point;
c. Treat stormwater runoff equals one point.
4. Outdoor Surfaces and Spaces:
a. Reduce heat islands -- landscaping equals one point;
b. Reduce heat islands -- cool roofs equals one point.
5. Outdoor lighting: light pollution reduction equals one point.
(B) Water.
1. Outdoor Systems:
a. Create water use budget is a prerequisite.
b. Reduce potable water use for non-recreational landscaping areas, equals one to two points.
c. Reduce potable water use for recreational area landscaping equals one point.
2. Indoor Systems:
a. Reduce sewage conveyance from toilets and urinals equals one point;
b. Reduce indoor potable water use equals one to three points.
(C) Energy.
1. Energy Efficiency:
a. Minimum energy performance based on 2008 California Energy Code is a prerequisite.
b. Superior energy performance based on 2008 California Energy Code equals one to 13 points;
c. Natural ventilation equals one point;
d. Energy management system equals one point.
e. Plug loads monitored by an energy management system equals one point.
2. Alternate Energy Sources: Renewable energy equals one to 15 points; one point for each five percent of the site's annual power consumption that is produced on site up to 40 percent and one point for each ten percent above 40 percent of the site's annual power consumption that is produced on site up to 90 percent and two points if 95 percent or more of the site's annual power consumption is produced on site.
3. Commissioning and Training:
a. Fundamental building systems testing and training is a prerequisite.
b. Enhanced commissioning equals one to four points.
(D) Materials
1. Recycling: Storage and collection of recyclables is a prerequisite.
2. Construction Waste Management:
a. Construction site waste management is a prerequisite.
b. Construction site waste management at 75 percent or above diverted equals one to two points.
3. Building Reuse:
a. Reuse of structure or shell equals one to two points;
b. Reuse of interior non-structural elements equals one point.
4. Sustainable Materials:
a. Recycled content equals one to two points;
b. Rapidly renewable materials and organically grown materials equals one point;
c. Organically grown materials equals one point;
d. Certified wood equals one point;
e. Salvaged materials equals one to two points.
f. Alternative: environmentally preferable products in lieu of a. through e. above equals one to seven points.
(E) Indoor Environmental Quality.
1. Lighting and Daylighting:
a. Daylighting equals one to four points;
b. View windows equals one point;
c. Electric lighting equals one point.
2. Indoor Air Quality and Thermal Comfort:
a. Minimum requirements for minimum HVAC and construction indoor environmental quality is a prerequisite.
b. Minimum requirements for thermal comfort and moisture control is a prerequisite.
c. Minimum requirements for minimum filtration is a prerequisite.
d. Thermal displacement ventilation equals two points.
e. Enhanced filtration equals one point.
f. Low-emitting materials equals one to two points.
g. Ducted returns equals one point.
h. Controllability of systems equals one to two points.
i. Chemical and pollutant source control equals one point.
j. Mercury reduction equals one point.
3. Acoustics:
a. Minimum acoustical performance is a prerequisite and equals two points.
b. Improved acoustical performance equals one to three points.
(4) A minimum of four points must come from either (a)(3)(C)1.b. and/or 2.
(5) The project, which includes a complete set of plans, must be submitted to and accepted by the DSA on or after May 20, 2006.
(6) The DSA has reviewed the proposed project and concurs with the points specified in the HPRC.
(7) The project will not receive funding from the Energy Efficiency Account.
(8) For those projects accepted by the DSA prior to October 1, 2007, districts may utilize the 2002 CA-CHPS Criteria, and the point standard will be in the range of 23 to 72 points. All prerequisites, credits and points obtained must be based on the 2002 Edition requirements. Criteria and associated prerequisite or points as indicated in (a)(3)(D)2.a. and 4.c. and f. and (E)1.c. and 2.b. and district resolutions are ineligible, and (a)(4) is optional.
(b) To determine the High Performance Incentive grant, multiply the New Construction Grant by the percentage allowance in accordance with the eligible high performance points as follows:
(1) For those projects accepted by the DSA prior to October 1, 2007, pursuant to (a)(8), in which the level of high performance attained, as concurred by the DSA, is a minimum of 23 points, the New Construction Grant will be multiplied by:
(A) Two percent at 23 points plus 0.03 percent for each point attained from 24 through 33 points; or
(B) 2.35 percent at 34 points plus 0.24 percent for each point attained from 35 through 40 points; or
(C) Four percent at 41 points plus 0.36 percent for each point attained from 42 through 54 points; or
(D) 9.05 percent at 55 points plus 0.060 percent for each point attained from 56 through 72 points.
(2) For those projects accepted by the DSA utilizing the 2006 CA-CHPS Criteria, in which the level of high performance attained as concurred by the DSA is a minimum of 27 points, the New Construction Grant will be multiplied by:
(A) Two percent at 27 points plus 0.050 percent for each point attained from 28 through 33 points; or
(B) 2.35 percent at 34 points plus 0.24 percent for each point attained from 35 through 40 points; or
(C) four percent at 41 points plus 0.36 percent for each point attained from 42 through 54 points; or
(D) 9.05 percent at 55 points plus 0.060 percent for each point attained from 56 through 75 points.
(3) For those projects accepted by the DSA utilizing the 2009 CA-CHPS Criteria, in which the level of high performance attained as concurred by the DSA is a minimum of 27 points, the Board shall provide $150,000 one time per school site as a High Performance Base Incentive Grant. In addition, the New Construction Grant will be multiplied by:
(A) 2.35 percent at 27 points; or
(B) 2.59 percent at 28 points plus 0.24 percent for each point attained from 29 through 33 points; or
(C) Four percent at 34 points plus 0.36 percent for each point attained from 35 through 47 points; or
(D) 9.05 percent at 48 points plus 0.060 percent for each point attained from 49 through 88 points.
If there are no funds remaining in the High Performance School Account or the funds remaining are insufficient to fully fund the additional grant authorized in Subsection (b), the district may either withdraw its application and resubmit it should additional funds be made available in the High Performance School Account or continue with the new construction project and accept a full and final apportionment without the additional grant authorized by Subsection (b).
Any funds apportioned pursuant to this Section shall be expended only on high performance related costs (and components as approved by the OPSC.)
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 101012(a)(8), Education Code.
HISTORY
1. New section filed 10-1-2007; operative 10-1-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
2. Amendment filed 1-25-2011; operative 1-25-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).
§1859.72. New Construction Additional Grant for an Individual with Exceptional Needs.
Note • History
In addition to any other funding authorized by these Regulations, the Board shall provide an additional grant for the area of therapy rooms used by pupils that are Severely Disabled Individuals with Exceptional Needs. The district may request funding for therapy area, not to exceed 3,000 square feet, plus 750 square feet per additional Special Day Class classroom needed for Severely Disabled Individuals with Exceptional Needs. The amount shall be determined by multiplying the eligible square feet by $173.30 per square foot for Toilet Facilities and $96.30 per square foot for all other facilities. The amounts shown shall be adjusted annually in the manner prescribed in Section 1859.71.
NOTE
Authority cited: Sections 17070.35 and 17072.10, Education Code. Reference: Sections 17072.10, 17072.15, 17072.25, 17074.56 and 56026, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of section and Note filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
7. Amendment of section heading and section filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
9. Amendment of section and Note filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
10. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
12. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.73. New Construction Additional Grant for Multilevel Construction.
Note • History
In addition to any other funding authorized by these Regulations, the Board shall provide an additional grant for the additional costs resulting from the need to build multilevel facilities. The additional funding is determined by multiplying the New Construction Grant by 12 percent for each pupil housed in a multilevel building that will house pupils in all levels of the building if the useable site acreage for the project is less than 75 percent of the site size recommended by the CDE for the master planned project capacity.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.10, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of section heading and section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.73.1. New Construction Additional Grant for Project Assistance.
Note • History
Excluding Joint-Use Projects, the Board shall provide, in addition to any other funding authorized by these Regulations, $3,750 for Small School Districts for the cost necessary for project assistance.
For Type II Joint-Use Projects, not part of a qualifying SFP Modernization project, the Board shall provide, in addition to any other funding authorized by these Regulations, $3,750 for Small School Districts for the cost necessary for project assistance.
The amount(s) shown will be adjusted annually based on the change in the Class B Construction Cost Index as approved by the Board each January. The base Class B Construction Cost Index shall be 1.37 and the first adjustment shall be January 2001.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.10, Education Code.
HISTORY
1. New section filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
2. Amendment of second paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
4. Amendment of section heading and last paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
6. Amendment of second paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
7. Amendment of second paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
8. Amendment of second paragraph filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment of last paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
10. Amendment of last paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
11. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
13. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
14. Amendment of second paragraph filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
15. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
§1859.73.2. New Construction Additional Grant for Replaced Facilities.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide funding for the amount(s) in (b) below for the replacement cost of single-story building(s) that are demolished at a school and replaced with multistory building(s) in order to increase pupil capacity of that school if all the following conditions are met:
(1) The site size as determined by the CDE for the existing capacity of the school is less than 75 percent of the recommended CDE site size.
(2) The pupil capacity of the school must be increased by at least the greater of (A) or (B) below:
(A) Twenty percent of the existing permanent single-story pupil capacity (before replacement) of the school. Existing permanent single-story pupil capacity shall be determined by multiplying classrooms contained within single-story permanent buildings intended for grades kindergarten through six by 25, classrooms intended for grades seven through 12 by 27, classrooms intended for Non-Severely Disabled Individuals with Exceptional Needs by 13 and classrooms intended for Severely Disabled Individuals with Exceptional Needs by nine. Classrooms shall not include any classrooms reduced from the Gross Classroom Inventory pursuant to Section 1859.32.
(B) 200 pupils.
(3) The sum of (A) and (B) below is less than the sum of (E) and (F) below:
(A) Determine the estimated cost of demolition of the single-story building(s) to be replaced. The cost estimate shall be subject to review by the OPSC for conformance with the Saylor Current Cost Publication.
(B) Multiply the total square footage of the proposed multistory replacement building(s) by the Current Replacement Cost.
(C) Multiply the pupil capacity as determined in (a)(2) by .01775 for K-6, .021 for 7-8 and .02472 for 9-12. For purposes of this calculation, assign Severely Disabled Individuals with Exceptional Needs and Non-Severely Disabled Individuals with Exceptional Needs pupil grants requested on Form SAB 50-04 as either K-6, 7-8 or 9-12 based on the type of project selected by the district on Form SAB 50-04.
(D) Determine the average value of land per acre as follows:
1. Previous actual site acquisition costs within the district's boundaries. If unable to reference prior OPSC-reviewed and approved projects at the time of application submittal, the district should submit documentation for review that complies with Section 1859.74.
2. Applications submitted with a separate certification letter, signed by the authorized district representative, certifying there are no site acquisitions as required in 1. above, must use one of the following calculation methods:
a. A complete appraisal or a preliminary appraisal of property in the General Location of the school site made or updated within six months from the Approved Application submittal date to the OPSC, using the guidelines outlined in Section 1859.74.1. The preliminary appraisal may be made without access to the property.
b. The Median Cost of an acre of land in the General Location of the school site using historical information from the General Location. Historical information that may be considered to determine land cost shall include prior real estate sales consummated and documented by the county recorder or pending real estate sales documented by a title insurance company's escrow instructions. For purposes of historical information, include all real estate sales consummated and documented by the county recorder for a minimum of six months and a maximum of up to two years prior to the date the Approved Application was submitted to the OPSC. Relocation expenses, for this method, will be calculated based upon OPSC historical data.
(E) Multiply the sums of the products determined in (C) above by the average value of land per acre determined in (D) above.
(F) Multiply the square footage of this single-story building(s) to be replaced by the Current Replacement Cost, then subtract this product from the amount determined in (a)(3)(B) above.
(4) The CDE has determined that the replacement of the single-story building(s) on the existing site with multistory building(s) would be the best available alternative and will not create a school with an inappropriate number of pupils in relation to the size of the site.
(5) The single-story building(s) to be replaced on the existing site may not be leased facilities and/or classrooms excluded pursuant to Education Code Section 17071.30(b). Portable classrooms that were included in the classroom capacity as identified on Line 1, Part III, of the Form SAB 50-02 may be replaced.
(6) With the exception of portables acquired with Class Size Reduction funds, the single-story building(s) to be replaced on the site may not have been funded for either new construction or modernization with funds from Proposition 1A or subsequent SFP bonds.
(b) If the criteria in (a) are met, the additional funding is determined by multiplying $173.30 per square foot for Toilet Facilities and by $96.30 per square foot for all other facilities included in the single-story building(s) to be replaced adjusted for the following:
(1) The amounts shall be adjusted in the manner prescribed in Section 1859.71.
(2) The amounts shall be increased by the percentage authorized in Section 1859.73, as appropriate.
The district is eligible for site development in accordance with Section 1859.76 including the demolition of the replacement structures as part of the SFP project.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17071.46 and 17074.56, Education Code.
HISTORY
1. New section filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
2. Amendment of subsection (a)(4)(C) filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
3. Amendment of subsection (a)(4)(C) filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
4. Amendment of subsection (a)(4)(C) filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
5. Amendment of subsections (a)(4)(C) and (b) and amendment of Note filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
6. Amendment of section heading and section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
8. Amendment of subsection (b)(1) filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
10. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
11. Amendment of subsection (b)(1) filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
12. Amendment filed 3-2-2005; operative 3-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
13. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
14. Amendment of subsections (a)(2)(A) and (a)(5) filed 11-3-2006; operative 11-3-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 44).
§1859.74. New Construction Additional Grant for Site Acquisition Cost.
Note • History
With the exception of projects that received site acquisition funds under the LPP or projects that qualify for site acquisition funds under Section 1859.74.5, the Board shall provide funding, in addition to any other funding authorized by these Regulations, for the lesser of one half of the actual cost of the site or one-half of the appraised value of the site acquired as described in (a) and (b) of this Section.
(a) Actual Site Cost
The actual cost of the site shall be the purchase price as shown on the escrow documents or other appropriate documents such as court orders in condemnation or as specifically identified in agreements when the site is transferred in lieu of other legally required payments or fees due to the district. The actual cost shall be adjusted for the following:
(1) Increased by the approved relocation expenses that conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(2) Increased by four percent of the actual amount determined in (a) above, but not less than $50,000. This amount shall provide an allowance for any appraisal, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and the PEA.
(3) Increased by the DTSC costs for review, approval, and oversight of the POESA and the PEA.
(b) Appraised Value of the Site
The value determined by an appraisal made or updated no more than six months prior to application submittal to the OPSC for funding. A SFP project which had the site funded as a LPP project shall use the appraised value determined under the LPP. The appraisal may be reviewed by the OPSC for conformance with Section 1859.74.1. The approved appraised value shall be adjusted for the following:
(1) Increased by the approved relocation expenses that conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(2) Increased by four percent of the appraised value determined in (b) above, but not less than $50,000. This amount shall provide an allowance for appraisals, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and the PEA.
(3) Increased by the DTSC costs for review, approval, and oversight of the POESA and the PEA.
The actual site cost or the appraised value of the site shall be reduced, on a prorated basis, by the percentage of the excess acreage of the site that exceeds the master plan site acreage approved by the CDE.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.10, 17072.12 and 17251, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section and Note, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of section heading and first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment of first paragraph filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
8. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
9. New final paragraph and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
10. Repealer of last paragraph filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.74.1. Site Acquisition Guidelines.
Note • History
To receive the funding authorized by Section 1859.74, the district must certify on the Form SAB 50-04, that the appraisal of the property was made utilizing the following criteria:
(a) The land improvements and appurtenances, excluding fixtures, equipment and personal property, were appraised in an as is condition with the following exceptions:
(1) The site shall be appraised as if it were a clean site, safe of all toxic contaminants in accordance with CDE guidelines and pursuant to Title 5, California Code of Regulations commencing with Section 14001.
(2) The site valuation included only proposed site improvements associated with grading the site to a mass graded or super pad condition, defined as a site graded to construction readiness without foundation or paving and proposed utilities stubbed to the site. Any proposed site improvements or utilities not covered by a performance bond equal to 100 percent of the estimated cost of the site improvements and utilities must be completed prior to the close of escrow and detailed separately in the report.
(b) Consideration in the appraisal was made for net useable acreage and severance damages.
(c) The district or its legal counsel has contracted for appraisal services.
(d) The appraiser has certified to the district that the appraisal complies with the Uniform Standards of Professional Appraisal Practices as promulgated by the Appraisal Standards Board of the Appraisal Foundation.
(e) The amount of a court award for a site acquired in condemnation may be used in lieu of the appraised value determined in (a) through (d) above, when specifically approved by the Board.
The district shall be required to submit one appraisal. If the application includes a request for financial hardship as provided in Section 1859.81, the OPSC will review the appraisal for conformance with (a), (b), (c) and (d) prior to a recommendation for SFP funding to the Board.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35 and 17072.12, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment of first paragraph filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment of first paragraph filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
8. Amendment of first paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
10. Amendment of first paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
12. Amendment of first paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
13. Amendment of first paragraph and subsection (a)(2) filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
14. Amendment of first paragraph filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment of first paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment of first paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
17. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.74.2. New Construction Additional Grant for Hazardous Waste Removal.
Note • History
With the exception of projects that received site acquisition funds under the LPP, the Board shall provide funding, in addition to any other funding authorized by these Regulations for the allowable costs of hazardous materials/waste removal and/or remediation costs. The allowable site costs shall not exceed 50 percent of one and one half times the value of an appraisal that conforms to Section 1859.74.1 for the costs in subsections (a), (a)(1) and (a)(2) plus the additional costs included in (b) and (c). The costs in (b) and (c) are in addition to 50 percent of one and one half times the appraisal value cap:
(a) The costs associated with the site acquisition and to implement the RA as determined necessary in the PEA that has been approved by the DTSC subject to the following:
(1) The costs for preparation of the RA.
(2) The DTSC costs for review and oversight of the preparation and implementation of the RA. The costs may not include continuous operational and maintenance costs associated with the RA.
(b) Fifty percent of the approved relocation expenses that conform to Title 25, Division 1, Chapter 6, Subchapter 1, California Code of Regulations, (Section 6000, et seq.). The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(c) Not less that 50 percent of $50,000 or 50 percent of four percent of the appraised value. This amount shall provide an allowance for any appraisal, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and PEA.
(d) The limitation of 50 percent of one and one half times the value of an appraisal for costs in subsections (a), (a)(1), and (a)(2) may be exceeded when the Board finds that unforeseen circumstances exists, and when both of the following exist:
(1) CDE determines that the site is the best available site for meeting the educational and safety needs of the School District.
(2) Substantiation that the costs are limited to the minimum required to complete the evaluation and RA approved by the DTSC.
NOTE
Authority cited: Sections 17070.35 and 17072.13, Education Code. Reference: Sections 17072.12 and 17251, Education Code.
HISTORY
1. New section filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
2. Amendment of section heading and first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
4. Amendment refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
5. Amendment refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
7. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.74.3. New Construction Additional Grant for Incidental Site and Hazardous Waste Removal for Leased Sites.
Note • History
When a district has requested funding on a vacant leased site pursuant to Section 1859.22 that was never used for school purposes and a site evaluation requires a RA, the Board shall provide funding, in addition to any other funding authorized by these Regulations for one and one half times the appraised valuation that conforms to Section 1859.74.1. The allowable site costs shall not exceed 50 percent of one and one half times the value of an appraisal that conforms to Section 1859.74.1 for the costs in subsections (a), (a)(1) and (a)(2) plus the additional costs included in (b) and (c). The costs in (b) and (c) are in addition to 50 percent of one and one half times the appraisal value cap:
(a) The costs associated with the site acquisition and to implement the RA as determined necessary in the PEA that has been approved by the DTSC subject to the following:
(1) The costs for preparation of the RA.
(2) The DTSC costs for review and oversight of the preparation and implementation of the RA. The costs may not include continuous operational and maintenance costs associated with the RA.
(b) Fifty percent of the approved relocation expenses that conform to Title 25, Division 1, Chapter 6, Subchapter 1, California Code of Regulations, (Section 6000, et seq.). The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(c) Not less than 50 percent of $50,000 or 50 percent of four percent of the appraised value. This amount shall provide an allowance for any appraisal, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and the PEA.
(d) The limitation of 50 percent of one and one half times the value of an appraisal for costs in subsections (a), (a)(1) and (a)(2) may be exceeded when the Board finds that unforeseen circumstances exist, and both of the following exist:
(1) CDE determines that the site is the best available site for meeting the educational and safety needs of the School District.
(2) Substantiation that the costs are limited to the minimum required to complete the evaluation and RA approved by the DTSC.
(e) If the toxics evaluation of the leased site does not require a RA, then the allowable site costs shall not exceed the lesser of one half the appraised or actual purchase price plus the additional amounts provided in Section 1859.74.
The appraised value of the site shall be reduced, on a prorated basis, by the percentage of the excess acreage of the site that exceeds the master plan site acreage approved by the CDE.
NOTE
Authority cited: Sections 17070.35 and 17072.13, Education Code. Reference: Sections 17070.71, 17072.12 and 17251, Education Code.
HISTORY
1. New section filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
2. Amendment of section heading and first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment of section and Note filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
4. Amendment of section and Note refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
5. Amendment of section and Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
7. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.74.4. New Construction Additional Grant for Hazardous Waste Removal Required on an Existing School Site.
Note • History
(a) With the exception of projects that received initial site acquisition funds under the SFP, the Board shall provide an funding, in addition to any other funding authorized by these Regulations for the necessary hazardous waste materials/waste removal and/or remediation costs on an existing school site where the New Construction Grants will be used if all the following are met:
(1) The New Construction Grant request is for additional school facilities on an existing school site.
(2) The New Construction Grant request does not include a funding request for initial site acquisition costs allowed pursuant to Sections 1859.74 or 1859.74.2.
(3) The existing school site where the New Construction Grant will be expended has a functioning school on the site or the site had a closed school that will again be used as a functioning school.
(4) The hazardous material cleanup costs are required by the DTSC.
(b) If all criteria in subsection (a) are met, the allowable hazardous waste removal cleanup costs shall be one half of all the following:
(1) The costs for preparation of the POESA, the PEA and the RA.
(2) The costs to implement the RA as determined necessary in the PEA that has been approved by the DTSC subject to the following:
(A) The costs may include the DTSC costs for review and oversight of the preparation and implementation of the RA.
(B) The costs may not include continuous operational and maintenance costs associated with the RA.
(c) In advance of the New Construction Adjusted Grant, districts performing a RA on additions to existing school sites shall be eligible for the costs associated with evaluation and RA required by the DTSC.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.18, Education Code.
HISTORY
1. New section filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
2. Amendment of section heading and first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. New subsection (c) filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
4. New subsection (c) refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
5. Amendment of subsection (c) refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
7. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.74.5. New Construction Additional Grant for District-Owned Site Acquisition Cost.
Note • History
(a) As an alternative to site acquisition funding provided by Sections 1859.74, 1859.74.2, 1859.74.3 and 1859.74.4, the Board shall provide an additional grant, in addition to the funding provided by Subdivision (a) of Education Code Section 17072.10 and Sections 1859.71 and 1859.71.1 for one half of the value of the district-owned site as determined in (b) provided all the following criteria are met:
(1) The site has been owned by the applicant district for a period of at least five years from the date the Approved Application is received by the OPSC. The district may demonstrate ownership of the site by any of the following:
(A) A grant deed.
(B) Escrow closing statement.
(C) Order of immediate possession.
(D) Other evidence satisfactory to the Board.
(2) The district-owned site was not purchased with funds made available from the LPP, the SFP or Proposition 1A.
(3) The district-owned site has been productively used by the applicant district for the entire five-year period immediately proceeding the date the Approved Application is submitted to the OPSC for any of the following:
(A) The applicant's district administrative facility.
(B) A childcare or preschool program operated by the applicant district.
(C) An adult education program operated by the applicant district.
(D) Any other non-school productive use as determined by the Board.
(4) At least 75 percent of the useable acres of the district-owned site contained buildings and/or General Site Development that was used for the entire five year period for the qualifying purpose identified in (a)(3).
(5) The CDE has determined that the district-owned site is not otherwise available as a school site.
(6) The district has completed a cost benefit analysis as described in Section 1859.74.6 which indicates the current estimated value of the district-owned site is less than the current estimated value of an alternative site in the district.
(7) The district-owned site is approvable by the CDE for school purposes.
If all the criteria in items (a)(1) through (a)(7) are met, the OPSC will recommend to the Board that it make a finding that the non-school function on the site must be discontinued or relocated in order to utilize the site as a school site.
A district may request the Board make a finding that the non-school function on the district-owned site must be discontinued or relocated in advance of submittal of a funding application provided it meets all the criteria in (a).
(b) The value of the district-owned site shall be the sum of all the following:
(1) The value of the district-owned site determined by an appraisal made or updated no more than six months prior to submittal of the Approved Application to the OPSC. The appraisal shall include any buildings on the site and shall be made using the guidelines in Section 1859.74.1.
(2) The approved relocation expense of the district-owned site that conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance. Do not include relocation expenses applicable to the relocation of district personnel, district buildings/furnishings or district equipment.
(3) Four percent of the appraised value determined in (b)(1), but not less than $50,000. This amount shall provide an allowance for appraisals, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and the PEA.
(4) The estimated DTSC costs for review, approval, and oversight of the POESA and the PEA applicable to the district-owned site.
The amounts above shall be reduced, on a prorated basis, by the percentage of any excess acreage of the district-owned site that exceeds the master plan site acreage approved by the CDE.
If the acreage of the district-owned site is less than the size recommended by the CDE for the master planned project capacity and the district plans on acquiring additional acreage as part of the project, the additional acreage, up to the CDE recommended site size, may be funded under the provisions of Section 1859.74.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12 and 17251, Education Code.
HISTORY
1. New section filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
§1859.74.6. District-Owned Site Cost Benefit Analysis.
Note • History
Pursuant to Subdivision (d) of Education Code Section 17072.12, a cost benefit analysis must be made to determine if it is more economical to utilize the existing district-owned site currently used for a non-school function as a school site rather than acquire an alternative site in the district. A determination that it is more economical to use the existing district-owned site as a school site will be made if the current estimated value of the district-owned site as determined in (a)(3) is less than the current estimated value of an alternative site as determined in (b)(5).
(a) Current Estimated Value of District-Owned Site.
(1) Determine the value of the district-owned site by a preliminary appraisal or an appraisal made or updated no more than six months prior to submittal of the Approved Application to the OPSC. The appraisal shall include any buildings on the site and shall be made using the guidelines in Section 1859.74.1. The appraised value shall be increased for the following:
(A) The relocation expenses that conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance. Do not include relocation expenses applicable to the relocation of district personnel, district buildings/furnishings or district equipment.
(B) Four percent of the appraised value determined in (a)(1), but not less than $50,000. This amount shall provide an allowance for appraisals, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and the PEA.
(C) The estimated DTSC costs for review, approval, and oversight of the POESA and the PEA.
(2) Determine the estimated current site development cost that would be necessary on the district-owned site if it were to be used as a school site pursuant to Section 1859.76. Estimated cost for demolition of existing buildings on the site may be included as a site development cost.
(3) Add the amount determined in (a)(1) to the amount determined in (a)(2).
(b) Current Estimated Value of Alternative Site.
(1) The district must identify an alternative site within the boundaries of the district that meet all the following:
(A) The alternative site is an approvable site by the CDE.
(B) The alternative site is located no more than three miles from the district owned site if the project is for a high school, no more than two miles from the district owned site if the project is for a middle school and no more than one mile from the district owned site if the project is for an elementary school.
(2) Determine the value of the alternative site selected in (b)(1) by a preliminary appraisal or an appraisal made or updated no more than six months prior to submittal of the Approved Application to the OPSC. The appraisal shall include any buildings on the alternative site and shall be made using the guidelines in Section 1859.74.1. The appraised value shall be increased for the following:
(A) The relocation expenses that conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(B) Four percent of the appraised value determined in (b)(2), but not less than $50,000. This amount shall provide an allowance for appraisals, escrow, survey, site testing, CDE review/approvals and the preparation of the POESA and the PEA.
(C) The estimated DTSC costs for review, approval, and oversight of the POESA and the PEA.
(D) The estimated current site development cost that would be necessary on the alternative site if it were to be used as a school site pursuant to Section 1859.76. Estimated cost for demolition of existing buildings on the alternative site may be included as a site development cost.
(3) Determine the average appraised value per acre by dividing the appraised value of the alternative site determined in (b)(2) by the number of acres of the alternative site.
(4) Multiply the average appraised value per acre of the alternative site determined in (b)(3) by the number of acres of the district-owned site identified in (a).
(5) Multiply the quotient determined in (b)(4) by 110 percent.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12 and 17251, Education Code.
HISTORY
1. New section filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
§1859.75. Alternative District-Owned Site.
Note • History
In order to receive funding authorized by Sections 1859.74 or 1859.74.2, the district must:
(a) certify there is no available Alternative District-Owned Site for that project deemed useable for school purposes by the CDE; or,
(b) certify that it intends to sell an available Alternative District-Owned Site and use the proceeds for the purchase of the new site. In this event, the Board will recognize either (1) or (2):
(1) one-half of the actual cost or the appraised value of the available Alternative District-Owned Site as determined in Section 1859.74, whichever is the lesser, or
(2) fifty percent of one and one-half times value of the site purchased for the project as determined in Section 1859.74.2.
NOTE
Authority cited: Sections 17070.35 and 17072.13, Education Code. Reference: Section 17072.12, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Amendment of section and Note filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment of section and Note refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
8. Amendment of section and Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
10. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.75.1. Separate Site Apportionment for Environmental Hardship.
Note • History
(a) A district is eligible for a separate apportionment for site acquisition even if it does not meet the financial hardship criteria contained in Section 1859.81with the exception of qualifying projects pursuant to the Overcrowding Relief Grant, Section 1859.180, when all the following requirements are met:
(1) The district has eligibility for grants that equal at least 50 percent of the CDE master plan capacity of the site.
(2) The district has received a contingent site approval letter from the CDE indicating that the proposed site is the best available.
(3) The district has obtained a preliminary appraisal or an appraisal of the property by a qualified appraiser utilizing criteria outlined in Section 1859.74.1. The preliminary appraisal report may be made without access to the site.
(4) The district has provided a letter from the DTSC pursuant to Education Code Section 17072.13 that indicates the time necessary to complete the remediation removal of any hazardous materials/waste on the proposed site as determined necessary by the PEA and required in the RA, will take at least 180 calendar days to complete.
(b) If the conditions in (a) are met, the district is eligible for a separate site apportionment not to exceed 50 percent of one and one half times the value of an appraisal that conforms to Section 1859.74.1 for the costs included in (b)(1) and (b)(4) plus the additional costs included in (b)(2) and (b)(3). The costs included in (b)(2) and (b)(3) are in addition to 50 percent of one and one half times the appraisal value cap.
(1) The cost of the site as determined in Section 1859.74.1 and the amount the district reasonably expects to pay for any hazardous materials/waste removal and/or remediation costs for the site.
(2) Fifty percent of the estimated relocation expenses that will conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment, and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(3) Fifty percent of four percent of the lesser of the appraised value of the site or the amount the district reasonably expects to pay for the site acquisition including any hazardous materials/waste removal and/or remediation costs for the site, but not less than 50 percent of $50,000.
(4) The estimated DTSC costs for review, approval and oversight of the POESA and the PEA.
The amount provided in (b) as a separate site apportionment shall be offset from the New Construction Grant amount the district would otherwise be eligible for pursuant to Section 1859.70. A district seeking a separate apportionment for site acquisition shall submit Form SAB 50-04.
(c) The limitation of 50 percent of one and one half times the value of an appraisal for costs in subsections (b), (b)(1) and (b)(4) may be exceeded when the Board finds that unforeseen circumstances exist, and when both of the following exist:
(1) CDE determines that the site is the best available site for meeting the educational and safety needs of the School District.
(2) Substantiation that the costs are limited to minimum required to complete the evaluation and RA approved by the DTSC.
NOTE
Authority cited: Section 17072.13, Education Code. Reference: Sections 17072.13, 17076.10 and 17079.20, Education Code.
HISTORY
1. New section filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
2. Amendment of last paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
4. Amendment of last paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
6. Amendment of last paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
7. Amendment of last paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
8. Amendment of subsection (b)(4) filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment of last paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
10. Amendment of last paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
11. Amendment of subsection (b)(3) and last paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
13. Amendment of subsections (a)(4) and (b)-(b)(3) and new subsections (c)-(c)(2) filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
14. Amendment of subsections (a)(4) and (b)-(b)(3) and new subsections (c)-(c)(2) refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
15. Amendment of subsections (a)(4) and (b)-(b)(3) and new subsections (c)-(c)(2) refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
17. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
18. Amendment of subsection (a) and Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
§1859.76. New Construction Additional Grant for Site Development Costs.
Note • History
In addition to any other funding authorized by these Regulations, the Board shall provide funding equal to 50 percent of the following approved site development and applicable design costs:
(a) Service site development cost, within school property lines for:
(1) Site clearance including the removal of trees, brush, and debris.
(2) Demolition and removal of existing buildings and site improvements which lie in the footprint of a proposed building or proposed site development.
(3) Removal and rerouting of existing utility service which lie in the footprint of a proposed building or proposed site development.
(4) Rough grading including cut and fill, and leveling and terracing operations required in the design of the project.
(5) Soil compaction adhering to common engineering practices and engineered fill that is required by a soils report that is available for review by the OPSC.
(6) On-site drainage facilities including inlets below grade drainage facilities and retention basins.
(7) Erosion control improvements such as plant material, temporary sprinkler systems, jute mesh and straw, due to embankments having a slope of at least two to one and a vertical height greater than six feet.
(8) Outside stairways, handicap ramps and retaining walls due to embankments having a slope of at least two to one and a vertical height greater than six feet.
(9) Relocation of existing portable buildings which lie in the footprint of a proposed building or proposed site development including the cost for set-up and utilities if the portable will be relocated on the same site. If the portable will be moved to another site, only the costs to move the portable to the new location.
(10) Fire code requirements on site that are not a part of the building.
(11) Funding for parking structures on a new construction project when all the following have been met:
(A) The new construction project will be located on site acreage that is less than 50 percent of the site size recommended by the CDE for the master planned project capacity.
(B) The number of parking stalls to be funded does not exceed 2.25 for each classroom constructed in an elementary or middle school project.
(C) The number of parking stalls to be funded does not exceed six for each high school classroom constructed in a high school project that will serve 9-12 pupils.
(D) The state grant does not exceed $7,500 per parking stall. The amount shown shall be adjusted annually in the manner prescribed in Section 1859.71.
(E) The parking structure is any of the following:
1. It is multilevel and has at least two floors of parking space.
2. It is single level with site development above the single level parking space.
3. It is single level that is subterranean or below ground level with site development above the single level parking space.
4. It is single level with buildings above the single level parking space.
(12) Removal and relocation of portable classrooms on a site eligible for replacement pursuant to Section 1859.82(a) that are available for housing pupils pursuant to Section 1859.35(a).
(b) Off-site development cost on up to two immediately adjacent sides of the site, for the following:
(1) Curbs, gutters and paving of streets not to exceed one-half the mandated local street code requirements. When the existing streets are to be widened inward toward the property line from the existing face of the curb, all new street improvements lying within the one-half of mandated street width adjacent to the project.
(2) Sidewalks mandated by local ordinances.
(3) Street lighting, planting areas, street signs, traffic signals, trees or other costs mandated by local ordinances.
(4) City and/or county or special district fees pursuant to active ordinances.
(5) Reasonable cost for storm drains to point of connection.
(6) Funding for safety paths for pedestrian use beyond two immediately adjacent sides of the site necessary for a safe route to the new school site when the following conditions are met:
(A) The school district governing board has made a finding at a public hearing that pedestrian safety concerns require improvements in the form of safety paths to provide access to the school site, and the Department of Education concurs with that finding.
(B) The improvements are limited to the work necessary to install concrete, asphalt, gravel or other paving necessary to provide the safe paths.
(C) The state grant does not exceed $50,000.
(D) The improvements do not include any cost for the acquisition of land, easements or other rights-of-way.
(E) The SAB has determined that development of additional pedestrian paths is reasonable.
(c) Utility service costs associated with the CDE approved site size that are necessary to serve the master planned capacity of the site as follows:
(1) Water: Installation of water supply line(s) and connection fees from the utility company connection to the meter, meters not provided by the serving utility, or installation of a domestic water system (i.e. well, pump, tank).
(2) Sewage: Installation of main sewage disposal line from the utility company connection to the first building lateral and if applicable, connection fees. Installation of a sewage treatment/disposal system and a main disposal line from the treatment system to the nearest building lateral of the collection system.
(3) Gas: Installation of main supply line and connection fees from utility company to meter and connection fee if applicable. Installation of meters not provided by the utility. Connection of a liquefied petroleum system (and tank) from the main supply line to the first building lateral.
(4) Electric: Installation of service from the utility to the building switchboard. Primary electric service runs from the utility company's point of connection to the transformer. Secondary electric service runs from the transformer to the switchboard. Connection fee, transformer pads and protective devices.
(5) Communication systems: Installation of service from the company to the nearest distribution center.
(d) General Site Development costs within school property lines for an addition to an existing school site project wherein additional acreage is acquired, with the exception of existing school site acreage that is leased pursuant to Section 1859.22, or a new school project, determined as follows:
(1) $19,200 per Useable Acre as approved by the CDE. This sum may be increased by the percentage identified in Section 1859.83(b). The per acre amount shown above shall be adjusted annually in the manner prescribed in Section 1859.71.
(2) 6 percent of the State and district share for Elementary School Pupils and Middle School Pupils and 3.75 percent of the State and district share for High School Pupils of the New Construction Grant. For purposes of this calculation, the percentage amount for Severely Disabled Individuals with Exceptional Needs and Non-Severely Disabled Individuals with Exceptional Needs pupils shall be based on the type of project selected by the district on the Form SAB 50-04.
(3) 6 percent of the State and district share for Elementary School Pupils and Middle School Pupils and 3.75 percent of the State and district share for High School Pupils of the funding provided by Sections 1859.71.2, 1859.72, 1859.73, 1859.73.2, 1859.82, 1859.83(a), (b) and (c) and 1859.125(a)(1) through (a)(2).
Subsection (d) of this section shall be suspended no later than January 1, 2014, unless otherwise extended by amendments as adopted by the Board.
The district must submit a detailed cost estimate for all requests for site development work, with the exception of General Site Development, and any justification documents that will support the work with the Form SAB 50-04.
The Board will approve reasonable and appropriate site development work which meets common engineering practices and industry standards that are consistent with the specific site conditions if the site development costs are consistent with the most current edition of the Saylor Current Construction Costs. The design professional must certify to the district that the site development work does not exceed the minimum requirements to develop the site to meet educational needs and/or standards.
General Site Development provided pursuant to 1859.76(d)(1), service site and off-site development costs shall be reduced, on a prorated basis, by the percentage of the excess acreage of the site that exceeds the master plan site acreage approved by the CDE.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17072.12 and 17072.35, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment of antepenultimate paragraph filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. New subsections (a)(11)-(a)(11)(D) filed 3-13-2000; operative 4-12-2000 (Register 2000, No. 11).
8. New subsection (a)(12) and amendment of subsections (c) and (c)(5) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
9. Amendment of antepenultimate paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
11. Amendment of section heading and subsection (c)(5) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
13. Amendment of antepenultimate paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
14. Amendment of subsection (c)(5) filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
15. Amendment of subsection (c)(5) filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
16. Amendment of antepenultimate paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
17. Amendment of antepenultimate paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
18. Amendment of first, antepenultimate and penultimate paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
19. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
20. Amendment of subsection (a)(11) and new subsections (a)(11)(E)-(a)(11)(E)4. filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
21. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
22. New subsections (d)-(d)(3) and amendment of antepenultimate and last paragraphs filed 9-5-2006 as an emergency; operative 9-5-2006 (Register 2006, No. 36). A Certificate of Compliance must be transmitted to OAL by 1-3-2007 or emergency language will be repealed by operation of law on the following day.
23. Certificate of Compliance as to 9-5-2006 order, including further amendment of subsections (d)-(d)(3), transmitted to OAL 1-3-2007 and filed 2-16-2007 (Register 2007, No. 7).
24. Amendment of subsection (d)(3) filed 3-3-2008 as an emergency; operative 3-3-2008 (Register 2008, No. 10). A Certificate of Compliance must be transmitted to OAL by 9-2-2008 or emergency language will be repealed by operation of law on the following day.
25. Certificate of Compliance as to 3-3-2008 order transmitted to OAL 6-9-2008 and filed 7-10-2008 (Register 2008, No. 28).
26. Amendment of subsection (d)(3) filed 9-18-2009; operative 9-18-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 38).
27. Amendment of subsection (d)(3) filed 4-8-2010; operative 4-8-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 15).
28. Amendment of subsection (d)(3) filed 4-27-2011; operative 4-27-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 17).
29. Amendment of subsection (d)(3) filed 12-28-2011; operative 12-28-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 52).
§1859.77. Reduction in the New Construction Grant.
Note • History
After the determination of the district's New Construction Adjusted Grant and financial hardship funding pursuant to Section 1859.81 have been made, the New Construction Adjusted Grant and any financial hardship funding provided pursuant to Section 1859.81 will be reduced by the alternative fee collected pursuant to Government Code Section 65995.7(a), if a reimbursement election or agreement pursuant to Government Code Section 65995.7 is not in effect.
Any reduction to the New Construction Adjusted Grant amount and any funding provided by Section 1859.81 made pursuant to this Section shall only include those alternative fees collected from residential units to be served by the facilities associated with the New Construction Grant. If the reduction is greater than the New Construction Adjusted Grant and the funding provided by Section 1859.81, the pupils to be housed in the proposed project will be reduced from the district's baseline eligibility and no SFP grants will be made to the district for that project. Any remaining off-set of the alternative fees collected shall be off-set on the next request for a New Construction Grant for other facilities to serve those residential units.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.20(b), Education Code; and Section 65995.7, Government Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.77.1. New Construction District Matching Share Requirement.
Note • History
Any funding provided by these Regulations shall require a district matching share contribution on a dollar-for-dollar basis with the exception of financial hardship provided by Section 1859.81 or any additional grant provided for a district-owned site acquisition cost pursuant to Sections 1859.74.5 or 1859.81.2.
The district may include as its district matching share any amounts expended on the project for an energy audit made pursuant to Education Code Section 17077.10 and any amounts applied to the project for incentive grants or rebates received by the district from a program funded pursuant to Public Utilities Code Section 381.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.30 and 17077.10, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. New second paragraph and amendment of Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment of first paragraph filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
8. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
9. Amendment of section and Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
10. Amendment of section and Note filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.77.2. Use of New Construction Grant Funds for Projects Accepted by the DSA on or before January 22, 2003.
Note • History
New Construction Grant funds and any other funds provided by these Regulations shall be expended as set forth in Education Code Section 17072.35; and may also be utilized for the cost incurred by the district for the development and implementation of remedial action plan approved by the DTSC pursuant to Education Code Section 17213.
Authorization for use of New Construction Grants for which the final plans and specifications for the project were accepted by the DSA on or before January 22, 2003 may be requested as follows:
(a) A district may request new construction grants that do not to exceed 135 percent of the number of pupils that will be housed in the project based on loading standards pursuant to Education Code Section 17071.25(a)(2) and any loading standards adopted by the SAB by these regulations if the grant requests above 100 percent of the number of pupils to be housed do not include eligibility based on Special Day Class pupils and if the district has adopted a school board resolution that has been discussed at a public hearing at a regularly scheduled meeting of the district's governing board on a date preceding the Application filing that includes the following:
(1) A plan that identifies how the district has housed or will house the excess pupils receiving grants in the project in school buildings as defined in Education Code Section 17368. The plan may not include housing the excess pupils in portables excluded from existing school building capacity pursuant to Education Code Section 17071.30 or housing in facilities to be constructed with district funds if the district has received financial hardship approval pursuant to Section 1859.81. The plan shall not utilize Multi-track Year Round Education schedules for the purposes of housing excess pupils.
(2) An acknowledgement that funds for the purposes of housing the excess pupils are being diverted to another project.
(3) An acknowledgement that the State has satisfied its obligation, pursuant to Section 1859.50, to house the pupils receiving grants in the project.
(b) A district may request new construction grant eligibility determined at a different grade level than the proposed project that does not exceed 135 percent of the number of pupils that will be housed in the project based on loading standards pursuant to Education Code Section 17071.25(a)(2) and any loading standards adopted by the SAB by these regulations subject to all of the following:
(1) The district has adopted a school board resolution that has been discussed at a public hearing at a regularly scheduled meeting of the district's governing board on a date preceding the Application filing that includes the following:
(A) A plan that identifies how the district has housed or will house the excess pupils receiving grants in the project in school buildings as defined in Education Code Section 17368. The plan may not include housing the excess pupils in portables excluded from existing school building capacity pursuant to Education Code Section 17071.30 or housing in facilities to be constructed with district funds if the district has received financial hardship approval pursuant to Section 1859.81. The plan shall not utilize Multi-track Year Round Education schedules for the purposes of housing excess pupils.
(B) An acknowledgement that funds for the purposes of housing the excess pupils are being diverted to another project.
(C) An acknowledgement that the State has satisfied its obligation, pursuant to Section 1859.50, to house the pupils receiving grants in the project.
(2) Only New Construction Grant eligibility for grades Kindergarten through 12 can be requested pursuant to this subsection (b), and the district must use its New Construction Grant eligibility, pursuant to subsections (b), in the following order:
(A) At the grade level of the proposed project.
(B) At the lowest grade level other than the proposed project.
(C) At the next highest grade level other than the proposed project.
(c) A district may request new construction eligibility based on the SFP Regulation Section 1859.77.2 in place as of the date of a local bond election provided that clear language was included in the local bond that specifically identified the proposed project, and provided that the project meets all laws and regulations of the SFP.
If a district wishes to amend its Approved Application to include or increase its use of grants request after the submittal to the OPSC, the district must request in writing that the Approved Application be withdrawn and removed from the OPSC wordload list. The resubmitted application will receive a new processing date by the OPSC.
The New Construction Grant amount provided shall be determined based on the grant amount provided in Education Code Section 17072.10 for the grade level that generated the eligibility and any New Construction Additional Grant or New Construction Excessive Cost Hardship Grant the district qualifies for as provided by these regulations.
NOTE
Authority cited: Section 17072.13, Education Code. Reference: Sections 17072.13 and 17072.35, Education Code.
HISTORY
1. New section filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
2. Amendment filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
3. Amendment of first and last paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
4. Amendment of section heading and section filed 2-13-2003 as an emergency; operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
5. Amendment of section heading and section refiled 6-12-2003 as an emergency; operative 6-12-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-10-2003 or emergency language will be repealed by operation of law on the following day.
6. Amendment of first paragraph and subsections (a), (b)-(b)(1) and (b)(2) and new subsection (c) and following paragraph filed 7-7-2003 as an emergency; operative 7-7-2003 (Register 2003, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment of section heading and section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
8. Amendment of first paragraph and subsections (a), (b)-(b)(1) and (b)(2) and new subsection (c) and following paragraph refiled 11-3-2003 as an emergency; operative 11-3-2003 (Register 2003, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-2-2004 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
10. Amendment of first paragraph and subsections (a), (b)-(b)(1) and (b)(2) and new subsection (c) and following paragraph refiled 3-2-2004 as an emergency, including further amendment of first paragraph; operative 3-2-2004 (Register 2004, No. 10). A Certificate of Compliance must be transmitted to OAL by 6-30-2004 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-22-2004 (Register 2004, No. 13).
12. Certificate of Compliance as to 3-2-2004 order transmitted to OAL 6-28-2004 and filed 8-9-2004 (Register 2004, No. 33).
§1859.77.3. Use of New Construction Grant Funds for Projects Accepted by the DSA After January 22, 2003.
Note • History
New Construction Grant funds and any other funds provided by these Regulations shall be expended as set forth in Education Code Section 17072.35; and may also be utilized for the cost incurred by the district for the development and implementation of remedial action plan approved by the DTSC pursuant to Education Code Section 17213.
Authorization for use of New Construction Grants for which the final plans and specifications for the project were accepted by the DSA after January 22, 2003 may be requested as follows:
(a) A district may request new construction grants that exceed the capacity of the project based on loading standards pursuant to Education Code Section 17071.25(a)(2) and any loading standards adopted by the SAB by these regulations if the project is to construct a multipurpose, gymnasium and/or library, or for an Alternative Education school to construct a multipurpose/gymnasium, library, counseling offices, and/or conference rooms, at an existing site that does not have an existing or adequate facility of the type being requested when all of the following is met:
(1) The district must adopt a school board resolution that has been discussed at a public hearing at a regularly scheduled meeting of the district's governing board on a date preceding the application filing that includes the following:
(A) An acknowledgement that funds for the purposes of housing the excess pupils are being diverted to another project.
(B) An acknowledgement that the State has satisfied its obligation, pursuant to Section 1859.50, to house the pupils receiving grants in the project.
(C) A plan outlined in the resolution that identifies how the district has housed or will house the pupils receiving grants in the project in school buildings as defined in Education Code Section 17368. The plan must certify one of the following methods:
1. The district will construct or acquire facilities for housing the pupils with funding not otherwise available to the SFP as a district match within five years of project approval by the SAB, and the district must identify the source of the funds; or
2. The district will utilize higher district loading standards providing the loading standards are within the approved district's teacher contract and do not exceed 33:1 per classroom.
(2) The existing school site was not constructed under the SFP.
(3) The proposed project includes no more than eight classrooms.
(4) Grant requests, above 100 percent of the number of pupils to be housed, based on Special Day Class pupil eligibility are only permitted under this subsection (a) when building a Special Day Class facility.
(5) For purposes of this section to determine if an existing facility is inadequate, the existing square footage is less than 60 percent of the square footage necessary for the current CBEDS for the site plus the Net School Building Capacity of the proposed project as calculated pursuant to Section 1859.82(b), except for Alternative Education Schools. For Alternative Education Schools, refer to the following:
Alternative Education
Embedded Graphic 02.0023
(6) The maximum excess pupil amount being requested for this type of use of grants request, is calculated by the following:
(A) Multiply the current CBEDS for the site plus the Net School Building Capacity for the proposed project by the square footage for the type of facility being requested, pursuant to Section 1859.82(b), except for Alternative Education Schools. For Alternative Education Schools, refer to the chart above.
(B) Multiply the product in (a)(6)(A) above by the per square foot grant amount for multipurpose, gymnasium or library facilities pursuant to Section 1859.82(b); utilize the same per square foot grant amount for the Alternative Education school facilities as shown in Section 1859.82(b).
(C) Divide the product in (a)(6)(B) above by the New Construction Grant amount for the project grade level, rounded up to the nearest whole number.
(b) A district may request new construction grant eligibility determined at a different grade level than the proposed project that does not exceed the capacity of the project, unless the project includes a request as indicated in Section 1859.77.3(a), based on loading standards pursuant to Section 17071.25(a)(2) and any loading standards adopted by the SAB by these regulations when all of the following is met:
(1) The district must adopt a school board resolution that has been discussed at a public hearing at a regularly scheduled meeting of the district's governing board on a date preceding the application filing that includes the following:
(A) An acknowledgement that funds for the purposes of housing the excess pupils are being diverted to another project.
(B) An acknowledgement that the State has satisfied its obligation, pursuant to Section 1859.50, to house the pupils receiving grants in the project.
(C) A plan outlined in the resolution that identifies how the district has housed or will house the pupils receiving grants in the project in school buildings as defined in Education Code Section 17368. The plan must certify one of the following methods:
1. The district will construct or acquire facilities for housing the pupils with funding not otherwise available to the SFP as a district match within five years of project approval by the SAB, and the district must identify the source of the funds; or
2. The district will utilize higher district loading standards providing the loading standards are within the approved district's teacher contract and do not exceed 33:1 per classroom; or
3. The pupils requested from a different grade level will be housed in classrooms at an existing school in the district which will have its grade level changed, to the grade level requested, at the completion of the proposed SFP project.
(2) Only New Construction Grant eligibility for grades Kindergarten through 12 can be requested to pursuant to this subsection (b), and the district must use its New Construction Grant eligibility, pursuant to subsection (b), in the following order:
(A) At the grade level of the proposed project, if available.
(B) At the lowest grade level other than the proposed project, if available.
(C) At the next highest grade level other than the proposed project.
(c) A district may request new construction eligibility based on the SFP Regulation Section 1859.77.2 or 1859.77.3, as appropriate, in place as of the date of a local bond election provided that clear language was included in the local bond that specifically identified the proposed project, and provided that the project meets all laws and regulations of the SFP.
If a district wishes to amend its Approved Application to include or increase its use of grants request after the submittal to the OPSC, the district must request in writing that the Approved Application be withdrawn and removed from the OPSC workload list. The resubmitted application will receive a new processing date by the OPSC.
The New Construction Grant amount provided shall be determined based on the grant amount provided in Education Code Section 17072.10 for the grade level that generated the eligibility and any New Construction Additional Grant or New Construction Excessive Cost Hardship Grant the district qualifies for as provided by these regulations.
NOTE
Authority cited: Sections 17070.35 and 17072.13, Education Code. Reference: Sections 17072.13 and 17072.35, Education Code.
HISTORY
1. New section filed 7-7-2003 as an emergency; operative 7-7-2003 (Register 2003, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 11-3-2003 as an emergency; operative 11-3-2003 (Register 2003, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-2-2004 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 3-2-2004 as an emergency, including further amendment of first paragraph; operative 3-2-2004 (Register 2004, No. 10). A Certificate of Compliance must be transmitted to OAL by 6-30-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 3-2-2004 order transmitted to OAL 6-28-2004 and filed 8-9-2004 (Register 2004, No. 33).
5. Amendment of subsections (a), (a)(5) and (a)(6)(A)-(B) filed 1-31-2005; operative 1-31-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
§1859.77.4. Addition to a Site and Modernization Grant for High Performance Incentive.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide the grant amounts identified in Subsection (b) if all the following are met:
(1) The project meets the mandatory measures of the California Green Building Standards, California Code of Regulations Title 24, Part 11, as applicable.
(2) The project includes all the prerequisites in each of the five HPRC to include Sustainable Sites, Water, Energy, Materials and Indoor Environmental Quality, that are within the scope of the project, and related subcategory credits.
(3) Once the prerequisites in (a)(1) and (a)(2) have been met, the district may select the criteria and credits it wishes to pursue to determine point award. The category, criteria and associated points are as indicated in Section 1859.71.6(a), with the exception of (a)(3)(C)2., Alternate Energy Sources, that has an amended point allowance that equals three to nine points; three points for the first five percent plus one point for each additional five percent thereafter of the site's annual power consumption that is produced on site not to exceed 35 percent; and the exception of (a)(3)(E)(2)f., Low emitting materials, that has an amended point allowance equal to one to four points.
(4) A minimum of four points must come from either Section 1859.71.6(a)(3)(C)1.b. and/or 2.
(5) The project, which includes a complete set of plans, must be submitted to and accepted by the DSA on or after May 20, 2006.
(6) The DSA has reviewed the proposed project and concurs with the points specified in the HPRC.
(7) The project will not receive funding from the Energy Efficiency Account.
(8) For those projects accepted by the DSA prior to October 1, 2007, districts may utilize the 2002 CA-CHPS Criteria, and the point standard will be in the range of 23 to 72 points. All prerequisites, credits and points obtained must be based on the 2002 Edition requirements. Criteria and associated prerequisite or points as indicated in Section 1859.71.6 (a)(3)(D)2.a. and 4.c. and f. and (E)1.c. and 2.b. and district resolutions are ineligible, and (a)(4) is optional.
(b) To determine the High Performance Incentive grant, multiply the New Construction or Modernization Grant, as appropriate, by the percentage allowance in accordance with the eligible high performance points as follows:
(1) For those projects accepted by the DSA prior to October 1, 2007, pursuant to (a)(8), in which the level of high performance attained, as concurred by the DSA, is a minimum of 23 points, the New Construction or Modernization Grant, as appropriate, will be multiplied by:
(A) Two percent at 23 points plus 0.03 percent for each point attained from 24 through 33 points; or
(B) 2.35 percent at 34 points plus 0.24 percent for each point attained from 35 through 40 points; or
(C) Four percent at 41 points plus 0.36 percent for each point attained from 42 through 54 points; or
(D) 9.05 percent at 55 points plus 0.060 percent for each point attained from 56 through 72 points.
(2) For those projects accepted by the DSA utilizing the 2006 CA-CHPS Criteria, in which the level of high performance attained as concurred by the DSA is a minimum of 20 points, the New Construction or Modernization Grant, as appropriate, will be multiplied by:
(A) Two percent at 20 points plus 0.025 percent for each point attained from 21 through 33 points; or
(B) 2.35 percent at 34 points plus 0.24 percent for each point attained from 35 through 40 points; or
(C) Four percent at 41 points plus 0.36 percent for each point attained from 42 through 54 points; or
(D) 9.05 percent at 55 points plus 0.060 percent for each point attained from 56 through 77 points.
(3) For those projects accepted by the DSA utilizing the 2009 CA-CHPS Criteria, in which the level of high performance attained as concurred by the DSA is a minimum of 20 points, the Board shall provide $250,000 one time per school site as a High Performance Base Incentive Grant. In addition, the New Construction or Modernization Grant, as appropriate will be multiplied by:
(A) 2.18 percent at 20 points plus 0.025 percent for each point attained from 21 through 26 points; or
(B) 2.35 percent at 27 points plus 0.24 percent for each point attained from 28 through 33 points; or
(C) Four percent at 34 points plus 0.36 percent for each point attained from 35 through 47 points; or
(D) 9.05 percent at 48 points plus 0.060 percent for each point attained from 49 through 84.
If there are no funds remaining in the High Performance School Account or the funds remaining are insufficient to fully fund the additional grant authorized in Subsection (b), the district may either withdraw its application and resubmit it should additional funds be made available in the High Performance School Account or continue with the addition to an existing site/modernization project and accept a full and final apportionment without the additional grant authorized by Subsection (b).
Any funds apportioned pursuant to this Section shall be expended only on high performance related costs (and components as approved by the OPSC.)
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 101012(a)(8), Education Code.
HISTORY
1. New section filed 10-1-2007; operative 10-1-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
2. Amendment filed 1-25-2011; operative 1-25-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).
§1859.78. Adjustment to the Modernization Grant.
Note • History
The modernization per-unhoused grant amount, as provided by Education Code Section 17074.10(a), will be adjusted annually based on the change in the Class B Construction Cost Index as approved by the Board each January. The base Class B Construction Cost Index shall be 1.30 and the first adjustment shall be January, 1999.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.10, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.78.1. Modernization Additional Grant for Labor Compliance Program or Prevailing Wage Monitoring and Enforcement Costs.
Note • History
(a) After determining all other funding authorized by these Regulations, for any project funded in whole or in part from Proposition 47 or Proposition 55 for which the construction contract is awarded prior to January 1, 2012, and for which the district is required under Labor Code Section 1771.7(a) and (b) to initiate and enforce a labor compliance program, the Board shall increase the per-unhoused pupil grant by the following calculation, less the district matching share required in Section 1859.79:
(1) Using the chart in Section 1859.71.4(b), determine the total amount of funding to be provided for the increased costs of a modernization project due to the initiation and enforcement of a LCP.
(2) Divide the amount determined in subsection (a)(1) by the total number of pupils, or by one if no pupils are assigned, in the approved application.
(b) After determining all other funding authorized by these Regulations, the Board shall increase the grant by 60 percent of one-fourth of one percent of the Total Projected Bond Apportionment for any project for which the construction contract is awarded on or after January 1, 2012.
(c) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the State and for which the construction contract is awarded on or after January 1, 2012, is subject to the DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(d) Any school district failing to meet the requirements of (c) shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(e) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in (d), for any construction projects for which the violations occurred.
NOTE
Authority cited: Section 17070.35, Education Code; and Section 1771.3, Labor Code. Reference: Sections 17074.10 and 17072.30, Education Code.
HISTORY
1. New section filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 2004, No. 9.
2. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
3. Amendment of section heading and subsection (a), new subsections (b)-(e) and amendment of Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.78.2. Modernization Additional Grant for Project Assistance.
Note • History
In addition to any other funding authorized by these Regulations, the Board shall provide $2,000 for Small School Districts for the cost necessary for project assistance. The amount will be adjusted annually based on the change in the Class B Construction Cost Index as approved by the Board each January. The base Class B Construction Index shall be 1.37 and the first adjustment shall be January 2001.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.10, Education Code.
HISTORY
1. New section filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
2. Amendment of last paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
4. Amendment of section heading and last paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
6. Amendment of last paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
7. Amendment of second paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
8. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment of last paragraph filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
10. Amendment of last paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
11. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
13. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.78.3. Modernization Grant for Individuals with Exceptional Needs.
Note • History
In lieu of the funding provided by Subdivision (a) of Education Code Section 17074.10 and Section 1859.78.6, the Board shall provide the grant amounts in subsections (a) and (b) for each pupil included in an approved project for modernization funding and shall provide the grant amount in subsections (c) and (d) for the CDE on behalf of the California Schools for the Deaf and Blind for each pupil included in an approved project for modernization funding. The amounts in subsections (c) and (d) represent 100 percent State funding, pursuant to Education Code Section 17073.25.
(a) $7,158 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(b) $4,788 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(c) $11,930 for each pupil that meets Education Code Section 59020 and attends the California Schools for the Deaf and Blind and has facilities under 50 years old.
(d) $16,573 for each pupil that meets Education Code Section 59020 and attends the California Schools for the Deaf and Blind and has facilities 50 years old and older.
For purposes of subsections (c) and (d) above, 25 percent of the Modernization Grant shall be apportioned and released upon approval by the Board of a Separate Apportionment for Design Costs.
The amounts shown shall be adjusted annually in the manner prescribed in Section 1859.78. The grant is eligible for any modernization
grant augmentation for which the project is otherwise eligible under the law and regulations.
NOTE
Authority cited: Sections 17070.35, 17072.10 and 17074.10, Education Code. Reference: Sections 17072.10, 17073.25, 17074.10 and 17074.26, Education Code.
HISTORY
1. New section filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
3. Amendment of section heading, first paragraph and subsection (b) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
5. Amendment of section heading, section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Amendment of first paragraph, new subsections (c) and (d) and amendment of Note filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment of first paragraph, new subsections (c) and (d) and amendment of Note refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
8. Amendment of first paragraph, new subsections (c) and (d) and amendment of Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
10. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.78.4. Modernization Additional Grant for Fire Code Requirements.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide the following grant amounts for each pupil included in an application for modernization if the project includes an automatic fire detection and alarm system as described in Education Code Section 17074.52 or the fire detection and alarm system is deferred as authorized by Subdivision (b) of Education Code Section 17074.50:
(1) $72.12 for each elementary school pupil.
(2) $72.12 for each middle school pupil.
(3) $72.12 for each high school pupil.
(4) $134.14 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(5) $200.49 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(b) Pursuant to Subdivision (c) of Education Code Section 17074.56, the Board shall provide the grant amounts shown in (a) above, in addition to any other funding authorized by these Regulations, for each pupil included in an application for modernization if all the following criteria are met:
(1) The final plans for the modernization project were submitted to the Division of the State Architect for review and approval between September 1, 2001 and June 30, 2002.
(2) The final plans for the modernization project included an automatic fire detection and alarm system as described in Education Code Section 17074.52 or the project will include the system prior to the completion of the project.
(3) The modernization project did not receive the entire Modernization Adjusted Grant apportionment by June 30, 2002.
The amounts shown in (a) above shall be adjusted annually in the manner prescribed in Section 1859.78.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17074.50, 17074.52, 17074.54 and 17074.56, Education Code.
HISTORY
1. New section filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
2. Amendment of subsections (a) and (b) and last paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of subsections (a)(1)-(5) filed 11-4-2004; operative 11-4-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 45).
§1859.78.5. Modernization Additional Grant for Energy Efficiency.
Note • History
(a) In addition to any other funding authorized by these Regulations, the Board shall provide the grant amounts identified in (b) if all the following are met:
(1) The project includes energy efficiency components that conform to Subdivision (b) of Education Code Section 17077.35.
(2) The average energy efficiency score of all the buildings in the project, as determined by EnergyPro 3.1 or a similar computer program approved by the State Energy Resources Conservation and Development Commission, exceeds the nonresidential building energy efficiency standards specified in Part 6 of Title 24 of the California Code of Regulations by at least 10 percent.
(3) The DSA has reviewed the proposed project and concurs with the percentage of energy efficiency that exceeds the nonresidential building energy efficiency standards specified in Part 6 of Title 24 of the California Code of Regulations.
(4) No portion of the project will be funded with funds made available from the Renewable Energy Program administered by the State Energy Resources Conservation and Development Commission.
(5) There are funds remaining in the Energy Efficiency Fund as prescribed in Section 1859.70.1 to apportion some or the entire additional grant provided in (b).
(b) An amount equal to the lesser of (b)(1) or (b)(2):
(1) The Modernization Grant multiplied by one percent if the percentage of energy efficiency as concurred by the DSA in (a)(3) is 10 percent, or by one percent plus 0.1 percent for each 0.1 percent increment of increased energy efficiency up to 14 percent. The multiplier may not exceed five percent.
(2) The remaining funds available in the Energy Efficiency Account set aside for this Section.
If there are no funds remaining in the Energy Efficiency Account or the funds remaining in the Energy Efficiency Account are insufficient to fully fund the additional grant authorized in (b)(1), the district may either withdraw its application and resubmit it when additional funds are available in the Energy Efficiency Account or continue with the modernization project and accept a full and final apportionment without the additional grant authorized by (b)(1) or the lesser apportionment authorized by (b)(2).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17077.35, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of subsections (a)(2) and (b)(1) and repealer of subsections (b)(1)(A)-(E) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
4. Amendment of subsections (a)(2) and (a)(4) filed 8-21-2006 as an emergency; operative 8-21-2006 (Register 2006, No. 34). A Certificate of Compliance must be transmitted to OAL by 12-19-2006 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 8-21-2006 order transmitted to OAL 11-9-2006 and filed 12-18-2006 (Register 2006, No. 51).
§1859.78.6. Modernization Grant for 50 Year or Older Permanent Buildings.
Note • History
(a) In lieu of the funding provided by Subdivision (a) of Education Code Section 17074.10 and Section 1859.78.3, the Board shall provide the amounts shown below for each pupil housed in permanent school buildings that are 50 years or older as follows:
(1) $3,120 for each elementary pupil.
(2) $3,300 for each middle school pupil.
(3) $4,320 for each high school pupil.
(4) $9,944 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(5) $6,650 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(b) If the eligibility at the school site includes permanent buildings both over and under 50 years old, the number of pupils housed in 50 years or older permanent buildings, for purposes of (a) above, shall be determined by either of the following, at the district's option:
(1) A percentage of permanent classrooms that are 50 years or older to the total number of classrooms eligible for Modernization at the site determined as follows:
(A) Calculate the total number of classrooms eligible for Modernization at the site that were included in the Gross Classroom Inventory pursuant to Section 1859.31.
(B) Calculate the total number of permanent classrooms that are at least 50 years old and were not previously modernized with State funds.
(C) Divide the classrooms calculated in (b)(1)(B) by the total classrooms calculated in (b)(1)(A). Round up to the nearest one tenth of one percent.
(D) Multiply the percentage determined in (b)(1)(C) by the total modernization eligibility as determined in Option A or B on the Form SAB 50-03, for each grade group. Round up, or;
(2) A percentage of the permanent building area Square Footage that is 50 years or older to the total Square Footage eligible for Modernization at the site determined as follows:
(A) Calculate the total Square Footage building area eligible for Modernization at the site.
(B) Calculate the total permanent Square Footage of building area that is at least 50 years old and was not previously modernized with State funds.
(C) Divide the Square Footage of building area calculated in (b)(2)(B) by the total Square Footage of building area calculated in (b)(2)(A). Round up to the nearest one tenth of one percent.
(D) Multiply the percentage determined in (b)(2)(C) by the total modernization eligibility as determined in Option A or B on the Form SAB 50-03, for each grade group. Round up.
The amounts shown shall be adjusted annually in the manner prescribed in Section 1859.78. The grant is eligible for any modernization grant augmentation for which the project is otherwise eligible under the law and regulations.
For purposes of determining the age of the building, the 20 year, 25 year and the 50 year period shall begin 12 months after the original plans for the construction of the building were approved by the DSA or in the case of permanent or portable classrooms previously modernized with State funds, the 25/20 year period shall begin on the date of its previous modernization apportionment.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.26, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of subsections (b)-(b)(1)(B), (b)(1)(D)-(b)(2)(B), (b)(2)(D) and last paragraph filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 6).
§1859.78.7. Modernization Additional Grant for Site Development Necessary for 50 Years or Older Permanent Buildings.
Note • History
In addition to any other funding authorized by these Regulations, the Board shall provide funding for upgrading existing site development (utilities) work as necessary for the modernization of 50 years or older permanent buildings equal to the lesser of (a) or (b):
(a) 60 percent of the costs necessary to upgrade utility service to 50 year or older permanent building(s) on the site as follows:
(1) Water: Replacement or repair of main water service line(s) between the utility company connection and to five feet of the 50 years or older building(s) on the site, connection fees if applicable, meter (if not provided by the serving utility), and replacement or repair of a domestic water appurtenances (i.e., well, pump, tank) as needed for the proper operation of the system.
(2) Sewage: Replacement or repair of main sewer line between the utility company connection and to five feet of the 50 years or older building(s) on the site and connection fees, if applicable. Replacement or repair of sewage appurtenances (i.e., treatment/disposal system) as needed for the proper operation of the system and a main disposal line from the treatment system to five feet of the 50 years or older building(s) on the site.
(3) Gas: Replacement or repair of main gas service line between the utility company connection and to five feet of the 50 years or older building(s) on the site, connection fee (if applicable), meter (if not provided by serving utility) or replacement or repair of gas service appurtenances (i.e., liquefied petroleum system and tank) as needed for proper operation of the system and a new main supply line from the tank to five feet of the 50 years or older building(s) on the site.
(4) Electric: Replacement or repair of electrical service between the utility company connection and the building main switchboard. Primary electric service runs between the utility company's point of connection and the transformer. Secondary electric service runs between the transformer and the main switchboard. Connection fee, transformer pads and protective devices (i.e., bollards) as required by the utility company.
(5) Communication systems (i.e., cable television and telephone): Replacement or repair of service between the utility company connection and the nearest distribution center.
(b) Twenty percent of the funding authorized by Section 1859.78.6.
The district must submit a detailed cost estimate and appropriate DSA approved plans with Form SAB 50-04 for all requests for the site development work. The cost estimate must include appropriate justification documents that indicate the work is necessary to complete the modernization of the 50 years or older building(s) that will be modernized as part of the project.
The Board will approve reasonable and appropriate site development (utilities) work that meets common engineering practices and industry standards and are consistent with the specific site conditions, if the site development costs are consistent with the most current edition of the Saylor Remodeling/Repair Construction Costs. The design professional must certify that the site development (utilities) work does not exceed the minimum requirements to develop the site to meet educational needs and/or standards.
Utility service(s) cost shall be prorated, if necessary, for any excess capacity not needed to service the 50 year or older permanent building(s).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.26, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.78.8. Modernization Grant for Facilities Previously Modernized with State Funds.
Note • History
The Board shall provide an additional apportionment provided by Education Code 17074.10(a) and Section 1859.78.3, for facilities previously modernized with State funds as follows:
(a) An additional apportionment will be provided for the modernization of a permanent school building every 25 years following the date of its previous State modernization apportionment.
(b) In the case of portable classrooms, an additional apportionment will be permitted every 20 years after the date of its previous State modernization apportionment provided the modernization funds will be used to replace the portable classroom(s) and the school district must certify that the portable classrooms will be removed from any classroom use unless acceptable documentation is provided by the district indicating that the modernization of the portable classrooms is a better use of public resources.
If the previous SFP modernization apportionment includes both permanent and portable facilities, the number of pupil grants that will be added to the site's baseline eligibility shall be determined by the percentage of permanent or portable facilities identified on the Form SAB 50-03 that generated the initial eligibility.
The capacity and eligibility of the school district will not be adjusted for the replacement of the portable classroom pursuant to Education Sections 17074.10(f) and 17073.15.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17073.15 and 17074.10, Education Code.
HISTORY
1. New section filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 6).
§1859.78.9. Separate Apportionment for Modernization Reconfiguration Under the Small High School Program. [Repealed]
Note • History
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.32, Education Code.
HISTORY
1. New section filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
2. Amendment of subsection (a) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
3. Repealer filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.79. Modernization Matching Share Requirement.
Note • History
Except in the case of financial hardship as provided in Section 1859.81 a district matching share for a modernization project shall be required as follows:
(a) If the Approved Application is received on or before April 29, 2002, any Modernization Grant plus any other funding provided by these Regulations shall require a district matching share equal to at least 20 percent of of those amounts which, combined with the State's Modernization Adjusted Grant, shall represent 100 percent of the total project cost.
(b) If the Approved Application is received after April 29, 2002, any Modernization Grant, plus any other funding authorized by these Regulations shall require a district matching share equal to at least 40 percent of those amounts which, combined with the State's Modernization Adjusted Grant, shall represent 100 percent of the total project cost.
The district may include as its district matching share any amounts expended on the project for an energy audit made pursuant to Education Code Section 17077.10 and any amounts applied to the project for incentive grants or rebates received by the district from a program funded pursuant to Public Utilities Code Section 381.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17074.15, 17074.16 and 17077.10, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. New second paragraph and amendment of Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of section and Note filed 9-16-2002 as an emergency; operative 9-16-2002 (Register 2002, No. 38). A Certificate of Compliance must be transmitted to OAL by 1-14-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 9-16-2002 order transmitted to OAL 1-7-2003 and filed 2-19-2003 (Register 2003, No. 8).
9. Amendment of subsections (a) and (b) filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
10. Amendment of subsections (a) and (b) refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
11. Amendment of subsections (a) and (b) refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
13. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
14. Amendment of first paragraph, new final paragraph and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
15. Amendment of first paragraph, repealer of last paragraph and amendment of Note filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.79.1. Modernization Reimbursement.
Note • History
The Board will not provide Modernization funding for a project if the district entered into a construction contract for that project before August 27, 1998 unless:
(a) The project met the provisions for funding under the LPP pursuant to Sections 1859.14 or 1859.15; or
(b) The project was approved on the Year-Round Schools Air Conditioning/Insulation Program unfunded approval list pursuant to Education Code Section 42250.1.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17074.10 and 42250.1, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
§1859.79.2. Use of Modernization Grant Funds.
Note • History
The Modernization Grant plus any other funds provided by these Regulations shall be expended as set forth in Education Code Sections 17074.25, 17074.10(f) and 17070.15(i) and may also be utilized for other purposes as set forth in Education Code Section 100420(c), and Labor Code Section 1771.3(a). Modernization funding may also be used for the costs incurred by the district directly or through a contract with a third party provider for the initiation and enforcement of a LCP. Modernization funding, with the exception of savings, is limited to expenditure on the specific site where the modernization grant eligibility was generated. The grant may not be used for the following:
(a) New building area with the exception of the following:
(1) Replacement building area of like kind. Additional classrooms constructed within the replacement area will reduce the new construction baseline eligibility for the district.
(2) Building area required by the federal Americans with Disabilities Act (ADA) or by the Division of the State Architect's (DSA) handicapped access requirements.
(b) New site development items with the exception of:
(1) Replacement, repair or additions to existing site development.
(2) Site development items required by the federal ADA Act or by the DSA's handicapped access requirements.
(c) the evaluation and removal of hazardous or solid waste and/or hazardous substances when the Department of Toxic Substance Control has determined that the site contains dangerous levels of a hazardous substance, hazardous waste, or both that exceed ten percent of the combined adjusted grant and the district matching share for the project.
(d) Leased facilities not owned by another district or a county superintendent.
Modernization Grant funds may be used on any school facilities on the site, with the exception of portable classroom facilities eligible for an additional apportionment pursuant to Education Code Sections 17073.15 and 17074.10(f) and as defined in Section 1859.78.8. If the classroom facilities on the site include areas that are currently ineligible for modernization, it will not disqualify those facilities from future modernization funding.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.15, 17074.25 and 100420(c), Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section and Note, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Amendment of first paragraph filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
8. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
9. Amendment of first paragraph and subsection (a)(2) filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
10. Amendment of first paragraph and repealer of penultimate paragraph filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 6).
11. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
12. New subsection (j) and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
13. Amendment of first paragraph and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
14. Repealer of subsection (e) and amendment of Note filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.79.3. Minimal Requests for Modernization Grant Funds.
Note • History
(a) With the exception of Approved Applications that meet the requirements of Section 1859.107(a), districts seeking a Modernization Grant must submit Form SAB 50-04 for any one of the following:
(1) at least 52 Non-Severe grants, or
(2) at least 36 Severe grants, or
(3) at least 101 grants, or
(4) the remaining modernization eligibility at the school site if less than the grants in (1), (2), or (3).
(b) Form SAB 50-04 requesting Modernization Grant funds that do not meet the above criteria will not be accepted by the SAB.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17074.15, 17074.16, 17074.25 and 100420(c), Education Code.
HISTORY
1. New section filed 9-12-2000; operative 9-12-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 37).
2. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
4. Amendment filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
5. Amendment section filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
6. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
7. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
8. Amendment filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
9. Amendment of section and Note filed 9-16-2002 as an emergency; operative 9-16-2002 (Register 2002, No. 38). A Certificate of Compliance must be transmitted to OAL by 1-14-2003 or emergency language will be repealed by operation of law on the following day.
10. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
12. Certificate of Compliance as to 9-16-2002 order transmitted to OAL 1-7-2003 and filed 2-19-2003 (Register 2003, No. 8).
13. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
14. Amendment filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
Article 9. Hardship Assistance
Note • History
A district shall qualify for hardship assistance by demonstrating one or more of the following:
(a) A financial hardship, as provided in Section 1859.81, which prevents the district from funding all or a portion of the matching share requirement for a SFP grant.
(b) A facility Hardship Grant as provided in Section 1859.82.
(c) An Excessive Cost Hardship Grant as a result of added construction costs due to unusual circumstances as provided in Section 1859.83.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17075.10 and 17070.15, Education Code.
HISTORY
1. New article 9 (sections 1859.80-1859.83) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 9 (sections 1859.80-1859.83) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New article 9 (sections 1859.80-1859.83) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of subsection (b) filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
Note • History
Except for Joint-Use Projects and Career Technical Educational Facilities Projects, a district is eligible for financial hardship to fund all or a portion of its matching share requirement after demonstrating the requirements of (a), (c), and (d) below:
(a) The district is financially unable to provide all necessary matching funds for an eligible project. To determine this, an analysis shall be made of the district's financial records by the OPSC including data and records maintained by the CDE and the County Office of Education. The analysis shall consist of a review of the district's latest Independent Audit regarding funds available from all capital facility accounts, including, but not limited to, developer fees, funds generated from capital facility certificates of participation, federal grants, redevelopment funds, sale proceeds from surplus property, the appraised value of facilities approved for replacement pursuant to Section 1859.82, bond funds either encumbered, unencumbered or authorized but unsold, and savings from other SFP projects. All funds thus identified that have not been expended or encumbered by a contractual agreement for a specific capital outlay purpose prior to the initial request for financial hardship status shall be deemed available as a matching contribution.
After the initial request for financial hardship status is granted, no further encumbrances will be approved by the OPSC and all prospective revenue made available to the district's capital facility accounts shall be deemed available as matching contribution on the subsequent financial hardship review, with the exception of:
(1) Approved interim housing expenditures.
(2) Funding to pay for previously recognized multi-year encumbrances approved at the initial financial hardship approval.
(3) Funding that is transferred into a Special Reserve Fund and is used for the express purpose of the Federal Renovation Program when the amount expended out of that fund does not exceed the maximum Federal Renovation Grant amount.
(4) Funding that is transferred into a Special Reserve Fund and is used for the express purpose of the School Facilities Needs Assessment Grant Program or Emergency Repair Program when the amount expended out of that fund does not exceed the maximum grant amount apportioned.
(5) Funding that is transferred into a Special Reserve Fund and is used for the express purpose of the Career Technical Education Facilities Program when the amount expended out of that fund does not exceed the applicant's share of the maximum grant amount apportioned.
(6) Funding that is transferred into a Special Reserve Fund and used for the express purpose of the Overcrowding Relief Grant when the amount expended out of that fund does not exceed the amount of the site acquisition and design costs of the project and the district has submitted an approved Form SAB 50-11.
(7) Funding that is used for the express purpose of reimbursing the State a proportionate share of financial hardship received when there has been a transfer of a special education program and title to the facility. In addition, the funding was used within five years of the title transfer.
(8) Funding to pay for obtaining a structural report pursuant to Section 1859.82 for an approvable and funded seismic mitigation project.
(9) All other capital facility funding for a period of three years when no subsequent financial hardship request is made during this period, with the exception of the funding identified in (6). The three-year period begins with the date of the most recent financial hardship new construction or modernization adjusted grant funding apportionment.
When Overcrowding Relief Grant funding is set aside pursuant to (6) and the School District has not submitted, or the OPSC has not accepted, a Form SAB 50-04 for an Overcrowding Relief Grant within three years from the date of deposit into the Special Reserve Fund, or the School District has not met the requirements in Sections 1859.90 or 1859.105, remaining funds plus interest accrued at the Pooled Money Investment Board rate at that time period shall be deemed available as matching contribution on a subsequent financial hardship project or be captured through an audit adjustment pursuant to Section 1859.106.
The financial hardship analysis is subject to approval by the Board.
(b) From the funds deemed available as a matching contribution, the district may retain $19,776 per classroom in each enrollment reporting period for the cost to provide interim housing for the currently unhoused pupils of the district. The amount shown shall be adjusted annually in the manner prescribed in Section 1859.71. The number of classrooms needed for interim housing for the currently unhoused pupils shall be the sum of the positive numbers determined in (b)(7) as follows:
(1) Determine the current enrollment of the district by grade level as shown on the latest Form SAB 50-01.
(2) Determine the New Construction Grants apportioned by grade level for all SFP projects and LPP funded under the provisions of Sections 1859.12 or 1859.13 where the district has submitted Form SAB 50-06 indicating that the project is 100 percent complete.
(3) Subtract (b)(2) from (b)(1).
(4) Determine the number of classrooms by grade level reported in Part I, Line 8 on Form SAB 50-02.
(5) Multiply the classrooms determined in (b)(4) by 25 for K-6, 27 for 7-12, 13 for Non-Severe and 9 for Severe.
(6) Subtract the product determined in (b)(5) from the difference determined in (b)(3) by grade level.
(7) Divide the difference by grade level determined in (b)(6) by 25 for K-6, 27 for 7-12, 13 for Non-Severe and 9 for Severe and round up to the nearest whole number.
From the funds deemed available as a matching contribution, the district may also retain $19,776 per portable toilet unit in each reporting period for the cost to provide necessary interim toilet facilities for the currently unhoused pupils of the district. The amount shown shall be adjusted annually in the manner prescribed in Section 1859.71. The number of toilet facilities needed for interim housing shall be the sum of the positive numbers determined in (b)(7) divided by eight rounded up to the nearest whole number.
From the funds deemed available as a matching contribution, the district may also retain $19,776 per classroom in each reporting period for the cost to provide necessary interim housing for the currently unhoused pupils displaced as a result of a SAB approved seismic mitigation project pursuant to Section 1859.82. The amount shown shall be adjusted annually in the manner prescribed in Section 1859.71. The number of classrooms needed for interim housing shall be the quotient of the displaced pupils by 25 for K-6, for 27 for 7-12, 13 for Non-Severe and 9 for Severe and round up to the nearest whole number.
If the district's available funds, as determined by the OPSC analysis less costs for interim housing, is less than its matching share, the district will be deemed to have met the requirements of this Subsection.
(c) The district has made all reasonable efforts to fund its matching share of the project by demonstrating it is levying the developer fee justified under law or an alternative revenue source equal to or greater than the developer fee otherwise justified under law at the time of request for hardship and the district meets at least one of the following:
(1) The current outstanding bonded indebtedness of the district issued for the purpose of constructing school facilities in accordance with Education Code Section 17072.35 or 17074.25 as appropriate, at the time of request for financial hardship status, is at least 60 percent of the district's total bonding capacity. Outstanding bonded indebtedness includes that part of general obligation bonds, Mello-Roos Bonds, School Facility Improvement District Bonds and certificates of participation which the district is paying a debt service that was issued for capital outlay school facility purposes.
(2) The district had a successful registered voter bond election for at least the maximum amount allowed under Proposition 39 within the previous two years from the date of request for financial hardship status. The proceeds from the bond election that represent the maximum amount allowed under the provisions of Proposition 39 must be used to fund the district's matching share requirement for SFP project(s).
(3) It is a County Superintendent of Schools.
(4) The district's total bonding capacity at the time of the request for financial hardship status is $5 million or less.
(5) Other evidence of reasonable effort as approved by the SAB.
If the district's request for financial hardship status is denied by the Board, the district may be deemed eligible for rental payments of $2,000 per year per classroom under the Emergency School Classroom Law of 1979 for a two year period when relocatable classroom buildings are available and the district provides financial documentation that it is unable to afford the full rental amount and any other information satisfactory to the Board that the rental reduction is necessary. The number of classrooms eligible for the $2,000 rental payments shall be the sum of the numbers determined in (c)(5)(B) as follows:
(A) Determine the number of pupils by grade level that the district requested a New Construction Grant on the Form SAB 50-04 that were denied financial hardship status.
(B) Divide the number by grade level determined in (c)(5)(A) by 25 for K-6, 27 for 7-12, 13 for Non-Severe and 9 for Severe and round up to the nearest whole number.
(d) The district has not signed a contract for acquisition or construction of classrooms that replace existing facility(ies), which were included in the determination of the district's new construction eligibility pursuant to Education Code Section 17071.75, in a locally funded project during the five-year period immediately preceding the district's application for financial hardship assistance. This restriction may be lifted if the Board finds that unforeseen and extenuating circumstances existed that required the district to use local funds to replace the facility(ies).
(e) If the district meets the financial hardship requirements in this Section, the amount of financial hardship is equal to the district's matching share less funds deemed available in (a).
(1) Once a district has been notified by the OPSC that it meets the requirements of financial hardship in this Section, the district may file Form SAB 50-04 under the provisions of financial hardship anytime within a period of 180 calendar days from the date of the OPSC notification.
(2) If the district does not submit Form SAB 50-04 under the provisions of financial hardship within 180 calendar days of the OPSC notification of approval of financial hardship status, the district must re-qualify for financial hardship status under the provisions of this Section by submittal of a new request for financial hardship status.
(3) If the district submits Form SAB 50-04 within 180 calender days of the OPSC notification of approval of financial hardship and the project(s) has been included on an unfunded list for more than 180 calendar days, a review of the district's funds pursuant to (a) will be made to determine if additional district funds are available to fund the district's matching share of the project(s).
Financial hardship approval status by the OPSC for a separate design and/or site apportionment does not apply to any subsequent funding for the project(s).
(f) If the district submits Form SAB 50-04 within 180 calendar days of the OPSC notification of approval of financial hardship and the project(s) has been included on the “Unfunded List (Lack of AB 55 Loans)” for more than 180 calendar days as a result of the State of California's inability to provide interim financing from the Pooled Money Investment Account (AB 55 loans), the Board may suspend the unfunded review requirement as defined in Regulation Section 1859.81(e). Projects added to any other unfunded list shall be subject to the review detailed in Regulation Section 1859.81(e). Regulation Section 1859.81(f) shall become inoperative July 1, 2011.
(g) A project added to an unfunded list on or after July 1, 2011 will be subject to the review detailed in section (e)(3). For projects added to an unfunded list between February 25, 2009 and June 30, 2011, only the district's financial records on or after July 1, 2011 will be considered in calculating any adjustment to the district's matching share.
NOTE
Authority cited: Sections 17070.35, 17075.15, 17078.72 and 17592.73, Education Code. Reference: Sections 17071.75, 17075.10, 17075.15 and 17079.20, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of subsection (b)(5) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of last paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
8. Amendment of last paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
10. Amendment of last paragraph filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
11. Amendment of last paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
12. Amendment filed 12-21-2001; operative 12-21-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 51).
13. Amendment of subsections (a)(1), (a)(4) and (b)(5)(A)-(B) filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
14. Amendment of subsection (b)(5)(A)-(B) filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
15. Amendment of subsection (b)(5)(A) and second, third and fourth from last paragraphs filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
16. Amendment filed 10-4-2002; operative 10-4-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 40).
17. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
20. Amendment of first paragraph filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
21. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
22. Amendment of subsection (c)(1) filed 2-15-2005; operative 2-15-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 7).
23. New subsection (a)(4), subsection renumbering and amendment of Note filed 5-26-2005 as an emergency; operative 5-26-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-23-2005 or emergency language will be repealed by operation of law on the following day.
24. Certificate of Compliance as to 5-26-2005 order transmitted to OAL 9-19-2005 and filed 10-31-2005 (Register 2005, No. 44).
25. Amendment of first paragraph, new subsection (a)(5), subsection renumbering and amendment of Note filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
26. Amendment of first paragraph and new subsection (d) filed 7-18-2007; operative 7-18-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 29).
27. New subsection (a)(6), subsection renumbering, amendment of and new paragraph following newly designated subsection (a)(7) and amendment of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
28. Editorial correction of History 25 (Register 2007, No. 52).
29. New subsection (a)(7), subsection renumbering and amendment of Note filed 1-7-2008; operative 2-6-2008 (Register 2008, No. 2).
30. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
31. New subsection (a)(8), subsection relettering, amendment of subsections (b)(7), (c)(5) and (d) filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
32. Redesignation of last five paragraphs of section as new subsection (e) and new subsection (f) filed 10-4-2010 as an emergency; operative 10-4-2010 (Register 2010, No. 41). A Certificate of Compliance must be transmitted to OAL by 4-4-2011 or emergency language will be repealed by operation of law on the following day.
33. Redesignation of last five paragraphs of section as new subsection (e) and new subsection (f) refiled 4-5-2011 as an emergency, including further amendment of subsection (f); operative 4-5-2011 (Register 2011, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-5-2011 or emergency language will be repealed by operation of law on the following day.
34. Certificate of Compliance as to 4-5-2011 order transmitted to OAL 6-10-2011 and filed 7-6-2011 (Register 2011, No. 27).
35. Designation of paragraphs following subsection (e) as new subsections (e)(1)-(3) and new subsection (g) filed 7-27-2011 as an emergency; operative 7-27-2011 (Register 2011, No. 30). A Certificate of Compliance must be transmitted to OAL by 1-23-2012 or emergency language will be repealed by operation of law on the following day.
36. Certificate of Compliance as to 7-27-2011 order transmitted to OAL 11-10-2011 and filed 12-21-2011 (Register 2011, No. 51).
§1859.81.1. Separate Apportionment for Site Acquisition and Design Costs.
Note • History
A district that meets the financial hardship criteria in Section 1859.81 is eligible for the following:
(a) For a new construction project, a separate apportionment for site acquisition, with the exception of site acquisition funding authorized by Section 1859.81.2 or for projects receiving funding pursuant to the Overcrowding Relief Grant, Section 1859.180, when all of the following requirements are met:
(1) The district has eligibility for grants that equal at least 50 percent of the CDE master plan capacity of the site.
(2) The district has received a contingent site approval letter from the CDE indicating that the proposed site is the best available.
(3) The district has obtained a preliminary appraisal of the property by a qualified appraiser utilizing criteria outlined in Section 1859.74.1. This report may be made without access to the site.
(b) If the conditions in (a) are met on a site that does not require a RA, the Board will apportion all of the following less any district funds available for the project pursuant to Section 1859.81(a):
(1) An amount not to exceed 100 percent of the lesser of the preliminary appraised value of the site as determined by Section 1859.74.1 or the amount the district reasonably expects to pay for the site including any hazardous material clean-up.
(2) The estimated relocation expenses that will conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment, and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(3) Four percent of the lesser of the preliminary appraised value of the site or the amount the district reasonably expects to pay for the site acquisition including any hazardous material clean-up but not less than $50,000.
(3) For those projects accepted by the DSA utilizing the 2009 CA-CHPS Criteria, in which the level of high performance attained as concurred by the DSA is a minimum of 27 points, the Board shall provide $150,000 one time per school site as a High Performance Base Incentive Grant. In addition, the New Construction Grant will be multiplied by:
(A) 2.35 percent at 27 points; or
(B) 2.59 percent at 28 points plus 0.24 percent for each point attained from 29 through 33 points; or
(C) Four percent at 34 points plus 0.36 percent for each point attained from 35 through 47 points; or
(D) 9.05 percent at 48 points plus 0.060 percent for each point attained from 49 through 88 points.
(4) The estimated DTSC costs for review, approval, and oversight of the POESA and the PEA.
(c) If the conditions in (a) are met on a site that will require a RA, the district is eligible for a separate site apportionment not to exceed 50 percent of one and one half times the value of an appraisal that conforms to Section 1859.74.1 for the costs included in (c)(1) and (c)(4) plus the additional costs included in (c)(2) and (c)(3). The costs included in (c)(2) and (c)(3) are in addition to 50 percent of one and one half times the appraisal value cap.
(1) The cost of the site as determined in Section 1859.74.1 and the amount the district reasonably expects to pay for any hazardous materials/waste removal and/or remediation costs for the site.
(2) Fifty percent of the estimated relocation expenses that will conform to Title 25, California Code of Regulations, Section 6000, et seq. The reasonable and necessary relocation costs for purchasing fixtures and equipment, personal property, new machinery/equipment, and the installation of any improvements at the replacement residence or business location may be included as relocation assistance.
(3) Fifty percent of four percent of the lesser of the appraised value of the site or the amount the district reasonably expects to pay for the site acquisition including any hazardous materials/waste removal and/or remediation costs for the site, but not less than 50 percent of $50,000.
(4) The estimated DTSC costs for review, approval and oversight of the POESA and the PEA.
(d) The limitation of 50 percent of one and one half times the value of an appraisal for costs in subsections (c), (c)(1) and (c)(4) may be exceeded when the Board finds that unforeseen circumstances exist, and when both of the following exist:
(1) CDE determines that the site is the best available site for meeting the educational and safety needs of the School District.
(2) Substantiation that the costs are limited to the minimum required to complete the evaluation and RA approved by the DTSC.
(e) For new construction projects, the Board will apportion an amount not to exceed 40 percent of the new construction grant less any district funds available for the project pursuant to Section 1859.81(a), plus $150,000 for new school projects and $250,000 for new construction addition projects that will be pursuing high performance incentive grants as indicated on the school district governing board resolution that shall be submitted to the OPSC as part of a funding request pursuant to this Section. For modernization projects, the Board will apportion an amount not to exceed the following:
(1) If the Approved Application is received on or before April 29, 2002, 20 percent of the modernization grant less any district funds available for the project pursuant to Section 1859.81(a).
(2) If the Approved Application is received after April 29, 2002, 25 percent of the modernization grant less any district funds available for the project pursuant to Section 1859.81(a), plus $250,000 for projects that will be pursuing high performance incentive grants as indicated on the school district governing board resolution that shall be submitted to the OPSC as part of a funding request pursuant to this Section.
The amount apportioned is an estimate of the funds needed for design, engineering, and other pre-construction project costs.
Qualifying districts may request a separate apportionment for the design and for site acquisition for the same new construction project. Those projects requesting an Overcrowding Relief Grant, pursuant to Section 1859.180, do not qualify for these separate apportionments.
The amount provided as a separate apportionment shall be offset from the New Construction Adjusted Grant or the Modernization Adjusted Grant amount the district would otherwise be eligible for pursuant to Sections 1859.70, 1859.71.6, 1859.77.4 and 1859.81 when the district submits Form SAB 50-04. A district seeking a separate apportionment for site acquisition or design costs shall submit Form SAB 50-04. If a new construction project received a previous design apportionment, the district may request an additional design apportionment for that project up to the 40 percent maximum design apportionment allowed pursuant to this Section.
The Form SAB 50-04 that is subsequently submitted for the New Construction Adjusted Grant must be for at least 50 percent of the New Construction Grant the district requested as a separate design apportionment.
The Form SAB 50-04 that is subsequently submitted for the Modernization Adjusted Grant must be for at least 80 percent of the Modernization Grant the district requested as a separate design apportionment that was received on or before April 29, 2002.
The Form SAB 50-04 that is subsequently submitted for the Modernization Adjusted Grant must be for at least 60 percent of the Modernization Grant the district requested as a separate design apportionment that was received after April 29, 2002.
When the Board is accepting applications pursuant to Section 1859.95, the funding of the new construction or modernization grant may be made from funds set aside by the Board for financial hardship. The amount provided as a separate apportionment shall be adjusted at a future date to assure that hardship funding for the project does not exceed the amount the district was otherwise eligible to receive.
NOTE
Authority cited: Sections 17070.35, 17072.13 and 17075.15, Education Code. Reference: Sections 17072.12, 17072.20, 17072.33, 17074.15, 17074.16 and 17079.20, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment of last paragraph filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment of subsection (b) filed 3-13-2000; operative 4-12-2000 (Register 2000, No. 11).
8. Amendment of section and Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
9. Amendment of last two paragraphs filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
10. Amendment of subsection (c) and amendment of penultimate paragraph filed 9-12-2000; operative 9-12-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 37).
11. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
12. Amendment of last two paragraphs of subsection (c) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
13. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
14. Amendment of last two paragraphs filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
15. Amendment of last two paragraphs filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
16. Amendment of subsection (c) filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
17. Amendment of last two paragraphs filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
18. Amendment of last two paragraphs filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
19. Amendment of section and Note filed 9-16-2002 as an emergency; operative 9-16-2002 (Register 2002, No. 38). A Certificate of Compliance must be transmitted to OAL by 1-14-2003 or emergency language will be repealed by operation of law on the following day.
20. Amendment of last five paragraphs filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
21. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
22. Amendment of subsection (a) and amendment of Note filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
23. Certificate of Compliance as to 9-16-2002 order transmitted to OAL 1-7-2003 and filed 2-19-2003 (Register 2003, No. 8).
24. Amendment of subsection (b), new subsections (c)-(d)(2), subsection relettering, and amendment of newly designated subsections (e)(1)-(2) filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
25. Amendment of subsection (b), new subsections (c)-(d)(2), subsection relettering, and amendment of newly designated subsections (e)(1)-(2) refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
26. Amendment of subsection (b), new subsections (c)-(d)(2), subsection relettering, and amendment of newly designated subsections (e)(1)-(2) refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
27. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
28. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
29. Amendment of subsection (a) and second paragraph following subsection (e)(2) and amendment of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
30. Amendment of subsections (e) and (e)(2) and fifth to last paragraph filed 1-25-2011; operative 1-25-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).
§1859.81.2. Separate Apportionment for District-Owned Site Acquisition Costs.
Note • History
A district that meets the financial hardship criteria in Section 1859.81, with the exception of those projects requesting an Overcrowding Relief Grant pursuant to Section 1859.180, is eligible for the following:
(a) A separate apportionment for district-owned site acquisition cost authorized by Section 1859.74.5 when all the following are met:
(1) The district has eligibility for new construction grants that equal at least 50 percent of the CDE master plan capacity of the site.
(2) All the criteria in Section 1859.74.5(a)(1) through (a)(7) are met.
(b) If the conditions in (a) are met, the Board will apportion one half of the value of the district-owned site as determined in Section 1859.74.5(b).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12, 17072.13, 17072.20 and 17079.20, Education Code.
HISTORY
1. New section filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
2. Amendment of first paragraph and subsection (a)(2) and amendment of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
§1859.81.3. Use of District-Owned Site Acquisition Apportionment.
Note • History
Any funds authorized by Sections 1859.74.5 or 1859.81.2 shall be expended in accordance with Education Code Section 17072.35 and may also be used for the relocation of district facilities necessary as a result of Subdivision (b) of Education Code Section 17072.12.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12, 17072.20 and 17072.35, Education Code.
HISTORY
1. New section filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
Note • History
A district is eligible for facility hardship funding to replace or construct new classrooms and related facilities if the district demonstrates there is an unmet need for pupil housing or the condition of the facilities, or the lack of facilities, is a threat to the health and safety of the pupils. A facility hardship is available for:
(a) New classrooms and/or subsidiary facilities (corridors, toilets, kitchens and other non-classroom space) or replacement facilities if either (1) or (2) are met:
(1) The facilities are needed to ensure the health and safety of the pupils if the district can demonstrate to the satisfaction of the Board that the health and safety of the pupils is at risk. Factors to be considered by the Board shall include the close proximity to a major freeway, airport, electrical facility, high power transmission lines, dam, pipeline, industrial facility, adverse air quality emission or other health and safety risks, including structural deficiencies required by the DSA to be repaired, seismic mitigation of the Most Vulnerable Category 2 Buildings as verified by the DSA, traffic safety or because the pupils reside in remote areas of the district and transportation to existing facilities is not possible or poses a health and safety risk. The total available funding for seismic mitigation related and ancillary costs for the Most Vulnerable Category 2 Buildings is $199.5 million.
(A) If the request is for replacement facilities, a cost/benefit analysis must be prepared by the district and submitted to the OPSC that indicates the total costs to remain in the classroom or related facility and mitigate the problem is at least 50 percent of the Current Replacement Cost of the classroom or related facility. The cost/benefit analysis may include applicable site development costs as outlined in Section 1859.76. If the cost to remain in the classroom or related facility is less than 50 percent of the Current Replacement Cost, the district may qualify for a Modernization Excessive Cost Hardship Grant for rehabilitation costs pursuant to Section 1859.83(e) or a grant not to exceed 50 percent of the cost estimate that has been reviewed and approved by the OPSC and approved by the board for seismic rehabilitation.
(B) If the request is for replacement facilities that included structural and/or seismic deficiencies, the cost/benefit analysis must also include a report from a licensed design professional identifying the minimum work necessary to obtain DSA approval. The report must contain a detailed cost estimate of the repairs. The report and cost estimate shall be subject to review by the OPSC for conformance with the Saylor Current Construction Cost Publication and, at the OPSC's discretion, the DSA. For seismic deficiencies of the Most Vulnerable Category 2 Buildings, the report and the cost estimate for the minimum work necessary must be reviewed by the DSA.
(C) The seismic mitigation projects must meet all of the following requirements:
1. The construction contract was executed on or after May 20, 2006;
2. The project funding provided shall be for the minimum work necessary to obtain DSA approval;
3. The building is designed for occupancy by students and staff; and
4. The DSA concurs with a report by a structural engineer, which identifies structural deficiencies that pose an unacceptable risk of injury to its occupants in a seismic event. If the unacceptable risk of injury is due to the presence of faulting, liquefaction or landslide, these hazards must be documented by a geologic hazards report prepared by an engineering geologist in accordance with California Building Code, Part 2, Chapter 18, section 1803A and with the concurrence of the California Geological Survey.
The structural engineer's report shall conform to the guidelines prepared by the DSA, in accordance with Education Code Section 17310.
(D) Notwithstanding Sections 1859.93 and 1859.93.1, all applications for the seismic mitigation of the Most Vulnerable Category 2 Buildings shall be funded in the order of receipt of an Approved Application for funding.
(E) If an Application for the seismic mitigation of the Most Vulnerable Category 2 Buildings cannot be fully apportioned or approved for placement on the Unfunded List (Lack of AB 55 Loans) because insufficient funding is available, the applicant may accept the remaining funding amount or refuse funding entirely. If partial funding is accepted, the applicant will remain eligible for the additional amount of seismic funds, up to the initial funding request, if funds become available within the Seismic Mitigation Program authority amount of $199.5 million. If funding is refused, the Board shall consider funding the next project eligible for funding pursuant to this Section.
For any Application for the seismic mitigation of the Most Vulnerable Category 2 Buildings not apportioned or approved for placement on the Unfunded List (Lack of AB 55 Loans) pursuant to this Section, the application shall be returned to the applicant.
(2) The classroom or related facility was lost or destroyed as a result of a disaster such as fire, flood or earthquake and the district has demonstrated satisfactorily to the Board that the classroom or related facility was uninsurable or the cost for insurance was prohibitive.
If the district qualifies for a new or replacement school pursuant to either (1) or (2) above, the district is eligible for a New Construction Grant as a new construction project for the lesser of the pupils housed in the replaced facility based on loading standards pursuant to Education Code Section 17071.25(a)(2) or the latest CBEDS enrollment at the site.
If the district qualifies for replacement facilities on the same site pursuant to either (1) or (2) above, the district is eligible for funding as a new construction project. Replacement facilities shall be allowed in accordance with the square footage amounts provided in the chart in Section (b) below. If the facility eligible for replacement is not shown in the chart in Section (b) below, the replacement facility shall be limited to the square footage replaced. The grant amount provided shall be $173.30 per square foot for Toilet Facilities and $96.30 per square foot for all other facilities. Additional funding may be provided for applicable site development costs pursuant to Section 1859.76, New Construction Excessive Cost Hardship Grant(s) pursuant to Section 1859.83(a), (b) or (d), therapy room pursuant to Section 1859.72, multilevel construction pursuant to Section 1859.73 and project assistance pursuant to Section 1859.73.1. The amounts shown will be adjusted in the manner prescribed in Section 1859.71. For any project funded in whole or in part from any State bond funds for which the construction contract is awarded prior to January 1, 2012, the district may be eligible for the funding provided to initiate and enforce a LCP as prescribed in Section 1859.71.4(a). For any project for which the construction contract is awarded on or after January 1, 2012, the grant may be adjusted in the manner prescribed in Section 1859.71.4(c) and subject to the limitations established in Section 1859.71.4(d).
Any grants provided pursuant to either (1) or (2) above will be reduced for any space deemed available by the Board in the district, the HSAA or Super HSAA that could be used to house some or all of the displaced pupils, fifty percent of any insurance proceeds collectable by the district for the displaced facilities and fifty percent of the net proceeds available from the disposition of any displaced facilities.
(b) A multi-purpose room, toilet, gymnasium, school administration or library/media center, facility that meets all the following:
(1) The facility was lost or destroyed as a result of a disaster, including but not limited to fire, flood or earthquake.
(2) The facility is no longer useable for school purposes as recommended by the California Department of Education and approved by the Board.
(3) The district has demonstrated satisfactorily to the Board that the facility was uninsurable or the cost of insurance was prohibitive.
If the district qualifies, the district is eligible for funding as a new construction project. The funding amount provided shall be $96.30 per square foot for library/media center, school administration, gymnasium and multi-purpose facilities, and/or $173.30 per square foot for Toilet Facilities. A New Construction Additional Grant may be provided for applicable site development costs pursuant to Section 1859.76, New Construction Excessive Cost Hardship Grant(s) pursuant to Section 1859.83(a) and (d), therapy room pursuant to Section 1859.72, multilevel construction pursuant to Section 1859.73 and project assistance pursuant to Section 1859.73.1. The amounts shown will be adjusted in the manner prescribed in Section 1859.71. For any project funded in whole or in part from any State bond funds for which the construction contract is awarded prior to January 1, 2012, the district may be eligible for the funding provided to initiate and enforce a LCP as prescribed in Section 1859.71.4(a). For any project for which the construction contract is awarded on or after January 1, 2012, the grant may be adjusted in the manner prescribed in Section 1859.71.4(c) and subject to the limitations established in Section 1859.71.4(d).
Any grants provided pursuant to (b) above, shall be reduced by fifty percent of any insurance proceeds collectable by the district for the displaced facilities and fifty percent of the net proceeds available from the disposition of any displaced facilities.
The square footage provided, after accounting for all useable facilities on the site, shall not exceed the following:
Elementary School Middle School High School
Facility Pupils Pupils Pupils
Multi-Purpose 5.3 sq. ft. per pupil 5.3 sq. ft. per pupil 6.3 sq. ft. per pupil
(includes food service) minimum 4,000 sq. ft. minimum 5,000 sq. ft. minimum 8,200 sq. ft.
Toilet 3 sq. ft. per pupil 4 sq. ft. per pupil 5 sq. ft. per pupil
minimum 300 sq. ft. minimum 300 sq. ft. minimum 300 sq. ft.
Gymnasium (includes N/A 12.9 sq. ft. per pupil 15.3 sq. ft. per pupil
shower/locker) minimum 6,828 sq. ft. minimum 8,380 sq. ft.
maximum 16,000 sq. ft. maximum 18,000 sq. ft.
School Administration 3 sq. ft. per pupil 3 sq. ft. per pupil 4 sq. ft. per pupil
minimum 600 sq. ft. minimum 600 sq. ft. minimum 800 sq. ft.
Library/Media Center 2.3 sq. ft. per pupil + 3.3 sq. ft. per pupil + 4.3 sq. ft. per pupil +
plus 600 sq. ft. plus 600 sq. ft. plus 600 sq. ft.
Any facilities eligible for facility hardship not shown in the above chart or for Alternative Education facilities not shown in the table in Section 1859.77.3(a)(5) shall be eligible for replacement square footage equal to the facilities replaced. For an Alternative Education school eligible for a facility hardship, utilize the square footage provided in Section 1859.77.3(a)(5), with the exception of toilet and administration where the chart above shall be utilized.
A district may request a determination of eligibility for facility hardship funding in advance of project funding.
(c) A district seeking replaced facilities as a result of either (a) or (b) above must submit Form SAB 50-04 for the replaced facilities:
(1) Within 18 months if the replacement facilities will be located on the same site.
(2) Within 24 months if the replacement facilities will be located on a replacement site.
If an Approved Application for the replaced facility is not accepted within the time periods identified in (c)(1) or (c)(2) above, the Board shall re-review the criteria submitted by the district for replacement of the facility prior to apportionment of the replaced facility.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17074.56, 17075.10, 17075.15, 17250.30 and 101012(a)(1), Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of subsection (a)(2) and new subsections (c)-(c)(2) filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of subsection (c) and last paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
8. Amendment of subsections (a)(2), (b)(3), (c) and (c)(2) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
10. Amendment of subsection (c) filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
11. Amendment of subsection (c) filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
12. Amendment of subsection (c) filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
13. Amendment of subsection (c) filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
14. Amendment of second paragraph following subsection (a)(2), first paragraph following subsection (b)(3), subsection (c) and Note filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
15. Amendment of section heading and section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 8-12-2002 order, including amendment of table within subsection (b)(3), transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
17. Amendment of subsections (a)(2) and (b)(3) filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
19. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
20. Amendment of subsections (a)(2) and (b)(3) filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
21. Amendment subsection (b)(3) filed 1-31-2005; operative 1-31-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
22. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
23. Amendment of subsection (a)(1), new subsections (a)(1)(A) and (a)(1)(B) and amendment of Note filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
24. Amendment of subsection (a)(1) and new subsections (a)(1)(C)-(E) filed 9-8-2011 as an emergency; operative 9-8-2011 (Register 2011, No. 36). A Certificate of Compliance must be transmitted to OAL by 3-6-2012 or emergency language will be repealed by operation of law on the following day.
25. Amendment of subsection (a)(1) and new subsections (a)(1)(C)-(E) refiled 3-13-2012 as an emergency; operative 3-13-2012 (Register 2012, No. 11). A Certificate of Compliance must be transmitted to OAL by 6-11-2012 or emergency language will be repealed by operation of law on the following day.
26. Amendment of subsections (a)(2) and (b)(3) and amendment of Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
27. Certificate of Compliance as to 3-13-2012 order transmitted to OAL 4-5-2012 and filed 5-10-2012 (Register 2012, No. 19).
§1859.83. Excessive Cost Hardship Grant.
Note • History
In addition to any other funding authorized by these Regulations, a district is eligible for funding as a result of unusual circumstances that created excessive project costs beyond the control of the district. The Excessive Cost Hardship Grant shall be based on any of the following:
(a) Excessive Cost due to Geographic Location.
A district with a project that is located in a geographic area designated in the Geographic Percentage Chart below is eligible for the sum of the Excessive Cost Hardship Grant(s) determined by multiplying the indicated percentage factor shown in the Geographic Percentage Chart below by each of the following amounts:
(1) The New Construction Grant and the Modernization Grant.
(2) The funding provided by Sections 1859.71.2, 1859.71.3, 1859.72, 1859.73, 1859.73.2, 1859.76(d)(1) and (2), 1859.78.4, 1859.78.5, 1859.82(a) and (b), 1859.83(b), (c), (d) and (f) and 1859.125(a)(1) through (a)(2).
GEOGRAPHIC PERCENTAGE CHART
County % Factor Description
Alpine 5 The entire county.
Amador, 5 All of Amador County except the portion lying west of a line drawn five miles east of,
Eastern Part and paralleling State Highway 49.
Butte, Eastern 5 All of Butte County except that portion lying west of a line drawn ten miles east of, and
Part paralleling State Highway 99.
Calaveras, 5 All of Calaveras County except that portion lying west of State Highway 49.
Eastern Part
Del Norte 5 The entire county.
El Dorado 15 That portion lying east of a north-south line drawn 25 miles west of the Nevada State
Eastern Part Line and north to the county line and south to State Highway 88.
El Dorado 5 El Dorado County except the eastern part and the following areas:
* West of a line drawn six miles east of and paralleling State Highway 49.
* Within five miles of either side of U.S. highway 50 from the western county line to
a point on the eastern limit of the community of Pollock Pines.
* West of a line drawn three miles easterly from and paralleling a certain county road
described as the Pleasant Valley Road which connects the community of Aukum
with Diamond Springs and with the city of Plymouth.
Fresno, 5 All of Fresno County lying east of a line drawn ten miles east of, and paralleling the
Eastern Part west boundary of the Sierra National Forest.
Glenn, 5 All of Glenn County except that portion lying east of a line drawn ten miles west of,
Western Part and paralleling Interstate Highway 5.
Humboldt, 5 That portion of Humboldt County situated within five miles of the Redwood Highway
Redwood Highway (U.S. 101) except for that portion situated within ten miles of the Redwood Highway
from the northern boundary of the community of Trinidad to the southern boundary of
the community of Rio Dell.
Humboldt, State Highway 299 and 5 That portion of Humboldt County situated within five miles of State Highway 299 and
Vicinity State route 96, except for those portions situated within ten miles of the Redwood
Highway (U.S. 101) from the northern boundary of the community of Trinidad to the
southern boundary of the community of Rio Dell.
Humboldt, Southeastern Part 15 That portion of Humboldt county adjacent to or east of, the road between Harris to
Blocksburg to a point ten miles north of Blocksburg.
Humboldt, Residual Area 10 All areas of Humboldt County not classified in other cost groups except for that portion
situated within ten miles of the Redwood Highway from the northern boundary of the community of Trinidad to the southern boundary of the community of Rio Dell.
Imperial 5 The entire county.
Inyo, Southeastern Part 20 That portion of Inyo County situated east of the western boundary of the Death Valley
National Monument from the northern boundary of said national monument to the
southern boundary of the county.
Inyo, Residual Area 5 All of Inyo County except the southeastern part described above.
Kern, Eastern Part 5 That portion of Kern County lying east of a north-south line drawn through the eastern
boundary of the town of Tehachapi.
Lake 5 The entire county.
Lassen, Southern Part 10 That portion of Lassen County lying south of an east-west line drawn through a point
ten miles north of Susanville.
Lassen, Northern Part 15 All of Lassen County except the southern part described above.
Los Angeles, 50 The entire Santa Catalina Island.
Santa Catalina Island only
Madera, Central Part 5 That portion of Madera County lying between a line drawn ten miles west of, and
paralleling the western boundary of the Sierra National Forest and a line drawn ten
miles east of and paralleling the western boundary of the Sierra National Forest.
Madera, Eastern Part 5 All of Madera County except the western part and the central part described above.
Mariposa, Eastern Part 5 All of Mariposa County except that portion lying west of:
* A line drawn five miles east of, and paralleling State Highway 49 from the northern
county line to Mormon's Bar; and
* A line drawn ten miles west of, and paralleling the western boundary of the Sierra
National Forest from a point due east of Mormon's Bar to the southern county line.
Mendocino, Fort Bragg Area 10 Those portions of Mendocino County lying west of the Southern Redwood Highway
Area, and south of the Ten Mile River.
Mendocino, Northern Redwood 5 That portion of Mendocino County situated within five airline miles of the Redwood
Highway Area Highway (U.S. 101) from a point ten miles north of the Willits City Hall to the northern
boundary of the county.
Mendocino, Residual Area 10 Those portions of Mendocino County not otherwise classified except that portion
situated within ten airline miles of the Redwood Highway (U.S. 101) from a point ten
miles north of the Willits City Hall to the southern boundary of the county. (Comprises
the Northeastern part of the county and the coastal strip in the northwestern part).
Modoc 15 The entire county.
Mono 20 The entire county.
Monterey, Southern Part 5 All Monterey County except that portion lying north of an east-west line beginning on
the coast two miles south of the City of Carmel and extending due east to the eastern
boundary of the county.
Nevada 5 That portion of Nevada County not included in the Eastern Part.
Nevada, Eastern Part 15 That portion lying east of a north-south line drawn 25 miles west of the Nevada State
Line and north to the county line and south to the county line.
Placer, Eastern Part 15 That portion lying east of a north-south line drawn 25 miles west of the Nevada State
Line and north to the county line and south to the county line.
Placer, Northeastern Part 5 All of Placer County except the Eastern Part and the following:
* Within five miles of either side of State Highway 65 from the southern boundary of
the county and the northern limit of the community of Lincoln.
* Five miles either side of Interstate 80 from the southern boundary of the county and
the northern limit of the community of Penryn.
* West of a line drawn five miles east of, and paralleling State Highway 49.
* Within five miles of either side of Interstate 80 between the northern limit of the
community of Penryn and the northern limit of the community of Colfax.
Plumas 5 The entire county.
Riverside, Eastern Part 20 That portion lying east of a north-south line drawn 50 miles west of the Arizona State
Line and north to the county line and south to the county line.
Riverside, Central Part 5 That portion of Riverside County lying east of a north-south line drawn through the
intersection of Interstate 10 and Fields Road extending from the southern county line
of Riverside County, north to the southern county line of San Bernardino County to the
Eastern Part of the County.
San Benito, Southern Part 5 All of San Benito County except that portion lying north of an east-west line drawn
across the county from a point two miles south of the community of Paicines.
San Bernardino, Northeastern Part 5 That portion of San Bernardino County lying north and east of an east-west line drawn
two miles north of Oro Grande, extending from the western boundary of the county to
its intersection with the northerly extension of, and thence along a line drawn through
the following points: A point five miles east of Victorville, the eastern edge of the
communities of Running Springs and Camp Angelus then due south to the San
Bernardino County line.
San Bernardino, Eastern Part 20 That portion lying east of a north-south line drawn 150 miles west of the Arizona State
Line and north to the county line and south to the county line.
San Diego, Northeastern Part 10 That portion of San Diego County lying east of a north-south line drawn ten miles east
of the community of Julian, said line extending from the northern boundary of the
county to its intersection with an east-west line extending from the eastern boundary
of the county to its intersection with the aforesaid north-south line, said east-west line
being at its closest point, three miles due north of the community of Mount Laguna.
San Mateo, Southwestern Part 5 That portion of San Mateo County lying more than two miles westerly from the nearest
point on Skyline Boulevard and south of an east-west line drawn through a point two
miles north of the community of Montara.
Santa Cruz, Northwestern Part 5 That portion of the Santa Cruz County lying northerly and westerly from a line drawn
from a point one mile north of Swanton on the coast through a point one mile north of
Brookdale and situated more than two miles from the nearest point on the eastern
boundary of the county.
Shasta, except Valley Area 5 All of Shasta County except that portion lying south of Shasta Lake and situated within
ten miles of Interstate Highway 5.
Sierra 5 The entire county.
Siskiyou, Central Part 15 That portion of Siskiyou County situated within ten miles of U.S. Highway 97 from
Grass Lake to the Oregon State Line.
Siskiyou, Salmon River 25 All of the drainage area of the Salmon River (including the North and South Forks)
except that portion situated within the Somes Bar Area described below.
Siskiyou, Somes Bar Area 20 Those portions of the drainage areas of the Salmon and Klamath Rivers located within
the boundaries of the Junction Elementary School District.
Siskiyou, Western Part 15 That portion of Siskiyou County lying westerly from a line drawn ten miles west of and
parallel to Interstate 5, except the Somes Bar and Salmon River areas described above.
Siskiyou, Yreka and Residual Area 5 All of Siskiyou County except the Salmon River, Somes Bar and Western areas
described above.
Sonoma, Northwestern Part 5 That portion of Sonoma County enclosed by a line following the northern boundary of
the county from the Pacific Ocean to a point 15 miles inland, thence southerly to a point
two miles west of the community of Los Lomas, thence southerly to a point on the coast
two miles south of the community of Fort Ross, thence northerly along the coast line
to the northern boundary of the county.
Tehama, Residual Area 5 All of Tehama County except those portions situated within ten miles west of Interstate
Highway 5 from the north county line to the southern county line; within ten miles east
of Interstate Highway 5 from the north county line southward to a point east of Red
Bluff, thence within ten miles east of and paralleling State Highway 99 southward to
the county line.
Trinity, Residual Area 15 All of Trinity County except the State Highway 299 area described below.
Trinity, State Highway 299 10 That portion of Trinity County situated within five miles of State Highway 299.
Tulare, Eastern Part 5 That portion of Tulare County lying east of a north-south line drawn through the
western limits of the community of Silver City.
Tuolumne, Eastern Part 5 All of Tuolumne County except that portion lying west of State Highway 49.
Yuba, Northeastern Part 5 All of Yuba County except that portion lying west of a line drawn ten miles east of, and
paralleling State Highway 65 and that portion lying south of a line drawn three miles
north of, and paralleling State Highway 20.
(b) Excessive Cost for Projects that House No More than 200 Pupils (Small Size Projects).
(1) Excluding Joint-Use Projects and grant requests pursuant to Section 1859.79.3(a)(1) or (a)(2), if the project will house less than 101 pupils, the district is eligible for an Excessive Cost Hardship Grant equal to 12 percent of the funding provided by the New Construction Grant or 12 percent of the funding provided by the Modernization Grant.
(2) Excluding Joint-Use Projects and grant requests pursuant to Section 1859.79.3(a)(1) or (a)(2), if the project will house between 101 and 200 pupils, the district is eligible for an Excessive Cost Hardship Grant equal to four percent of the funding provided by the New Construction Grant or four percent of the funding provided by the Modernization Grant.
(3) A Type I Joint-Use Project and a Type II, part of a qualifying SFP Modernization project, Joint-Use Project is eligible for an Excessive Cost Hardship Grant equal to:
(A) 12 percent of the funding provided by Section 1859.125(a)(1) through (a)(2), if the qualifying SFP New Construction or Modernization project pursuant to Section 1859.123 or 1859.123.1 will house less than 101 pupils.
(B) Four percent of the funding provided by Section 1859.125(a)(1) through (a)(2), if the qualifying SFP New Construction or Modernization project pursuant to Section 1859.123 or 1859.123.1 will house between 101 and 200 pupils.
(4) A Type II Joint-Use Project, not part of a qualifying SFP Modernization project, is eligible for an Excessive Cost Hardship Grant equal to eight percent of the funding provided by Section 1859.125(a)(1) through (a)(2).
(5) A grant request pursuant to Section 1859.79.3(a)(1) or (a)(2) and less than 101 pupils is eligible for an Excessive Cost Hardship Grant equal to four percent of the funding provided by the Modernization Grant.
(c) Excessive Cost to Construct a New School Project.
(1) With the exception of Alternative Education schools for which the final plans and specifications for the project were accepted by the DSA on or after March 24, 2004, if the project is for a new elementary, middle or high school on a site with no existing school facilities the district is eligible for a New Construction Excessive Cost Hardship Grant equal to the difference in the amount provided by the New Construction Grant and the amount shown below, based on the number of classrooms, including classrooms used for Individuals with Exceptional Needs, in the project:
Classrooms Elementary Middle High
in project School School School
1 $160,000 $674,000 $1,466,000
2 $377,000 $756,000 $1,525,000
3 $566,000 $840,000 $1,885,000
4 $717,000 $932,000 $2,205,000
5 $842,000 $1,028,000 $2,428,000
6 $1,021,000 $1,125,000 $2,651,000
7 $1,202,000 $1,222,000 $2,874,000
8 $1,341,000 $1,328,000 $3,046,000
9 $1,341,000 $1,440,000 $3,184,000
10 $1,577,000 $1,553,000 $3,321,000
11 $1,577,000 $1,666,000 $3,459,000
12 $1,660,000 $3,585,000
13 $3,709,000
14 $3,833,000
15 $3,958,000
16 $4,082,000
17 $4,207,000
18 $4,331,000
19 $4,455,000
20 $4,580,000
21 $4,704,000
22 $4,828,000
The amounts shown above will be adjusted annually in the manner prescribed in Section 1859.71.
Any Excessive Cost Hardship Grant provided under this subsection for a new school project shall be offset against future New Construction Grant funds provided for that same school. The amount of the offset shall be determined by dividing the additional New Construction Grant pupil request by the difference in the New Construction Grant pupil request when the initial Excessive Cost Hardship Grant was made and 325 for an elementary school, 324 for a middle school, and 621 for a high school project and multiplying the quotient by the Excessive Cost Hardship Grant funds provided under this subsection for that project.
(2) Excessive Cost Hardship Grants for Alternative Education schools for which the plans and specifications for the project were accepted by the DSA on or after March 24, 2004, or for any Alternative Education schools for which the plans and specifications for the project were accepted by the DSA prior to March 24, 2004 and in lieu of choosing funding under Section 1859.82(c)(1), may request funding as follows:
(A) If the project is for an Alternative Education school on a site with no existing school facilities, the district is eligible for a New Construction Excessive Cost Hardship Grant equal to the difference in the amount provided by the New Construction Grant and the amount shown below, based on the number of classrooms in the project:
Alternative Education
Classrooms New School Allowance
1 $ 434,700
2 $ 527,400
3 $ 921,960
4 $ 1,037,250
5 $ 1,152,540
6 $ 1,267,830
7 $ 1,383,120
8 $ 1,504,170
9 $ 1,629,180
10 $ 1,754,190
11 $ 2,239,290
12 $ 2,364,300
13 $ 2,489,310
14 $ 2,614,320
15 $ 2,739,330
16 $ 2,864,340
17 $ 2,989,350
18 $ 3,114,360
19 $ 3,239,370
20 $ 3,364,380
21 $ 3,489,480
22 $ 3,614,490
23 $ 3,739,500
24 $ 3,864,510
25 $ 3,989,520
26 $ 4,114,530
27 $ 4,239,540
The amounts shown will be adjusted annually in the manner prescribed in Section 1859.71.
(B) If the project is for additional classroom(s) to an existing Alternative Education school constructed under the provisions of 1859.83(c)(2), the district is eligible for a New Construction Excessive Cost Hardship Grant calculated as follows:
1. Determine the amount shown in the chart above in Section 1859.83(c)(2)(A) for the total combined number of classrooms in the current project and all previous projects at the same site. In the first funding request when the total number of classrooms exceeds 27, the amount shown for 27 classrooms shall be used.
2. Subtract the sum of the amount previously apportioned for the New Construction Grant and the funding provided pursuant to Section 1859.83(c)(2) for the sum of the number of classrooms for all previous projects at the same site (exclude the classrooms in the current project) from (B)1.
3. Subtract the New Construction Grant for the current project from the result in (B)2.
(d) Excessive Cost Due to Urban Location, Security Requirements and Impacted Site.
(1) Excluding Joint-Use Projects, the district is eligible for an Excessive Cost Hardship Grant if the district had a project that was previously approved by the DSA, and prior to January 22, 2003, has received SAB approval for a time extension for substantial progress, and if the useable site acreage for the project is:
(A) at least 50 percent but less than 75 percent of the site size recommended by the CDE for the master planned project capacity. The New Construction Excessive Cost Hardship Grant is equal to eight percent of the New Construction Grant and eight percent of the funding authorized by Sections 1859.73.2 and 1859.83(b) and (c).
(B) at least 30 percent but less than 50 percent of the site size recommended by the CDE for the master planned project capacity. The New Construction Excessive Cost Hardship Grant is equal to 15 percent of the New Construction Grant and 15 percent of the funding authorized by Sections 1859.73.2 and 1859.83(b) and (c).
(C) less than 30 percent of the site size recommended by the CDE for the master planned project capacity. The New Construction Excessive Cost Hardship Grant is equal to 50 percent of the New Construction Grant and 50 percent of the funding authorized by Sections 1859.73.2 and 1859.83(b) and (c).
(D) less than 30 percent of the site size recommended by the CDE for the master planned project capacity.
(2) Excluding Joint-Use Projects, the district is eligible for an Excessive Cost Hardship Grant if all of the following conditions are met, as applicable:
(A) the Useable Acres of the site for the project are 60 percent or less of the CDE recommended site size based on:
1. the current CBEDS Report at the existing site, if any, at the time of the CDE final plan approval for the project, if any, plus the greater of the Net School Building Capacity of the final new construction project plans submitted to the DSA as calculated in Education Code Section 17071.25(a)(2) or the pupil grants requested in the COS or Charter School project. The Useable Acres will include the existing site that is being utilized for this project plus any additional acreage to be acquired as a part of the Application.
2. the current CBEDS Report at the site at the time of the CDE final plan approval for the modernization project.
(B) at least 60 percent of the classrooms in the construction plans are in multistory facilities for any type of new construction project.
(C) the value of the site being acquired for a new construction project on a new site is at least $750,000 per Useable Acre.
(3) If the criteria in (d)(2) are met, the Excessive Cost Hardship Grant:
(A) for new construction is equal to 15 percent of the New Construction Grant and 15 percent of the funding authorized by Sections 1859.73.2 and 1859.83(b) and (c) for a project with a site that is 60 percent of the CDE recommended site size plus 1.166 percent for each percentage decrease in the CDE recommended site size below 60 percent. In no event shall the amount provided in this subsection for a new construction project on a new site exceed 50 percent of the cost avoided with the purchase of a site smaller than the CDE recommended site size for the number of the pupil grants requested in the Application determined as follows:
1. The current estimated value of the project site as determined in Section 1859.74.6(a)(1).
2. Divide the amount in (A)1. by the number of Useable Acres.
3. Multiply the quotient in (A)2. by the number of Useable Acres recommended by CDE for the number of pupils described in Section 1859.83(d)(2)(A)1.
4. Subtract the value in (A)1. from the product in (A)3.
5. Multiply the difference in (A)4. above by 50 percent.
(B) for modernization is equal to 15 percent of the Modernization Grant and 15 percent of the funding authorized by Section 1859.83(b) for a project with a site that is 60 percent of the CDE recommended site size plus 0.333 percent for each percentage decrease of the CDE recommended site size below 60 percent.
(4) For Joint-Use Projects, the district is eligible for an Excessive Cost Hardship Grant if:
(A) the Type I Joint-Use Project's qualifying SFP New Construction project pursuant to Section 1859.123 qualifies for an Excessive Cost Hardship Grant under Section 1859.83(d)(2) and (3)(A).
(B) The Type II Joint-Use Project's qualifying SFP Modernization project pursuant to Section 1859.123.1 qualifies for an Excessive Cost Hardship Grant under Section 1859.83(d)(2) and (3)(B).
(C) the Useable Acres at the existing school site where the Type II Joint-Use Project, not part of a qualifying SFP Modernization project, is to be constructed are 60 percent or less of the CDE recommended site size based on the existing enrollment at this site.
(5) If the criteria in (d)(4)(A) or (C) are met, the Joint-Use Project Excessive Cost Hardship Grant is equal to 15 percent of the funding provided by Section 1859.125(a)(1) through (a)(2), for a project with a site that is 60 percent of the CDE recommended site size plus 1.166 percent for each percentage decrease in the CDE recommended site size below 60 percent. For a Type I Joint-Use Project when the qualifying SFP New Construction project involves new construction on a new site, in no event shall the amount provided in this subsection exceed 50 percent of the cost avoided with the purchase of a site smaller than the CDE recommended site size for the qualifying SFP New Construction project pursuant to Section 1859.123 as calculated in Section 1859.83(d)(3)(A).
(6) If the criteria in (d)(4)(B) are met, the Joint-Use Project Excessive Cost Hardship Grant is equal to 15 percent of the funding provided by Section 1859.125(a)(1) through (a)(2), for a project with a site that is 60 percent of the CDE recommended site size plus 0.333 percent for each percentage decrease in the CDE recommended site size below 60 percent.
(e) Excessive Cost for rehabilitation of facilities the Board has determined are a health and safety risk to the pupils pursuant to Section 1859.82(a)(1) and the cost/benefit analysis to mitigate the problem and remain in the facility is less than 50 percent of the Current Replacement Cost of the facility. If the district qualifies, the district is eligible for funding of rehabilitation costs as a modernization project. If the Approved Application is received on or before April 29, 2002, the grant amount provided is 80 percent of the amount of the cost estimate required in Section 1859.82(a)(1) that has been reviewed by the OPSC and approved by the Board. If the Approved Application is received after April 29, 2002, the grant amount provided is 60 percent of the amount of the cost estimate required in Section 1859.82(a)(1) that has been reviewed by the OPSC and approved by the Board. For any project funded in whole or in part from Proposition 47 or Proposition 55 for which the construction contract is awarded prior to January 1, 2012, the district may be eligible for the funding provided to initiate and enforce a LCP as prescribed in Section 1859.78.1(a). For any project for which the construction contract is awarded on or after January 1, 2012, the grant may be adjusted in the manner prescribed in Section 1859.78.1(b) and subject to the limitations established in Section 1859.78.1(c).
(f) Excessive cost due to accessibility and fire code requirements.
(1) The district is eligible for a Modernization Excessive Cost Hardship Grant equal to three percent of the Modernization Grant for accessibility and fire code requirements.
(2) In lieu of three percent funding provided in (1) above, the district has the option of requesting 60 percent of the amount determined in (A), not to exceed 60 percent of the amount determined in (B):
(A) Determine the difference of the verified hard construction costs of the minimum accessibility and fire code work necessary to receive approval from the DSA minus seven percent of the sum of the Modernization Grant and the district matching share of the Modernization Grant pursuant to Section 1859.79.
(B) Determine the difference of 1. minus 2.:
1. Multiply the pupils requested in the application by the New Construction Grant.
2. The sum of the State and district share of the pupils requested on the Form SAB 50-04 multiplied by the grant determined pursuant to Section 1859.78 and 1859.78.3.
(3) The district is eligible for a Modernization Excessive Cost Hardship Grant of:
(A) $80,000 for each new two-stop elevator required to be included in the project by the DSA if the Approved Application was received on or before April 29, 2002.
(B) $60,000 for each new two-stop elevator required to be included in the project by the DSA if the Approved Application was received after April 29, 2002.
The amounts shown in (A) and (B) above shall be adjusted annually in the manner prescribed in Section 1859.78.
(4) The district is eligible for a Modernization Excessive Cost Hardship Grant of:
(A) $14,400 for each additional stop of the new elevator required in (3) above if the Approved Application was received on or before April 29, 2002.
(B) $10,800 for each additional stop of the new elevator required in (3) above if the Approved Application was received after April 29, 2002.
The amounts shown in (A) and (B) above shall be adjusted annually in the manner prescribed in Section 1859.78.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17072.32, 17074.15, 17074.16, 17075.10, 17075.15, 17077.40, 17077.42, 17077.45 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
6. Amendment adding second paragraph following the table in subsection (c) filed 4-5-2001; operative 4-5-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 14).
7. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
8. Amendment of section and Note filed 9-16-2002 as an emergency; operative 9-16-2002 (Register 2002, No. 38). A Certificate of Compliance must be transmitted to OAL by 1-14-2003 or emergency language will be repealed by operation of law on the following day.
9. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
10. Editorial correction amending subsection (c) (Register 2003, No. 8).
11. Certificate of Compliance as to 9-16-2002 order transmitted to OAL 1-7-2003 and filed 2-19-2003 (Register 2003, No. 8).
12. Amendment filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
13. Amendment refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
14. Amendment of subsection (e) filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
15. Amendment of section and Note refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
17. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
18. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
19. Amendment of subsections (b)(3)-(4) and (d)(4)(A), new subsection (d)(4)(B), subsection relettering, amendment of newly designated subsection (d)(4)(C) and subsection (d)(5) and new subsection (d)(6) filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
20. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
21. Amendment of subsection (e) filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
22. Amendment revising and redesignating second paragraph of subsection (c) as new subsection (c)(1) and adopting new subsections (c)(2)-(c)(2)(B)3. filed 1-31-2005; operative 1-31-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
23. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
24. Amendment of subsection (c)(1), new subsection (c)(3) and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
25. Amendment of subsection (a)(2) filed 9-5-2006 as an emergency; operative 9-5-2006 (Register 2006, No. 36). A Certificate of Compliance must be transmitted to OAL by 1-3-2007 or emergency language will be repealed by operation of law on the following day.
26. Certificate of Compliance as to 9-5-2006 order transmitted to OAL 1-3-2007 and filed 2-16-2007 (Register 2007, No. 7).
27. Amendment of subsections (f) and (f)(1), new subsections (f)(1)(A)-(f)(2), subsection renumbering and amendment of newly designated subsections (f)(4)(A)-(B) filed 4-25-2007; operative 4-25-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 17).
28. Amendment of subsection (c)(3) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
29. Amendment of subsections (a)(2), (b)(3)(A)-(b)(4) and (d)(5)-(d)(6) filed 3-3-2008 as an emergency; operative 3-3-2008 (Register 2008, No. 10). A Certificate of Compliance must be transmitted to OAL by 9-2-2008 or emergency language will be repealed by operation of law on the following day.
30. Amendment of subsection (f)(1)(A) filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
31. Certificate of Compliance as to 3-3-2008 order, including amendment of subsection (d)(1), transmitted to OAL 6-9-2008 and filed 7-10-2008 (Register 2008, No. 28).
32. Repealer of subsection (f)(2), redesignation and amendment of portion of subsection (f)(1) as new subsection (f)(2) and redesignation of former subsections (f)(1)(A)-(f)(1)(B)2. as new subsections (f)(2)(A)-(f)(2)(B)2. filed 11-22-2010; operative 11-22-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 48).
33. Amendment of Geographic Percentage Chart within subsection (a)(2) filed 5-12-2011; operative 5-12-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 19).
34. Amendment of subsection (e) and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
35. Amendment of subsections (b)(1)-(2), new subsection (b)(5), amendment of subsection (c)(1) and repealer of subsection (c)(3) filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
Article 10. Fund Release and Priority Points
§1859.90. Fund Release Process.
Note • History
With the exception of an apportionment made pursuant to Sections 1859.81.1(e) or 1859.81.2, or of an Inactive Apportionment subject to Section 1859.96, the OPSC will release State funds that the Board has apportioned to the district after submittal, by the district, of the Form SAB 50-05, subject to the availability of financing provided by the Pooled Money Investment Board for bond-funded projects. With the exception of an apportionment made for a Type II Joint-Use Project, not part of a qualifying SFP Modernization project, pursuant to Article 12 of these Regulations, a district must submit the Form SAB 50-05, within 18 months of the Apportionment of the SFP grant for the project or the entire New Construction Adjusted Grant, Modernization Adjusted Grant or Type I or II, part of a qualifying SFP Modernization project, Joint-Use Project apportionment shall be rescinded without further Board action, and the pupils housed in the project, if applicable, will be added back to the district's baseline eligibility. The district may refile a new application for the project subject to district eligibility and priority funding at the time of resubmittal.
If the apportionment was made for a Type II Joint-Use Project, not part of a qualifying SFP Modernization project, pursuant to Article 12 of these Regulations, the district must submit Form SAB 50-05 within 18 months of the date the plans and specifications for the Joint-Use Project that have been approved by the DSA and the CDE are submitted to the OPSC or the apportionment shall be rescinded without further Board action.
Subject to the availability of financing provided by the Pooled Money Investment Board for bond-funded projects, the OPSC will release State funds that have been apportioned by the Board pursuant to Section 1859.81.1(e) to the district within 30 calendar days of the apportionment.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12, 17072.30, 17074.15, 17076.10, 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New article 10 (sections 1859.90-1859.95) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 10 (sections 1859.90-1859.95) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New article 10 (sections 1859.90-1859.95) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of first paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
8. Amendment of first paragraph filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
10. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
11. Amendment of first paragraph and amendment of Note filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
12. Certificate of Compliance as to 11-4-2002 order, including amendment of first and last paragraph, transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
13. Amendment of first and second paragraphs filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
14. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
15. Amendment of first and third paragraphs filed 4-9-2009 as an emergency; operative 4-9-2009 (Register 2009, No. 15). A Certificate of Compliance must be transmitted to OAL by 10-6-2009 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 4-9-2009 order transmitted to OAL 9-24-2009 and filed 11-3-2009 (Register 2009, No. 45).
§1859.90.1. Priority Funding Round Process.
Note • History
The Board will establish a one-time priority funding round to distribute $408.3 million dollars to districts who request an Apportionment during a 30 day filing period beginning May 27, 2010 and ending June 28, 2010. Any funds not apportioned as of August 25, 2010 shall remain available for any other applicable School Facilities Program project apportionments by the Board. During the priority funding round the Board will require that a district must submit the Form SAB 50-05 within 90 days of the Apportionment. Projects that apply for this priority funding round that do not submit a completed Form SAB 50-05 within 90 days shall be rescinded without further Board action. In order to be considered for an Apportionment, the district must provide a written statement signed by an authorized district representative within the 30 day filing period that contains all of the following:
(a) Request to convert the Unfunded Approval to an Apportionment; and,
(b) Concurrence with the 90 day time limit on fund release; and
(c) Acknowledgement that failure to submit a valid Form SAB 50-05 within the 90 day time limit will result in the rescission of the Apportionment without further Board action; and
(d) Acknowledgement that by participating in the priority funding round, the district is waiving its right to a standard 18 month timeline for fund release submittal.
For the purposes of this section “rescinded” shall mean that the apportionment returns to unfunded approval status with a new Unfunded Approval date. The new Unfunded Approval date will be November 2, 2010. The district will not be required to re-submit the application and no further application review will be required.
This regulation section shall become inoperative December 31, 2010.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12, 17072.30, 17074.16, 17076.10, 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 2-23-2005; operative 2-23-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 8).
2. Renumbering of former section 1859.90.1 to section 1859.90.2 and new section 1859.90.1 filed 6-24-2010 as an emergency; operative 6-24-2010 (Register 2010, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-21-2010 or emergency language will be repealed by operation of law on the following day.
3. Repealer and new subsection (d) filed 7-1-2010 as an emergency; operative 7-1-2010 (Register 2010, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-28-2010 or emergency language will be repealed by operation of law on the following day.
4. Editorial correction of subsection (c) (Register 2010, No. 50).
5. Certificate of Compliance as to 6-24-2010 order transmitted to OAL 11-1-2010 and filed 12-16-2010 (Register 2010, No. 51).
§1859.90.2. Priority Funding Process.
Note • History
The priority funding process allows the Board to distribute available funds to districts or charter schools who request an Apportionment or an advance release of funds from a Preliminary Apportionment or Preliminary Charter School Apportionment during specific 30-calendar day filing periods beginning with July 27, 2011 and continuing with the 2nd Wednesday of January and the 2nd Wednesday of July each calendar year. Certifications are valid until the next filing period begins. Requests must be physically received by the OPSC by the 30th calender day to be considered valid. During any priority funding process a district or charter school must submit the Form SAB 50-05 within a specified time period of the Apportionment or approved advanced release of funds request, pursuant to (a)(2) or (b)(2) of this section. Projects receiving an apportionment as part of the priority funding process for which the OPSC does not physically receive an original signature copy of the Form SAB 50-05 within the appropriate time limit shall be rescinded without further Board action.
(a) In order to be considered for an Apportionment, approved advance release of design funds from a Preliminary Charter School Apportionment, or approved advance release of environmental hardship site acquisition funds from a Preliminary Apportionment, the district or charter school must provide a written statement signed by an authorized representative that includes each of the project application numbers, and the type of apportionment request (e.g., Apportionment, separate apportionment for design or site acquisition), within the 30 calendar day filing period that contains all of the following:
(1) Request to convert the unfunded approval to an Apportionment or to receive an approved advance release of funds; and
(2) Concurrence with a 90 calendar day time limit on fund release; and
(3) Acknowledgement that a valid, original signature Form SAB 50-05 must be submitted and physically received by the OPSC within the 90 calendar day time limit and failure to do so will result in the rescission of the Apportionment or approved advance release of funds request without further Board action; and
(4) For those receiving an Apportionment, acknowledgement that by participating in the priority funding process, the district or charter school is waiving its right to a standard 18 month timeline for fund release submittal.
(b) In order to be considered for an approved advance release of site acquisition funds from a Preliminary Charter School Apportionment, the district or charter school must provide a written statement signed by an authorized representative within the 30 calender day filing period that contains all of the following:
(1) Request to convert the advance release of funds to an approved advance release of funds request; and,
(2) Concurrence with a 180 calendar day time limit on fund release; and
(3) Acknowledgement that a valid, original signature Form SAB 50-05 must be submitted and physically received by the OPSC within the 180 calendar day time limit and failure to do so will result in the rescission of the approved advance release of funds request without further Board action; and
(4) Acknowledgement that it must provide evidence that it has entered into the Charter School Agreements within 90 calendar days of approval of the advance release of funds request and failure to do so will result in the rescission of the approval without further Board action.
In the event that the amount of requests received during a specific 30-day filing period exceeds the funds available, the Board shall apportion based on the unfunded approval date and the application received date up to the available cash from each bond source. Projects that have requested to participate in the priority funding process for which an Apportionment cannot be provided shall retain their date order position on the Unfunded List. Request letters of projects not converted to apportionments will not be returned to the district or kept by the Office of Public School Construction.
For purposes of this section “rescinded” or “rescission” shall mean that the apportionment or approved advance release of funds request returns to unfunded approval status with a new unfunded approval date. The new unfunded approval date will be 90 calendar days after the apportionment date. The district or charter school will not be required to re-submit the application and no further application review will be required.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.12, 17072.30, 17074.16, 17076.10, 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. Renumbering of former section 1859.90.1 to new section 1859.90.2 filed 6-24-2010 as an emergency; operative 6-24-2010 (Register 2010, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-21-2010 or emergency language will be repealed by operation of law on the following day.
2. Renumbering of former section 1859.90.2 to new section 1859.90.3 and new section 1859.90.2 filed 10-29-2010 as an emergency; operative 10-29-2010 (Register 2010, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-27-2011 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 6-24-2010 order transmitted to OAL 11-1-2010 and filed 12-16-2010 (Register 2010, No. 51).
4. Certificate of Compliance as to 10-29-2010 order transmitted to OAL 3-10-2011 and filed 4-21-2011 (Register 2011, No. 16).
5. Amendment filed 4-28-2011 as an emergency; operative 4-28-2011 (Register 2011, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-25-2011 or emergency language will be repealed by operation of law on the following day.
6. Amendment of section heading, first paragraph and subsections (a) and (a)(4), new penultimate paragraph and amendment of last paragraph filed 7-27-2011 as an emergency; operative 7-27-2011 (Register 2011, No. 30). A Certificate of Compliance must be transmitted to OAL by 1-23-2012 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 4-28-2011 order transmitted to OAL 8-10-2011 and filed 9-21-2011 (Register 2011, No. 38).
8. Certificate of Compliance as to 7-27-2011 order transmitted to OAL 11-10-2011 and filed 12-21-2011 (Register 2011, No. 51).
§1859.90.3. Local Bond Reimbursement Fund Releases.
Note • History
When a school district uses local bond funds to make eligible project expenditures authorized in the Leroy F. Greene Act and state school bond funds are made available to reimburse the state's share of those eligible project expenditures, the reimbursement funds shall be used as follows:
(a) Toward retiring the local bonds; and/or
(b) Toward uses permitted by the local bond, or
(c) For any high priority capital outlay expenditure in the district as permitted in Education Code Section 17070.63(c).
The use of the reimbursement funds in accordance with this section shall be subject to oversight by the applicable county office of education pursuant to Education Code Section 1240.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.63 and 17072.35, Education Code.
HISTORY
1. Renumbering of former section 1859.90.2 to new section 1859.90.3 filed 10-29-2010 as an emergency; operative 10-29-2010 (Register 2010, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-27-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 10-29-2010 order transmitted to OAL 3-10-2011 and filed 4-21-2011 (Register 2011, No. 16).
§1859.91. Implementation of Priority Points Due to Insufficient State Funds.
Note • History
This Regulation shall only apply to Approved Applications for New Construction Grants funded with the proceeds of state bonds approved by the voters prior to January 1, 2002.
(a) The OPSC shall report to the Board on a monthly basis the amount of funds available for New Construction Grants and Modernization Grants and the estimated amount of Approved Applications for New Construction Grants and Modernization Grants not yet apportioned. The Board shall implement a priority point mechanism described in (b) for New Construction Grants requests when either of the following occur:
(1) The amount of Approved Applications for New Construction Grants and Modernization Grants not yet apportioned exceed the funds available for New Construction Grants and Modernization Grants.
(2) The funds available for New Construction Grants are $300 million or less.
(b) Once either (1) or (2) in (a) occurs, the Board shall approve and apportion the funds available for New Construction Grants requests based on the following priority point mechanism:
(1) From the funds available for New Construction Grants, the Board shall establish a final allotment equal to the lesser of $450 million or the balance of the funds available for New Construction Grants, to be apportioned in accordance with (2) below. After deducting the final allotment, the Board shall divide the remaining funds into seven equal allotments, to be apportioned on a quarterly basis, commencing with the last quarter of calendar year 2000 and ending the second quarter of calendar year 2002. Quarterly apportionments are subject to the following:
(A) The Board shall apportion Approved Applications for New Construction Grants requests received prior to the beginning of the quarter that are Ready for Apportionment, all New Construction Grants requests that were included on an Unfunded List and New Construction Grants requests that meet the criteria of subsection (d), until the funds available for New Construction Grants for that quarter are exhausted. New Construction Grants requests eligible for an apportionment shall be apportioned in the following order:
1. To projects that meet the criteria of subsection (d) where the Approved Application date adjusted back in time would have qualified the project for an apportionment.
2. To projects exempt from priority points pursuant to Section 1859.92(e).
3. To projects having the greatest number of priority points.
(B) If two or more projects have the same number of priority points, those projects shall be first ranked according to the Approved Application date.
(C) No New Construction Grants request will be recommended for apportionment unless the project can be entirely apportioned from the funds available for that quarter.
(D) If the Approved Applications for New Construction Grants received prior to the quarter that are Ready for Apportionment, all New Construction Grants requests that were included on an Unfunded List prior to the quarter and New Construction Grants requests that meet the criteria of subsection (d) are less than the quarterly allotment, plus any funds remaining from the previous quarter(s), the excess funds shall be added to the next quarterly allotment.
(E) If the Approved Applications for New Construction Grants requests received prior to the quarter that are Ready for Apportionment, all New Construction Grants requests that were included on an Unfunded List prior to the quarter and New Construction Grants requests that meet the criteria of subsection (d) are greater than the quarterly allotment, plus any funds remaining from the previous quarter(s), any New Construction Grants requests not apportioned by the Board shall be placed on an Unfunded List.
(F) All New Construction Grants requests, as described in (A) above, that are Ready for Apportionment in a quarter shall not be apportioned before the last regularly scheduled Board meeting for that quarter with the exception of New Construction Grants requests that meet the criteria of subsection (b)(1)(A)(1) or (2). Any New Construction Grants request that is Ready for Apportionment in a quarter that meets the criteria of subsection (b)(1)(A)(1) or (2) may be apportioned at any of the regularly scheduled Board meetings during that quarter.
(2) The final allotment shall be apportioned subject to the following:
(A) The Board shall apportion Approved Applications for New Construction Grants received between April 1, 2002 and June 26, 2002 that are Ready for Apportionment, all New Construction Grants requests that were included on an Unfunded List and New Construction Grants requests that meet the criteria of subsection (e), until the final allotment, plus any funds remaining from the previous quarters are exhausted. New Construction Grants requests eligible for an apportionment shall be apportioned in the following order:
1. To projects that meet the criteria of subsection (e) where the Approved Application date adjusted back in time would have qualified the project for an apportionment.
2. To projects exempt from priority points pursuant to Section 1859.92(e).
3. To projects having the greatest number of priority points.
(B) If two or more projects have the same number of priority points, those projects shall be first ranked according to the Approved Application date.
(C) If the Approved Applications for New Construction Grants received between April 1, 2002 and June 26, 2002 that are Ready for Apportionment, all New Construction Grants requests that were included on an Unfunded List and New Construction Grants requests that meet the criteria of subsection (e) are greater than the final allotment, plus any remaining funds from the previous quarter(s), any New Construction Grants requests not apportioned by the Board shall be placed on an Unfunded List.
(D) All New Construction Grants requests, as described in (A) above, that are Ready for Apportionment shall be apportioned at the regularly scheduled Board meeting in August 2002 with the exception of New Construction Grants requests that meet the criteria of subsection (b)(2)(A)(1) or (2). Any New Construction Grants request that is Ready for Apportionment that meets the criteria of subsection (b)(2)(A)(1) or (2) may be apportioned at either the regularly scheduled Board meeting in July or August 2002.
(E) If the Approved Applications for New Construction Grants received between April 1, 2002 and June 26, 2002 that are Ready for Apportionment, all New Construction Grants requests that were included on an Unfunded List and New Construction Grants requests that meet the criteria of subsection (e) are less than the final allotment, plus any remaining funds from the previous quarter(s), the excess funds shall be apportioned on a monthly basis beginning in September 2002 for Approved Applications for New Construction Grants received after June 26, 2002 that are Ready for Apportionment, in descending order, commencing with the project having the greatest number of priority points. This process shall continue until the funds available are exhausted. If two or more projects have the same number of priority points, those projects shall be first ranked according to the Approved Application date.
(c) Approved Applications for New Construction Grants requests received during a quarter may, at the discretion of the Board, be considered for funding available for that quarter or a future quarter if all the following criteria are met:
(1) Either the Executive Officer of the Board, the State Architect, the Director of School Facilities Planning Division within the CDE, or the Chief of the School Property Evaluation and Cleanup Division within the Department of Toxic Substances Control (DTSC) certify to the OPSC that the district's application was delayed for a specified number of calendar days in relation to other similar applications submitted to that agency at the same time.
(2) The Approved Application date adjusted back in time for the number of calendar days the application was delayed is prior to the beginning of the quarter in which the application was received.
(d) Approved Applications for New Construction Grants requests received after June 26, 2002 may, at the discretion of the Board, be considered for funding available for the final allotment if all the following criteria are met:
(1) Either the Executive Officer of the Board, the State Architect, the Director of School Facilities Planning Division within the CDE, or the Chief of the School Property Evaluation and Cleanup Division within the DTSC certify to the OPSC that the district's application was delayed for a specified number of calendar days in relation to other similar applications submitted to that agency at the same time.
(2) The Approved Application date adjusted back in time for the number of calendar days the application was delayed is prior to June 27, 2002.
NOTE
Authority cited: Sections 17072.25 and 17070.35, Education Code. Reference: Section 17072.25, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
7. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
8. Repealer of subsection (c), subsection relettering and amendment of Note filed 10-4-2002; operative 10-4-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 40).
9. New first paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.92. Priority Points For New Construction Projects.
Note • History
This Regulation shall only apply to Approved Applications for New Construction Grants funded with the proceeds of state bonds approved by the voters prior to January 1, 2002.
The priority points allowed for a New Construction Grants request shall be based on the following computations rounded up to the nearest whole number. The computation shall be made on a districtwide basis if the district utilized districtwide CBEDS enrollment data reported on the Form SAB 50-01 in effect at the time the district's application for funding was submitted to the OPSC for the project. When multiple applications have the same Approved Application date, or have an Approved Application date which permits the projects to be Ready for Apportionment in the same quarter when priority points are implemented as provided in Section 1859.91, the priority order shall be as requested by the district on the Form SAB 50-04. The computation shall be made on a HSAA or Super HSAA basis if the district utilized HSAA or Super HSAA CBEDS enrollment data reported on the Form SAB 50-01 in effect at the time the district's application for funding was submitted to the OPSC for the project. Notwithstanding the provisions of Section 1859.41, a district that has previously reported its enrollment on a HSAA or Super HSAA basis may calculate both its eligibility and its priority points on a districtwide basis. A project shall receive priority points based on the total of (a), (b) and (c):
(a) Priority points for the percent of unhoused pupils for both of the following:
(1) Six points for each percent of current unhoused pupils.
(2) Four points for each percent of projected unhoused pupils.
(b) Priority points for the number of unhoused pupils for both of the following:
(1) One point for each 100 currently unhoused pupils.
(2) One point for each 200 projected unhoused pupils.
(c) A maximum of 100 priority points for the following:
(1) Twenty points if the district's CBEDS enrollment at the time of application submittal to the OPSC for funding is less than 2,501.
(2) Twenty points for a County Superintendent of Schools' project that only includes classroom space solely for Non-Severely Disabled Individuals with Exceptional Needs.
(3) Twenty points if the site acreage for the project is less than 50 percent of the site size recommended by the CDE for the master planned pupil capacity.
(4) Twenty points for a project that either used “stock plans” pursuant to Education Code Section 17070.33(b)(6) or re-used plans that were previously used to construct at least two other schools.
(5) Twenty points if the district's CBEDS enrollment at the time of application submittal to the OPSC for funding is less than 301.
(6) Twenty points for a project that uses 20 percent less energy than the Energy Budget as defined and calculated in a manner consistent with the California Energy Code, Part 6, Subchapter 5, Section 141 -- Performance Approach: Energy Budgets.
(7) Twenty points for a project that is a new high school serving any grades nine through twelve.
(8) Twenty points for a project that received financial hardship assistance pursuant to Section 1859.81.
(9) Twenty points for a project where the site acquisition qualified and received an apportionment authorized under Section 1859.75.1, Separate Site Apportionment for Environmental Hardship.
(10) One hundred points if the Approved Application was accepted prior to the date the priority point mechanism is implemented by the Board pursuant to Section 1859.91(a)(1) or (a)(2).
(d) The calculation of priority points in (a), (b) and (c) above shall be determined at the time the Approved Application is accepted.
(e) The following projects are exempt from priority points:
(1) A project that received Facility Hardship approval pursuant to Section 1859.82.
(2) A county superintendent of schools' project that includes classroom space for Severely Disabled Individuals with Exceptional Needs.
(3) A county superintendent of schools' project that only includes classroom space solely for community school pupils.
(4) A school district's project that only includes classroom space solely for Severely Disabled Individuals with Exceptional Needs.
(f) If the project received a separate site and/or design apportionment under the provisions of the LPP or pursuant to Sections 1859.75.1 or 1859.81.1, the district's funding priority of the project shall be determined by the Approved Application date for the New Construction Adjusted Grant or separate site funding request filed pursuant to Section 1859.81.1(a) or 1859.75.1. If separate site funding requests have been submitted, the funding priority of the project shall be determined by the CBEDS enrollment data utilized for those applications.
NOTE
Authority cited: Sections 17070.35, 17072.25 and 100420(d), Education Code. Reference: Sections 17070.33 and 17072.25, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section and Note, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of first paragraph filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of section and Note filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
8. Amendment of first paragraph filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment of first paragraph and subsection (f) filed 9-9-2002; operative 9-9-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 37).
10. New first paragraph and amendment of second paragraph filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.93. Modernization Project Funding Order.
Note • History
All modernization applications shall be funded in the order of receipt of an Approved Application for funding until all modernization funds available to the Board have been apportioned.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.15, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
7. Amendment of section heading filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.93.1. New Construction Project Funding Order.
Note • History
All new construction applications, except those new construction applications identified in (a) through (c) below, shall be funded in the order of receipt of an Approved Application for funding.
(a) Approved Applications for New Construction Grant(s) funded with the proceeds of state bonds approved by the voters prior to January 1, 2002.
(b) Approved Applications for New Construction Grant(s) authorized by Education Code Sections 17078.10 through 17078.30.
(c) Approved Applications that utilize pupil eligibility derived from the Alternative Enrollment Projection method. These applications shall be funded in order of receipt once the OPSC and the DRU have approved the Alternative Enrollment Projection method or the Alternative Enrollment Projection annual update.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17072.25 and 17070.35, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of first paragraph and new subsection (c) filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
§1859.93.2. New Construction Adjusted Grant for the Small High School Program. [Repealed]
Note • History
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.10, Education Code.
HISTORY
1. New section filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
2. Repealer filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.93.3. New Construction Small High School Program Funding Order. [Repealed]
Note • History
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17072.10, Education Code.
HISTORY
1. New section filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
2. Repealer filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
Note • History
(a) Hardship assistance provided as a part of a New Construction Grant shall be subject to the same priority point determination as the New Construction Grant.
(b) To the extent that hardship funds are available, the Board may elect to specifically set aside funding for financial hardship grants as provided in Section 1859.81, facility hardship grants as provided in Section 1859.82 or Excessive Cost Hardship Grants as provided in Section 1859.83.
(c) Should a district request hardship funding for either a financial hardship grant pursuant to Section 1859.81, a facility hardship grant pursuant to Section 1859.82 or an Excessive Cost Hardship Grant pursuant to Section 1859.83 and the Board has no funds to allocate for that specific hardship, the district may elect to either:
(1) Accept funding for the project less any hardship funding grants that are not available. When this option is selected, the hardship funding grants not allocated for the project shall be placed on the Unfunded List. If the project was previously placed on the Unfunded List, the project shall retain the original date it was placed on that Unfunded List.
(2) Decline to accept funding for the project. When this option is selected, the project shall be placed on the Unfunded List. If the project was previously placed on the Unfunded List, the project shall retain the original date it was placed on that Unfunded List.
A project or portion of a new construction project not funded as a result of subdivision (c) shall be subject to the Board's priority point mechanism pursuant to Sections 1859.91 and 1859.92.
NOTE
Authority cited: Sections 17075.15 and 17070.35, Education Code. Reference: Section 17075.15, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of subsection (c) filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
7. Amendment of subsections (c)-(c)(2) filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
§1859.95. Acceptance of Applications When Funding Is Unavailable.
Note • History
When the Board has no funds to apportion or the application does not qualify for funding because of the Board's priority point mechanism pursuant to Sections 1859.91 and 1859.92, the Board will continue to accept and process applications for eligibility determination, with the exception of applications that include a request for review of an Alternative Enrollment Projection method. The Board will also accept and process applications for apportionment for purposes of developing an Unfunded List based on the date the application is Ready for Apportionment, with the exception of New Construction funding applications that utilize eligibility generated by the Alternative Enrollment Projection.
The Board will return any applications for the review of the Alternative Enrollment Projection method and New Construction applications that utilize eligibility generated by the Alternative Enrollment Projection once the funding apportioned for these projects reaches $500 million or the Board has no funds to apportion from the Kindergarten-University Public Education Facilities Bond Act of 2004.
If either the Executive Officer of the Board, the State Architect, the Director of School Facilities Planning Division within the CDE or the Chief of the School Property Evaluation and Cleanup Division within the Department of Toxic Substances Control certify to the OPSC that the district's application was delayed for a specified number of calendar days in relation to other similar applications submitted to that agency at the same time, the application may, at the discretion of the Board, receive a date on the Unfunded List or receive funding pursuant to Section 1859.91 based on the date the application is Ready for Apportionment, adjusted back in time for the number of calendar days the application was delayed.
Applications for New Construction Adjusted Grants for a project where the site was apportioned pursuant to Section 1859.75.1 shall receive a date on the Unfunded List based on the date the environmental hardship site apportionment was made for the project.
With the exception of financial hardship eligibility, a district with an application included on an Unfunded List shall not be required to re-establish eligibility for that application prior to apportionment.
An application for funding included on an Unfunded List is eligible for reimbursement subject to adjustments in the New Construction Grants amount pursuant to Section 1859.77.
NOTE
Authority cited: Sections 17070.35 and 17072.25, Education Code. Reference: Sections 17070.35 and 17071.75, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of section and Note filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
8. Amendment of first paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
9. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
10. Amendment of first paragraph, new second paragraph and amendment of Note filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
§1859.96. Inactive Apportionments Under a State of California Fiscal Crisis.
Note • History
In the event of a fiscal emergency or crisis on the part of the State of California, the Board can make a finding that a project has an Inactive Apportionment, as defined in Regulation Section 1859.2, that no longer meets the meaning of Apportionment as defined in Education Code Section 17070.15, and that the 18-month requirement set forth in Education Code Section 17076.10(d) is therefore suspended as of December 17, 2008 and until such time as the Board finds that State bond funds are available for the project when the balance of the 18-month time period which existed on December 17, 2008 shall resume. Once the Board finds that State bond funds are available for the project, the 18-month requirement set forth in Education Code Section 17076.10(d) shall resume but in no case shall that period of time exceed a total of 18 months while the subject project has an Apportionment. Each project will resume where its originating period of time was suspended, as of December 17, 2008. An Apportionment for projects impacted by this Section is full and final, pursuant to Education Code Section 17070.63.
This regulation section shall become inoperative January 1, 2011.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17072.30, 17072.32, 17074.16 and 17076.10, Education Code.
HISTORY
1. New section filed 4-9-2009 as an emergency; operative 4-9-2009 (Register 2009, No. 15). A Certificate of Compliance must be transmitted to OAL by 10-6-2009 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 4-9-2009 order transmitted to OAL 9-24-2009 and filed 11-3-2009 (Register 2009, No. 45).
3. Amendment of last paragraph filed 12-22-2009 as an emergency; operative 12-22-2009 (Register 2009, No. 52). A Certificate of Compliance must be transmitted to OAL by 6-21-2010 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-22-2009 order transmitted to OAL 3-9-2010 and filed 4-21-2010 (Register 2010, No. 17).
Article 11. Miscellaneous School Facility Program Requirements
§1859.100. Restricted On-Going and Major Maintenance Fund.
Note • History
A district, regardless of size, shall certify on the Form SAB 50-04, the Form SAB 50-07 or the Form SAB 50-08, that a restricted account within the district's general fund has been established for the exclusive purpose of providing on-going and major repair of its facilities, pursuant to Education Code Section 17070.75.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.75, 17077.40 and 17078.10, Education Code.
HISTORY
1. New article 11 (sections 1859.100-1859.106) and section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New article 11 (sections 1859.100-1859.106) and section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New article 11 (sections 1859.100-1859.106) and section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
8. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
10. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
12. Amendment filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
13. Amendment of section filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
14. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
17. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.101. Districts that are Exempt from the Specified Annual Deposit.
Note • History
A district, including a county superintendent of schools, that is not required to make a specified annual deposit into the restricted maintenance account as provided in Education Code Section 17070.75 must certify on the Form SAB 50-04, the Form SAB 50-07 or the Form SAB 50-08, that the district can maintain its facilities with a lesser annual deposit.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.75, 17077.40 and 17078.10, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
8. Amendment filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
10. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
12. Amendment filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
13. Amendment of section filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
14. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
17. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
Note • History
A district shall certify on the Form SAB 50-04, the Form SAB 50-07 or the Form SAB 50-08, that it has developed and implemented an on-going and major maintenance plan in accordance with Education Code Section 17070.75 and 17070.77. In each fiscal year following the fiscal year in which the district received funds as a result of an application funded on or after January 1, 2002, the district shall certify that the plan has been reviewed and updated as required in Education Code Section 17070.77. The certification shall be made on the Deferred Maintenance Five Year Plan, which shall be required annually from those districts receiving such funding.
Any maintenance plan developed in accordance with Education Code Section 17070.75(b)(3) shall be deemed to meet the requirements for an additional basic apportionment as provided under Education Code Section 17585.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.75, 17070.77 and 17077.40, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. Amendment of first paragraph filed 7-12-99 as an emergency; operative 7-12-99 (Register 99, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-9-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
6. Certificate of Compliance as to 7-12-99 order, including further amendments, transmitted to OAL 11-5-99 and filed 12-22-99 (Register 99, No. 52).
7. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
8. Amendment of first paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
10. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
12. Amendment filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
13. Amendment of first paragraph filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
14. Amendment of first paragraph filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
15. Amendment of section and Note filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
16. Amendment of first paragraph filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
17. Amendment of first paragraph and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
Note • History
A district may expend the savings not needed for a project on other high priority capital facility needs of the district including the relocation of district facilities necessary as a result of Subdivision (b) of Education Code Section 17072.12. The grants for the projects funded pursuant to Section 1859.70.2 or Section 1859.180 shall be limited to eligible expenditures, up to the State Apportionment for the project except as specified in Section 1859.184.1(d). Savings may be declared by the district in writing to the OPSC any time after the release of all funds for the project.
With the exception of savings attributable to a site apportionment made pursuant to Sections 1859.74.5 or 1859.81.2, the State's portion of any savings declared by the district or determined by the OPSC by audit must be used to to reduce the SFP financial hardship grant of that project or other financial hardship projects within the district for a period of three years from the date the savings were declared by the district or determined by the OPSC audit. The State's portion of any savings from a new construction project or a Joint-Use Project may be used as a district matching share requirement, only on another new construction project, and the State's share of any savings from a modernization project may be used as a district matching share requirement, only on another modernization project.
Any interest earned on a financial hardship project not expended on eligible project expenditures will be treated as savings and will be used to reduce the SFP financial hardship grant for that project.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.63, 17072.12, 17077.40 and 17079.20, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. New third paragraph filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
6. Amendment of second paragraph and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment of section and Note filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
8. Editorial correction of second paragraph (Register 2003, No. 7).
9. Amendment of last paragraph filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
10. Amendment of last paragraph refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
11. Amendment of last paragraph refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
12. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
13. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
14. Amendment of first paragraph filed 7-22-2004 as an emergency; operative 7-22-2004 (Register 2004, No. 30). A Certificate of Compliance must be transmitted to OAL by 11-19-2004 or emergency language will be repealed by operation of law on the following day.
15. Certificate of Compliance as to 7-22-2004 order transmitted to OAL 11-12-2004 and filed 12-16-2004 (Register 2004, No. 51).
16. Amendment of first paragraph and Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
17. Amendment of first paragraph filed 1-21-2009; operative 1-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 4).
§1859.104. Program Reporting Requirements.
Note • History
A district receiving funds in accordance with the Act shall submit the following:
(a) An expenditure report from the district on the Form SAB 50-06. The program reporting requirements are as follows:
(1) The first expenditure report shall be due one year from the date that any funds were released to the district for the project pursuant to Section 1859.90, or upon completion of the project, whichever occurs first. A project shall be deemed complete when either of the following occur:
(A) When the notice of completion for the project has been filed, all outstanding invoices, claims, change orders have been satisfied and the facility is currently in use by the district.
(B) Three years from the date of the final fund release for an elementary school project or four years from the date of the final fund release for a middle or high school project.
(2) The second and subsequent expenditure reports, if necessary, shall be due annually beginning one year from the first report, or upon completion of the project, whichever occurs first. The final expenditure report must be made no later than three years from the date of the final fund release for an elementary school project or four years from the date of the final fund release for a middle or high school project.
(b) With the exception of projects that qualify for an apportionment pursuant to Section 1859.75.1, a progress report, in the form of a narrative from the district, shall be due 18 months from the date any funds were released to the district for the project pursuant to Section 1859.90. The progress report shall include information regarding the progress the district has made towards substantial completion of the project. If the notice of completion has been filed within 18 months of the release of funds pursuant to Section 1859.90, or the expenditure reports required in (a)(1) or (2) indicate that substantial progress (as defined in Section 1859.105) on the project has occurred, no progress report is required.
(c) A progress report, in the form of a narrative from the district, shall be due 12 months from the date the site acquisition funds were apportioned to the district for the project pursuant to Section 1859.75.1. The progress report shall include information regarding the progress the district has made towards acquiring the site as outlined in Section 1859.105.1 and may contain other evidence of reasonable effort to substantiate progress towards acquiring the site for purposes of an extension of the site apportionment as authorized by Education Code Section 17072.13(c)(2).
(d) If an apportionment was made for a district-owned site pursuant to Section 1859.74.5, a certification that the non-school function currently taking place on the district-owned site has been discontinued or relocated. The certification must be submitted to the OPSC no later than the following dates:
(1) If the project is for an elementary school, 66 months from the date of the site apportionment.
(2) For all other projects, 78 months from the date of the site apportionment.
(e) If an Apportionment was made under the Overcrowding Relief Grant pursuant to Section 1859.180, the School District must provide a certification that the replaced portables were removed from the eligible site and from service pursuant to Education Code Section 17079.30.
(f) A School District receiving an Apportionment for high performance incentive grants pursuant to Section 1859.71.6 or 1859.77.4 shall submit a completed Project Information Worksheet to the OPSC for all expenditures related to the additional design and construction costs of the high performance building components. In addition, the School District shall provide information related to resulting energy savings and efficiency, as well as other resulting benefits. The Project Information Worksheet shall be submitted with the Form SAB 50-05 and the District's first and final Forms SAB 50-06 pursuant to (a)(1) and (2) above.
NOTE
Authority cited: Sections 17070.35, 17072.13 and 17079.30, Education Code. Reference: Sections 17070.35, 17070.99, 17072.12, 17072.13, 17076.10 and 17079.30, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of subsection (a) filed 3-13-2000; operative 4-12-2000 (Register 2000, No. 11).
6. Amendment of subsections (a) and (b), new subsection (c) and amendment of Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of subsection (b) filed 9-9-2002; operative 9-9-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 37).
8. Amendment of subsection (a) filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
9. New subsections (d)-(d)(2) and amendment of Note filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
10. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
11. New subsections (e)-(e)(2) and amendment of Note filed 3-14-2006; operative 3-14-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 11).
12. New subsection (f) and amendment of Note filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
13. New subsection (g) filed 1-25-2011; operative 1-25-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 4).
14. Repealer of subsections (e)-(e)(2) and subsection relettering filed 8-16-2012; operative 8-16-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 33).
§1859.104.1. Material Inaccuracy Penalties.
Note • History
When the Board makes a finding that a Material Inaccuracy occurred for a SFP Project, the district shall be subject to the following penalties:
(a) If the Material Inaccuracy finding occurred prior to the apportionment, the district shall be:
(1) Prohibited from self-certifying the project information for a period of up to five years from the date the Board made the finding of Material Inaccuracy for the project. A prohibition from self-certification of project information may be less than five years as determined on a case-by-case basis by the Board.
(2) Required to file all projects pursuant to Section 1859.104.2. for the time period required in subsection (a)(1).
(3) Subject to the fee prescribed by Section 1859.104.3.
(b) If the Material Inaccuracy finding occurred after the apportionment but no funds have been released for the project:
(1) The Board shall reduce the project apportionment by the additional funding received beyond the amount the district was entitled to for the project.
(2) The school district shall be prohibited from self-certifying project information for a period of up to five years from the date the Board made the finding of Material Inaccuracy for the project. A prohibition from self-certification of project information may be less than five years as determined on a case-by-case basis by the Board.
(3) The school district shall be required to file all projects pursuant to Section 1859.104.2 for the time period required in subsection (b)(2).
(4) The school district shall be subject to the fee prescribed by Section 1859.104.3.
(c) If the Material Inaccuracy finding occurred after the apportionment and funds were released for the project, the district:
(1) Must repay the additional funding received beyond the amount the district was entitled to for the project with interest within five years from the date the Board made the finding of Material Inaccuracy. Interest shall be assessed as prescribed in Education Code Section 17070.51(b)(1).
(2) Shall be prohibited from self-certifying project information for a period of up to five years from the date the Board made the finding of Material Inaccuracy for the project. A prohibition from self-certification of project information may be less than five years as determined on a case-by-case basis by the Board.
(3) Shall be required to file all projects pursuant to Section 1859.104.2 for the time period required in subsection (c)(2).
(4) Shall be subject to the fee prescribed by Section 1859.104.3.
(d) The Board may direct that adjustments to the school district's New Construction or Modernization baseline eligibility be made pursuant to Sections 1859.51 and 1859.61 based on the determination of Material Inaccuracy.
A school district filing a Project Information Worksheet with the best available information at the time of filing will not be subject to a Material Inaccuracy for that information.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.51 and 17077.40, Education Code.
HISTORY
1. New section filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
2. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
4. Amendment of subsection (d) filed 1-26-2009; operative 1-26-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 5).
§1859.104.2. Self-Certification Prohibition.
Note • History
If the Board has made a finding of Material Inaccuracy pursuant to Section 1859.104.1, the OPSC may request supporting documentation as it deems appropriate for any application filed after a finding of material inaccuracy for the time prescribed in 1859.104.1(a)(1), (b)(2) or (c)(2).
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17070.51, Education Code.
HISTORY
1. New section filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
§1859.104.3. Self-Certification Prohibition Processing Fee.
Note • History
If the Board has made a finding of Material Inaccuracy pursuant to Section 1859.104.1, the Board shall charge the district an amount of $100 per hour for the additional hours necessary to process and review the district's applications submitted during the timelines prescribed in Section 1859.104.1(a)(1), (b)(2) or (c)(2). The maximum hours subject to the fee per application is the greater of 50 hours or one percent of the enrollment of the district as reported in Part A, the continuation high pupils reported in Part C, and the special day class pupils reported in Part D of Form SAB 50-01. The Board will not make a release of funds for any project subject to the fee in this section until the fee has been remitted to the OPSC. All fees collected shall be deposited in the School Facility Fund and available for apportionment as directed by the Board.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17070.51, Education Code.
HISTORY
1. New section filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
2. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
4. Amendment filed 10-27-2005; operative 10-27-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 43).
5. Amendment filed 3-3-2008 as an emergency; operative 3-3-2008 (Register 2008, No. 10). A Certificate of Compliance must be transmitted to OAL by 9-2-2008 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 3-3-2008 order, including further amendment of section, transmitted to OAL 6-9-2008 and filed 7-10-2008 (Register 2008, No. 28).
§1859.105. Program Accountability Progress Audit.
Note • History
(a) When the district has received funds for a SFP project, the Board shall conduct a review to assure the district has made substantial progress in the completion of the project pursuant to Education Code Section 17076.10(b). The review shall consist of an analysis of the district's progress report in accordance with Section 1859.104(b). Sufficient evidence of substantial progress shall be any of the following:
(1) At least 75 percent of all site development work that is necessary prior to building construction activity is complete.
(2) At least 90 percent of the building construction activities are under contract, unless the building construction activities are delayed as a result of necessary site development work.
(3) All construction activities are at least 50 percent complete.
(4) Other evidence satisfactory to the Board of circumstances beyond the control of the district that precludes substantial progress being made.
(b) When the district has received funds pursuant to Section 1859.81.1(a), the Board shall conduct a review to assure the district has made substantial progress in the completion of the project. The audit shall consist of a review and analysis of the district's progress report in accordance with Section 1859.104(b). Acceptable evidence of substantial progress shall be when the district has completed all of the following:
(1) Obtained the final appraisal of the site; and,
(2) Completed all California Environmental Quality Act requirements; and,
(3) Obtained final approval of the site by the CDE; and,
(4) Provided final escrow instructions or evidence the district has filed condemnation proceedings and intends to request an order of possession of the site; or,
(5) Other evidence satisfactory to the Board detailing the reason(s) and circumstance(s) beyond the control of the district that precludes substantial progress being made. If the Board determines that substantial progress has been made pursuant to Education Code Section 17076.10(b), the Board shall condition its finding of substantial progress upon the district's commitment to complete and submit satisfactory evidence that the district meets the provisions of Section 1859.105(b)(1) through (b)(4) within a period not to exceed 18 months from the date of the Board's determination of substantial progress.
(c) When the district has received funds pursuant to Section 1859.81.1(e), the Board shall conduct a review to assure the district has made substantial progress in the completion of the project. Sufficient evidence of substantial progress shall be any of the following:
(1) An Approved New Construction or Modernization Adjusted Grant Application; or
(2) A school district certification that the final building plans for the project have been submitted to and accepted by the DSA for review and approval; or
(3) An approved separate site funding application pursuant to Section 1859.81.1(a) or an approved environmental hardship funding application pursuant to Section 1859.75.1 or an approved Preliminary Apportionment pursuant to Section 1859.140, that met the criteria of Section 1859.142(b); or
(4) Other evidence satisfactory to the Board detailing the reason(s) that plans have not been completed and accepted by the DSA. If the Board determines that substantial progress has been made pursuant to Education Code Section 17076.10(b), the Board shall condition its finding of substantial progress upon the district's commitment to complete and submit an Approved New Construction or Modernization Adjusted Grant Application within a period not to exceed 18 months from the date of the Board's determination of substantial progress.
After the Board has received the progress report required in Section 1859.104(b) for items (a), (b), and (c) above, a review and analysis of the report by the OPSC will be made for compliance with this Section within 60 days of the submittal of the report by the district. The OPSC must notify the district within 60 days of the submittal of the report if it intends to recommend to the Board that no substantial progress has been made on the project. If the OPSC does not respond to the district within 60 days of submittal of the report, the OPSC concurs with the district that substantial progress has been made.
Should the OPSC respond within 60 days of submittal of the progress report by the district that no substantial progress has been made or the district fails to submit the progress report within the timelines in Section 1859.104 (b) for items (a), (b), and (c) above or the district has not filed an Approved Application for funds received pursuant to Section 1859.81.1(b), the district must report the final expenditures on the project on the Form SAB 50-06, to the OPSC within 60 days of the OPSC notification. After receipt of the expenditure report, the OPSC will recommend to the Board that a finding be made that no substantial progress on the project has been made and that the apportionment be reduced, after accounting for the district's matching share, by any funds not yet committed by a contract for the project and any interest earned on State funds for the project. The recommendation will be made at the next regularly scheduled Board meeting. If the expenditure report is not received within the 60 day period, the OPSC will recommend that the apportionment be rescinded and any interest earned on State funds be returned to the State.
If the apportionment is reduced or rescinded as a result of a finding by the Board that no substantial progress has been made on the project, the pupils assigned to the project will be added to the district's baseline eligibility. If the apportionment was reduced, the adjustment to the baseline eligibility shall reflect any funding retained by the district based on the New Construction or Modernization Adjusted Grant funding provided for the project. The district may refile a new application for the project subject to district eligibility and priority funding at the time of resubmittal.
NOTE
Authority cited: Sections 17070.35 and 17072.13, Education Code. Reference: Sections 17070.35, 17076.10 and 17077.40, Education Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of third paragraph of subsection (d) filed 3-13-2000; operative 4-12-2000 (Register 2000, No. 11).
6. Amendment of section and Note filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of subsection (c) and penultimate paragraph filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
9. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
11. Amendment of subsection (c), new subsections (c)(1)-(4) and amendment of antepenultimate and penultimate paragraphs filed 9-9-2002; operative 9-9-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 37).
12. Amendment of subsection (a), penultimate paragraph and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
13. Amendment of subsections (c) and (c)(3) filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
14. Amendment of subsections (c) and (c)(3) refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
15. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
16. Amendment of subsections (c) and (c)(3) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
17. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
18. Amendment of subsections (b)(1)-(4) and new subsection (b)(5) filed 11-2-2004; operative 11-2-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 45).
§1859.105.1. Program Accountability Environmental Hardship.
Note • History
(a) When the district has received funds pursuant to Section 1859.75.1, the Board shall conduct a review to assure the district has made progress towards acquisition of the site pursuant to Education Code Section 17072.13(c)(2). The review shall consist of an analysis of the district's progress report in accordance with Section 1859.104(c). Acceptable evidence of substantial progress shall be when the district has completed all of the following:
(1) Obtained the final appraisal of the site.
(2) Completed all California Environmental Quality Act requirements.
(3) Obtained final approval of the site by the CDE.
(4) Provided final escrow instructions or evidence the district has filed condemnation proceedings and intends to request an order of possession of the site.
After the Board has received the progress report required in Section 1859.104(c) a review and analysis of the report by the OPSC will be made for compliance with this Section within 60 days of the submittal of the report by the district. The OPSC must notify the district within 60 days of the submittal of the report if it intends to recommend to the Board that the district has not made progress towards acquiring the site. If the OPSC does not respond to the district within 60 days of submittal of the report, the OPSC concurs with the district that it has made progress to the site acquisition.
Should the OPSC respond within 60 days of submittal of the progress report by the district that no progress has been made towards site acquisition or the district fails to submit the progress report within the timelines in Section 1859.104(c), the OPSC will recommend at the next available Board meeting that the site apportionment for the project be rescinded and that any interest earned on State funds be returned to the State. If the apportionment is rescinded as a result of a finding by the Board that no progress has been made towards acquiring the site, the pupils assigned to the project will be added to the district's baseline eligibility.
(b) The district may request one-year extensions of the site apportionment as authorized by Education Code Section 17072.13(c)(2). Acceptable criteria for approval of an extension are any of the following:
(1) The district has received letters from the DTSC and the CDE that indicate the agency concurs that the district is making reasonable progress towards acquisition of the site.
(2) Other reasonable evidence of effort the district has made towards acquiring the site as approved by the Board.
NOTE
Authority cited: Sections 17070.35 and 17072.13, Education Code. Reference: Sections 17070.35, 17072.13 and 17076.10, Education Code.
HISTORY
1. New section filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
§1859.105.2. Program Accountability for District-Owned Site Acquisition Cost.
Note • History
When the district has received funds pursuant to Section 1859.74.5 for a district-owned site and has not submitted the certification required pursuant to Section 1859.104(d), the site apportionment is subject to the provisions of material inaccuracy as prescribed in Education Code Section 17070.51.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.51 and 17072.12, Education Code.
HISTORY
1. New section filed 2-6-2003; operative 2-6-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 6).
§1859.106. Program Accountability Expenditure Audit.
Note • History
The projects will be audited to assure that the expenditures incurred by the district were made in accordance with the provisions of Education Code Section 17072.35 for new construction projects, Section 1859.120 for Joint-Use Projects, Section 1859.140 for Critically Overcrowded School projects, Section 1859.160 for Charter School projects, and Education Code Section 17074.25 and Section 1859.79.2 for modernization projects. The audit will also assure that the district complied with all site acquisition guidelines as provided in Education Code Sections 17072.13 and 17072.14 and Sections 1859.74, 1859.74.1, 1859.74.2, 1859.74.3, 1859.74.4, 1859.75 and 1859.75.1.
An adjustment in the SFP grant will be made for the following:
(a) The difference in the value of the site, relocation costs, DTSC fees, and hazardous waste/materials removal costs that were used to determine the New Construction Additional Grant and the actual amount paid by the district for the site, relocation costs, DTSC fees, and hazardous waste/materials removal costs. For applications received on or after January 1, 2004, the adjustment may be made regardless of whether the hazardous waste/materials removal costs were requested on the application for funding.
(b) For 50 percent of any insurance proceeds collectable by the district for displaced facilities and 50 percent of the net proceeds available from the disposition of displaced facilities pursuant to Section 1859.82(a) or (b).
(c) For any project that received funding pursuant to 1859.71.4(c) or 1859.78.1(b), 50 percent of one-fourth of one percent of the difference between the original Total Projected Bond Apportionment and the newly calculated amount.
(d) Any adjustments made pursuant to this Section will be made only if sufficient bond authority is available for the adjustment. If an Unfunded List has been created by the Board, then any adjustments made pursuant to this Section will be placed on the Unfunded List.
When the OPSC receives the final expenditure report from the district on Form SAB 50-06, an audit of the expenditures by the OPSC shall commence within two years of the report. If the district is not notified by the OPSC within the two-year period that an audit will be made, there will be no audit of the project by the OPSC and the expenditures reported by the district shall be deemed appropriate. If the district has been notified that an audit of the expenditures will be made by the OPSC, the OPSC shall complete the audit within six months of the notification, un--
less additional information requested from the district has not been received.
Districts shall be required to maintain all appropriate records that support all district certifications and expenditures for all costs associated with SFP, Charter School, and Joint-Use projects for a period of not less than four years from the date the notice of completion is filed for the project in order to allow other agencies, including, without limitation, the Bureau of State Audits and the State Controller to perform their audit responsibilities.
The district is responsible to substantiate expenditures from the Joint-Use Partner(s) financial contribution pursuant to Section 1859.127 and from other local sources.
Should the OPSC conduct an audit of the district certifications or the expenditures for the project and make a finding that some or all of the expenditures were not made in accordance with the provisions of Education Code Section 17072.35 for new construction projects, Section 1859.120 for Joint-Use Projects, Section 1859.140 for Critically Overcrowded School projects, Section 1859.160 for Charter School projects, Education Code Section 17074.25 and Section 1859.79.2 for modernization projects, and Education Code Sections 17072.13 and 17072.14 for projects with additional costs imposed by the DTSC, the OPSC shall recommend to the Board that the apportionment be adjusted based on the audit findings.
Should the CDE make a finding that a project did not meet the standards that were adopted by the CDE pursuant to Education Code Section 17251(b) and (c) when the district had self-certified that the project met those standards pursuant to Education Code Section 17070.50(b), the Board may request that the CDE make a recommendation that the apportionment for the project be adjusted based on the CDE finding. Any adjustment in the apportionment shall be based on the percentage of space in the project that the CDE determined did not meet those standards.
If title to special education program facilities is transferred between a school district and a county office of education pursuant to Education Code Sections 17071.75(b)(2) and (f), the receiving School District shall remit payment to the State within 60 days or up to five years, pursuant to an approved repayment schedule, as requested by the School District. If a repayment schedule is requested, it shall be in equal installments and shall include interest at the same rate as that earned on the State's Pooled Money Investment Account on the date a repayment schedule is approved by the Board. The repayment amount shall be determined by prorating the Financial Hardship assistance received on the initial Apportionment for the transferred facilities, including site acquisition costs apportioned for any land transferred, by the percentage of building area being transferred divided by the total amount of building area approved on the initial Application containing the transfer of facilities, if all of the following conditions are met:
(a) The transferred facilities were constructed with State funds under Chapter 12.5.
(b) Transfer of the facilities took place within ten years of initial occupancy.
(c) The School District that initially acquired or constructed the transferred facilities had approved Financial Hardship status at the time of Apportionment of the project.
(d) The School District receiving the facility did not have approved Financial Hardship status at either the time of the title transfer or the time that the adjustment request is submitted to the OPSC.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17070.50, 17071.75, 17072.13, 17072.14, 17072.18, 17072.35, 17074.25, 17076.10, 17077.40, 17078.52 and 17251, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 12-3-98 as an emergency; operative 12-3-98 (Register 98, No. 49). A Certificate of Compliance must be transmitted to OAL by 4-2-99 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 3-31-99 as an emergency; operative 3-31-99 (Register 99, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-29-99 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 7-29-99 as an emergency; operative 7-29-99 (Register 99, No. 31). A Certificate of Compliance must be transmitted to OAL by 11-26-99 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-29-99 order, including amendment of section and Note, transmitted to OAL 8-26-99 and filed 10-8-99 (Register 99, No. 41).
5. Amendment of third paragraph filed 3-13-2000; operative 4-12-2000 (Register 2000, No. 11).
6. Amendment filed 6-26-2000; operative 6-26-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 26).
7. Amendment of section and Note filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
8. Amendment of section and Note filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
9. Amendment of section and Note filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
10. Amendment of first paragraph and penultimate paragraph filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
11. Amendment of section and Note refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
12. Amendment of first paragraph and penultimate paragraph refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
13. Amendment of section and Note refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
14. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
15. Amendment of first paragraph and subsection (c) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
16. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
17. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
18. Amendment of section and Note filed 2-3-2005; operative 2-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 5).
19. Amendment of last two paragraphs of subsection (b) filed 1-8-2007 as an emergency; operative 1-8-2007 (Register 2007, No. 2). A Certificate of Compliance must be transmitted to OAL by 5-8-2007 or emergency language will be repealed by operation of law on the following day.
20. Certificate of Compliance as to 1-8-2007 order transmitted to OAL 5-8-2007 and filed 6-20-2007 (Register 2007, No. 25).
21. Amendment filed 1-7-2008; operative 2-6-2008 (Register 2008, No. 2).
22. New subsections (c) and (d) and amendment of Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.106.1. Repayment of State Funds.
Note • History
Upon adoption of the audit findings by the Board and in lieu of the collection procedures outlined in Education Code Section 17076.10(c)(1), a school district, county office of education, or charter school may request a repayment schedule of up to five years, in equal annual installments, if the total repayment of State funds within 60 days of the Board action would cause the school district, county office of education, or charter school to fall into fiscal distress. School districts, county offices of education, or charter schools requesting a repayment schedule must be in a severe hardship condition as evidenced by at least one of the following criteria:
(a) For a school district or county office of education, the district or county office of education is listed on the current CDE List of Negative and Qualified Certifications of School Districts and County Offices of Education.
(b) For a school district or county office of education, the amount due to the State for one or more projects would cause the district or county office of education to be listed on the CDE List of Negative and Qualified Certifications of School Districts and County Offices of Education report. Where the financial condition of a school district is involved, the county office of education must submit a letter to the OPSC on behalf of its representative school districts for consideration substantiating that the repayment will place the district on the CDE List of Negative and Qualified Certifications of School Districts and County Offices of Education. Where the financial condition of a county office of education is involved, the CDE must submit a letter to the OPSC on behalf of the county office of education for consideration substantiating that the repayment will place the county office of education on the CDE List of Negative and Qualified Certifications of School Districts and County Offices of Education.
(c) For a charter school, the amount due to the State for one or more projects would cause the charter school severe financial hardship. The charter school's authorizing agency must submit a letter to the OPSC on behalf of the charter school for consideration substantiating that the repayment may result in the charter school being unable to meet its financial obligations for the current or subsequent two fiscal years.
The repayment schedule shall include interest at the same rate as that earned on the State's Pooled Money Investment Account on the date a repayment schedule is approved by the Board.
The repayment schedule will commence on July 1 of the fiscal year following the repayment schedule approval date.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17076.10(c) and 17078.52, Education Code.
HISTORY
1. New section filed 1-8-2007 as an emergency; operative 1-8-2007 (Register 2007, No. 2). A Certificate of Compliance must be transmitted to OAL by 5-8-2007 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-8-2007 order, including amendment of section and Note, transmitted to OAL 5-8-2007 and filed 6-20-2007 (Register 2007, No. 25).
§1859.107. Amending and Withdrawal of Applications.
Note • History
A funding application that received an apportionment under Chapter 12 or Chapter 12.5 may not be rescinded and re-approved under the provisions of any amended law or administrative regulation unless specifically authorized by other applicable law.
A funding application, with the exception of funding applications identified in Subsection (a) below, that has received an approval pursuant to Section 1859.95, but has not received an apportionment, may receive an adjustment as allowed under Sections 1859.71, 1859.71.2(c), 1859.78.4(b) or 1859.78 at the time the apportionment is made. If the adjustment is a result of Sections 1859.71.2(c) or 1859.78.4(b), the district must submit an amended Form SAB 50-04. The amended application shall retain its OPSC processing date. No other adjustments may be made, including those resulting from changes to the regulations prior to final funding by the SAB. As an alternative, the application may be withdrawn and resubmitted for SAB approval under the provisions of any amended or new regulation that becomes effective prior to the apportionment for the project. The district must first request from the OPSC that the application be withdrawn and removed from the Unfunded List. The district may then resubmit the application to the OPSC under the provisions of the amended or new regulation once it is effective. The resubmitted application will receive a new processing date by the OPSC. School districts that have already received a site apportionment under Section 1859.81.1(a) may withdraw the application and file as an environmental hardship pursuant to Section 1859.75.1 without forfeiting their original site apportionment, provided that the new application does not exceed the amount already apportioned.
A funding application, with the exception of funding applications identified in Subsection (a) below, submitted to the OPSC that has not received an approval will receive funding under the provisions of the regulations that were in effect when the application was submitted to the OPSC and any funding adjustment authorized by Sections 1859.71.2(c) or 1859.78.4(b). If the funding adjustment is a result of Sections 1859.71.2(c) or 1859.78.4(b), the district must submit an amended Form SAB 50-04. The amended application shall retain its OPSC processing date. At the option of the district, a funding application submitted to the OPSC that has not received an approval may be withdrawn and resubmitted for SAB approval under the provisions of any amended or new regulation once it is effective. The district must request that the application be withdrawn and removed from the OPSC workload list. The resubmitted application will receive a new processing date by the OPSC.
(a) A district that submitted an Approved Application request for either a Modernization Adjusted Grant or a Separate Design Apportionment for a modernization project pursuant to Section 1859.81.1 that meets the criteria in (1) and (2) below must submit a new Form SAB 50-04, that meets the criteria in Subsections (b) or (c) no later then 60 calendar days after the effective date (September 16, 2002) of this Subsection:
(1) The Approved Application was received by the OPSC after April 29, 2002 but no later than the date this Subsection becomes effective (September 16, 2002).
(2) The Approved Application has not received an approval or has received an approval pursuant to Section 1859.95, but has not received an apportionment.
(b) The new Form SAB 50-04 identifies the same number of pupils assigned to the original project or a lesser amount that is not less than 37.5 percent of the pupils originally assigned to the project (round up). In this case, the district will be required to contribute additional funds to the project to meet the 40 percent district contribution required pursuant to Section 1859.79(b). If the project was approved as a financial hardship project under the provisions of Section 1859.81, the project shall maintain its financial hardship status, however, the district will be subject to a financial review pursuant to Section 1859.81(a) to determine if there are additional district funds available for the project.
(c) The new Form SAB 50-04 identifies a lesser number of pupils assigned to the project that does not exceed an amount determined by multiplying the pupils assigned to the original project by 37.5 percent (round down). In this case, the district will not be required to contribute additional funds to the project to meet the 40 percent district contribution required pursuant to Section 1859.79(b).
(d) If a new Form SAB 50-04 is submitted under the provisions of subsection (b), the Architect of Record or Design Professional certification made on the original Form SAB 50-04 will be accepted as satisfying the requirements of the new Form SAB 50-04.
(e) Any Approved Application request that meets the requirements of Subsection (a) will be withdrawn 60 calendar days after the date Subsection (a) becomes effective (September 16, 2002), if the district does not submit a new Form SAB 50-04 conforming to either Subsections (b) or (c).
Any application for eligibility determination that has received an approval may be amended to comply with provisions of an amended or new regulation once it is effective. The amended application will receive a new processing date by the OPSC.
Any application for eligibility determination that has not received an approval may be amended at any time to conform to an amended or new regulation. The application shall retain its OPSC processing date.
Any application for new construction eligibility determination that has received an approval must be amended to conform to Regulation Section 1859.51(l) prior to submittal of Form SAB 50-04.
Any application for new construction eligibility determination that has not received an approval must be amended to conform to Form SAB 50-02 and Form SAB 50-03 prior to submittal of Form SAB 50-04.
Any application for modernization eligibility determination that has received an approval must be amended to conform to Regulation Section 1859.61(g) prior to submittal of an Form SAB 50-04.
Any application for modernization eligibility determination that has not received an approval must be amended to conform to Form SAB 50-03 prior to submittal of an Form SAB 50-04.
Districts that have received an approval of eligibility on a HSAA or Super HSAA are not required to re-establish eligibility under the provisions of Section 1859.41(a).
Districts that have requested eligibility determination on a HSAA or Super HSAA that have not received an approval must comply with the provisions of Section 1859.41(a) prior to submittal of Form SAB 50-04. The amended eligibility application shall retain its original OPSC processing date.
A district that has received an approval of its eligibility determination on a district-wide, HSAA or Super HSAA basis, but received no New Construction Grant(s), may re-file on another eligibility determination basis provided it withdraws all previously submitted Form SAB 50-04 requests for New Construction Grant(s), including those on the Unfunded List.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17070.35, 17070.63, 17074.15, 17074.16 and 17074.56, Education Code.
HISTORY
1. New section filed 3-13-2000; operative 4-12-2000 (Register 2000, No. 11).
2. Amendment adding four paragraphs at end filed 7-17-2000 as an emergency; operative 7-17-2000 (Register 2000, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-17-2000 order transmitted to OAL 11-9-2000 and filed 12-27-2000 (Register 2000, No. 52).
4. Amendment filed 1-2-2001 as an emergency; operative 1-2-2001 (Register 2001, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2001 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 1-2-2001 order transmitted to OAL 5-1-2001 and filed 6-13-2001 (Register 2001, No. 24).
6. Amendment of last four paragraphs filed 7-25-2001; operative 7-25-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 30).
7. Amendment of last four paragraphs filed 8-13-2001; operative 8-13-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 33).
8. Amendment filed 4-10-2002; operative 4-10-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 15).
9. Amendment filed 5-2-2002; operative 6-1-2002 (Register 2002, No. 18).
10. Amendment of section and Note filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
11. Amendment of second paragraph filed 9-9-2002; operative 9-9-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 37).
12. Amendment of section and Note filed 9-16-2002 as an emergency; operative 9-16-2002 (Register 2002, No. 38). A Certificate of Compliance must be transmitted to OAL by 1-14-2003 or emergency language will be repealed by operation of law on the following day.
13. Amendment filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
14. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
15. Certificate of Compliance as to 9-16-2002 order transmitted to OAL 1-7-2003 and filed 2-19-2003 (Register 2003, No. 8).
16. Amendment of subsection (a)(1) filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
17. Amendment of subsection (a)(1) refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
18. Amendment of subsection (a)(1) refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
19. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
20. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.108. Extension of Fire Code Requirements Exemption.
Note • History
A portable building that has received a three-year exemption by the Division of the State Architect from the fire code requirements described in Education Code Sections 17074.50 and 17074.52 may receive up to an additional three-year extension of that exemption provided all the following criteria are met:
(a) The portable was acquired or leased with SFP modernization funds.
(b) The portable was used solely for interim housing during the construction of a SFP modernization project.
(c) The portable building meets the definition outlined in Subdivision (c) of Education Code Section 17074.54.
(d) The district has presented acceptable evidence to the Board that the portable building continues to be needed to house pupils as a result of the SFP modernization project.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17074.54, Education Code.
HISTORY
1. New section filed 8-12-2002 as an emergency; operative 8-12-2002 (Register 2002, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-10-2002 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 8-12-2002 order transmitted to OAL 12-3-2002 and filed 1-16-2003 (Register 2003, No. 3).
Article 12. Joint-Use Project Grant Determination
§1859.120. General (Joint-Use Project Funding).
Note • History
A district seeking Joint-Use Project funding pursuant to the provisions of Education Code Section 17077.40, shall complete and file Form SAB 50-07.
If the Joint-Use Project will serve more than one grade configuration or the Joint-Use Project will serve multiple public school sites, the Joint-Use Project eligibility and funding will be determined based on the highest grade level served by the facility.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17077.40, Education Code.
HISTORY
1. New article 12 (sections 1859.120-1859.130) and section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment adding second paragraph filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
§1859.121. Joint-Use Project Application Submittals and Apportionments.
Note • History
The Board shall accept Approved Applications for Joint-Use Funding on a yearly basis as follows:
(a) For any funding made available for this purpose by May 31, 2003, applications will be accepted from November 5, 2002 through May 31, 2003. The Board will apportion the funding made available by May 31, 2003 at the July 2003 Board meeting.
(b) For any additional funding that is made available for this purpose from June 1, 2003 through May 31, 2008, the Board will accept applications from June 1 of the prior calendar year through May 31 of the current calendar year for any funding made available for this purpose by May 31 of each year. The Board will apportion the funding made available by May 31 of each year at the following July Board meeting based on the SFP regulations in effect at that time.
(c) For any funding that is made available for this purpose the Board will accept applications for the 2008/2009 funding cycle from June 1, 2008 through March 1, 2009. For the 2009/2010 funding cycle and for all future funding cycles, the Board will accept applications from March 2 of the prior calendar year through March 1 of the current calendar year. Subject to the availability of financing provided by the Pooled Money Investment Board for bond-funded projects, the Board will apportion the funding made available based on the SFP regulations in effect at that time.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of second paragraph filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
5. Amendment of subsection (b) and new subsection (c) filed 8-14-2008; operative 8-14-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 33).
6. Amendment of subsection (c) filed 4-22-2009 as an emergency; operative 4-22-2009 (Register 2009, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-19-2009 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 4-22-2009 order transmitted to OAL 9-29-2009 and filed 11-9-2009 (Register 2009, No. 46).
§1859.122. Type I Joint-Use Program Eligibility Criteria.
Note • History
A district requesting funding for a Type I Joint-Use Project may submit Form SAB 50-07 to the OPSC if all the following criteria are met:
(a) The plans and specifications for the Type I Joint-Use Project are included in the plans and specifications for a new school or an addition to an existing public school for which the district has requested SFP new construction funding.
(b) The Type I Joint-Use Project will be located on the same site where the SFP new construction project is located.
(c) The Type I Joint-Use Project will increase the square footage and/or Extra Cost for any of the following proposed facilities included in the SFP new construction project:
(1) A multipurpose room.
(2) A gymnasium.
(3) A Childcare facility.
(4) A library.
(5) A Teacher Education facility.
(d) At least one of the Joint-Use Partner(s) is an institution of Higher Education, a governmental agency, or a Non-Profit Organization. The Joint-Use Partner(s) may be a county office of education or another district provided the funds contributed by those agencies pursuant to Section 1859.127 are not otherwise available for other SFP projects.
(e) The district has entered into a Joint-Use Agreement that meets the criteria in Education Code Section 17077.42.
(f) The district has joint-use square footage eligibility pursuant to Section 1859.124(a) or has demonstrated that it will incur Extra Cost pursuant to Section 1859.125.1.
(g) The construction contract for the Type I Joint-Use Project was not executed prior to April 29, 2002.
(h) The plans and specifications for the Type I Joint-Use Project have been approved by the DSA.
(i) The plans for the Type I Joint-Use project have been approved by the CDE.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of subsections (c)-(c)(3), new subsections (c)(4)-(5) and amendment of subsections (d) and (f) filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
5. Amendment of subsection (d) filed 5-24-2005 as an emergency; operative 5-24-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-21-2005 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 5-24-2005 order transmitted to OAL 9-16-2005 and filed 10-24-2005 (Register 2005, No. 43).
7. Amendment of subsection (d) filed 8-14-2008; operative 8-14-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 33).
§1859.122.1. Type II Joint-Use Program Eligibility Criteria.
Note • History
A district requesting funding for a Type II Joint-Use Project may submit Form SAB 50-07 to the OPSC if the following criteria are met:
(a) If the Joint-Use Project proposes to Reconfigure an existing school building, then the plans and specifications for the Type II Joint-Use Project may be included in the plans and specifications for modernization to an existing public school for which the district has requested SFP modernization funding. If the Joint-Use Project will be part of a qualifying SFP Modernization project, then the Type II Joint-Use Project will be located on the same site where the SFP modernization project is located and the site does not have the type of facility for which the Joint-Use Funding is requested or the facility is Inadequate.
(b) If the Joint-Use Project proposes to construct new school buildings, then the project will be located on an existing school site that does not have the type of facility for which the Joint-Use Funding is requested or the facility is Inadequate.
(c) The Type II Joint-Use Project will either Reconfigure an existing school building or construct new school buildings, and will provide facilities to be used for any of the following:
(1) A multipurpose room.
(2) A gymnasium.
(3) A childcare facility.
(4) A library.
(5) A Teacher Education facility.
(d) At least one of the Joint-Use Partner(s) is a governmental agency, an institution of Higher Education or a Non-Profit Organization. The Joint-Use Partner(s) may be a county office of education or another district provided the funds contributed by those agencies pursuant to Section 1859.127 are not otherwise available for other SFP projects.
(e) The district has entered into a Joint-Use Agreement that meets the criteria in Education Code Section 17077.42.
(f) The district has demonstrated it has joint-use square footage eligibility pursuant to Section 1859.124(b).
(g) The construction contract for the Type II Joint-Use Project was not executed prior to April 29, 2002.
(h) The plans and specifications for the Type II Joint-Use Project, to reconfigure existing school buildings as part of a qualifying SFP project, have been approved by the DSA and the CDE.
(i) The Preliminary Plans for the Type II Joint-Use Project, to either reconfigure existing school buildings, construct new school buildings, or both, have been approved by the CDE.
Reconfiguring an existing school building must not reduce the district's capacity or displace another minimum essential facility. In any case involving the replacement of capacity or a minimum essential facility due to the reconfiguration of an existing building, the replacement must be part of the plans submitted in support of the Joint-Use Application, must occur concurrently, and cannot be part of a SFP Application for new construction.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Editorial correction of first paragraph (Register 2004, No. 45).
5. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
§1859.122.2. Additional Type II Joint-Use Program Eligibility Criteria for Pupil Academic Achievement.
Note • History
A district requesting funding for a Type II Joint-Use Project that will Reconfigure existing school buildings, construct new school buildings, or both to provide for pupil Academic Achievement may submit Form SAB 50-07 to the OPSC if the criteria in sections 1859.122.1(a), 1859.122.1(b), 1859.122.1(d), 1859.122.1(e), 1859.122.1(f), 1859.122.1(g), 1859.122.1(h), and 1859.122.1(i) are met and the plans and specifications were accepted by the DSA for review and approval prior to January 1, 2004.
Reconfiguring an existing school building must not reduce the district's capacity or displace another minimum essential facility. In any case involving the replacement of capacity or a minimum essential facility due to the reconfiguration of an existing building, the replacement must be part of the plans submitted in support of the Joint-Use Application, must occur concurrently, and cannot be part of a SFP Application for new construction.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of section heading and section filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order, including further amendment of first paragraph, transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
§1859.123. Qualifying SFP New Construction Project.
Note • History
For purposes of meeting the requirements in Section 1859.122(a), the district may combine the plans and specifications of its Joint-Use Project with any of the following new construction applications:
(a) A new construction funding request that is submitted at the same time as the Joint-Use Project application.
(b) An Approved Application for new construction funding that has not yet received an approval (i.e., not yet on the Unfunded List) if all the following criteria are met:
(1) The plans and specifications for the Joint-Use Project were not included in the original DSA approved plans and specifications for the Approved Application for new construction funding.
(2) The original DSA approved plans and specifications for the Approved Application for new construction funding are modified to incorporate the plans and specifications for the Joint-Use Project.
(3) The district has withdrawn the Approved Application for new construction funding pursuant to Section 1859.107 for the benefit of adding a Joint-Use Project.
(4) A revised new construction funding application and the Joint-Use Project application are resubmitted to the OPSC at the same time.
(c) An Approved Application for new construction funding that has been approved, but has not received a full apportionment (i.e., currently on the Unfunded List) or has been fully funded, if all the following criteria are met:
(1) The plans and specifications for the Joint-Use Project were included in the original DSA approved plans and specifications for the Approved Application for new construction funding.
(2) The contract for the construction of the Joint-Use Project was not executed prior to April 29, 2002.
(3) The district entered into a joint-use agreement that meets or will be amended to meet the criteria of Education Code Section 17077.42.
(4) The Joint-Use Project application is submitted separately. There is no requirement that the Approved Application for new construction be withdrawn from the Unfunded List.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of first paragraph and repealer of subsections (c)(3)(A)-(B) filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order, including further amendment of first paragraph and subsection (c)(3), transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
5. Amendment of subsection (c)(3) filed 5-24-2005 as an emergency; operative 5-24-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-21-2005 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 5-24-2005 order transmitted to OAL 9-16-2005 and filed 10-24-2005 (Register 2005, No. 43).
§1859.123.1. Qualifying SFP Modernization Project.
Note • History
For purposes of meeting the requirements in Sections 1859.122.1(a) or 1859.122.2, the district may combine the plans and specifications of its Joint-Use Project with any of the following modernization applications:
(a) A modernization funding request that is submitted at the same time as the Joint-Use Project application.
(b) An Approved Application for modernization funding that has not yet received an approval (i.e., not yet on the Unfunded List) if all the following criteria are met:
(1) The plans and specifications for the Joint-Use Project were not included in the original DSA approved plans and specifications for the Approved Application for modernization funding.
(2) The original DSA approved plans and specifications for the Approved Application for modernization funding are modified to incorporate the plans and specifications for the Joint-Use Project.
(3) The district has withdrawn the Approved Application for modernization funding pursuant to Section 1859.107 for the benefit of adding a Joint-Use Project.
(4) A revised modernization funding application and the Joint-Use Project application are resubmitted to the OPSC at the same time.
(c) An Approved Application for modernization funding that has been approved, but has not received a full apportionment (i.e., currently on the Unfunded List) or has been fully funded, if all the following criteria are met:
(1) The plans and specifications for the Joint-Use Project were included in the original DSA approved plans and specifications for the Approved Application for modernization funding.
(2) The contract for the construction of the Joint-Use Project was not executed prior to April 29, 2002.
(3) The district entered into a joint-use agreement that meets or will be amended to meet the criteria of Education Code Section 17077.42.
(4) The Joint-Use Project application is submitted separately. There is no requirement that the Approved Application for modernization be withdrawn from the Unfunded List.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-21-2004 order, including further amendment of subsection (c)(3), transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
3. Amendment of subsection (c)(3) filed 5-24-2005 as an emergency; operative 5-24-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-21-2005 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-24-2005 order transmitted to OAL 9-16-2005 and filed 10-24-2005 (Register 2005, No. 43).
§1859.124. Joint-Use Project Square Footage Eligibility.
Note • History
With the exception of funding requests for Extra Cost of a Type I Joint-Use Project, the district must have square footage eligibility in order to submit an application for Joint-Use Project funding. Depending on the type of Joint-Use Project, the square footage eligibility is calculated as follows:
(a) If the funding request is for a Type I Joint-Use Project, the square footage eligibility is calculated as follows:
(1) Determine the total square footage of the joint-use facility for which Joint-Use Project funding is requested.
(2) Determine the square footage for the type of joint-use facility for which Joint-Use Project funding is requested in the Square Footage Chart shown in Section 1859.124.1.
(3) Determine the square footage eligibility by subtracting the amount determined in (a)(2) from the amount determined in (a)(1). If a negative number results, the square footage eligibility is zero.
(b) If the funding request is for a Type II Joint-Use Project, the square footage eligibility is calculated as follows:
(1) Determine the total square footage of any existing like-kind joint-use facilities at the same site where the Joint-Use Project facility will be located.
(2) Determine the square footage for the type of joint-use facility for which Joint-Use Project funding is requested in the Square Footage Chart shown in Section 1859.124.1.
(3) Multiply the amount in (b)(2) by 60 percent.
(4) If the amount determined in (b)(1) is greater than the amount determined in (b)(3), the square footage eligibility is zero. If the amount determined in (b)(1) is equal to or less than the amount determined in (b)(3), the square footage eligibility is the amount determined in (b)(2).
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
§1859.124.1. Square Footage Facility Chart.
Note • History
Use the Chart below to determine square footage for purposes of Section 1859.124. The three columns to the left of the Chart indicate the facility types that may be funded under a Type I or Type II Joint-Use Project.
CHART OF SQUARE FOOTAGES
(In Square Feet)
Embedded Graphic 02.0024
(a) If the Joint Use Project requests funding for a multi-purpose room, gymnasium or library, multiply the amounts shown for the type of facility proposed in the Joint-Use Project by either (1) or (2) below:
(1) If the funding request is for a Type I Joint-Use Project, the sum of the latest CBEDS enrollment at the site and the number of pupil grants requested in the qualifying SFP New Construction project pursuant to Section 1859.123.
(2) If the funding is for a Type II Joint-Use Project, the latest CBEDS enrollment at the site.
(b) If the Joint Use Project requests funding for Teacher Education or Pupil Academic Achievement, multiply the amounts shown, or the amounts approved by the CDE, by the number of pupils that will receive specialized training for teacher education and/or academic achievement.
(c) If the Joint Use Project requests funding for a childcare facility, multiply the amounts shown by the number of children that will receive services.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of first paragraph, table and subsections (a)(1)-(2) filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
5. Amendment of table filed 4-30-2007; operative 4-30-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 18).
§1859.125. Joint-Use Project Grant Determination Based on Square Footage.
Note • History
If the funding request is to construct square footage, the Joint-Use Grant is the lesser of the amount determined in (a) or (b):
(a) The sum of the amounts determined below:
(1) $173.30 for the Toilet Facilities in the Joint-Use Project as calculated in (a)(1)(B) below:
(A) Divide the eligible square footage of the Joint Use Project as determined in Section 1859.124 by the total square footage of the joint-use facility.
(B) Multiply the quotient determined in (a)(1)(A) by the Toilet Facilities in the joint-use facility.
(2) $96.30 for non-Toilet Facilities in the Joint-Use Project as calculated in (a)(2)(B) below.
(A) Divide the eligible square footage of the Joint Use Project as determined in Section 1859.124 by the total square footage of the joint-use facility.
(B) Multiply the quotient determined in (a)(2)(A) by the non-Toilet Facilities in the joint-use facility.
(3) 50 percent of site development work that meets the following criteria:
(A) It is necessary and applicable to the Joint-Use Project.
(B) It meets the requirements for service site development or utility costs as outlined in Section 1859.76(a) and/or (c). Off-site development work is not allowed as part of a Joint-Use Project; however, if off-site development work is necessary pursuant to Section 1859.76(b) for a Type I Joint-Use Project, the district may request the eligible off-site work under the qualifying SFP New Construction project pursuant to Section 1859.123.
(C) It is considered excessive site development costs and not eligible for funding under the qualifying SFP New Construction or Modernization project pursuant to Section 1859.123 or 1859.123.1.
(b) $1 million if the Joint-Use Project will be located on a school site that is or will be serving Elementary School Pupil(s). $1.5 million if the Joint-Use Project will be located on a school site that is or will be serving Middle School Pupil(s). $2 million if the Joint-Use Project will be located on a school site that is or will be serving High School Pupils.
If the district is requesting funding for site development work applicable to the Joint-Use Project, the district must submit a detailed cost estimate and appropriate DSA approved plans, with the Form SAB 50-07. The cost estimate must include appropriate justification documents that indicate the work is necessary to complete the Joint-Use Project and conform to the requirements of Section 1859.76.
Utility service(s) cost shall be prorated, if necessary, for any excess capacity not needed to service the Joint-Use Project.
The dollar amounts shown in (a) are adjusted in a manner prescribed in Section 1859.71 and are eligible for Excessive Cost Hardship Grant(s) pursuant to Section 1859.83(a), (b) and (d). For any project funded in whole or in part from Proposition 47 or Proposition 55 for which the construction contract is awarded prior to January 1, 2012, the district may be eligible for the funding provided to initiate and enforce a LCP as prescribed in Section 1859.71.4(a). For any project for which the construction contract is awarded on or after January 1, 2012, the grant may be adjusted in the manner prescribed in Section 1859.71.4(c) and subject to the limitations established in Section 1859.71.4(d).
The Joint-Use Grant amounts provided in this Section and Section 1859.125.1, if applicable, shall be deemed the full and final apportionment for the application. Any costs incurred by the district beyond the Joint-Use Grant amount and the Joint-Use Partner(s) and district financial contribution pursuant to Section 1859.127, shall be the responsibility of the district and/or the Joint-Use Partner(s).
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42, 17077.45 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of penultimate paragraph filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
4. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
5. Amendment of subsections (a)(3)(B)-(C) and last paragraph filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
7. Amendment of penultimate paragraph filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
9. Amendment of subsection (b) and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.125.1. Additional Type I Joint-Use Project Extra Cost Grant.
Note • History
In addition to the square footage Joint-Use Grant provided in Section 1859.125, a Type I Joint-Use Project may receive funding for Extra Cost equal to the lesser of (a) or (b):
(a) An amount determined by subtracting (a)(2) from (a)(1):
(1) The sum of the following:
(A) 50 percent of the estimated cost to construct the Joint-Use Project.
(B) 50 percent of site development work that meets the following criteria:
1. It is necessary and applicable to the Joint-Use Project.
2. It meets the requirements of Section 1859.76(a) and/or (c).
3. It is considered excessive site development costs and not eligible for funding under the qualifying SFP New Construction project pursuant to Section 1859.123.
4. The district did not receive funding for the site development work under Section 1859.125.
(2) The sum of the following:
(A) $173.30 for the Toilet Facilities in the Joint-Use Project.
(B) $96.30 for the non-Toilet Facilities in the Joint-Use Project.
(b) An amount determined by subtracting (b)(2) from (b)(1):
(1) $1 million if the Joint-Use Project will be located on a school site that is or will be serving Elementary School Pupil(s). $1.5 million if the Joint-Use Project will be located on a school site that is or will be serving Middle School Pupil(s). $2 million if the Joint-Use Project will be located on a school site that is or will be serving High School Pupils.
(2) The Joint-Use Grant amount determined in Section 1859.125 based on square footage, if applicable.
If the district is requesting funding for site development work applicable to the Joint-Use Project, the district must submit a detailed cost estimate and appropriate DSA approved plans with the Form SAB 50-07. The cost estimate must include appropriate justification documents that indicate the work is necessary to complete the Joint-Use Project and conform to the requirements in Section 1859.76.
Utility service(s) cost shall be prorated, if necessary, for any excess capacity not needed to service the Joint-Use Project.
The amounts shown in (a) are adjusted in a manner prescribed in Section 1859.71. For any project funded in whole or in part from Proposition 47 or Proposition 55 for which the construction contract is awarded prior to January 1, 2012, the district may be eligible for the funding provided to initiate and enforce a LCP as prescribed in Section 1859.71.4(a). For any project for which the construction contract is awarded on or after January 1, 2012, the grant may be adjusted in the manner prescribed in Section 1859.71.4(c) and subject to the limitations established in Section 1859.71.4(d).
The Joint-Use Grant amount provided in this Section and Section 1859.125, if applicable, shall be deemed the full and final apportionment for the application. Any costs incurred by the district beyond the Joint-Use Grant amount and the Joint-Use Partner(s) and district financial contribution pursuant to Section 1859.127, shall be the responsibility of the district and/or the Joint-Use Partner(s).
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42, 17077.45 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of penultimate paragraph filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
4. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
5. Amendment of section heading, first paragraph, subsection (a)(1)(B)3. and last paragraph filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
7. Amendment of penultimate paragraph filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
9. Amendment of subsection (b)(2) and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.126. Joint-Use Project Funding Priority and Funding Availability.
Note • History
In each application acceptance period, the Board shall fund eligible Joint-Use Projects as follows:
(a) Type I Joint-Use Projects in the following order:
(1) By date order received for the applications the districts have designated as first funding priority.
(2) By date order received for the applications the districts have designated as second funding priority and so on until all Type I Joint-Use Project applications have been apportioned.
(b) Type II Joint-Use Projects in the following order:
(1) By date order received for the applications the districts have designated as first funding priority.
(2) By date order received for the applications the districts have designated as second funding priority and so on until all Type II Joint-Use Project applications have been apportioned.
If a Joint-Use Project cannot be fully apportioned because of the funding available, the district may either accept the available funding as the full and final apportionment for the project or refuse funding. If funding is refused, the application will be returned to the district and the Board shall consider funding the next project eligible for an apportionment based on the above funding priority mechanism.
Any Joint-Use Project not considered for an apportionment because of the above funding priority mechanism shall be returned to the district. A district may resubmit a returned Joint-Use Project application during the subsequent application acceptance period identified in Section 1859.121(b), if the application meets the eligibility criteria at the time of re-submittal.
Any funds not apportioned in the application acceptance period identified in Section 1859.121(a) or any Joint-Use Project funds returned due to projects being rescinded or reduced to cost incurred shall be made available for apportionment in the application acceptance period identified in Section 1859.121(b).
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Repealer of subsections (c)-(c)(2) filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
§1859.127. Joint-Use Partner(s) Financial Contribution.
Note • History
A financial contribution towards the cost of the Joint-Use Project equal to the state funding provided by these Regulations is required. The contribution made by the Joint-Use Partner(s) shall be no less than 25 percent of eligible project costs. The remaining local contribution may come from any other district source that would not otherwise be available to the State Allocation Board.
If the school district has passed a local bond that was authorized prior to February 27, 2008 which specifies that such funds are to be used for the Joint-Use Project, then the school district may opt to provide up to the full 50 percent local share of eligible costs. The Joint-Use Project may also be identified in the voter approved local bond language, the school district board resolution authorizing the bond, or the school district board meeting minutes.
If the school district has passed a local bond that was authorized on or after February 27, 2008 which specifies that such funds are to be used for the Joint-Use Project, then the school district may opt to provide up to the full 50 percent local share of eligible costs-providing the voter approved local bond language contains an acknowledgement that the proceeds will or may be used for both of the following:
(a) Joint-use purposes verified through the term, “joint-use” present in the voter approved local bond language.
(b) Joint-Use Project identified in either of these two ways:
(1) The specific facility type requested and/or
(2) The specific school site.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
5. Amendment filed 8-14-2008; operative 8-14-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 33).
§1859.128. Additional Financial Contribution.
Note • History
If additional project costs will be incurred by the district beyond the state funding and the Joint-Use Partners' financial contribution required pursuant to Section 1859.127, the additional financial contribution may be made by the Joint-Use Partner(s), the district or from any other local source.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.129. Time Limit on Apportionment.
Note • History
(a) If the district received an apportionment for a Type I Joint-Use Project or a Type II, part of a qualifying SFP Modernization project, Joint-Use Project, the district is subject to the time limit on the apportionment as outlined in Education Code Section 17076.10.
(b) If the district received an apportionment for a Type II Joint-Use Project, not part of a qualifying SFP Modernization project, the district:
(1) Has one year from the date of that apportionment to submit the plans and specifications to the OPSC for the Joint-Use Project that have been approved by the DSA and the CDE (plans only), otherwise the apportionment will be rescinded without further Board action. If, upon review by the OPSC, the final Division of the State Architect approved plans create a reduction in square footage that is greater than or equal to five percent of the square footage contained in the preliminary plans, a commensurate reduction to the apportionment pursuant to Section 1859.125 shall be taken to the next available State Allocation Board meeting.
(A) In the event the Board determines there is a fiscal emergency or crisis on the part of the State of California, the Board can make a finding that a project has an Inactive Apportionment, as defined in Regulation Section 1859.2, and that the districts' ability to submit completed plans to the DSA has been impacted, and therefore the district will no longer be able to meet the approval requirement in Education Code Section 17077.45(c). In the event the Board makes that determination and finding, the Board may suspend the 12-month period for a period not to exceed 12 months beyond the time period as required in (b)(1). Once the suspension period has concluded, each project will resume where its originating period of time was suspended. Regulation Section 1859.129(b)(1)(A) shall become inoperative January 1, 2010.
(2) Has 18 months from the date the DSA and CDE approved plans were submitted to the OPSC to submit a completed Form SAB 50-05 or the apportionment will be rescinded without further Board action. If the district is requesting an Apportionment pursuant to Section 1859.90.1 or 1859.90.2, the Board will require that this time limit be reduced to no more than 90 days from the date of the apportionment.
(3) Is subject to substantial progress time limit on the apportionment as outlined in Subdivision (b) of Education Code Section 17076.10.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17076.10, 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment of subsections (a) and (b) filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
5. Amendment of subsection (b)(1) filed 8-14-2008; operative 8-14-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 33).
6. New subsection (b)(1)(A) filed 4-30-2009 as an emergency; operative 4-30-2009 (Register 2009, No. 18). A Certificate of Compliance must be transmitted to OAL by 10-27-2009 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 4-30-2009 order transmitted to OAL 10-6-2009 and filed 11-16-2009 (Register 2009, No. 47).
8. Amendment of subsection (b)(2) filed 6-24-2010 as an emergency; operative 6-24-2010 (Register 2010, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-21-2010 or emergency language will be repealed by operation of law on the following day.
9. Amendment of subsection (b)(2) filed 10-29-2010 as an emergency; operative 10-29-2010 (Register 2010, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-27-2011 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 6-24-2010 order transmitted to OAL 11-1-2010 and filed 12-16-2010 (Register 2010, No. 51).
11. Certificate of Compliance as to 10-29-2010 order transmitted to OAL 3-10-2011 and filed 4-21-2011 (Register 2011, No. 16).
§1859.130. Eligible Joint-Use Project Expenditures.
Note • History
Joint-Use Project Grants shall be expended as set forth in Education Code Section 17072.35 with the exception of site acquisition, including lease of land. When a new site is necessary for a Type I Joint-Use Project, the district may request site acquisition costs under the qualifying SFP New Construction project pursuant to Section 1859.123.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17077.40, 17077.42 and 17077.45, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
3. Amendment filed 5-21-2004 as an emergency; operative 5-21-2004 (Register 2004, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 5-21-2004 order transmitted to OAL 9-20-2004 and filed 11-2-2004 (Register 2004, No. 45).
Article 13. Critically Overcrowded School Facilities
§1859.140. General (Preliminary Apportionment).
Note • History
A district seeking a Preliminary Apportionment pursuant to the provisions of Education Code Sections 17078.10 through 17078.30 for new construction shall complete and file a Form SAB 50-08.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17078.10 and 17078.22, Education Code.
HISTORY
1. New article 13 (sections 1859.140-1859.155) and section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.141. Preliminary Application Submittals.
Note • History
The Board shall accept Preliminary Applications as follows:
(a) A district seeking a Preliminary Apportionment from the funding made available from Education Code Section 100620(a)(5), shall complete and submit Form SAB 50-08 between November 6, 2002 and May 1, 2003.
(b) A district seeking a Preliminary Apportionment from the funding made available from Education Code Section 100820(a)(3), shall complete and submit Form SAB 50-08 between 60 calendar days prior to and 120 calendar days after the 2004 election authorizing the funding.
After the Board has approved a Preliminary Apportionment for a Preliminary Application submitted as provided in (a) and/or (b), a district seeking an advance release of funds for site acquisition pursuant to Section 1859.153(b) or (c), shall be required to submit an additional Form SAB 50-08, to the OPSC, to determine eligible site acquisition costs. A district seeking an advance release of funds for design, engineering, and other pre-construction project costs pursuant to Section 1859.153(a), shall not be required to submit an additional Preliminary Application, as otherwise provided in (a) and/or (b).
If the voters do not approve Proposition 47 and/or the Kindergarten-University Public Education Facilities Bond Act of 2004, any Preliminary Application accepted for processing by the OPSC as provided in (a) and/or (b) as appropriate will be returned unprocessed to the district.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17078.10 and 17078.20, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. New penultimate paragraph filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
3. New penultimate paragraph refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of subsection (b) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
§1859.142. Preliminary Apportionment Eligibility Criteria.
Note • History
A district may apply for a Preliminary Apportionment by submittal of Form SAB 50-08 if all of the following criteria are met:
(a) The district has demonstrated that it has SFP new construction eligibility under Education Code Section 17071.75.
(b) The project for which the district is requesting funding has not received an apportionment under the LPP, the SFP or other Proposition 1A funds, with the exception of apportionments prior to November 5, 2002 pursuant to Section 1859.81.1(e).
(c) At least 75 percent of the number of pupils requested on Form SAB 50-08 are Qualifying Pupils from a Source School(s) as determined in Section 1859.143.
(d) The General Location of a proposed school meets the criteria of Education Code Section 17078.22(a)(3) or (b).
If the proposed school will serve a combination of elementary school pupils and middle school pupils, the General Location of the school for purposes of (d) above shall be based on the highest grade served.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17078.18 and 17078.22, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of subsection (b) filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment of subsection (b) refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of subsection (b) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
§1859.143. Determination of Source School Qualifying Pupil Baseline Eligibility.
Note • History
After the CDE Source School List has been published by the CDE, the Qualifying Pupils for a Source School shall be determined as follows:
(a) Multiply the Useable Acres of the Source School by:
(1) 86 pupils per acre for a Source School identified as elementary on the CDE Source School List.
(2) 68 pupils per acre for a Source School identified as a middle school or a high school on the CDE Source School List.
(b) Determine the latest CBEDS enrollment for the Source School as of the date the district submitted the Preliminary Application to the OPSC.
(c) Subtract the amount determined in (a) from the amount determined in (b). The difference is the Qualifying Pupils baseline eligibility for the specific Source School.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.18, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.144. Adjustments to the Source School Qualifying Pupil Baseline Eligibility.
Note • History
The Source School Qualifying Pupil baseline eligibility determined in Section 1859.143 will be adjusted as follows:
(a) Reduced by the number of Qualifying Pupils the district assigned on the Preliminary Application to meet the 75 percent requirement in Section 1859.142(c).
(b) Increased by the Qualifying Pupils the district assigned on the Preliminary Application to meet the 75 percent requirement in Section 1859.142(c) that has been rescinded pursuant to Section 1859.148.
(c) Increased/decreased for changes in CBEDS enrollment in subsequent enrollment reporting years.
(d) Increased/decreased for changes in the Useable Acres originally reported on the CDE Source School List.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.18, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.145. Preliminary Apportionment Determination.
Note • History
The Preliminary Apportionment shall be equal to the sum of the following:
(a) The amounts shown below for each pupil included in a Preliminary Application:
(1) $5,226.82 for each elementary school pupil.
(2) $5,533.65 for each middle school pupil.
(3) $7,225.94 for each high school pupil.
(4) $16,653.06 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(5) $11,137.37 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(b) An amount equal to 12 percent of the amount determined in (a) for multilevel construction, if requested by the district.
(c) An amount equal to one-half of the site acquisition value determined in Section 1859.145.1.
(d) An amount for site development cost determined, at the option of the district, by one of the following:
(1) One-half of the Site Development Cost for the specific site as authorized by Section 1859.76.
(2) One-half of the Site Development Cost as authorized by Section 1859.76 using historical information in the General Location. Historical information that may be considered to determine this estimated cost may include prior SFP projects of the district or other districts in the General Location.
(3) $70,000 multiplied by the proposed acres requested on the Form SAB 50-08.
(e) If the Preliminary Application request is for a small new school on a site with no existing school facilities, an amount equal to the difference in the amount determined in (a) and the amount shown in the Chart in Section 1859.83(c). To determine the number of classrooms in the proposed project, divide the number of pupils requested on Form SAB 50-08, by 25 for elementary school pupils, 27 for middle and high school pupils, 13 for Non-Severely Disabled Individuals with Exceptional Needs and 9 for Severely Disabled Individuals with Exceptional Needs. Round up.
(f) An amount due to urban location, security requirements and impacted site equal to 15 percent of the amount determined in (a) for a site that is 60 percent of the CDE recommended site size plus 1.166 percent for each percentage decrease in the CDE recommended site below 60 percent when the following criteria are met:
(1) The district has requested an increase for multilevel construction pursuant to (b) above.
(2) The Useable Acres of the existing and/or proposed site are 60 percent or less of the CDE recommended site size determined by multiplying the sum of the pupil grants requested on Form SAB 50-08, and the current CBEDS enrollment on the site (if applicable) by .01775 for elementary school pupils, .021 for middle school pupils and .02472 for high school pupils. For purposes of this calculation, assign Severely Disabled Individuals with Exceptional Needs and Non-Severely Disabled Individuals with Exceptional Needs pupil grants requested on Form SAB 50-08, as either elementary, middle or high school pupils based on the type of project selected by the district on Form SAB 50-08. For purposes of COS projects, if the site for which the Preliminary Apportionment is requested is a Source School, for purposes of assigning Qualifying Pupils in the Preliminary Application, subtract those Qualifying Pupils from the current CBEDS enrollment on the site before completing this calculation.
(3) The value of the property as determined in Section 1859.145.1(a)(1) is at least $750,000 per Useable Acre. This criterion does not apply to an application for an addition to an existing school site.
(g) An amount for the geographic location of the proposed project equal to the sum of the amounts determined in (a), (b), (d)(3), (e) and (f) multiplied by the indicated percentage factor in the Geographic Percentage Chart shown in Section 1859.83(a).
(h) For purposes of COS projects, an amount equal to 12 percent of the sum of the amounts determined in (a) through (g) for all Preliminary Applications received no later than May 1, 2003. For all Preliminary Applications received after May 1, 2003 an amount equal to the sum of the amounts determined in (a) through (g) multiplied by a factor determined as follows:
(1) Divide the January Class B Construction Cost Index in effect at the time of Preliminary Apportionment by the January Class B Construction Cost Index in effect four years prior to the Preliminary Apportionment. Round to four decimal places.
(2) Subtract 1 from the quotient in (1). Round to two decimal places.
(i) If the district qualifies for financial hardship assistance pursuant to Section 1859.81 at the time of submittal of the Preliminary Application, an amount equal to the sum of the amounts determined in (a) through (h) less any district funds determined available for the project pursuant to Section 1859.81(a). Districts must meet the financial hardship criteria pursuant to Section 1859.81 at the time the request is made to convert the Preliminary Apportionment to a Final Apportionment, including an accountability of any district contribution made available at the time of the Preliminary Apportionment was made, in order to continue with financial hardship assistance for the project.
(j) If the district received an apportionment prior to November 5, 2002 pursuant to Section 1859.81.1(e), an amount equal to the sum of the amounts determined in (a) through (i) less the previously authorized apportionment amount.
The amounts shown in (a) shall be adjusted in a manner prescribed in Section 1859.71. For any project funded in whole or in part from Proposition 47 or Proposition 55 for which the construction contract is awarded prior to January 1, 2012, the district may be eligible for the funding provided to initiate and enforce a LCP as prescribed in Section 1859.71.4(a). For any project for which the construction contract is awarded on or after January 1, 2012, the grant may be adjusted in the manner prescribed in Section 1859.71.4(c) and subject to the limitations established in Section 1859.71.4(d).
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17075.10, 17078.10, 17078.24 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment filed 2-27-2003 as an emergency; operative 2-27-2003 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-27-2003 or emergency language will be repealed by operation of law on the following day.
3. New subsection (j) filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Amendment refiled 6-19-2003 as an emergency; operative 6-19-2003 (Register 2003, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-17-2003 or emergency language will be repealed by operation of law on the following day.
5. Amendment of last paragraph filed 8-25-2003 as an emergency; operative 8-25-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-23-2003 or emergency language will be repealed by operation of law on the following day.
6. New subsection (j) refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
7. Amendment refiled 10-10-2003 as an emergency; operative 10-10-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-9-2004 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
9. New subsection (j) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
10. Reinstatement of section as it existed prior to 8-25-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 9).
11. Certificate of Compliance as to 10-10-2003 order transmitted to OAL 2-9-2004 and filed 3-23-2004 (Register 2004, No. 13).
12. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
13. Amendment of subsections (d)(3), (e), (f)(2) and (h) filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
14. Amendment of subsections (f)(3) and (h) and new subsections (h)(1)-(2) filed 7-2-2004; operative 7-2-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 27).
15. Editorial correction of subsection (h)(2) (Register 2004, No. 46).
16. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
17. Amendment of last paragraph filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
18. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
19. Amendment of subsection (j) and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.145.1. Preliminary Apportionment Site Acquisition Value.
Note • History
(a) If the Preliminary Application includes a request for site acquisition funding, the preliminary value of the proposed site shall be the sum of the following:
(1) The value of the property determined by one of the following:
(A) By an appraisal or a preliminary appraisal of the property made no more than six months prior to the date the Preliminary Application was submitted to the OPSC, using the guidelines outlined in Section 1859.74.1. The preliminary appraisal may be made without access to the property. The acreage identified in the appraisal or the preliminary appraisal may not exceed the proposed useable acreage requested on Form SAB 50-08.
(B) The Median Cost of an acre of land in the General Location of the proposed project using historical information in the General Location multiplied by the number of proposed useable acres requested on Form SAB 50-08. Historical information that may be considered to determine land cost may include prior real-estate sales consummated and documented by the county recorder or pending real-estate sales documented by a title insurance company's escrow instructions. For purposes of historical information, include all real-estate sales consummated and documented by the county recorder for a minimum of six months and a maximum of up to two years prior to the date the Preliminary Application was submitted to the OPSC.
(2) An amount for the estimated relocation cost and the estimated DTSC costs for review, approval and oversight of the POESA and the PEA as determined by one of the following:
(A) 21 percent of the value determined in (a)(1).
(B) The sum of the following:
1. The approved relocation expenses for the specific site to be acquired that conform to Title 25, California Code of Regulations, Section 6000, et. seq.
2. The DTSC cost for review, approval, and oversight of the POESA and the PEA for the specific site to be acquired.
(C) The estimated relocation cost and the estimated DTSC costs for review, approval and oversight of the POESA and the PEA using historical information in the General Location. Historical information that may be considered to determine these estimated costs may include prior real-estate acquisitions of the district or other districts in the General Location.
(3) Four percent of the amount determined in (a)(1), but not less than $50,000. This amount shall provide an allowance of any appraisal, escrow, survey, site testing, CDE review/approvals and preparation of the POESA and the PEA.
(4) For allowable costs of hazardous material/waste removal and remediation costs, one-half times the value of the property determined in either (a)(1)(A) or (a)(1)(B), above.
(b) If the Preliminary Application includes a request for hazardous waste removal required on an existing school site, the preliminary value for site acquisition funding shall be the sum of the following:
(1) With the exception of projects that received initial site acquisition funds under the SFP, the Board shall provide an amount for the necessary hazardous waste materials/waste removal and/or remediation costs on an existing school site where the Preliminary Apportionment will be used if all the following are met:
(A) The Preliminary Application request is for additional school facilities on an existing school site.
(B) The Preliminary Application request does not include a funding request for site acquisition costs allowed pursuant to Section 1859.145.1(a).
(C) The existing school site where the Preliminary Apportionment will be expended has a functioning school on the site or the site had a closed school that will again be used as a functioning school.
(D) The hazardous material cleanup costs are required by the DTSC.
(2) If all the criteria in subsection (b) are met, the allowable hazardous waste removal cleanup costs shall be all the following:
(A) The costs for preparation of the POESA, the PEA and the RA.
(B) The costs to implement the RA as determined necessary in the PEA that has been approved by the DTSC subject to the following:
1. The costs may include the DTSC costs for review and oversight of the preparation and implementation of the RA.
2. The costs may not include continuous operational and maintenance costs associated with the RA.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17072.13, 17072.18, 17078.10 and 17078.24, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of section and Note filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment of section and Note refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
4. Amendment of section and Note refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
6. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
7. Amendment of subsections (a)(1), (a)(2) and (b)(2)(B) filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
8. Amendment of section and Note filed 7-2-2004; operative 7-2-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 27).
9. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
10. Amendment of subsection (a)(1)(B) filed 3-2-2005; operative 3-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1859.146. Preliminary Apportionment Funding Priorities.
Note • History
If the amounts of the Preliminary Applications received pursuant to Section 1859.141 exceed the funds available, the Board shall first apportion those Preliminary Applications that will house pupils from Source Schools with the highest pupil density levels. The calculation in (a) through (e) below is made independently for each Source School from which Qualifying Pupils are assigned. All calculations are rounded up to four decimal places. The pupil density level for the Preliminary Application is the amount determined in (f) as follows:
(a) Divide the latest CBEDS enrollment of the Source School by the Useable Acres of the Source School as shown on the CDE Source School List.
(b) Divide the quotient determined in (a) by:
(1) 115 if the Source School is identified as an elementary school on the CDE Source School List.
(2) 90 if the Source School is identified as a middle school or a high school on the CDE Source School List.
(c) Subtract 1 from the quotient determined in (b).
(d) Divide the Source School's Qualifying Pupils by the total Qualifying Pupils assigned.
(e) Multiply the difference determined in (c) by the quotient determined in (d).
(f) Add the product(s) determined in (e) for each Source School the district assigned Qualifying Pupils from to meet the 75 percent requirement in Section 1859.142(c).
All Preliminary Applications received from a district will be processed in the date order received by the OPSC. If more than one Preliminary Application is received on the same day, those applications will be processed by the OPSC based on the priority order assigned to those applications by the district on Form SAB 50-08.
If two or more Preliminary Applications have the same pupil density level, the Board shall first apportion that Preliminary Application that was received first by the OPSC.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.20, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.147. Conversion of Preliminary Apportionment.
Note • History
When a Preliminary Apportionment is converted to a Final Apportionment, the following criteria must be met:
(a) The district must have current New Construction Eligibility utilizing a fifth-year projection per Section 1859.42(a) sufficient to support at least 75 percent of the pupils the district requested and received the Preliminary Apportionment, except as allowed in (d) or (e).
(b) The Final Apportionment request must meet all criteria for a New Construction Adjusted Grant pursuant to Section1859.21.
(c) A district seeking to convert a Preliminary Apportionment to a Final Apportionment shall complete and file Form SAB 50-04, which requests funding for at least 75 percent, but not more than 100 percent, of the pupils the district requested and received the Preliminary Apportionment.
(d) In lieu of (c), when the district's enrollment has decreased to less then 75 percent of the pupils requested for the project's Preliminary Apportionment, the district may utilize any SFP eligibility justified for its conversion to a Final Apportionment.
(e) In lieu of (a), sufficient project eligibility may be determined utilizing:
(1) The current year enrollment as recorded on the Form SAB 50-01 for the year in which the application for the Final Apportionment is submitted.
(2) Either (A) or (B) below for a district reporting eligibility pursuant to Section 1859.41. Once utilized that same subparagraph must be used for all remaining Preliminary Apportionments under this subdivision:
(A) The current year pupil residence data within the HSAA in which the project will be built, for the year in which the application for the Final Apportionment is submitted.
(B) The projected pupil residence for the year in which the application for the Final Apportionment is submitted, calculated by the cohort survival enrollment projection method, utilizing pupil residence data for the HSAA in which the project will be built.
It is not necessary to re-justify the Qualifying Pupils assigned to the Preliminary Application as required by Section 1859.142(c) at the time the application is converted to a Final Apportionment.
An Approved Application received by the OPSC on or after January 1, 2005 to convert a Preliminary Apportionment to a Final Apportionment may utilize an alternate eligibility justification pursuant to Section 1859.147(e), provided that the project meets all other funding requirements at the time of submittal.
If the district is unable to meet the criteria in this Section, the Preliminary Apportionment shall be rescinded pursuant to the provisions of Section 1859.148.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.27, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of first paragraph and subsection (a) and new subsection (d) filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emer
3. Amendment of first paragraph and subsection (a) and new subsection (d) refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of first paragraph and subsection (a) and new subsection (d) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
7. Amendment of subsection (a), new subsections (e)-(e)(2)(B) and new penultimate paragraph filed 10-27-2005; operative 10-27-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 43).
8. Amendment of subsection (e) filed 5-15-2006 as an emergency; operative 5-15-2006 (Register 2006, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-12-2006 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 5-15-2006 order transmitted to OAL 7-19-2006 and filed 8-11-2006 (Register 2006, No. 32).
10. Amendment of subsection (a) filed 10-21-2008; operative 10-21-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 43).
§1859.148. Time Limit on a Preliminary Apportionment.
Note • History
(a) A Preliminary Apportionment not converted or requested to be converted to a Final Apportionment shall be rescinded:
(1) After one year from the date the Preliminary Apportionment was made unless the CDE has determined:
(A) There is at least one approvable site for the project within the General Location; and,
(B) The General Location of the proposed school will serve the Qualifying Pupils assigned to the Preliminary Application.
(2) After four years from the date the Preliminary Apportionment was made unless the district received approval of an extension pursuant to Section 1859.148.1.
(3) After five years from the date the Preliminary Apportionment was made if the district qualified for an extension pursuant to Section 1859.148.1.
(b) If a Preliminary Apportionment that did not have an advance release of funds pursuant to Section 1859.153 is rescinded, the following will occur:
(1) The SFP new construction baseline eligibility will be increased for the pupils assigned to the Preliminary Application not previously included in an apportionment pursuant to Section 1859.81.1(e). The previous design only apportionment, prior to November 5, 2002, shall be reduced to cost incurred with a corresponding SFP new construction baseline eligibility adjustment and closeout pursuant to Section 1859.106.
(2) The Qualifying Pupil baseline eligibility will be increased by the Qualifying Pupils assigned to meet the 75 percent requirement in Section 1859.142(c) of the Preliminary Application.
(3) Any Preliminary Apportionment rescinded is subject to accountability pursuant to Section 1859.154(c).
(4) The district may request funding for the proposed project again, without restriction under any SFP Program, provided the project meets the eligible criteria of that specific program. Re-submittal of the funding request may occur as follows:
(A) If the project was rescinded pursuant to (a)(1) or (a)(3), anytime after the Preliminary Apportionment is rescinded.
(B) If the project was rescinded pursuant to (a)(2) and the final plans for the project are not complete within four years of the Preliminary Apportionment, anytime after the Preliminary Apportionment is rescinded.
(C) If the project was rescinded pursuant to (a)(2) and the final plans for the project were completed within four years after the Preliminary Apportionment, anytime after a period of five years from the date of the Preliminary Apportionment.
(5) The Preliminary Apportionment shall be transferred to the Unrestricted Fund within the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account.
(c) If a Preliminary Apportionment that had an advance release of funds as provided in Section 1859.153 and/or an apportionment pursuant to Section 1859.81.1(e) prior to November 5, 2002, is rescinded pursuant to (a)(2) or (a)(3), the following will occur:
(1) The remaining Preliminary Apportionment, not released to the district, shall be transferred to the Unrestricted Fund within the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account.
(2) Funds released pursuant to Sections 1859.81.1(e) and 1859.153 shall be reduced to cost incurred and closeout pursuant to Section 1859.106 with a corresponding SFP new construction baseline eligibility adjustment for the pupils assigned to the Preliminary Application. Funds returned pursuant to Section 1859.106 shall be transferred to the Unrestricted Fund within the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account.
(3) The Qualifying Pupil baseline eligibility will be adjusted proportionately to the adjustment in (c)(2) and maintain the ratio of the SFP New Construction Eligibility to Qualifying Pupils assigned to meet the requirements in Section 1859.142(c) of the Preliminary Application.
(4) Any Preliminary Apportionment rescinded is subject to accountability pursuant to Section 1859.154(c).
(5) The district may request funding for the proposed project again, in accordance with (b)(4), provided this rescinded Preliminary Apportionment is disclosed.
Should the district not submit Form SAB 50-04 pursuant to Section 1859.150 within the time limits of this Section, the district must report the final expenditures on the project on the Form SAB 50-06 to the OPSC within 30 days of the OPSC notification. If the expenditure report for funds released pursuant to Section 1859.153(a), (b) and/or (c) is not received within the 30-day period, the OPSC will recommend that the Preliminary Apportionment be rescinded and any interest earned on State funds be returned to the State.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17078.22 and 17078.25, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of subsections (b), (b)(1), (b)(3) and (b)(4)(C) and new subsections (b)(5)-(c)(5) filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment of subsections (b), (b)(1), (b)(3) and (b)(4)(C) and new subsections (b)(5)-(c)(5) refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of subsections (b), (b)(1), (b)(3) and (b)(4)(C) and new subsections (b)(5)-(c)(5) refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
§1859.148.1. Preliminary Apportionment Time Limit Extension.
Note • History
A district that has received a Preliminary Apportionment may request a one-year extension of the time limit on the apportionment prescribed in Section 1859.148. The Board shall approve the request provided the criteria in (a) or (b) are met:
(a) The district has provided evidence of both of the following:
(1) The CDE has made a contingent or final approval of the proposed site.
(2) The DSA has confirmed that the final plans for the project have been submitted to the DSA for review and approval.
(b) Other evidence satisfactory to the Board.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.25, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.148.2. Inactive Preliminary Apportionments Under a State of California Fiscal Crisis.
Note • History
In the event the Board determines there is a fiscal emergency or crisis on the part of the State of California, the Board can make a finding that a project has an Inactive Preliminary Apportionment, as defined in Regulation Section 1859.2, that no longer meets the meaning of Preliminary Apportionment as defined in Education Code Section 17078.10(c), and that the four-year period with a possible one time one-year extension requirement set forth in Education Code Section 17078.25(a) and (b) is therefore suspended as of December 17, 2008 and until such time as the Board finds that State bond funds are available for the project, the balance of four-year period with a possible one time one-year extension period which existed on December 17, 2008 shall resume. Once the Board finds that State bond funds are available for the project, the four-year period with a possible one time one-year extension requirement set forth in Education Code Section 17078.25(a) and (b) shall resume but in no case shall that period of time exceed a total of four-year period with a possible one time one-year extension while the subject project has a Preliminary Apportionment. Each project will resume where its originating period of time was suspended, as of December 17, 2008.
This regulation section shall become inoperative July 1, 2011.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.25, Education Code.
HISTORY
1. New section filed 4-22-2009 as an emergency; operative 4-22-2009 (Register 2009, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-19-2009 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 4-22-2009 order transmitted to OAL 9-29-2009 and filed 11-9-2009 (Register 2009, No. 46).
3. Amendment of last paragraph filed 12-22-2009 as an emergency; operative 12-22-2009 (Register 2009, No. 52). A Certificate of Compliance must be transmitted to OAL by 6-21-2010 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-22-2009 order transmitted to OAL 3-9-2010 and filed 4-21-2010 (Register 2010, No. 17).
5. Amendment of final paragraph filed 4-5-2011 as an emergency; operative 4-5-2011 (Register 2011, No. 14). A Certificate of Compliance must be transmitted to OAL by 10-3-2011 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 4-5-2011 order transmitted to OAL 6-10-2011 and filed 7-6-2011 (Register 2011, No. 27).
§1859.149. Preliminary Apportionment Progress Reporting Requirements.
Note • History
Until a Preliminary Apportionment is converted to a Final Apportionment, the district shall submit an annual progress report of the project to the OPSC. The reports are due annually, beginning in the twelfth month after the date the Preliminary Apportionment was made.
(a) The first progress report shall include:
(1) A statement as to whether the CDE has made a certification that there is at least one approvable site for the project within the General Location and whether the General Location will serve the Qualifying Pupils assigned to the Preliminary Application to meet the 75 percent requirement in Section 1859.142(c).
(2) A copy of the CDE letter supporting the certifications in (a)(1), if appropriate.
(3) Progress towards completing the requirements for a Final Apportionment as provided in Education Code Section 17078.25(d).
(b) Subsequent progress reports shall include the progress made towards completing the requirements for a Final Apportionment provided in Education Code Section 17078.25(d).
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.25, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.150. Final Apportionment.
Note • History
The amount of the Final Apportionment is based on the provisions of any amended or new regulations that are effective at the time the Form SAB 50-04, for the Final Apportionment is submitted and accepted for processing by the OPSC. The Board shall convert the amounts determined below from the Preliminary Apportionment to the Final Apportionment:
(a) If the Final Apportionment request is equal to or less than the Preliminary Apportionment, the Board shall convert the Preliminary Apportionment to a Final Apportionment. The difference in the Final Apportionment and the Preliminary Apportionment shall be transferred to the Unrestricted Fund in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account. The Final Apportionment shall become the full and final apportionment for the project.
(b) If the Final Apportionment request is greater than the Preliminary Apportionment, the Board shall:
(1) Convert the Preliminary Apportionment to a Final Apportionment, if the balance in the Unrestricted Fund in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account is greater than the difference in the Final Apportionment and the Preliminary Apportionment. The difference in the Final Apportionment and the Preliminary Apportionment shall be transferred from the Unrestricted Fund in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account and converted to a Final Apportionment for the project. The combined Final Apportionments shall become the full and final apportionment for the project.
(2) Convert the Preliminary Apportionment to a Final Apportionment, if the balance in the Unrestricted Fund in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account is less than the difference in the Final Apportionment and the Preliminary Apportionment. The balance of the Unrestricted Fund in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account shall be converted to a Final Apportionment for the project. Any amount of the Final Apportionment request not converted to a Final Apportionment shall be placed on a Final Apportionment Unfunded List and may be converted to a Final Apportionment at a later date pursuant to the provisions of Section 1859.150.1.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.27, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.150.1. Final Apportionment Unfunded List.
Note • History
Any portion of a Final Apportionment request not converted to a Final Apportionment pursuant to Section 1859.150(b)(2), shall be placed on a Final Apportionment Unfunded List based on the date of the Final Apportionment. If, at a later date, funds become available in the Unrestricted Fund in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account as a result of rescissions pursuant to Section 1859.148, the Board shall convert the amounts shown on the Final Apportionment Unfunded List to a Final Apportionment based on the oldest date first and subject to the following:
(a) If the funds available are sufficient to convert the entire amount shown on the Final Apportionment Unfunded List, the amount shown shall be converted and added to the amount initially converted to a Final Apportionment. The total amounts converted shall become the full and final apportionment for the project.
(b) If the funds available are insufficient to convert the entire amount shown on the Final Apportionment Unfunded List, the district may:
(1) Request that the funds available be converted and added to the amount initially converted to a Final Apportionment. The total amounts converted shall become the full and final apportionment for the project.
(2) Request that the project not be converted until there are sufficient funds to convert the entire amount shown on the Final Apportionment Unfunded List.
The amounts shown on the Final Apportionment Unfunded List are not subject to any adjustments as prescribed in Section 1859.71.
If the amount shown on the Final Apportionment Unfunded List cannot be converted to a Final Apportionment because there are no funds remaining in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account after all rescissions and final expenditure audits pursuant to Section 1859.148 have been made, the amount converted previously shall become the full and final apportionment for the project.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Section 17078.27, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment of last paragraph filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment of last paragraph refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment of last paragraph refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
§1859.151. Preliminary Apportionment District Matching Share Requirement.
Note • History
Once a Preliminary Apportionment is converted to a Final Apportionment or has funds released pursuant to Section 1859.153, the district will be subject to the district matching share requirement as described in Section 1859.77.1.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17072.30, 17078.10 and 17078.24, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
§1859.152. Eligible Expenditures.
Note • History
SFP grants provided as the Final Apportionment or pursuant to Section 1859.153 must comply with Education Code Section 17072.35. Additionally, expenditures for construction are eligible only if the construction contract was entered into on or after April 29, 2002.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17072.35, 17078.10 and 17078.27, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2003 or emergency language will be repealed by operation of law on the following day.
3. Amendment refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
§1859.153. Preliminary Apportionment Fund Release.
Note • History
Once the provisions in Section 1859.148(a)(1) have been met, a district that meets the following may request an advance release of funds from a Preliminary Apportionment:
(a) A district meets the financial hardship criteria in Section 1859.81 is eligible for an amount not to exceed 40 percent of the amount determined in Section 1859.145(a), less any funds pursuant to Section 1859.145(i) and/or (j).
(b) A district that meets the financial hardship criteria in Section 1859.81 is eligible for an amount, not to exceed the Preliminary Apportionment, for site acquisition pursuant to Section 1859.81.1(a), (b) or (c) after submittal of a Form SAB 50-08 pursuant to Section 1859.141.
(c) A district is eligible for an amount, not to exceed the Preliminary Apportionment, for environmental hardship site acquisition pursuant to Section 1859.75.1 after submittal of a Form SAB 50-08 pursuant to Section 1859.141.
Qualified districts may request a separate advance release of funds for the design and for the site acquisition for the same project. A district seeking an advance release of funds pursuant to Section 1859.153(a) and/or (b) must have been approved and maintained financial hardship status pursuant to Section 1859.81. The OPSC will release State funds included in a Preliminary Apportionment pursuant to (a), (b) or (c) to the district after submittal of the Form SAB 50-05. The OPSC shall not release funds in excess of the Preliminary Apportionment. State funds released from a Preliminary Apportionment pursuant to this Section shall be subject to the provisions in Section 1859.148. Once the Preliminary Apportionment is converted to a Final Apportionment pursuant to Section 1859.150, the district may request a release of the remaining funds as prescribed in Section 1859.90.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17072.30 and 17078.27, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Amendment filed 5-1-2003 as an emergency; operative 5-1-2003 (Register 2003, No. 18). A Certificate of
3. Amendment refiled 8-29-2003 as an emergency; operative 8-29-2003 (Register 2003, No. 35). A Certificate of Compliance must be transmitted to OAL by 12-29-2003 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
5. Amendment refiled 12-22-2003 as an emergency; operative 12-22-2003 (Register 2003, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-20-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-22-2003 order transmitted to OAL 4-19-2004 and filed 5-25-2004 (Register 2004, No. 22).
Note • History
(a) From the funding made available from Education Code Section 100620(a)(5), the Board shall transfer the amount determined in (3) below, to the SFP New Construction Account after the Preliminary Apportionment(s) are approved by the Board:
(1) Determine the total value of the Preliminary Applications received pursuant to Section 1859.141(a).
(2) Multiply the amount determined in (1) by 15 percent.
(3) Subtract the sum of the amounts determined in (1) and (2) from $1.7 billion. If negative number, the amount is zero.
(b) From the funding made available from Education Code Section 100820(a)(3), the Board shall transfer the amount determined in (3) below, to the SFP New Construction Account after the Preliminary Apportionment(s) are approved by the Board:
(1) Determine the total value of the Preliminary Applications received pursuant to Section 1859.141(b).
(2) Multiply the amount determined in (1) by 15 percent.
(3) Subtract the sum of the amounts determined in (1) and (2) from $2.44 billion. If negative number, the amount is zero.
(c) Any funds remaining in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account not needed for purposes of converting projects to a Final Apportionment shall be transferred to the SFP New Construction Account.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17072.27, 17078.30, 100620 and 100820, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
§1859.155. Preliminary Apportionment.
Note • History
The Board shall approve Preliminary Applications from the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account as follows:
(a) If the total amount of the Preliminary Apportionment requests received during the application filing period described in Section 1859.141 are equal to or less than the amount in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account, the Board shall approve all Preliminary Apportionment requests.
(b) If the total amount of the Preliminary Apportionment requests received during the application filing period described in Section 1859.141 are greater than the amount in the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account, the Board shall approve Preliminary Apportionment in accordance with the funding priorities described in Section 1859.146. Any Preliminary Application that cannot be fully approved shall be returned unprocessed to the district.
All funds approved as a Preliminary Apportionment shall be transferred to the Restricted Fund within the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account. Any funds not approved as a Preliminary Apportionment shall be transferred to the Unrestricted Fund within the 2002 (or 2004, as appropriate) Critically Overcrowded School Facilities Account.
NOTE
Authority cited: Sections 17070.35 and 17075.15, Education Code. Reference: Sections 17078.10, 17078.30, 100620 and 100820, Education Code.
HISTORY
1. New section filed 11-4-2002 as an emergency; operative 11-4-2002 (Register 2002, No. 45). Pursuant to Education Code section 17070.35 a Certificate of Compliance must be transmitted to OAL by 11-4-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-4-2002 order transmitted to OAL 11-4-2003 and filed 12-19-2003 (Register 2003, No. 51).
Article 14. Charter School Facilities Program
Note • History
A Charter School seeking a Preliminary Charter School Apportionment pursuant to the provisions of Education Code Sections 17078.52 through 17078.66 for new construction or rehabilitation shall complete and file a Form SAB 50-09. In addition the charter school must provide all required documents necessary for a financial soundness determination.
Once the Board has approved a Preliminary Charter School Apportionment for a Preliminary Charter School Application submitted pursuant to this Section after July 2, 2003, a Charter School seeking an advance release of funds for site acquisition pursuant to Section 1859.164.2(b), shall be required to submit an additional Form SAB 50-09, to the OPSC, to determine eligible site acquisition costs. A Charter School seeking an advance release of funds for design, engineering, and other pre-construction project costs pursuant to Section 1859.164.2(a), shall not be required to submit an additional Preliminary Charter School Application.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52 and 17078.53, Education Code.
HISTORY
1. New article 14 (sections 1859.160-1859.171) and section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New article 14 (sections 1859.160-1859.171) and section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New article 14 (sections 1859.160-1859.171) and section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order, including amendment of section, transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment of first paragraph filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.161. Preliminary Charter School Application Submittals.
Note • History
A Charter School seeking a Preliminary Charter School Apportionment shall complete and submit Form SAB 50-09 between February 2003 and March 31, 2003, or during a period of 120 calendar days beginning 90 calendar days after an election authorizing additional funding.
The Board may establish additional application filing periods as needed.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.53, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of first paragraph filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.162. General Preliminary Charter School Apportionment Eligibility Criteria.
Note • History
A Charter School may apply for a Preliminary Charter School Apportionment by submittal of Form SAB 50-09 if all of the following requirements are met:
(a) Prior to submission of the Preliminary Charter School Application the requirements of EC Sections 17078.53(c) and (e) are met.
(b) Prior to submission of the Preliminary Charter School Application, a Charter School applying on its own behalf must notify the school district where the project will be physically located of its intent to apply. This notification must occur at least 30 days prior to the application submittal. As part of the Preliminary Charter School Application, the Charter School must submit evidence of the date the notification was received by the school district.
(c) The Preliminary Charter School Application shall include a description of the proposed project including, but not limited to, the identification of the number of classrooms, the grade level of the pupils to be served, the intended opening date of the project, the Charter School General Location, and whether the project will be permanent or portable construction.
If a charter school project has already received a Preliminary Charter School Apportionment under the CSFP but would like to re-apply under a future funding cycle, the original Preliminary Charter School Apportionment must be withdrawn by the charter school and rescinded by the Board prior to the submittal of a subsequent application.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17071.75, 17078.52 and 17078.53, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment of section and Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.162.1. Preliminary Charter School New Construction Apportionment Eligibility Criteria.
Note • History
For Charter Schools applying on their own behalf, the notification to the school district of the Charter School's intent to apply pursuant to Section 1859.162(b) must include the following:
(a) A request for the school district to provide a certification to the number of the district's unhoused pupils, pursuant to Section 1859.50, that the project will serve. Prior to submitting the certification as part of the Preliminary Charter School Application, the school board must have discussed the issue as an action item at a regularly scheduled, publicly held board meeting. The certification, in the form of a board resolution, and supporting documentation must be submitted to the OPSC within 90 days from the date the Charter School notified the school district of its intent to apply to the CSFP.
(b) A request that the school district update its current year enrollment on file with the OPSC.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.53, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of section heading, repealer and new section and amendment of Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.162.2. Preliminary Apportionment Eligibility Adjustments for New Construction Projects.
Note • History
The baseline eligibility for new construction determined by the Form SAB 50-03 of the appropriate school district where the project will be physically located will be decreased based upon the number of unhoused pupils, calculated pursuant to Section 1859.50, the CSFP project will serve as determined by either of the following:
(a) For a Charter School applying on its own behalf, the number of unhoused pupils the project will serve will be determined and certified to by the school district in which the project will be physically located.
(b) For school districts applying on behalf of a Charter School, the school district must indicate the number of unhoused pupils the project will serve. The supporting documentation for arriving at this number must be submitted to the OPSC as part of the Preliminary Charter School Application.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.53, Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.162.3. Overlapping District Boundaries.
Note • History
If the Charter School provides or will provide instruction for a combination of grade levels and therefore is or will be located in more than one school district's boundaries (e.g. elementary and high school district, not unified), a separate Form SAB 50-09 indicating the number of unhoused pupils served from each district, as appropriate will be required. Sections 1859.162.1 and 1859.162.2 shall apply to all districts involved in the Preliminary Charter School Apportionment. For the purposes of receiving a Preliminary Charter School Apportionment pursuant to Section 1859.163, the applications will be combined into one to be funded concurrently.
In addition, if the project will be located in an area of overlapping district boundaries but proposes to house only the grade levels served by just one of the districts, the district that serves the same grade levels will be subject to the district related requirements of this article.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.53 and 17078.54, Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
2. Amendment of second paragraph filed 10-5-2010; operative 10-5-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 41).
§1859.163. Approval of Applications for Preliminary Charter School Apportionments.
Note • History
Prior to approving a Preliminary Charter School Apportionment, the Board will require a certification from the Authority that the Charter School is Financially Sound. In providing a Preliminary Charter School Apportionment, the Board shall use the funding criteria established in Section 1859.164. The apportionment provided by the Board may be 100 percent of the total project cost dependent upon the method of Charter School's contribution as determined by the Authority.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52 and 17078.53, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
§1859.163.1. Preliminary Charter School New Construction Apportionment Determination.
Note • History
The Preliminary Charter School New Construction Apportionment shall be determined as follows:
(a) The Preliminary Charter School Apportionment for construction costs shall be equal to the sum of (1) through (8) below:
(1) The amounts shown below for each pupil, based on the project capacity, included in a Preliminary Charter School Application:
(A) $5,227 for each elementary school pupil.
(B) $5,534 for each middle school pupil.
(C) $7,226 for each high school pupil.
(D) $16,653 for each pupil that is a Severely Disabled Individual with Exceptional Needs.
(E) $11,137 for each pupil that is a Non-Severely Disabled Individual with Exceptional Needs.
(2) An amount equal to 12 percent of the amount determined in (1) for multilevel construction, if requested by the Charter School.
(3) An amount for site development cost determined, at the option of the Charter School, by one of the following:
(A) One-half of the site development cost for the specific site as authorized by Section 1859.76.
(B) One-half of the site development cost as authorized by Section 1859.76 using historical information in the Charter School General Location. Historical information that may be considered to determine this estimated cost may include prior SFP projects of the district or other districts in the Charter School General Location.
(C) $70,000 multiplied by the proposed acres requested on the Form SAB 50-09.
(4) General Site Development costs within school property lines for an addition to an existing school site project wherein additional acreage is acquired or a new school project, determined as follows:
(A) $9,600 per proposed acre requested on the Form SAB 50-09. This sum may be increased pursuant to the provisions in Section 1859.83(b). The per acre amount shown above shall be adjusted annually in the manner prescribed in Section 1859.71.
(B) 6 percent for Elementary School Pupils and Middle School Pupils and 3.75 percent for High School Pupils of the funding provided by Sections 1859.163.1(a)(1) multiplied by two. For purposes of this calculation, the percentage amount for Severely Disabled Individuals with Exceptional Needs and Non-Severely Disabled Individuals with Exceptional Needs pupils shall be based on the type of project selected by the Charter School on the Form SAB 50-09.
(C) 6 percent for Elementary School Pupils and Middle School Pupils and 3.75 percent for High School Pupils of the funding provided by Sections 1859.163.1(a)(2) and (5) multiplied by two.
(5) If the Preliminary Application request is for a small project that will house no more than 200 pupils, an amount pursuant to the following:
(A) If the project will house less than 101 pupils, the district is eligible for an amount equal to 12 percent of the funding provided by (a)(1).
(B) If the project will house between 101 and 200 pupils, the district is eligible for an amount equal to four percent of the funding provided by (a)(1).
(6) An amount due to urban location, security requirements and impacted site equal to 15 percent of the amount determined in (1) and (5), plus 1.166 percent for each percentage decrease in the CDE recommended site size below 60 percent when the following criteria are met:
(A) The Charter School has requested an increase for multilevel construction pursuant to (2) above.
(B) The Useable Acres of the existing and/or proposed site are 60 percent or less of the CDE recommended site size.
(C) The value of the property as determined in Section 1859.163.2(a) is at least $750,000 per Useable Acre. This criterion does not apply to an application for an addition to an existing school site.
(7) An amount for the geographic location of the proposed project equal to the sum of the amounts determined in (1), (2), (3)(C), (4)(A) and (B), (5) and (6) multiplied by the indicated percentage factor in the Geographic Percentage Chart shown in Section 1859.83(a).
(8) For all Preliminary Apportionments received after February 23, 2005, an amount equal to the sum of the amounts determined in (1) through (6) multiplied by a factor determined as follows:
(A) Divide the January Class B Construction Cost Index in effect at the time of the Preliminary Apportionment by the January Class B Construction Cost Index in effect four years prior to the Preliminary Apportionment. Round to four decimal places.
(B) Subtract 1 from the quotient in (A). Round to two decimal places.
(9) If the Charter School is paying its matching share through the form of lease payments, pursuant to Section 1859.168, the value of the lease as determined by the Authority attributable to the items in (1) through (8) above.
(b) The Preliminary Charter School Apportionment for site acquisition costs shall be:
(1) Equal to one-half of the site acquisition value determined in Section 1859.163.2(a) and (c).
(2) If the Charter School is paying its matching share through the form of lease payments, pursuant to Section 1859.168, the value of the lease as determined by the Authority attributable to (1) above.
(c) The Preliminary Charter School Apportionment to initiate and enforce a LCP or to provide for the prevailing wage monitoring and enforcement costs shall be:
(1) 50 percent of the amount to initiate and enforce a LCP as prescribed in Section 1859.71.4(a), if required by the Labor Code, or
(2) 50 percent of the amount of the prevailing wage monitoring and enforcement costs as prescribed in Section 1859.71.4(c), if required by the Labor Code, and
(3) If the Charter School is paying its matching share through the form of lease payments, pursuant to Section 1859.168, the value of the lease as determined by the Authority attributable to either (1) or (2) above, as applicable.
(d) The total amount calculated in (a) above will be added to any amount calculated in (b) and (c) above, which will provide the Preliminary Charter School Apportionment amount.
The amounts shown in (a)(1) shall be adjusted annually in the manner prescribed in Section 1859.71.
Subsection (a)(4) of this section shall be suspended no later than January 1, 2008, unless otherwise extended by amendments as adopted by the Board.
(e) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the State and for which the construction contract is awarded after January 1, 2012, is subject to DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(f) Any school district failing to meet these requirements shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(g) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in subsection (f) above for any construction projects for which the violations occurred.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52, 17078.58 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-1-2004 order, including amendment of subsections (a) and (b), transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
3. Amendment of subsection (a), new subsection (a)(7) and subsection renumbering filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
5. Amendment filed 9-5-2006 as an emergency; operative 9-5-2006 (Register 2006, No. 36). A Certificate of Compliance must be transmitted to OAL by 1-3-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 9-5-2006 order transmitted to OAL 1-3-2007 and filed 2-16-2007 (Register 2007, No. 7).
7. Amendment of section heading, section and Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
8. Amendment of section and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.163.2. Preliminary Charter School Apportionment Site Acquisition Value.
Note • History
If the Preliminary Charter School Application includes a request for site acquisition funding, the preliminary value of the proposed site shall be the sum of the following:
(a) The value of the property determined by one of the following:
(1) By an appraisal or a preliminary appraisal of the property made no more than six months prior to the date the Preliminary Charter School Application was submitted to the OPSC, using the guidelines outlined in Section 1859.74.1. The preliminary appraisal may be made without access to the property.
(2) The Median Cost of an acre of land in the Charter School General Location using historical information in the Charter School General Location multiplied by the number of proposed Useable Acres requested on Form SAB 50-09. Historical information that may be considered to determine land cost shall include prior real-estate sales consummated and documented by the county recorder or pending real-estate sales documented by a title insurance company's escrow instructions. For purposes of historical information include all real-estate sales consummated and documented by the county recorder for a minimum of six months and a maximum of up to two years prior to the date the Preliminary Charter School Application was submitted to the OPSC.
(b) An amount for the estimated relocation cost and the estimated DTSC costs for review, approval and oversight of the POESA and the PEA as determined by one of the following:
(1) 15 percent of the value determined in (a).
(2) The sum of the following:
(A) The approved relocation expenses for the specific site to be acquired that conform to Title 25, California Code of Regulations, Section 6000, et. seq.
(B) The DTSC cost for review, approval, and oversight of the POESA and the PEA for the specific site to be acquired.
(3) The estimated relocation cost and the estimated DTSC costs for review, approval and oversight of the POESA and the PEA using historical information in the Charter School General Location. Historical information that may be considered to determine these estimated costs may include prior real-estate acquisitions of the district or other districts in the Charter School General Location.
(c) Four percent of the amount determined in (a), but not less than $50,000. This amount shall provide an allowance of any appraisal, escrow, survey, site testing, CDE review/approvals and preparation of the POESA and the PEA.
(d) For allowable costs of hazardous material/waste removal and remediation costs, up to one-half times the value of the property determined in either (a)(1) or (a)(2) above.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.52, Education Code.
HISTORY
1. New section filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-1-2004 order, including amendment of subsection (b)(3), transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
3. Amendment of Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.163.3. Establishment of Funds for Relocation/DTSC Fee and Hazardous Material/Waste Removal.
Note • History
For Preliminary Charter School Apportionments awarded on February 23, 2005, the Board shall establish two separate funds from the funding provided through the 2004 Bond for the site acquisition values calculated pursuant to costs provided in Section 1859.163.2(b) and (d) that will not be part of the Preliminary Charter School Apportionment determined in Section 1859.163.1. The amount to reserve for the funds will be determined as follows:
Relocation/DTSC Fee Fund
(a) For all projects requesting an additional grant for relocation and DTSC costs on the Form SAB 50-09 pursuant to Section 1859.163.2(b), the value of each property as determined in Section 1859.163.2(a) will be added. The sum would then be multiplied by 15 percent. The product would provide the dollar value to be reserved, but shall not be less than $2.75 million.
Hazardous Material/Waste Removal Fund
(b) For all projects requesting an additional grant for hazardous material/waste removal and remediation costs provided pursuant to Section 1859.163.2(d), the value of each property as determined in Section 1859.163.2(a) will be added. The sum would then be multiplied by 10 percent. The product would provide the dollar value to be reserved, but shall not be less than $2.5 million.
Any Charter School that received a Preliminary Charter School Apportionment on February 23, 2005 that is requesting a Final Charter School Apportionment may request the funding provided in (a) and/or (b) above when the Form SAB 50-04 is submitted. At the time of Final Charter School Apportionment, should insufficient funds remain in either the Relocation/DTSC Fee Fund or Hazardous Material/Waste Removal Fund to fully apportion those site acquisition costs, any amount not apportioned by the Board for relocation, DTSC fees, or hazardous material waste removal or remediation shall be placed on an Unfunded List in Board date approval order. Any funds returned to the Unrestricted Charter School Fund pursuant to Section 1859.167(b) shall be used by the Board to fund projects remaining on the Unfunded List.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.56, Education Code.
HISTORY
1. New section filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-1-2004 order, including amendment of subsection (b), transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
3. Amendment of first and last paragraphs filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
4. Amendment of first and last paragraphs filed 10-3-2007; operative 10-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
§1859.163.4. Preliminary Charter School Rehabilitation Apportionment Eligibility Criteria.
Note • History
A Charter School or School District may apply for a Preliminary Charter School Rehabilitation Apportionment by submittal of Form SAB 50-09 if all of the following requirements are met:
(a) The application includes existing school buildings made available by a school district; and,
(b) The application includes classrooms that are at least 15 years of age at the time of submittal; and,
(c) The facilities included in the application were not previously built or modernized with SFP funds; and,
(d) For a Charter School applying on its own behalf, the application must include an agreement between the school district and the charter school for the use of the facilities to be rehabilitated. The agreement must have been approved prior to submittal of application and must have been discussed and approved at the school district board meeting.
The age of the facilities shall begin 12 months after the plans for the building were approved by the DSA; or in the case of facilities that were previously modernized under the LPP, the 15 year old period shall begin on the date of its previous modernization apportionment.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.54 and 17078.58, Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.163.5. Preliminary Charter School Rehabilitation Apportionment Determination.
Note • History
The Preliminary Charter School Rehabilitation Apportionment will be determined based on the eligible square footage included in the project. For purposes of the Preliminary Charter School Rehabilitation Apportionment, eligible square footage is defined as the total enclosed exterior square footage of the school buildings. For multilevel buildings, include the square footage at each level.
The amount of funding for each Preliminary Charter School Rehabilitation Apportionment will be equal to the sum of the amounts determined in (a)(1) through (a)(6) and (b) below:
(a)(1) The lesser of the amount determined in (A) or (B) below:
(A) The dollar value calculated using a per square foot amount and the total eligible square footage for the site as follows:
1. Determine the total square footage for each classroom included in the project (limited by the Charter School's projected enrollment).
2. Determine the total square footage for any multi-purpose room included in the project.
3. Determine the total square footage for any gymnasium included in the project.
4. Determine the total square footage for any library included in the project.
5. Determine the total square footage for any administration building included in the project.
6. Add the total square footage in 1. through 5. above to obtain the total square footage for the project.
7. From the total determined in 6., determine the total square footage for toilet facilities and the total square footage for other facilities. Multiply the toilet facilities square footage by $173.30 and the other facilities square footage by $96.30. The sum of these figures is the square footage dollar value for the project.
(B) The dollar value calculated using the new construction grant amount and the project capacity based on the State loading standards as follows:
1. Determine the proposed grade level usage of each classroom in the project (limited by the Charter School's projected enrollment).
2. Multiply the number of classrooms at the K-6 grade level by 25, the number of classrooms at the 7-12 grade level by 27, the number of non-severe classrooms by 13, and the number of severe classrooms by 9.
3. Multiply the number of pupils calculated pursuant to 2. by the appropriate dollar value determined in Section 1859.163.1(a)(1).
(2) If the Preliminary Application request is for a small project that will house no more than 200 pupils, an amount pursuant to the following:
(A) If the project will house less than 101 pupils, the district is eligible for an amount equal to 12 percent of the funding provided by (a)(1).
(B) If the project will house between 101 and 200 pupils, the district is eligible for an amount equal to four percent of the funding provided by (a)(1).
(3) An amount due to urban location, security requirements and impacted site equal to 15 percent of the amount determined in (a)(1) and (a)(2), plus for a project with a site that is 60 percent or less of the CDE recommended site size plus 0.333 percent for each percentage decrease in the CDE recommended site size below 60 percent.
(4) An amount for the geographic location of the proposed project equal to the sum of the amounts determined in (a)(1), (a)(2), (a)(3), and (a)(5) multiplied by the indicated percentage factor in the Geographic Percentage Chart shown in Section 1859.83(a).
(5) $60,000 for each new two-stop elevator required to be included in the project by the DSA, and $10,800 for each additional stop.
(6) For all Preliminary Apportionments received after February 23, 2005, an amount equal to the sum of the amounts determined in (a)(1) through (a)(5) multiplied by a factor determined as follows:
(A) Divide the January Class B Construction Cost Index in effect at the time of the Preliminary Apportionment by the January Class B Construction Cost Index in effect four years prior to the Preliminary Apportionment. Round to four decimal places.
(B) Subtract 1 from the quotient in (A). Round to two decimal places.
(7) If the Charter School is paying its matching share through the form of lease payments, pursuant to Section 1859.168, the value of the lease as determined by the Authority attributable to the items in (a)(1) through (a)(6) above.
(b) The Preliminary Charter School Rehabilitation Apportionment to initiate and enforce a LCP or to provide for the prevailing wage enforcement costs shall be:
(1) 50 percent of the amount to initiate and enforce a LCP as prescribed in Section 1859.71.4(a), if required by the Labor Code, or
(2) 50 percent of the amount of the prevailing wage monitoring and enforcement costs as prescribed in Section 1859.71.4(c), if required by the Labor Code, and
(3) If the Charter School is paying its matching share through the form of lease payments, pursuant to Section 1859.168, the value of the lease as determined by the Authority attributable to either (1) or (2) above, as applicable.
The amounts determined in (a)(1) and (a)(5) shall be adjusted annually in the manner prescribed in Section 1859.71.
(c) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the state and for which the construction contract is awarded on or after January 1, 2012, is subject to DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(d) Any school district failing to meet these requirements shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(e) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in subsection (d) above for any construction projects for which the violations occurred.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17071.25, 17078.52, 17078.54, 17078.56, 17078.58 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
2. Amendment of section and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.163.6. Preliminary Charter School Rehabilitation Apportionment Eligibility for Sites Previously Funded Under the SFP Modernization Program.
Note • History
For school sites that have established eligibility and received funding for all or some of the eligible buildings, but have not exhausted all of the eligibility, the site may be eligible for CSFP rehabilitation funds, subject to Board approval. However, the rehabilitation apportionment will be offset by the previous amount of modernization funding received for the building(s) to be rehabilitated at the time of the final apportionment.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52, 17078.54 and 17078.58, Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.163.7. Eligible Use of Charter School Facilities Program Rehabilitation Funds.
Note • History
Funds Apportioned under the Charter School Facilities Program for Rehabilitation projects are to be used for work consistent with the definition of Charter School Facilities Program Rehabilitation. If the rehabilitation project includes reconfiguration of an existing building and the project decreases the district's capacity at the site or displaces a minimum essential facility, the original capacity and minimum essential facility will still be considered to be in existence. Furthermore, State funding may not be used to replace the capacity or the original minimum essential facility in the future.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52, 17078.54 and 17078.58, Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.164. Application Funding Criteria.
Note • History
If the estimated total apportionments of all Financially Sound Preliminary Charter School Applications received in either filing period specified in Section 1859.161 exceed the funds available, the applications shall be identified in each of the following four categories:
(a) Geographical Region One, Two, Three, or Four.
(b) Urban, Rural, or Suburban areas.
(c) Large, Medium, or Small Charter Schools.
(d) K-6, 7-8, or 9-12 grade levels.
The Board shall first apportion one project of each possible type, a maximum of four in category (a) and a maximum of three in categories (b) through (d), starting with (a) and continuing through (d). If more than one application is received of the same type within a category, the Board will apportion based on which project has the highest preference points, calculated in Section 1859.164.1. If a project has the highest preference points but was previously apportioned, the project with the next highest preference points will be apportioned. The same process will continue for the remaining categories until the Board has apportioned a project within each type in categories (a) through (d), or until no funding remains. If after funding one project in each category (a) through (d), funding remains available, the process shall be repeated until no funding remains.
All funds approved as a Preliminary Charter School Apportionment shall be transferred to the Restricted Charter School Fund within the appropriate Charter School Facility Account. Any funds not approved as a Preliminary Charter School Apportionment shall be transferred to the Unrestricted Charter School Fund within the appropriate Charter School Facility Account.
All Preliminary Charter School Applications received from a Charter School will be processed in the date order received by the OPSC. If more than one Preliminary Charter School Application is received on the same day from the same entity for a Charter School project located within the geographical jurisdiction of same district, those applications will be processed by the OPSC based on the priority order assigned to those applications by the applicant on Form SAB 50-09.
If two or more Preliminary Charter School Applications have the same preference points, the Board shall first apportion that Preliminary Charter School Application that was received first by the OPSC. In the event that the applications were received on the same day, applications will be funded in the following order:
(a) Projects submitted by entities that have not previously received funding under the SFP, the CSFP or the State Charter School Facilities Grants Incentives Program will be funded before those that have received said funding;
(b) Projects proposing to utilize existing facilities will be funded before projects that propose to build new facilities;
(c) As applicable, projects that provide more seats to relieve overcrowding will be funded over those that provide fewer seats (as determined by dividing the number of unhoused pupils pursuant to Section 1859.50 that the project will house by the remaining new construction eligibility in the district);
In the event that a tie remains after the previous criteria have been applied, a lottery system will be used to select the project that is funded.
Any applications the SAB is unable to provide a Preliminary Charter School Apportionment to will be returned to the Charter School.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.56, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of subsection (d) filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.164.1. Calculation of Preference Points.
Note • History
Preference points will be calculated for all Preliminary Charter School Applications. An application shall receive preference points based on the total of (a), (b), (c) and (d), up to a maximum of 160 points, as follows:
(a) Low Income: Up to 40 points based on the percentage of pupils at either the Charter School or school district where the Charter School is or will be located, or any public school within the Charter School General Location meeting the definition of Low-income. The Charter School may report the highest percentage of the three. Use the following sliding scale to determine the number of preference points:
Percentage Receiving
Free/Reduced Lunch Preference Points Assigned
5-15% 4
16-30% 8
31-39% 12
40-47% 16
48-55% 20
56-64% 24
65-73% 28
74-82% 32
83-92% 36
93 36.5
94 37
95 37.5
96 38
97 38.5
98 39
99 39.5
100 40
(b) Overcrowded School District: Up to 40 points if the school district where the Charter School is physically located is determined to be overcrowded by dividing the remaining New Construction Eligibility (prior to the reduction from this application) by the district's current enrollment and multiplying the product by 100. The following sliding scale determines the maximum number of preference points available for the degree of overcrowding:
Percentage Overcrowded Preference Points Assigned
2-9% 4
10-13% 8
14-16% 12
17-19% 16
20-22% 20
23-25% 24
26-33% 28
34-41% 32
42-49% 36
50% and above 40
The method of allocating preference points to applicants will utilize the percentage overcrowded chart for a maximum point distribution. Next, each application will be assigned an “effort” percentage which further allocates points within each overcrowding point category. The percentage generated by the number of unhoused pupils that the project will house, divided by the project capacity will represent the effort made to relieve overcrowding in the district. The “effort” percentage will be assigned the following point distribution:
% Effort to Relieve
Overcrowding Ratio of Overcrowded Points Awarded
40% or more 100% of the points for the overcrowded category
30-39% 90% of the points for the overcrowded category
20-29% 80% of the points for the overcrowded category
10-19% 70% of the points for the overcrowded category
1-9% 60% of the points for the overcrowded category
0 No points for the overcrowded category
The total points assigned for overcrowding will be calculated by applying the appropriate “effort” percentage and its corresponding ratio of points to the percentage overcrowded category for the district in which the project will be physically located.
(c) Non-Profit Entity: If the entity operating the Charter School meets the definition of a Non-Profit Entity, the project will receive 40 preference points.
(d) Existing Facilities: If the project proposes to rehabilitate existing facilities, the project will receive 40 preference points.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.53 and 17078.56, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of subsections (a) and (b) filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment of section and Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.164.2. Preliminary Charter School Apportionment Fund Release.
Note • History
A Charter School receiving a Preliminary Charter School Apportionment from the Board after July 2, 2003 may request an advance release of funds for either of the following:
(a) A separate advance release of funds for design equal to 20 percent of the amount determined in Section 1859.163.1(a)(1) through (9) or Section 1859.163.5(a) through (g).
(b) A separate advance release of funds for site acquisition once the requirements in Section 1859.81(a)(2) and (3) are met for an amount not to exceed the Preliminary Charter School Apportionment for site acquisition. The Board shall release to the Charter School an amount up to the Preliminary Charter School Apportionment determined in Section 1859.163.1(b).
Qualified Charter Schools may request a separate advance release of funds for the design and for the site acquisition for the same project. A Charter School seeking an advance release of funds pursuant to (a) and/or (b) must have been deemed and maintained financial soundness status from the Authority. Subject to the availability of financing provided by the Pooled Money Investment Board for bond-funded projects, the OPSC will release State funds included in a Preliminary Charter School Apportionment pursuant to (a) or (b) to the Charter School after submittal of the Form SAB 50-05. The OPSC shall not release funds in excess of the Preliminary Charter School Apportionment. State funds released from a Preliminary Charter School Apportionment pursuant to this Section shall be subject to the provisions in Section 1859.166. Once the Preliminary Charter School Apportionment is converted to a Final Charter School Apportionment pursuant to Section 1859.167, the Charter School may request a release of the remaining funds as prescribed in Section 1859.90. Prior to the release of any funds, the Charter School Agreements must be executed.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.53 and 17078.58, Education Code.
HISTORY
1. New section filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
3. Amendment of subsection (a) filed 12-20-2004 as an emergency; operative 12-20-2004 (Register 2004, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-19-2005 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-20-2004 order transmitted to OAL 4-19-2005 and filed 5-12-2005 (Register 2005, No. 19).
5. Amendment of section and Note filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
6. Amendment of subsection (b) filed 4-22-2009 as an emergency; operative 4-22-2009 (Register 2009, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-19-2009 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 4-22-2009 order transmitted to OAL 9-29-2009 and filed 11-9-2009 (Register 2009, No. 46).
§1859.165. Conversion of Preliminary Charter School Apportionment.
Note • History
When a Preliminary Charter School Apportionment is converted to a Final Charter School Apportionment, all the following criteria must be met:
(a) The Final Charter School Apportionment request must meet all criteria on the Form SAB 50-04.
(b) A Charter School seeking to convert a Preliminary Charter School Apportionment to a Final Charter School Apportionment shall complete and file Form SAB 50-04. The number of pupils being requested cannot exceed the amount the Charter School originally requested and received at the Preliminary Charter School Apportionment.
If the Charter School is unable to meet the criteria in this Section, the Preliminary Charter School Apportionment shall be rescinded pursuant to the provisions of Section 1859.166.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.52, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of subsection (b) filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment of subsection (a) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.166. Time Limit on Preliminary Charter School Apportionment.
Note • History
(a) A complete request to convert a Preliminary Charter School Apportionment to a Final Charter School Apportionment pursuant to Section 1859.165 shall be made within four years of the date of the Preliminary Charter School Apportionment unless the Charter School received approval of an extension pursuant to Section 1859.166.1.
(b) If (a) is not met, and the Charter School has not received an advance release of funds as provided in Section 1859.164.2, the following will occur:
(1) the Preliminary Charter School Apportionment shall be rescinded and any remaining Preliminary Charter School Apportionment, not released to the Charter School, shall be transferred to the Unrestricted Charter School Fund within the appropriate Charter School Facility Account, and;
(2) the SFP New Construction Eligibility will be increased by the number of unhoused pupils pursuant to Section 1859.162.2 for the school district that physically contains the Charter School within its geographical boundaries.
(c) If (a) is not met, and the Charter School has received an advance release of funds as provided in Section 1859.164.2, the following will occur:
(1) The Preliminary Charter School Apportionment shall be rescinded and any remaining Preliminary Charter School Apportionment, not released to the Charter School, shall be transferred to the Unrestricted Charter School Fund within the appropriate Charter School Facility Account, and;
(2) Funds released pursuant to Section 1859.164.2(a) shall be reduced to cost incurred and closed-out pursuant to Section 1859.106 with a corresponding SFP new construction baseline eligibility adjustment for the pupils assigned to the Preliminary Charter School Application. The adjustment to the baseline eligibility shall be based on the ratio of the number of unhoused pupils pursuant to Section 1859.162.2 and the project capacity which generated the project funding to the eligible expenditures. Any funds released are subject to the fifty percent local matching share requirement as required by EC 17078.54(d). Funds returned pursuant to Section 1859.106 shall be transferred to the Unrestricted Charter School Fund within the appropriate Charter School Facility Account, and;
(3) Funds released pursuant to Section 1859.164.2(b) shall be subject to the provisions of Section 1859.171.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52 and 17078.53, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of subsection (b) and new subsections (b)(1)-(c)(3) filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment of subsections (b)(2) and (c)(2) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.166.1. Preliminary Charter School Apportionment Time Limit Extension.
Note • History
A Charter School that has received a Preliminary Charter School Apportionment may request a single one-year extension of the time limit prescribed in Section 1859.166(a). The Board shall approve the request provided the criteria in (a) or (b) are met:
(a) The Charter School has provided evidence of both of the following:
(1) The CDE has made a contingent or final approval of the proposed site; and,
(2) The DSA has confirmed that the final plans for the project have been submitted to the DSA for review and approval.
(b) Other evidence satisfactory to the Board justifying the extension.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.52, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.166.2. Inactive Preliminary Charter School Apportionments Under a State of California Fiscal Crisis.
Note • History
In the event the Board determines there is a fiscal emergency or crisis on the part of the State of California, the Board can make a finding that a project has an Inactive Preliminary Charter School Apportionment, as defined in Regulation Section 1859.2, that no longer meets the meaning of Preliminary Charter School Apportionment as defined in Education Code Section 17078.52(c)(3), and that the four-year period with a possible one time one-year extension requirement set forth in Education Code Section 17078.25(a) and (b) is therefore suspended as of December 17, 2008 and until such time as the Board finds that State bond funds are available for the project, the balance of four-year period with a possible one time one-year extension period which existed on December 17, 2008 shall resume. Once the Board finds that State bond funds are available for the project, the four-year period with a possible one time one-year extension requirement set forth in Education Code Section 17078.25(a) and (b) shall resume but in no case shall that period of time exceed a total of four-year period with a possible one time one-year extension while the subject project has a Preliminary Charter School Apportionment. Each project will resume where its originating period of time was suspended, as of December 17, 2008.
This regulation section shall become inoperative July 1, 2012.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52 and 17078.53, Education Code.
HISTORY
1. New section filed 4-22-2009 as an emergency; operative 4-22-2009 (Register 2009, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-19-2009 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 4-22-2009 order transmitted to OAL 9-29-2009 and filed 11-9-2009 (Register 2009, No. 46).
3. Amendment of last paragraph filed 12-22-2009 as an emergency; operative 12-22-2009 (Register 2009, No. 52). A Certificate of Compliance must be transmitted to OAL by 6-21-2010 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-22-2009 order transmitted to OAL 3-9-2010 and filed 4-21-2010 (Register 2010, No. 17).
5. Amendment of final paragraph filed 4-5-2011 as an emergency; operative 4-5-2011 (Register 2011, No. 14). A Certificate of Compliance must be transmitted to OAL by 10-3-2011 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 4-5-2011 order transmitted to OAL 6-10-2011 and filed 7-6-2011 (Register 2011, No. 27).
7. Expired by its own terms 7-1--2011 (Register 2011, No. 42).
8. New section filed 10-18-2011; operative 10-18-2011 pursuant to Government Code section 11343.4 (Register 2011, No. 42).
§1859.167. Final Charter School Apportionment.
Note • History
(a) With the exception of Charter School Preliminary Apportionments provided by the Board on February 23, 2005, the amount of the Final Charter School Apportionment will be based on the provisions of any amended or new regulations that are effective at the time the Form SAB 50-04, for the Final Charter School Apportionment is submitted and accepted for processing by the OPSC. Prior to the Board providing a Final Charter School Apportionment, the Charter School will need to have a current Financial Soundness certification from the Authority. The Board shall convert the amounts determined below from the Preliminary Charter School Apportionment to the Final Charter School Apportionment:
(1) If the Final Charter School Apportionment request is equal to or less than the Preliminary Charter School Apportionment, the Final Charter School Apportionment shall be funded entirely. The difference in the Final Charter School Apportionment and the Preliminary Charter School Apportionment shall be transferred to the Unrestricted Charter School Fund in the appropriate Charter School Facilities Account. The Final Charter School Apportionment shall become the full and final apportionment for the project.
(2) If the Final Charter School Apportionment request is greater than the Preliminary Charter School Apportionment, the Board shall convert the Preliminary Charter School Apportionment to a Final Charter School Apportionment by either of the following:
(A) If the balance in the Unrestricted Charter School Fund in the appropriate Charter School Facilities Account is greater than the difference in the Final Charter School Apportionment and the Preliminary Charter School Apportionment, fund the Final Charter School Apportionment entirely. The Final Charter School Apportionment shall become the full and final apportionment for the project.
(B) If the balance in the Unrestricted Charter School Fund in the appropriate Charter School Facilities Account is less than the difference in the Final Charter School Apportionment and the Preliminary Charter School Apportionment, fund the Final Charter School Apportionment using any remaining balance in the Unrestricted Charter School Fund in the appropriate Charter School Facilities Account. The Final Charter School Apportionment shall become the full and final apportionment for the project.
(b) For Preliminary Charter School Apportionments provided by the Board on February 23, 2005:
(1) the Final Charter School Apportionment will be subject to the provisions of any amended or new regulations that are effective at the time the Form SAB 50-04 is submitted and accepted for processing by the OPSC for the Final Charter School Apportionment; and,
(2) The Final Charter School Apportionment shall not contain additional pupil grants beyond that which the Charter School may have requested at the time of the Preliminary Charter School Application; and,
(3) Prior to the Board providing a Final Charter School Apportionment the Charter School will need to have a current Financial Soundness certification from the Authority; and,
(4) The amount of the Final Charter School Apportionment shall not exceed the Preliminary Charter School Apportionment with the exception of amounts available pursuant to Section 1859.167.2 and 1859.167.3. The additional amount of funds available to an individual project may include amounts from both the Conversion Increase Fund and Unrestricted Charter School Fund. The sum of the Preliminary Apportionment, the additional funds from the Conversion Increase Fund, and the additional amounts from the Unrestricted Charter School Fund shall not exceed the amount necessary to bring the total eligible project costs current to the grant amounts in place at the time of conversion. The Board shall convert the Preliminary Charter School Apportionment to the Final Charter School Apportionment as outlined below:
(A) If the Preliminary Charter School Apportionment is greater than the Final Charter School Apportionment request then the difference shall be used to return the Relocation/DTSC Fund and the Hazardous Material/Waste Removal Fund to the amounts originally reserved for these purposes. The amount returned to the Relocation/DTSC Fund shall be equal to 83.6 percent of the amount available for return; the amount returned to the Hazardous Material/Waste Removal Fund shall be equal to 16.4 percent of the amount available for return. Once these funds have been replenished, any remaining funds shall be transferred to the Unrestricted Charter School Fund in the 2004 Charter School Facilities Account. The Final Charter School Apportionment shall become the full and final apportionment for the project.
(B) If the project is eligible for an additional grant for relocation expenses, DTSC fees, or hazardous waste removal pursuant to Sections 1859.74 or 1859.74.2, the Preliminary Charter School Apportionment may be increased accordingly using the funding set aside in Section 1859.163.3.
(C) If the Preliminary Charter School Apportionment plus the additional amounts provided from the Conversion Increase Fund and the Unrestricted Charter School Fund is less than the Final Charter School Apportionment request, the difference shall be placed on an Unfunded List.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52 and 17078.56, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of section and Note filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment filed 2-16-2007; operative 2-16-2007 (Register 2007, No. 7).
8. Amendment of subsections (a)-(a)(1), (a)(2)(A)-(B), (b), (b)(2)-(3), (b)(6)-(b)(6)(A) and (b)(6)(C) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
9. Amendment filed 10-3-2007; operative 10-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
§1859.167.1. Final Charter School Apportionment Conversion Site Acquisition Guidelines for Projects Apportioned on February 23, 2005. [Repealed]
Note • History
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.56 and 17078.58, Education Code.
HISTORY
1. New section filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
3. Amendment of section heading filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
4. Repealer filed 10-3-2007; operative 10-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
§1859.167.2. Preliminary Apportionment Rescissions.
Note • History
(a) For projects apportioned on or before February 23, 2005 that are rescinded by the Board for purposes other than those outlined in Section 1859.166, the following will occur upon rescission:
(1) the SFP New Construction Eligibility will be increased for the pupils assigned to the Preliminary Charter School Application for the school district that physically contains the Charter School within its geographical boundaries.
(2) Those projects that have received an advanced release of funds as provided in Section 1859.164.2(a), shall be reduced to costs incurred and closed-out pursuant to Section 1859.106 with a corresponding SFP new construction baseline eligibility adjustment for the pupils assigned to the Preliminary Charter School Application.
(b) For projects apportioned on July 2, 2003 that are rescinded by the Board for purposes other than those outlined in Section 1859.166, the funds shall be returned to the program as follows:
(1) A fund shall be established within the 2002 Charter School Facilities Account to be known as the Conversion Increase Fund. An amount equal to $16,634,364 from Preliminary Charter School Apportionments rescinded on or before April 25, 2007 shall be transferred, on a one time basis, from the Unrestricted Charter School Fund to the Conversion Increase Fund established within that same account. The Conversion Increase Fund shall be used for the purposes outlined in Section 1859.167(b)(4).
(2) Funds available due to projects that rescind after April 25, 2007 shall be transferred to the Unrestricted Charter School Fund within the 2002 Charter School Facilities Account.
(c) For projects apportioned on February 23, 2005 that are rescinded by the Board for purposes other than those outlined in Section 1859.166, the funds shall be returned to the program as follows:
(1) A fund shall be established within the 2004 Charter School Facilities Account to be known as the Conversion Increase Fund. This fund shall be used for the purposes outlined in Section 1859.167(b)(4). This fund shall include all amounts from Preliminary Charter School Apportionments rescinded from the 2004 Charter School Facilities Account on or before April 25, 2007, plus the amounts initially reserved for the DTSC/Relocation Fund and the Hazardous Material/Waste Removal Fund established in Section 1859.163.3.
(2) Funds available due to project rescissions after April 25, 2007 including both the Preliminary Apportionment reservation and any amount available pursuant to subsection (c)(1) above that is not needed for a Final Charter School Apportionment, shall first be used to replenish the DTSC/Relocation Fund and the Hazardous Material/Waste Removal Fund until the cumulative deposits made back into the funds total the amount of funds initially reserved. Once these funds have been replenished, future rescinded amounts shall be returned to the Unrestricted Charter School Fund.
(d) The maximum amount available for each individual Final Charter School Apportionment from the 2002 and/or 2004 Conversion Increase Fund shall be equal to the ratio of the project's Preliminary Charter School Apportionment to the total value of preliminary charter school apportionments awarded on February 23, 2005, for those recipients eligible for these Conversion Increase Fund funds, multiplied by the sum of the amount of funds available for the Conversion Increase Fund in both the 2002 and 2004 Charter School Facilities Accounts.
(e) For projects apportioned after February 23, 2005 any rescinded amounts shall be transferred into the Unrestricted Charter School Fund in the appropriate Charter School Facilities Account. Projects shall be rescinded pursuant to the process described in subsection (a) above with the exception that any adjustments to the baseline eligibility shall be based on the ratio of the number of unhoused pupils pursuant to Section 1859.162.2 and the project capacity which generated the project funding to the eligible expenditures.
Any funds released are subject to the fifty percent local matching share requirement as required by Education Code Section 17078.54(d).
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.54, Education Code.
HISTORY
1. New section filed 10-3-2007; operative 10-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
§1859.167.3. Use of the Unrestricted Charter School Funds.
Note • History
(a) Any funds that return to the Unrestricted Charter School Fund in the 2002 Charter School Facilities Account shall be available on a first come, first served basis for the purposes outlined in Section 1859.167(a)(2).
(b) With the exception of funds that return to the program due to the collection of lease payments for local matching share amounts which may not be used for the purposes outlined in Section 1859.167(b)(4), any funds in the Unrestricted Charter School Fund in the 2004 Charter School Facilities Account shall first be used to fund projects on the Unfunded List pursuant to Section 1859.163.3 and then for the purposes outlined in Section 1859.167(b)(4)(C) on a first come, first served basis.
(c) Once all Preliminary Charter School Apportionments made on July 2, 2003 have either converted to a Final Charter School Apportionment or have been rescinded by the Board, the funds remaining in the Unrestricted Charter School Fund in the 2002 Charter School Facilities Account, with the exception of funds that return to the program due to the collection of lease payments for local matching share amounts, may be used for the purposes outlined in Sections 1859.163.3 and 1859.167(b)(4).
(d) Once all Preliminary Charter School Apportionments made on February 23, 2005 have either converted to a Final Charter School Apportionment or have been rescinded by the Board, the funds remaining in the Unrestricted Charter School Fund in the 2004 Charter School Facilities Account, in addition to any lease payments collected, may be used by the Board for other Charter School facility projects pursuant to Education Code Section 17078.58.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.58, Education Code.
HISTORY
1. New section filed 10-3-2007; operative 10-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 40).
§1859.168. Preliminary Charter School Apportionment Matching Share Requirement.
Note • History
The Charter School will be subject to the matching share requirements in Section 1859.77.1 and Education Code Section 17078.54(d) that may be paid through lease payments authorized by the Authority in lieu of the matching share. All lease payments shall be paid to the Board to be redeposited to the Unrestricted Charter School Fund in the appropriate Charter School Facility Account. Any funds deposited in either Account shall be first used to fund remaining site acquisition costs off the Unfunded List pursuant to Section 1859.163.3. Should no projects remain on the Unfunded List the Board may use the funds for purposes of this Article.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.54 and 17078.58, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of section and Note filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
§1859.169. Eligible Expenditures.
Note • History
Expenditures made with the Final Charter School Apportionment must comply with Education Code Section 17072.35 and 17078.54(a). Expenditures for construction are eligible only if the construction contract was entered into on or after September 27, 2002.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Sections 17078.52, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
§1859.169.1. Charter School Project Savings.
Note • History
Projects funded under the CSFP do not generate savings pursuant to Section 1859.103. In addition, State funds remaining at the completion of the project may not be used to satisfy the local matching share obligation. Remaining funds must be returned to the State.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.54, Education Code.
HISTORY
1. New section filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1859.170. Additional Program Reporting Requirements.
Note • History
A Charter School filing a Form SAB 50-09 on its own behalf pursuant to this Article shall comply with the reporting requirements of Sections 1859.100, 1859.101, 1859.102, and 1859.106.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.54, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
Note • History
If a Charter School that has received funding pursuant to Section 1859.164.2(b) and has not met the timelines established in Section 1859.166 on a Preliminary Charter School Apportionment, or is no longer occupying the facility constructed with funds derived through a Final Charter School Apportionment, and the review process outlined in Education Code Section 17078.62(b)(1) has been completed (if applicable), then the following events shall occur:
(a) Any qualifying successor charter school shall be permitted to occupy the facility pursuant to Education Code Section 17078.62(b)(2).
(b) If no qualifying successor charter school chooses to occupy the facility, the school district in which the project is physically located may elect to take possession of the facility and pay the balance of the local matching share. The District may qualify for a waiver of repayment if it can meet all the following:
(1) Demonstrate that at the time the Form SAB 50-04 was submitted for Final Charter School Apportionment, the district would have qualified for financial hardship, pursuant to Section 1859.81; and,
(2) Certify to the Board that it will comply with the requirements of Education Code Section 17078.62(b)(4)(B).
(c) If the school district chooses not to take possession of the facility, it shall dispose of the facilities in the manner applicable to the disposal of surplus school sites pursuant to Education Code Sections 17455 through 17484. The proceeds from the sale shall be used to pay off the remaining loan balance, if any.
(d) Pursuant to Education Code Section 17078.62(b)(5)(B), if the school district declines to dispose of the facility it shall provide written notice of its rejection to the Board in the form of written action taken by the governing board of the school district and the Board shall dispose of the property.
NOTE
Authority cited: Sections 17070.35 and 17078.64, Education Code. Reference: Section 17078.62, Education Code.
HISTORY
1. New section filed 2-13-2003 as an emergency pursuant to Education Code section 17078.64(b); operative 2-13-2003 (Register 2003, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-13-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2003 as an emergency; operative 6-13-2003 (Register 2003, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-13-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-9-2003 as an emergency; operative 10-9-2003 (Register 2003, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-6-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 10-9-2003 order transmitted to OAL 2-6-2004 and filed 3-23-2004 (Register 2004, No. 13).
5. Amendment of first paragraph filed 6-1-2004 as an emergency; operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-1-2004 order transmitted to OAL 9-29-2004 and filed 11-10-2004 (Register 2004, No. 46).
7. Amendment filed 10-5-2010; operative 10-5-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 41).
§1859.172. Title to Project Facilities.
Note • History
(a) Prior to the release of funds for site acquisition or new construction Final Charter School Apportionments, a charter school that has received a Preliminary Charter School Apportionment must provide one of the following:
(1) Documentary evidence that the school district in which the project is physically located holds title to the project facilities,
(2) Documentary evidence that a local governmental entity holds title pursuant to all of the requirements set forth in Education Code Section 17078.63(a)(2), or
(3) A written request that the charter school be authorized to hold fee simple title to the subject property signed by an authorized charter school representative pursuant to all of requirements set forth in Education Code Section 17078.63(a)(3). The written request must include a statement justifying the reasons why ownership will not be vested with an entity described in (a)(1) and why ownership will not be vested with an entity described in (a)(2). The written request must also include the statement: I certify, as the charter school representative, that the information reported in this document is true and correct.
(b) A charter school may request that a school district transfer title to project facilities to a local governmental entity or the charter school itself if prior to January 1, 2010 the school district entered into an agreement to hold title to the project facilities. The transfer of title shall only take place if the school district and charter school mutually agree to a title transfer. Prior to the transfer of title, the charter school must notify the OPSC in writing that a title transfer request is being made, enter into new Charter School Agreements with the State and a local governmental entity if applicable, and demonstrate that all of the necessary conditions for holding title pursuant to Education Code Section 17078.63 will be complied with. For purposes of title transfer pursuant to Education Code Section 17078.63(b)(1) the charter school shall not be required to provide the written request outlined in section (a)(3) above.
NOTE
Authority cited: Sections 17070.35 and 17078.63, Education Code. Reference: Sections 17078.62 and 17078.63, Education Code.
HISTORY
1. New section filed 10-5-2010; operative 10-5-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 41).
Article 15. Overcrowding Relief Grant
Note • History
A School District seeking an Apportionment pursuant to the provisions of Education Code Section 17079 through 17079.30 for new construction shall complete and file a Form SAB 50-04.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17079.20, Education Code.
HISTORY
1. New article 15 (sections 1859.180-1859.184) and section filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
Note • History
An eligible school is a school for which the school site pupil population density is equal to or greater than 175 percent of the school site pupil population density recommended by the Superintendent, based on the CBEDS Report for the 2005/2006 enrollment year, adjusted by the CDE by the following factors:
(a) Reduced to take into account the additional pupil capacity created by multistory construction.
(b) Reduced to take into account approved new construction projects, including projects approved pursuant to the
Critically Overcrowded School Facilities Program, Education Code Sections 17078.10 through 17078.30, unless the School District can demonstrate that those projects are not impacting density at the eligible school site.
In order to determine the school site pupil population density, the School District shall complete and submit to the CDE the Overcrowding Relief Grant Eligibility Determination form.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17079, Education Code.
HISTORY
1. New section filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
§1859.182. Determining Overcrowding Relief Pupil Eligibility.
Note • History
(a) For purposes of the Overcrowding Relief Grant, an eligible pupil is a pupil that is housed in a portable classroom at the eligible school site, less the prorated number of portables that were funded by the Class Size Reduction Program pursuant to Chapter 6.10 of the Education Code. The Class Size Reduction prorate shall be calculated as follows:
(1) Determine the total number of portables funded pursuant to Chapter 6.10 of the Education Code.
(2) Divide the amount determined in (a)(1) by the total number of schools currently in the School District that serve grades K-3. The resulting number of classrooms must be reduced from each eligible school site that serves grades K-3. The total number of portable classrooms that are reduced from all eligible school sites shall not exceed the amount determined in (a)(1).
(b) The determination of the district-wide pupil eligibility shall be determined by the submittal of the Form SAB 50-11.
(c) The determination of the site specific pupil eligibility shall be determined by the CDE on the Overcrowding Relief Grant Eligibility Determination form and will be conducted on a one-time basis for each eligible school.
(d) The site specific and district-wide pupil eligibility may be adjusted as follows:
(1) Reduced by the number of eligible pupils that receive an Overcrowding Relief Grant.
(2) Adjusted as a result of errors or omissions by the School District or by the OPSC.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17079.10, Education Code.
HISTORY
1. New section filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
Note • History
The Board shall provide a New Construction Adjusted Grant to each eligible pupil requested in the project. The pupil grants may be requested by the School District at any grade level, regardless of the grade level of the eligible school.
The maximum number of Overcrowding Relief Grants for each eligible school site shall be subject to the following limitations:
(a) The number of Overcrowding Relief Grants may not exceed the number of pupils whose removal from the pupil density calculation would reduce the density of the eligible school site to 150 percent of the school site pupil population density recommended by the Superintendent, based on the CBEDS reported for the 2005/2006 enrollment year.
(b) The number of Overcrowding Relief Grants may not exceed the capacity of those portables on the eligible school site that are being replaced in the project.
In no event shall a School District receive in total more Overcrowding Relief Grants than the number of pupils housed in portable classrooms that were included in the School District's initial new construction eligibility determination pursuant to Education Code 17071.75 as identified in part on Line 1 of Part III of the Form SAB 50-02 and as calculated on the Form SAB 50-11.
The Overcrowding Relief Grant must be used to replace an equivalent number of portable classrooms with permanent classrooms. Those portables that are replaced with Overcrowding Relief Grants must be removed from the eligible school site and from K - 12 grade classroom use, pursuant to Education Code Section 17079.30, within six months of the date of Occupancy of the replaced permanent classrooms. Overcrowding Relief Grants may be used for those purposes pursuant to Education Code 17072.35 with the exception of the construction, acquisition or transportation of portable classrooms. Those School Districts receiving an Overcrowding Relief Grant must comply with all new construction provisions of the SFP, including but not limited to Sections 1859.100, 1859.102, 1859.104, 1859.105, and 1859.106.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Sections 17079.10, 17079.20 and 17079.30, Education Code.
HISTORY
1. New section filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
§1859.184. Overcrowding Relief Grant Application Submittals and Apportionments.
Note • History
(a) The Board shall accept approved applications for Overcrowding Relief Grants as follows:
(1) For the funding made available for this purpose for the first funding cycle, the School District shall submit an
approved application by January 31, 2008.
(2) The Board shall accept approved applications on a semi-annual basis thereafter.
The Board shall apportion Overcrowding Relief Grants based upon the highest density of the eligible schools that have submitted an approved application. Any School District that does not receive an Overcrowding Relief Grant due to low school density and insufficient funds may request that its application remain with the OPSC for consideration in the following semi-annual funding cycle.
(b) The Board shall apportion the Overcrowding Relief Grants as follows:
(1) For the first funding cycle, up to a maximum of $500 million for all approved applications that are received by January 31, 2008.
(2) For the second funding cycle, up to a maximum of $300 million for all approved applications that are received by July 31, 2008, plus any remaining funds not apportioned during the previous funding cycle.
(3) Approved applications that are received by January 30, 2009 shall be apportioned any remaining funds not allocated at the previous funding cycles, plus an additional $200 million.
(4) Approved applications that are received by July 31, 2009 shall be apportioned any remaining funds not allocated at the previous funding cycles.
(5) Approved applications that are received by January 29, 2010 shall be apportioned any remaining funds not allocated at the previous funding cycles.
(6) Approved applications that are received by July 30, 2010 shall be apportioned any remaining funds not allocated at the previous funding cycles.
(7) The Board may accept applications every six months that are received by the last business day of January and July until the Overcrowding Relief Grant funds are exhausted.
The approved applications for Overcrowding Relief Grants filed after July 31, 2008 must provide a narrative that demonstrates that the project will relieve overcrowding at the eligible school, by increasing useable outdoor space for uses such as play areas, green space, or outdoor lunch areas.
A School District may submit an approved application to request an Overcrowding Relief Grant from the funding provided under Proposition 1D for a project that has been occupied, if the construction contract for the project was signed after Board approval of these regulations. The School District must have obtained all project approvals required for a new construction funding application prior to the construction contract date.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17079.20, Education Code.
HISTORY
1. New section filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
2. Amendment of subsection (b)(3) and new subsections (b)(4)-(5) filed 1-21-2009; operative 1-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 4).
3. New subsections (b)(6)-(7) filed 6-23-2010; operative 6-23-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 26).
§1859.184.1. Application Process for Districts with Financial Hardship Approval.
Note • History
An approved application for districts that have received Financial Hardship approval shall be substantially identical to that of non-financial hardship districts, with the exception of those districts proposing projects that require the use of condemnation proceedings to acquire all or a portion of the site on which the project will be located. In this instance, the following conditions shall apply:
(a) A complete application shall include:
(1) Documentation of Financial Hardship approval pursuant to Section 1859.81.
(2) All project related approvals and requirements that would otherwise apply to SFP projects with the exception of ownership pursuant to Section 1859.23 for those parcels being acquired through condemnation proceedings. A CDE site approval letter is required for all components of the site, including the area to be acquired through condemnation. The CDE Final Plan Approval letter must include the acreage to be acquired through condemnation. This subsection includes the submittal of DSA approved construction plans and related documents.
(3) A copy of the Resolution of Necessity for the initiation of condemnation proceedings.
(4) For any additional parcels that are being acquired without condemnation, documentation that demonstrates that the district has opened escrow, has ownership, or holds a lease meeting the requirements of Section 1859.22.
(5) An appraisal for the value of all properties being acquired as part of the application.
(b) Site Acquisition Funding for Financial Hardship Overcrowding Relief Grant applications using condemnation shall be equal to the sum of:
(1) The lesser of the actual or appraised value for all parcels acquired through means other than condemnation, pursuant to Section 1859.74.
(2) The appraised value of the parcels being acquired through condemnation, multiplied by 1.15.
(3) Amounts for hazardous waste removal pursuant to Sections 1859.74.2, 1859.74.3 and/or 1859.74.4.
(c) The Overcrowding Relief Grant projects meeting the criteria in subsection (a) above shall be able to request an advance fund release for site acquisition when condemnation proceedings are required for the acquisition of the site. The advance fund release shall be equal to the State share plus the Financial Hardship grant of only the amount determined in subsection (b).
(d) Pursuant to Section 1859.103, grants for Overcrowding Relief Grant projects shall be limited to eligible expenditures, up to the State Apportionment for the project with the exception of the funds provided in subsection (b) above that are for site acquisition purposes only and cannot be transferred over to eligible construction related costs.
When making an apportionment for an Overcrowding Relief Grant project meeting the criteria in this section, the Board shall make a Final Apportionment for the total project cost. However, the fund release for the non site acquisition project costs will not be accepted or processed until the district is able to produce the court order for prejudgment possession verifying the initial amount to be paid through condemnation proceedings. The project timelines for the project as a whole, as specified in law and outlined in Section 1859.90, remain in effect. The advance fund release for site acquisition can be requested at any time after the Final Apportionment is granted by the Board. The advance fund release for site acquisition is not subject to the requirements of Section 1859.81.1.
NOTE
Authority cited: Section 17070.35, Education Code. Reference: Section 17079.20, Education Code.
HISTORY
1. New section filed 1-21-2009; operative 1-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 4).
Article 16. Career Technical Education Facilities Program
Note • History
An applicant seeking Career Technical Education Facilities Project funding pursuant to the provisions of Education Code Section 17078.72, shall complete and file Form SAB 50-10.
An applicant may submit multiple Career Technical Education Facilities applications for different career technical education projects located at a single school site, pursuant to Education Code Section 17078.72(e), (f), and (i).
Modernization of facilities under Article 16 shall not affect the Modernization Eligibility of the facility pursuant to Section 1859.60.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New article 16 (sections 1859.190-1859.199) and section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.191. Career Technical Education Facilities Project Application Submittal.
Note • History
(a) The Board shall accept Approved Applications for Career Technical Education Facilities Project Funding and make apportionments as follows:
(1) All applications received in a six month cycle will be processed and prioritized for career technical education funding in the manner described in Section 1859.194.
(2) The funding cycles are established as follows:
(A) Approved Applications for Career Technical Education Facilities Project Funding for the first funding cycle must be submitted to the OPSC by October 31, 2007.
(B) Approved Applications for Career Technical Education Facilities Project Funding for the second funding cycle must be submitted to the OPSC by April 30, 2008.
(C) At the discretion of the Board, subsequent funding cycles may continue every six months thereafter until the Career Technical Education Facilities Program funds are exhausted or other funds become available.
(3) The Career Technical Education Facilities funds will be apportioned at the next available Board meeting after the end of each application cycle.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.192. Career Technical Education Facilities Program Eligibility.
Note • History
An applicant requesting funding for a Career Technical Education Facilities Project may submit Form SAB 50-10 to the OPSC if all the following criteria are met:
(a) For a new construction project, the applicant:
(1) Is a local educational agency operating a comprehensive high school pursuant to Education Code Sections 51224, 51225.3 and 51228.
(2) Has an active career technical advisory committee pursuant to Education Code Section 8070.
(b) For a modernization project, the applicant:
(1) Is a local educational agency operating a comprehensive high school pursuant to Education Code Sections 51224, 51225.3 and 51228; or,
(2) Is a joint powers authority operating career technical education programs as of May 20, 2006.
(3) Has an active career technical advisory committee pursuant to Education Code Section 8070.
(c) The applicant's Career Technical Education Facilities Program application has met all the requirements in Education Code Section 17078.72(i) and scored at least 105 points.
An applicant need not demonstrate New Construction Eligibility or Modernization Eligibility in order to participate in the Career Technical Education Facilities Program.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Sections 8070, 17078.72, 51224, 51225.3 and 51228, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.193. Career Technical Education Facilities Grant Determination.
Note • History
A Career Technical Education Facilities Project may construct a new facility or modernize or Reconfigure an existing school building. The application for Career Technical Education Facility funding may accompany an application for new construction funding pursuant to Section 1859.70 or may be submitted independently.
The applicant must identify square footage of the Career Technical Education Facility being constructed, modernized, reconfigured or equipped, on the funding application. Equipment purchased under the Career Technical Education Facilities Program must have an average useful life expectancy of at least ten years pursuant to Education Code 17078.72(a). An application for a Career Technical Education Facilities Project may consist entirely of equipment. All equipment must be purchased on or after May 20, 2006, unless the Career Technical Education Facilities Project is combined with a qualifying SFP new construction project pursuant to Section 1859.193.1.
(a) For new construction of a Career Technical Education Facilities Project included in a qualifying New Construction Grant, the Career Technical Education Facilities grant amount shall be the lesser of either (1) or (2):
(1) The sum of the costs uniquely related to facilities required to provide Career Technical Education as determined below:
(A) 50 percent of the cost of construction of the Career Technical Education Facilities Project, as determined by the project architect, subject to OPSC review and approval.
(B) 50 percent of the cost to equip the Career Technical Education Facilities Project with necessary equipment.
(C) For public works projects awarded on or after January 1, 2012, the prevailing wage monitoring and enforcement costs as prescribed in Section 1859.71.4(c), if required by the Labor Code.
(D) Minus an allowance for New Construction Grants provided for Career Technical Education classrooms, determined by:
1. Multiplying 960 square feet by the number of classrooms in the Career Technical Education Facilities Project that were included in the New Construction project.
2. Multiplying the amount determined in (a)(1)(D)1 by 50 percent of the Current Replacement Cost for non-Toilet Facilities.
(2) $3 million per Career Technical Education Facilities Project.
(3) Site development work is not allowed as part of a Career Technical Education Facilities Project included in a New Construction Grant. Site development work necessary pursuant to Section 1859.76, may be requested by the district under the qualifying SFP New Construction.
(4) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the State and for which the construction contract is awarded on or after January 1, 2012, is subject to DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(5) Any school district failing to meet the requirements of (a)(4) shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(6) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in subsection (a)(5) above, for any construction projects for which the violations occurred.
(b) For stand-alone new construction of a Career Technical Education Facilities Project, the grant amount shall be the lesser of either (1) or (2):
(1) The sum of the costs uniquely related to facilities required to provide Career Technical Education as determined below:
(A) 50 percent of the cost of construction of the Career Technical Education Facilities Project, as determined by the project architect, subject to OPSC review and approval.
(B) 50 percent of the cost to equip the Career Technical Education Facilities Project with necessary equipment.
(C) 50 percent of site development work that meets the following criteria:
1. It is necessary and applicable to the Career Technical Education Facilities Project.
2. It meets the requirements for site development costs as outlined in Section 1859.76.
(D) For public works projects awarded after January 1, 2012, the prevailing wage monitoring and enforcement costs as prescribed in Section 1859.71.4(c), if required by the Labor Code.
(2) $3 million per Career Technical Education Facilities Project.
(3) If the district is requesting funding for site development work applicable to the Career Technical Education Facilities Project, the district must submit a detailed cost estimate and appropriate DSA approved plans with the Form SAB 50-10. The cost estimate must include appropriate justification documents that indicate the work is necessary to complete the Career Technical Education Facilities Project and conform to the requirements in Section 1859.76.
(4) Utility service(s) cost shall be prorated, if necessary, for any excess capacity not needed to service the Career Technical Education Facilities Project.
(5) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the State and for which the construction contract is awarded on or after January 1, 2012, is subject to DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(6) Any school district failing to meet the requirements of (b)(5) shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(7) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in subsection (b)(6) above, for any construction projects for which the violations occurred.
(c) For Modernization of a Career Technical Education Facilities Project, the grant amount shall be the lesser of either (1) or (2):
(1) The sum of the costs uniquely related to facilities required to provide Career Technical Education Facilities Project as determined below:
(A) 50 percent of the cost to modernize or Reconfigure the Career Technical Education Facilities, as determined by the project architect, subject to OPSC review and approval.
(B) 50 percent of the cost to equip the Career Technical Education Facilities with necessary equipment.
(C) For public works projects awarded on or after January 1, 2012, the prevailing wage monitoring and enforcement costs as prescribed in Section 1859.71.4(c), if required by the Labor Code.
(2) $1.5 million per Career Technical Education Facilities Project.
(3) Reconfiguring an existing school building must not displace a minimum essential facility. In any case involving the replacement of a minimum essential facility due to the reconfiguration of an existing building, the replacement must be part of the plans submitted in support of the Career Technical Education Facilities Application, must occur concurrently, and cannot be part of a SFP Application for new construction.
(4) Utility service(s) cost shall be prorated, if necessary, for any excess capacity not needed to service the Career Technical Education Facilities Project.
(5) Pursuant to Labor Code Section 1771.3, any public works project paid in whole or in part from public funds that are derived from bonds issued by the State and for which the construction contract is awarded on or after January 1, 2012, is subject to DIR monitoring and enforcement of compliance with applicable prevailing wage requirements, unless the project is exempt from this requirement pursuant to Labor Code Section 1771.3(b).
(6) Any school district failing to meet the requirements of subsection (c)(5) above, shall return to the State any State funding for the project, including interest, at the rate paid on moneys in the Pooled Money Investment Account or at the highest rate of interest for the most recent issue of State general obligation bonds as established pursuant to the Chapter 4 (commencing with Section 16720), of Part 3 of Division 4 of Title 2 of the Government Code, whichever is greater. Interest to be returned shall be calculated from the date at which funds were received by the school district until the date of the Board's finding.
(7) If the DIR revokes the district's internal LCP's approval and the district fails to provide appropriate prevailing wage monitoring through the DIR or other exemptions as specified in Labor Code Section 1771.3, the school district shall return to the State any State funding received for the project, including interest, as calculated in subsection (c)(6) above, for any construction projects for which the violations occurred.
(d) If an applicant meets the eligibility criteria in Section 1859.192, but does not have the necessary approvals from the DSA and/or the CDE at the time of apportionment, the Board may apportion funds for the Career Technical Education Facilities Project and reserve them for a period of up to 12 months. The grant amount to be reserved for the project will be the maximum funding as determined above in (a), (b), or (c).
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Sections 17078.72 and 17250.30, Education Code; and Section 1771.3, Labor Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order, including amendment of second paragraph and subsection (b), transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
4. Amendment of section and Note filed 3-26-2012 as an emergency; operative 3-26-2012 (Register 2012, No. 13). A Certificate of Compliance must be transmitted to OAL by 9-24-2012 or emergency language will be repealed by operation of law on the following day.
§1859.193.1. Qualifying SFP Project.
Note • History
For purposes of meeting the requirements in Sections 1859.193(a) or (c), the district may combine a Career Technical Education Facilities Project with any of the following applications in (a) or (b):
(a) A new construction or modernization funding application that is submitted at the same time as the Career Technical Education Facilities Project application.
(b) An Approved Application for new construction or modernization funding that has been approved, but has not received a full apportionment (i.e., currently on the workload list) or has been fully funded, if the following criteria are met:
(1) For new construction:
(A) The plans and specifications for the Career Technical Education Facilities Project were included in the original DSA approved plans and specifications for the Approved Application for new construction funding.
(B) The classrooms constructed for the Career Technical Education Facilities Project were not occupied prior to May 20, 2006.
(2) For modernization:
(A) The plans and specifications for the Career Technical Education Facilities Project were included in the original DSA approved plans and specifications for the Approved Application for modernization funding.
(B) The construction contracts for the Career Technical Education Facilities Project were executed on or after May 20, 2006.
(c) If the Career Technical Education Facilities Project application is submitted separately, there is no requirement that the Approved Application for new construction or modernization be withdrawn.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order, including amendment of subsection (b)(2)(B), transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.194. Career Technical Education Facilities Program Matching Share Requirement.
Note • History
Any funding provided by these regulations shall require an applicant matching share contribution on a dollar-for-dollar basis. The applicant matching share may come from any source including, but not limited to, private industry groups, school districts, county offices of education, and joint powers authorities.
If the applicant's available matching share does not equal the grant amount or the matching share is not immediately available, a loan may be made to the applicant. The amount of the loan shall be determined by compliance with (a) below. If the need for a loan is substantiated, it shall be paid over time through loan payments authorized by the Board.
(a) Require the applicant declare any local funds available for applicant contribution from any of the following sources:
(1) Developer Fees
(2) Certificates of Participation
(3) Local General Obligation Bonds, Mello-Roos Bonds and School Facility Improvement District Bonds
(4) Contribution from private industry groups or joint powers authority
(5) Any other Capital Facility funding
Upon apportionment, the OPSC will prepare a loan agreement on behalf of the Board for the applicant.
(b) The loan agreement shall stipulate the following:
(1) The loan term shall be set at ten years with a one-time extension of five years if the applicant is in jeopardy of becoming financially insolvent and becoming subject to the requirements of Assembly Bill (AB) 1200, Chapter 1213, Statutes of 1991 (Eastin).
(2) The loan agreement shall include interest on the unpaid principal balance at the same rate as that charged by the Pooled Money Investment Board. The interest rate will be set on the date that the project funding apportionment is approved by the Board.
(3) Interest starts accruing on the fund release date.
(4) The first payment is due no later than two years from the fund release date.
(5) Should the district default on the loan payments, the OPSC will initiate collection procedures from the School Fund Apportionment pursuant to Education Code Section 17076.10(c).
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Sections 17076.10 and 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.195. Career Technical Education Facilities Project Apportionment.
Note • History
The Board shall apportion Career Technical Education Facilities Funds in the following manner:
(a) The Board may apportion up to a maximum of $350 million for applications received in the first Career Technical Education Facilities funding cycle ending October 31, 2007.
(1) The amount of $250 million shall be distributed proportionally to the Service Regions based on the high school enrollment within each Service Region. The proportional distribution of funds shall be determined by the current year CBEDS enrollment.
(2) If funding requested on qualifying applications exceeds the funds allotted to any Service Region, the amount of $100 million shall be available for apportionment to the highest ranked projects regardless of Service Region.
(b) The Board may apportion up to the sum of $150 million plus any funds not apportioned in the first cycle for applications received in the second Career Technical Education Facilities funding cycle ending April 30, 2008.
(1) The amount of $150 million plus any funds remaining from (a)(2) shall be distributed proportionally to each of the Service Regions based on the high school enrollment within each Service Region.
(2) Any unused funds distributed under (a)(1) shall be added to the amount determined for each Service Region in (b)(1).
(3) The cumulative apportionments in each Service Region may not exceed the amount determined in (1) and (2) except as described in Section 1859.196(b).
(c) The Board may apportion any or all remaining available Career Technical Education Facilities funds in subsequent cycles, as deemed necessary and practical by the Board.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.196. Career Technical Education Facilities Program Funding Order.
Note • History
(a) In the first funding cycle, the Board shall fund eligible Career Technical Education Facilities Projects as follows:
(1) Approved Applications for Career Technical Education Facilities Project Funding shall be sorted by Service Region.
(2) Within each Service Region, approved applications will be ranked from highest to lowest according to the numerical score for the applicant's Career Technical Education Facilities Program application pursuant to Education Code Section 17078.72(i).
(3) The locale of each project shall be identified as Urban, Suburban or Rural.
(4) The Board shall apportion funds within each Service Region to the highest ranked project in each locale. In order to continue this funding process, one project from each locale must be apportioned. If there are no applications in a given locale(s), projects will be apportioned in the remaining locale(s).
(5) The process will continue until the applications or funds are exhausted within each Service Region as prorated pursuant to Section 1859.195. If an application cannot be fully apportioned because insufficient funding remains within the Service Region, the application shall be considered for funding pursuant to Section 1859.195(a)(2). If there is insufficient funding under Section 1859.195(a)(2), the applicant may either accept the available funding within the Service Region as the full and final apportionment for the project or refuse funding entirely. If funding is refused, the Board shall consider funding the next project eligible for an apportionment pursuant to this Section.
(6) In the event two or more applications within a Service Region have the same career technical education plan score and are in the same locale, the applicant with the highest total points in all weighted areas identified in Education Code Section 17078.72(j) will be funded first.
(b) In the second funding cycle, the Board shall fund eligible Career Technical Education Facilities Projects as described in (a) until the applications or funds are exhausted within each Service Region or until the conditions in (1) and (2) are met:
(1) Funds remain after all applications in a given Service Region have been apportioned.
(2) Approved Applications remain in other Service Regions because the requests exceed the funds allotted to the Service Region(s) in Section 1859.195(b). If an application cannot be fully apportioned because insufficient funding remains within the Service Region, the application shall be considered for funding pursuant to (c). If there is insufficient funding under (c), the applicant may either accept the available funding within the Service Region as the full and final apportionment for the project or refuse funding entirely. If funding is refused, the Board shall consider funding the next project eligible for an apportionment pursuant to this Section.
(c) If (b)(1) and (b)(2) are met in the second funding cycle, the remaining available career technical education facilities funds shall be pooled and apportioned to the highest ranked project in each locale regardless of Service Region. One of each locale must be accounted for before a locale is repeated.
(d) For the third and any subsequent cycles, the Board shall apportion funds regardless of Service Region.
(1) Funds shall be apportioned to the highest ranked project in each locale. In order to continue this funding process, one project from each locale must be apportioned. If there are no applications in a given locale(s), projects will be apportioned in the remaining locale(s).
(2) The process will continue until the applications or funds are exhausted, whichever comes first.
(3) In the event two or more applications have the same career technical education plan score and are in the same locale, the applicant with the highest total points in all weighted areas identified in Education Code Section 17078.72(j) will be funded first.
If a Career Technical Education Facilities Project within any funding cycle cannot be fully apportioned because insufficient funding is available, the applicant may either accept the available funding as the full and final apportionment for the project or refuse funding entirely. If funding is refused, the Board shall consider funding the next project eligible for an apportionment pursuant to this Section.
For any Career Technical Education Facilities Project not apportioned pursuant to this Section, the application shall be returned to the applicant. A Career Technical Education Facilities Project returned to the applicant may be resubmitted during a subsequent application acceptance period identified in Section 1859.191, provided the application meets the eligibility criteria in Section 1859.192.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order, including amendment of section, transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.197. Fund Release Process.
Note • History
The OPSC will release State funds that have been apportioned by the Board pursuant to Sections 1859.195 and 1859.196 after submittal by the applicant of the Form SAB 50-05.
(a) If an apportionment was made for a Career Technical Education Facilities Project, the applicant must submit a Form SAB 50-05 within 18 months of the Apportionment as outlined in Education Code Section 17076.10 or the apportionment shall be rescinded without further Board action.
(b) If Career Technical Education Facilities funds were reserved for the applicant pursuant to Section 1859.193(d) of these Regulations, the applicant:
(1) Has one year from the date of apportionment to submit the CDE plan approval and DSA-approved plans and specifications, as required, to the OPSC for the Career Technical Education Facilities Project, otherwise the apportionment shall be rescinded without further Board action.
(2) Has 18 months from the date the CDE plan approval and DSA-approved plans and specifications, as needed, are submitted to the OPSC to submit a completed Form SAB 50-05 or the apportionment shall be rescinded without further Board action. If the district is requesting an apportionment pursuant to Section 1859.90.1 or 1859.90.2, the Board will require that this time limit be reduced to no more than 90 days from the date of the apportionment.
(c) If the applicant requires a loan for the entire matching share requirement pursuant to Section 1859.194(b) of these Regulations:
(1) Subject to the availability of financing provided by the Pooled Money Investment Board for bond-funded projects, the OPSC will release ten percent of the Career Technical Education Facilities grant to the applicant within 30 calendar days of the apportionment.
(2) The applicant has one year from the date of apportionment to submit the CDE plan approval and DSA-approved plans and specifications, as required, to the OPSC for the Career Technical Education Facilities Project, otherwise the apportionment shall be rescinded without further Board action.
(3) The applicant has 18 months from the date in (c)(2) to submit a completed Form SAB 50-05 or the apportionment shall be rescinded without further Board action.
(d) The applicant is subject to substantial progress time limit on the apportionment as outlined in Education Code Section 17076.10(b).
(e) In the event the Board determines there is a fiscal emergency or crisis on the part of the State of California, the Board may grant an extension not to exceed 12 months to the time period prescribed in (b)(1) and (c)(2) above and Section 1859.193(d). Regulation Section 1859.197(e) shall become inoperative January 1, 2010.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Sections 17078.72 and 17076.10, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order, including amendment of first paragraph, transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
4. Amendment of subsection (c)(1) filed 4-22-2009 as an emergency; operative 4-22-2009 (Register 2009, No. 17). A Certificate of Compliance must be transmitted to OAL by 10-19-2009 or emergency language will be repealed by operation of law on the following day.
5. Amendment of subsection (c)(1) and new subsection (e) filed 4-30-2009 as an emergency; operative 4-30-2009 (Register 2009, No. 18). A Certificate of Compliance must be transmitted to OAL by 10-27-2009 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 4-22-2009 order transmitted to OAL 9-29-2009 and filed 11-9-2009 (Register 2009, No. 46).
7. Certificate of Compliance as to 4-30-2009 order transmitted to OAL 10-6-2009 and filed 11-16-2009 (Register 2009, No. 47).
8. Amendment of subsection (b)(2) filed 6-24-2010 as an emergency; operative 6-24-2010 (Register 2010, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-21-2010 or emergency language will be repealed by operation of law on the following day.
9. Amendment of subsection (b)(2) filed 10-29-2010 as an emergency; operative 10-29-2010 (Register 2010, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-27-2011 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 6-24-2010 order transmitted to OAL 11-1-2010 and filed 12-16-2010 (Register 2010, No. 51).
11. Certificate of Compliance as to 10-29-2010 order transmitted to OAL 3-10-2011 and filed 4-21-2011 (Register 2011, No. 16).
§1859.198. Time Limit on Apportionment and Substantial Progress.
Note • History
The district is subject to the time limit on the apportionment as outlined in Education Code Section 17076.10 and substantial progress requirements pursuant to Section 1859.105.
Any Career Technical Education Facilities Project funds returned due to projects being rescinded or reduced to cost incurred shall be made available for apportionment in subsequent funding cycles.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
§1859.199. Program Accountability.
Note • History
A project shall be deemed complete when either of the following occurs, whichever occurs first:
(a) The final notice of completion is filed for the project; or,
(b) Four years have elapsed from the final fund release for the project.
Projects will be subject to a Program Accountability Expenditure Audit pursuant to Section 1859.106. Any repayments due back to the state as a result of these audits will be subject to the repayment provisions identified in Section 1859.106.1.
An applicant district may not retain savings realized by a Career Technical Education Facilities Project.
NOTE
Authority cited: Sections 17070.35 and 17078.72(k), Education Code. Reference: Section 17078.72, Education Code.
HISTORY
1. New section filed 7-13-2007 as an emergency; operative 7-13-2007 (Register 2007, No. 28). Pursuant to Education Code section 17078.72(k) a Certificate of Compliance must be transmitted to OAL by 7-14-2008 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of History 1 (Register 2007, No. 52).
3. Certificate of Compliance as to 7-13-2007 order transmitted to OAL 3-18-2008 and filed 4-29-2008 (Register 2008, No. 18).
Subgroup 5.6. Regulations Relating to the Federal School Renovation Program (Federal School Repair and Renovation Program)
Article 1. General Provisions and Definitions
Note • History
These regulations implement the Federal School Repair and Renovation Program, which establish a grant program to administer federal funds to Local Education Agencies authorized by Section 1(a)(1), United States Department of Education Consolidated Appropriations Act of 2001 (Public Law 106-554).
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New subgroup 5.6 (articles 1-5, sections 1859.200-1859.220), article 1 (sections 1859.200-1859.202) and section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New subgroup 5.6 (articles 1-5, sections 1859.200-1859.220), article 1 (sections 1859.200-1859.202) and section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.201. Director of General Services.
Note • History
The Director of General Services, or the Director's legal designee shall perform all acts necessary to carry out the provisions of these regulations except such functions as are reserved to the Board and to other agencies by law or by Sections 1859.200 through 1859.220 inclusive. The acts to be performed include, but are not limited to, entering into contracts to administer the regulations.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Note • History
For the purpose of these regulations, the terms set forth below shall have the following meanings, subject to the provisions of the law:
“ADA” means the federal Americans with Disabilities Act of 1990 codified in Section 12101 et seq. Title 42, United States Code.
“Administration Costs” means the costs associated with the preparation and submittal of the Federal Renovation Program application to the State and the costs necessary to assure all state application requirements have been met.
“Apportionment” means a reservation of funds by the Board for eligible Federal Renovation Program applications.
“Board” means the State Allocation Board as established by Section 15490 of the Government Code.
“CBEDS Report” means the enrollment information provided through the California Basic Education Data System by the Local Educational Agency to the California Department of Education.
“Charter School” means a school established in accordance with the provisions of Education Code Sections 47605 through 47608.
“Community School Pupil” means a pupil meeting one or more of the conditions described in Subdivision (b) of Education Code Section 48662 or any of the conditions described in Education Code Section 1981.
“Deferred Maintenance Program (DMP)” means the state deferred maintenance funding authorized by Education Code Sections 17582 through 17588.
“DMP Critical Hardship Unfunded List” means an information list of critical hardship projects authorized by Education Code Section 17587 approved by the Board.
“Federal Renovation Program (FRP)” means the Federal School Repair and Renovation Program authorized by Section 1(a)(1), United States Department of Education Consolidated Appropriations Act of 2001 (Public Law 106-554).
“High Poverty Local Educational Agency” means an LEA that has at least 30 percent of its pupils defined as Poor Children or has at least 10,000 of its pupils defined as Poor Children.
“Impacted LEA” means an LEA that meets the requirements of Section (a)(3) of the United States Department of Education Consolidated Appropriations Act of 2001 (Public Law 106-554).
“Local Educational Agency” means an entity that meets the requirements of Section 14101(18)(A) or (B) of the federal Elementary and Secondary Education Act of 1965.
“Mello-Roos Bonds” means the bonds that are authorized under the provisions of the Mello-Roos Community Facilities Act of 1982, commencing with Government Code Section 53311.
“Office of Public School Construction (OPSC)” means the State office within the Department of General Services that assists the Board as necessary and administers the FRP on behalf of the Director.
“OPSC Deferred Maintenance Program Critical Hardship Workload List” means a list of critical hardship applications authorized by Education Code Section 17587 submitted to the OPSC but not yet included on the DMP Critical Hardship Unfunded List.
“OPSC Modernization Workload List” means a list of SFP modernization projects for which the LEA has submitted all necessary application documents to the OPSC that are required to be submitted as identified in the General Information Section of Forms SAB 50-01, Enrollment Certification/Projection, (Revised 03/05); SAB 50-02, Existing School Building Capacity, (Revised 09/02); SAB 50-03, Eligibility Determination, (Revised 09/06); and SAB 50-04, Application for Funding, as specified in Section 1859.2 “Form SAB 50-04,” under the SFP.
“Poor Children” means children five to seventeen years of age who are from families with an income below the poverty line as defined by the federal Section 673(2) of the Omnibus Budget Reconciliation Act of 1981 [42 U.S.C. 9902(2)].
“Private School” means an entity that has filed an affidavit or statement with the Superintendent of Public Instruction pursuant to Education Code Section 33190.
“Public Law 106-554” means Section 1(a)(1), United States Department of Education Consolidated Appropriations Act of 2001.
“Rehabilitation Act” means Section 504 of the Rehabilitation Act of 1973 codified in Section 794 of Title 29, United States Code.
“Rural Local Educational Agency” means a LEA in which the plurality of the pupils are in schools that are in Locale Codes of 7 and 8 as defined by the United States Department of Education's National Center for Education Statistics.
“School Facilities Improvement District” means a legal entity authorized by Education Code Section 15300 to generate school facilities funding.
“School Facility Program (SFP)” means the Leroy F. Greene School Facilities Act of 1998.
“SFP Modernization Unfunded List” means an information list of unfunded modernization projects approved under the provisions of the SFP.
“Section” means a section in these Subgroup 5.6 regulations.
“Special Day Class Pupil” means an individual with exceptional needs as described in Education Code Section 56026 as further defined and classified in 34 Code of Federal Regulations Part 300.5.
“State Educational Agency” means the California Department of Education.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 15504, Government Code; and Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order, including amendment of definition of “OPSC Modernization Workload List,” transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
4. Amendment of definition of “OPSC Modernization Workload List” filed 10-27-2005; operative 10-27-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 43).
5. Change without regulatory effect amending definition of “OPSC Modernization Workload List” filed 8-11-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 32).
6. Certificate of Compliance as to 9-5-2006 order, including further amendment of definition of “OPSC Modernization Workload List” transmitted to OAL 1-3-2007 and filed 2-16-2007 (Register 2007, No. 7).
7. Amendment of Application for Funding (incorporated by reference) and amendment of definition of “OPSC Modernization Workload List” filed 4-25-2007; operative 4-25-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 17).
8. Amendment of definition of “OPSC Modernization Workload List” filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
9. Amendment of definition of “OPSC Modernization Workload List” filed 7-18-2007; operative 7-18-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 29).
10. Amendment of definition of “OPSC Modernization Workload List” filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
11. Amendment of definition of “OSPC Modernization Workload List” filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
Article 2. FRP Application Procedure
§1859.203. Local Educational Agencies.
Note • History
The following Local Educational Agencies (LEA's) that meet the requirements of Section 14101(18)(A) or (B) of the federal Elementary and Secondary Education Act of 1965 may apply for FRP grants:
(a) Public elementary, unified and high school districts that serve any combination of kindergarten through twelfth grade pupils.
(b) County Superintendent of Schools (CSS) that serve any combination of kindergarten through twelfth grade pupils.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Sections 321(b)(2), 321(c)(3), 321(i) and 321(j)(1), Public Law 106-554; Section 14101(18), Elementary and Secondary Education Act of 1965; and Section 47636, Education Code.
HISTORY
1. New article 2 (sections 1859.203-1859.207) and section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New article 2 (sections 1859.203-1859.207) and section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Note • History
A charter school may be eligible to receive FRP grants through a qualifying LEA identified in Section 1859.203. Charter schools seeking FRP grants shall apply for FRP grants through the LEA that approved the school's charter.
If the State Board of Education approved the school's charter, the charter school may apply for FRP grants through any of the following LEA's:
(a) The LEA serving the same or similar grade levels where the charter school is physically located.
(b) Any LEA that will accept the charter school's request for FRP grants.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Sections 321(b)(2), 321(c)(3), 321(i) and 321(j)(1), Public Law 106-554; Section 14101(18), Elementary and Secondary Education Act of 1965; and Sections 47605-47608, Education Code.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.205. Non-Profit Private Schools.
Note • History
A non-profit private school that meets the following criteria may be eligible to receive certain FRP grants through a qualifying LEA identified in Section 1859.203:
(a) It was organized and operates for nonprofit purposes pursuant to the Revenue and Taxation Code, Section 23701(d) and is exempt from taxes by meeting all requirements imposed by the Revenue and Taxation Code, Section 23701.
(b) It has at least 40 percent of its enrolled pupils defined as “Poor Children”.
Qualifying non-profit private schools seeking FRP grants shall apply for FRP grants through the LEA serving the same or similar grade levels where the non-profit private school is physically located.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Sections 321(I), Public Law 106-554; Sections 33190-33193, Education Code; and Sections 23701 and 23701(d), Revenue and Taxation Code.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.206. Application for FRP Funding.
Note • History
An eligible LEA seeking funding for a FRP grant shall complete and file with the OPSC, the Application for Federal Grant, Form SAB 60-01(New 01/02), which is incorporated by reference.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.207. Application Submittals.
Note • History
The Board shall accept applications until April 15, 2002 for the initial FRP appropriation. If all available funds are not apportioned to the eligible applications submitted by the date noted above, or there are funds determined available for apportionment pursuant to time limits on apportionments procedures prescribed in Section 1859.216 or audit procedures prescribed in Section 1859.218, the Board shall accept additional applications for apportionment of the remaining available funds for a period of 135 calendar days from the date the Board made the determination that the remaining funds are available. If additional funds are appropriated by the Federal Government, the Board shall accept applications for a period of 60 days after the funding is made available for apportionment.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Article 3. Permissible and Impermissible Uses of FRP Grants
§1859.208. Permissible Repair and Renovation.
Note • History
The LEA is limited to the following repair and renovation and work in its application:
(a) For public and charter schools, the emergency repairs or renovation to public school facilities within the boundaries of the LEA and any qualifying charter school to ensure the health and safety of students and staff, including:
(1) Repairs, replacing, or installing roofs, electrical wiring, plumbing systems, or sewage systems.
(2) Repairing, replacing, or installing heating, ventilation, or air conditioning systems (including insulation).
(3) Bringing public schools into compliance with current fire and safety codes.
(4) School facility modifications necessary to comply with the Rehabilitation Act.
(5) School facility modifications necessary to comply with the ADA.
(6) Asbestos abatement or removal.
(b) For charter schools, in addition to repair and renovation work identified in subsection (a) above, the acquisition needs related to the building infrastructure for lease or purchase of a building, or building and land, only to the extent that it would supplement the amount of funds available from non-federal funds for these purposes. The building size is limited to no more than 75 square feet for each charter school pupil in grades kindergarten through eighth grade and no more than 90 square feet for each charter school pupil in grades 9-12 that will be housed in the facility acquired. The site size is limited to the acreage allowed in the California Department of Education Guide to School Site Analysis and Development 2000 Edition guidelines.
(c) For non-profit private schools, repair and renovation work is limited to any of the following:
(1) School facility modifications necessary to comply with the Rehabilitation Act.
(2) School facility modifications necessary to comply with the ADA.
(3) School facility asbestos abatement or removal.
(d) For Impacted LEA's, new facility construction.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New article 3 (sections 1859.208-1859.211) and section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New article 3 (sections 1859.208-1859.211) and section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.209. Permissible Project Costs.
Note • History
The LEA will not be subject to any restrictions on construction allowances, design fees, construction management fees, tests, inspections or any other construction related activity; however, the use of FRP grant funds must comply with the federal Office of Management and Budget Circular A-87, dated August 29, 1997.
The FRP grant may be used for LEA administrative costs deemed necessary by the LEA for the proper and efficient performance and administration of the FRP grant application, not to exceed five percent of the grant award.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554; and Office of Management and Budget Circular A-87 (dated August 27, 1997).
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.210. Impermissible Project Costs.
Note • History
A FRP grant may not be used for any of the following:
(a) Maintenance costs.
(b) Construction of new facilities, except for Impacted LEA's.
(c) Stadiums or other facilities primarily used for athletic contests or exhibitions or other events for which admission is charged to the general public.
(d) Payment of debt service for any outstanding debt.
(e) Land acquisition, unless an existing building is on the land or a relocatable building is placed on the land within 90 days of the close of escrow, for a charter school.
(f) Renovation and/or repair work where the LEA received funding for the same work under any state funded school facility program.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Note • History
FRP grants may be used to reimburse the LEA for permissible costs, as defined in Sections 1859.208 and 1859.209, expended or committed by the LEA prior to the apportionment of the application by the Board if:
(a) The expenditure or commitment was for the planning and/or design of the renovation and/or repair project.
(b) The expenditure or commitment for other than planning and/or design costs of the renovation and/or repair project was made after the adoption of these regulations by the Board.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Article 4. Funding Availability
§1859.212. Distribution of Funds.
Note • History
(a) All funds made available for the FRP shall be distributed and made available for apportionment to certain LEA's in accordance with Section 321(b)(2)(B) of Public Law 106-554. The funding categories and the LEA's eligible to receive FRP grants in each of these categories are as follows:
(1) Category A. High Poverty LEA's.
(2) Category B. Rural LEA's that did not receive FRP grants under Category A.
(3) Category C. All other LEA's including LEA's that did not receive FRP grants under categories A or B.
(b) LEA's may only receive FRP grants from one of the funding categories noted above.
(c) The Board may transfer an amount not to exceed the difference of $7 million and the funds distributed to Category B pursuant to Subsection (a), from Category C to Category B.
(d) In addition to the amount available for transfer pursuant to Subsection (c), the Board shall transfer funds from Category C to Categories A or B as necessary to fully apportion an LEA's application that could be partially apportioned in that Category because the application had the highest number of points without being fully apportioned.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New article 4 (sections 1859.212-1859.213) and section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New article 4 (sections 1859.212-1859.213) and section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.213. Amount of the FRP Grant.
Note • History
The maximum FRP grant for an LEA is limited to the lesser of (a) or (b) below:
(a) The amount requested in the Application for Federal Grant, Form SAB 60-01(New 01-02) submitted by the LEA.
(b) $75,000 plus $20 for each pupil identified in (1), (2), (3) and (4) below that attend a classroom for at least 50 percent of the school day. Do not include adult education pupils; pupils attending home school programs or pupils attending schools via the Internet.
(1) With the exception of special day class and community school pupils, pupils enrolled in the LEA as reported in the latest CBEDS report.
(2) Special day class and community school pupils reported to the California Department of Education in April prior to the latest CBEDS report.
(3) Pupils enrolled in a qualifying charter school(s) that requested funds as part of the LEA's application if the enrollment of the charter school(s) is not already included in the enrollment reports identified in (1) and (2) above.
(4) Pupils enrolled in a qualifying non-profit private school(s) that requested funds as part of the LEA's application. Non-profit private school pupil enrollment shall be the enrollment reported in the affidavit or statement filed with the Superintendent of Public Instruction as required by Education Code Section 33190.
The FRP grant amounts shown shall be deemed the full and final apportionment for the application. Any costs incurred by the LEA beyond the FRP grant shall be the responsibility of the LEA.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554; and Section 33190, Education Code.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Article 5. Apportionment of Funds
§1859.214. Apportionment of Funds.
Note • History
The OPSC shall report to the Board, after the date applications have been accepted as prescribed in Section 1859.207, the dollar amount of applications for FRP grants that have been received for each funding category prescribed in Section 1859.212. The Board shall approve and apportion FRP grants to the applications accepted from each of the funding categories based on the following:
(a) If the total dollar amount of applications accepted for a specific category are less than the funds distributed to that category pursuant to Section 1859.212, the Board shall approve and apportion FRP grants to all the applications accepted for that category. The excess funds shall remain in the respective category and shall be available for additional applications accepted by a subsequent date as prescribed in Section 1859.207.
(b) If the total dollar amount of the applications accepted for a specific category is more than the funds distributed to that category pursuant to Section 1859.212, the Board shall approve and apportion FRP grants to applications accepted for that category, in descending order, commencing with the application having the highest number of priority points for the LEA determined by all the following:
(1) The greater of (A) or (B) below:
(A) One point for each percent of pupils in the LEA defined as Poor Children. Round up.
(B) One point for every 330 pupils in the LEA defined as Poor Children, not to exceed 50 points. Round up.
(2) With the exception of CSS, one point for each percent of current outstanding bonded indebtedness of the LEA that was incurred for capital facility purposes in comparison to the maximum outstanding bonded capacity of the LEA, not to exceed 100 points. Round up. Outstanding bonded indebtedness includes that part of local general obligation bonds, Mello-Roos Bonds, School Facilities Improvement District Bonds and certificates of participation for which the LEA is paying a debt service for capital facility purposes at the time the application is submitted to the OPSC.
(3) If the LEA is a CSS, 25 points if the CSS is paying a debt service on a certificate of participation that was issued for capital facility purposes.
(4) If the application includes renovation and repair work for a charter school, one point for each percent of the FRP grant that will be used by the LEA for the charter school(s), not to exceed 50 points. Round up.
(5) 20 points for each year in the past five years that the LEA contributed at least 95 percent of its deferred maintenance match necessary to receive the maximum State funding authorized under the Deferred Maintenance Program pursuant to Education Code Section 17584
(6) 25 points if the LEA is not a High Poverty LEA.
If a portion of an application(s) could be partially apportioned in Categories A or B as prescribed in Section 1859.212 because the application(s) have the highest number of points without being apportioned, the Board shall transfer funds from Category C as prescribed in Section 1859.212 to either Category A or B as necessary to fully apportion the application(s).
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554; and Section 17584, Education Code.
HISTORY
1. New article 5 (section 1859.214) and section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New article 5 (section 1859.214) and section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Article 6. Miscellaneous
§1859.215. Release of FRP Grants to the LEA.
Note • History
The FRP grant will be released (i.e. warrant issued) to the LEA after submittal by the LEA of the Fund Release Authorization, Form SAB 60-02 (New 01/02), which is incorporated by reference, to the OPSC. The FRP grant will be released to the LEA as follows:
(a) The first 50 percent of the FRP grant after the LEA meets all the following criteria:
(1) The final plans for the project(s) to be constructed with the FRP grant are complete and approved by the Division of the State Architect, if required.
(2) The final plans and site acquisition (if applicable) for those projects(s) have been approved by the CDE, if required.
(3) The LEA has expended at least 50 percent of the FRP grant amount on the FRP project.
(b) The second 50 percent of the FRP grant will be released after the LEA has expended an amount equal to at least 100 percent of the FRP grant on the FRP project.
Once funds are released to the LEA, the LEA shall deposit the FRP funds into a separate fund to assure accountability of expenditures.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New article 6 (sections 1859.215-1859.220) and section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New article 6 (section 1859.215-1859.220) and section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.216. Time Limit for FRP Grant Apportionments.
Note • History
Unless the Board makes a finding that the LEA has presented other evidence of circumstances that are beyond the control of the LEA which precludes progress or completion of the project(s) to be constructed with the FRP grant, the FRP grant shall be reduced to permissible costs, as defined in Sections 1859.208 and 1859.209, incurred by the LEA if any of the following occur:
(a) The LEA does not meet the criteria for release of at least 50 percent of the FRP grant prescribed in subsection (a) of Section 1859.215 within one year from the date the FRP grant was apportioned by the Board.
(b) The LEA does not meet the criteria for release of 100 percent of the FRP grant within 180 calendar days from the date of the first fund release was issued by the Board pursuant to Subsection (a) of Section 1859.215.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.217. Program Reporting Requirements.
Note • History
An LEA receiving FRP grants shall submit the Expenditure Report, Form SAB 60-03 (New 01/02), which is incorporated by reference, within 270 calendar days of the first release of funds authorized by Section 1859.215. Local funds contributed to the FRP projects shall be reported on the Expenditure Report, Form SAB 60-03 (New 01/02). Failure to submit the Expenditure Report, Form SAB 60-03 (New 01/02) within the prescribed time period may result in the FRP grant being rescinded by the Board or reduced to permissible costs incurred, as defined in Sections 1859.208 and 1859.209.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.218. Application Expenditures and Audit.
Note • History
The FRP applications will be audited to ensure that the expenditures incurred by the LEA were made in accordance with the provisions prescribed in Sections 1859.208, 1859.209, 1859.210 and 1859.211. When the OPSC receives the Expenditure Report, Form SAB 60-03 (New 01/02), it must notify the LEA within 30 calendar days from the date of receipt of the report that an audit of those expenditures will be made by the OPSC. If the LEA is not notified by the OPSC within 30 calendar days of receipt of the report that an audit will be made, there will be no audit of the application by the OPSC and the expenditures reported by the LEA shall be deemed appropriate. If the LEA has been notified that an audit of the expenditures will be made by the OPSC, the OPSC shall complete the audit within 150 calendar days of the notification, unless additional information requested from the LEA has not been received.
The LEA shall be required to maintain all records that support all LEA certifications and expenditures for all costs associated with the FRP application for a period of not less than four years from the date the Expenditure Report, Form SAB 60-03 (New01/02) is submitted to the OPSC.
Should the OPSC conduct an audit of the LEA expenditures for the application and make a finding that some or all of the expenditures were not made in accordance with the provisions of Sections 1859.208, 1859.209, 1859.210 and 1859.211, the OPSC shall recommend to the Board that the FRP apportionment be adjusted based on the audit findings. Upon adoption of the audit findings by the Board, the LEA must submit a warrant for any amount identified as being owed within 60 days of the Board's action. If this does not occur, the OPSC shall initiate collection procedures from the School Fund Apportionment as outlined in Education Code Section 17076.10(c).
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554; and Section 17076, Education Code.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.219. Accrued Interest on FRP Grants.
Note • History
All interest earned on FRP grant funds that are deposited in the county sub-fund shall be returned to the Board. The Board shall return all interest earned to the federal agency that made the FRP appropriation to the state.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
§1859.220. Duplication of Applications.
Note • History
If the LEA's application for a FRP grant involves proposed work also included in a SFP modernization project currently included on the SFP Modernization Unfunded List or the OPSC Modernization Workload List, the LEA must certify that, after eliminating the work to be funded with the FRP grant from the SFP modernization project, the cost estimate for the remaining work in the modernization project is at least 60 percent of the total SFP grant amount provided by the state and the LEA's matching share. The cost estimate may not include planning, tests, inspection or furniture or equipment. If the LEA cannot make this certification, the SFP modernization project must be withdrawn prior to the release of any FRP grants to the LEA.
If the LEA's application for a FRP grant involves proposed work also included in a Deferred Maintenance Program (DMP) critical hardship project authorized by Education Code Section 17587 currently included on the DMP Critical Hardship Unfunded List or the OPSC Deferred Maintenance Critical Hardship Workload List, the critical hardship project must be withdrawn prior to the release of any FRP grants to the LEA.
If the LEA's application for a FRP grant involves work currently included on the LEA's Deferred Maintenance Five-Year Plan pursuant to Education Code Section 17591, the LEA must remove the projects that will be funded with the FRP grants from the Five-Year Plan prior to the release of any FRP grants to the LEA.
NOTE
Authority cited: Sections 15502 and 15503, Government Code; and Section 12300, Education Code. Reference: Section 321, Public Law 106-554; and Sections 17585 and 17591, Education Code.
HISTORY
1. New section filed 3-15-2002 as an emergency; operative 3-15-2002 (Register 2002, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-15-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 7-11-2002 as an emergency; operative 7-11-2002 (Register 2002, No. 28). A Certificate of Compliance must be transmitted to OAL by 11-8-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-11-2002 order transmitted to OAL 11-6-2002 and filed 12-19-2002 (Register 2002, No. 51).
Subgroup 5.7. School Facilities Needs Assessment and Emergency Repair Program
Article 1. General Provisions and Definitions
Note • History
These regulations implement the School Facilities Needs Assessment Grant Program and the Emergency Repair Program.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.70 and 17592.71, Education Code.
HISTORY
1. New subgroup 5.7 (articles 1-3, sections 1859.300-1859.329), article 1 (sections 1859.300-1859.302) and section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.301. Director of General Services.
Note • History
The Director of General Services, or the Director's legal designee, shall perform all acts necessary to carry out the provisions of these regulations except such functions reserved to the Board and to other agencies by law or by Sections 1859.300 through 1859.329, inclusive. These acts to be performed include, but are not limited to, entering into contracts to administer the regulations.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17070.20, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
Note • History
For the purposes of these Subgroup 5.7 regulations, the terms set forth below shall have the following meanings, subject to the provisions of the Act:
“Accepted Application(s)” means a Local Educational Agency (LEA) has submitted the application and all documents to the Office of Public School Construction (OPSC) that are required to be submitted with the application as identified in the General Information and Required Documentation section of the Form SAB 61-03, Grant Request, (Rev. 01/07), as appropriate, and the OPSC has accepted the application.
“Act” means California Education Code (EC) Sections 17592.70 through 17592.73, inclusive, and 41207.5.
“Apportionment” means an allocation of funds by the Board for eligible School Facilities Needs Assessment Grant Program or Emergency Repair Program costs.
“Board” means the State Allocation Board as established by Section 15490 of the Government Code.
“CBEDS Report” means the enrollment information provided through the California Basic Educational Data System (CBEDS) by the LEA to the California Department of Education (CDE).
“Certification of Eligibility” means the on-line worksheet provided by the OPSC and accessible through the OPSC Website at www.opsc.dgs.ca.gov for the purpose of a one-time determination of whether a school site meets the provisions of Section 1859.311(b).
“Cosmetic Repairs” means repairs that enhance the physical environment of the school and are not directly related to the mitigation of a health and safety hazard.
“Deferred Maintenance Program (DMP)” means the State deferred maintenance funding authorized by EC Sections 17582 through 17588, inclusive.
“Emergency Facilities Needs” means structures or systems that in their present condition pose an immediate threat to the health and safety of pupils and staff while at school.
“Emergency Repair Program (ERP)” means the repair program implemented under the Act, Senate Bill 6, Chapter 899, Statutes of 2004.
“ERP Grant” means an Apportionment provided by the State to the LEA for eligible costs, pursuant to EC Section 17592.72 and Regulation Sections 1859.323, 1859.323.1, and 1859.323.2.
“Employee” means an individual that is a classified or certificated temporary, probationary or permanent employee receiving a warrant as payment from the LEA.
“Expended” means work has been completed, or services rendered, and a warrant has been issued for payment.
“Form SAB 61-01” means the Needs Assessment Report, Form SAB 61-01 (New 01/05), which is incorporated by reference.
“Form SAB 61-02” means the Expenditure Report, Form SAB 61-02 (New 02/05), which is incorporated by reference.
“Form SAB 61-03” means the Grant Request, Form SAB 61-03 (Rev. 12/08), which is incorporated by reference.
“Form SAB 61-04” means the Expenditure Report, Form SAB 61-04 (Rev. 12/10), which is incorporated by reference.
“Grant” means an apportionment for a request for an Emergency Repair Program project and can include reimbursement for projects already completed.
“Grant Adjustment” means an increase or a decrease in the Grant after review of the Form SAB 61-04.
“Interim Evaluation Instrument” means the evaluation tool developed pursuant to EC Section 17002.
“LEA Representative” means a member of the LEA staff or other agent authorized to execute and file application(s) with the Board on behalf of the LEA and/or act as liaison between the Board and the LEA.
“Like-Kind Material/System” means a building material or system that is substantially identical in function to the existing building material or system to be replaced.
“Local Educational Agency (LEA)” means a school district or county office of education meeting the requirements of Section 14101(18)(A) or (B) of the federal Elementary and Secondary Education Act of 1965.
“Needs Assessment” means the review of the facilities conducted pursuant to the Section 1859.315(c), the Form SAB 61-01 and EC Section 17592.70.
“Needs Assessment Grant” means the funding provided pursuant to EC Section 17592.70(c) and Sections 1859.312 and 1859.313.
“Nonessential Repairs” means work that is not directly related to the mitigation of a health and safety hazard including, but not limited to, repairs to correct items not in compliance with Title 24 of the California Code of Regulations that existed prior to and are not an Emergency Facilities Needs.
“Office of Public School Construction (OPSC)” means the State office within the Department of General Services that assists the Board as necessary and administers the School Facilities Needs Assessment Grant Program and the Emergency Repair Program.
“Pupil” means a student enrolled in any grade Kindergarten through grade twelve including individuals with exceptional needs meeting the provisions of EC Section 56026.
“Ready for Apportionment” means a review of an Accepted Application has been completed by the OPSC and it has been determined that it meets all requirements of law for an Apportionment, and the OPSC will recommend approval to the Board.
“Routine Restricted Maintenance Account” means the account into which funds are deposited by LEAs pursuant to EC Section 17070.75.
“School Facilities Emergency Repair Account” means the account established by the OPSC pursuant to EC Section 17592.71(a).
“School Facilities Needs Assessment Grant Program” means the one-time assessment of school facilities implemented under the Act, Senate Bill 6, Chapter 899, Statutes of 2004.
“School Facility Program (SFP)” means the Leroy F. Greene School Facilities Act of 1998, commencing with EC Section 17070.10.
“Section” means a section in these Subgroup 5.7 regulations.
“Unfunded List” means an information list of unfunded projects including projects partially funded on a prorated basis pursuant to Section 1859.322(b)(1).
“Web-Based Needs Assessment” means the on-line Form SAB 61-01 provided by the OPSC and accessible through the OPSC Website at www.opsc.dgs.ca.gov for the one-time purpose of submitting the Needs Assessment data electronically.
“Web-Based Progress Report Survey” means the on-line worksheet provided by the OPSC and accessible through the OPSC Website at www.opsc.dgs.ca.gov for the purpose of submitting a one-time report on the progress made toward completing the Needs Assessment.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.70, 17592.71, 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order, including reordering of definitions to correct alphabetical order, transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of definitions of “Accepted Application(s),” “Apportionment,” Emergency Repair Program Grant,” “Form SAB 61-03,” “School Facility Program” and “Unfunded List” and new definitions of “Form SAB 61-04,” “Grant” and “Grant Adjustment” filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
5. Amendment of definitions of “Form SAB 61-03” and “Form SAB 61-04” filed 8-31-2009; operative 8-31-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 36).
6. Change without regulatory effect amending definition of “Form SAB 61-04” filed 1-13-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 2).
Article 2. School Facilities Needs Assessment Grant Program
Note • History
A school site that qualifies for the School Facilities Needs Assessment Grant Program according to the provisions of EC Section 17592.70(b) shall be allocated funds by the Board in order to conduct a one-time comprehensive school facilities needs assessment. An LEA that receives funds under this Article shall be required to complete and submit a Web-Based Needs Assessment to the OPSC for each school site meeting the provisions of Section 1859.311.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.70, Education Code.
HISTORY
1. New article 2 (sections 1859.310-1859.319) and section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
Note • History
An LEA that has a school site meeting all of the following is eligible for the School Facilities Needs Assessment Grant Program:
(a) The school was identified on the list published by the CDE pursuant to EC Section 17592.70(b).
(b) The school was newly constructed prior to January 1, 2000.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.70, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.312. Apportionment of Funds.
Note • History
The Board shall allocate ten dollars ($10) per Pupil enrolled in eligible school sites, according to the 2003 October CBEDS Report, for each school site identified by CDE pursuant to Section 1859.311(a). A minimum allocation of seven thousand five hundred dollars ($7,500) shall be made for each school site. Once an Apportionment has been made by the Board and the OPSC has received the Certification of Eligibility, funds for eligible school sites will be released by OPSC to the LEA with jurisdiction over the school site(s) along with requirements for the money to be spent at the eligible school site(s) in accordance with Section 1859.313. Any school site not meeting the provisions of Section 1859.311(b) is ineligible for funding under these regulations. Apportionments shall be reduced by the grant amount allocated for ineligible school sites upon receipt of the Certification of Eligibility.
NOTE
Authority cited: Section 17592.73, Education Code Reference: Section 17592.70, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.313. Use of Needs Assessment Grant Funds.
Note • History
The LEA shall only use the Needs Assessment Grant funds for the following:
(a) Unbudgeted administrative or third party costs incurred as a result of performing the Needs Assessment.
(b) Repairs identified in Part V of the Form SAB 61-01 at any eligible school site within the LEA where a Needs Assessment has been completed.
Apportionments may be rescinded or reduced by the grant amount provided for each eligible school site where the LEA fails to comply with the provisions of Sections 1859.310 and 1859.315.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.70, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.314. Qualifications of the Inspector.
Note • History
The Needs Assessment must be prepared in accordance with all of the following:
(a) The person(s) performing or supervising the Needs Assessment must have general knowledge of school facilities construction, operation, and maintenance and either of the following:
(1) A minimum of three years of experience with cost estimation and building systems life cycle analysis; or
(2) An Architect, Engineer, or General Contractor license under California law.
(b) The person(s) meeting or being supervised by individuals that meet the conditions of (a), above, must personally conduct the assessment on the school site(s).
(c) The individual(s) performing or supervising the Needs Assessment must be independent third parties and may not be Employee(s) of the LEA with jurisdiction over the school site for which the Needs Assessment is being performed.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.315. Program Reporting Requirements.
Note • History
An LEA that receives School Facilities Needs Assessment Grant funds pursuant to Section 1859.312 shall:
(a) Complete a Certification of Eligibility and submit it to the OPSC. Each LEA shall submit one certification to the OPSC. Fund release(s) shall be processed by the OPSC for all eligible sites upon receipt of the complete signed and dated Certification of Eligibility.
(b) Complete a Web-Based Progress Report Survey and submit it to the OPSC. Each LEA shall submit one survey unless the Needs Assessment for all eligible school sites has been completed pursuant to subsection (c), below:
(c) Complete a Web-Based Needs Assessment for each applicable site and submit it to the OPSC by January 1, 2006.
(d) Complete Form SAB 61-02 to report all expenditures made with Needs Assessment Grant funds on an LEA-wide basis and submit it to the OPSC by January 1, 2007.
NOTE
Authority cited: 17592.73, Education Code. Reference: Sections 17592.70 and 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.316. Needs Assessment Grant Expenditures and Audit.
Note • History
The projects shall be subject to audit to ensure that expenditures incurred by the LEA were made in accordance with the provisions of Sections 1859.313 and 1859.314. Any funds not Expended on the Needs Assessment or eligible repairs at the time of submittal of the Form SAB 61-02 shall be returned to the OPSC.
After the OPSC receives the expenditure report from the LEA on the Form SAB 61-02 and the LEA is notified of an impending Needs Assessment audit, an audit of the expenditures by the OPSC shall commence within six months. The OPSC shall complete the audit within six months of the notification unless additional information requested from the LEA has not been received.
Should the OPSC conduct an audit of the expenditures and information, which may include certifications, for expenditures made pursuant to Section 1859.310 and make a finding that some or all of the expenditures were not made in accordance with the provisions of Section 1859.313, the OPSC shall recommend to the Board that the Apportionment be adjusted based on the audit findings. Upon adoption of the audit findings by the Board, the LEA must submit a warrant for any amount identified as being owed within 30 days of the Board's action. If this does not occur, the OPSC shall initiate collection procedures.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.70, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.317. Duplication of Needs Assessment Grant Expenditures.
Note • History
If the LEA's expenditures for the Needs Assessment Grant involve proposed work also included in a SFP or DMP project, the LEA must ensure all of the following:
(a) No work or expenditures are duplicated.
(b) After eliminating the work to be funded with the Needs Assessment Grant from the SFP or DMP project, the remaining work continues to meet the SFP or DMP requirements.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.318. Supplement, Not Supplant, Needs Assessment Grant Funds.
Note • History
Needs Assessment Grant funds remaining after the completion of the Needs Assessment must be used for repairs authorized in Section 1859.313(b) and must be used to supplement, not supplant, funds already available for routine, deferred, planned and scheduled maintenance, or emergency repairs of school facilities. In accordance with this requirement, the LEA must comply with all of the following in the 2005/2006 fiscal year:
(a) Deposit the funding level required pursuant to EC Section 17070.75 in the Routine Restricted Maintenance Account, if participating in the SFP.
(b) Deposit an amount equal to the State's matching share of the basic grant pursuant to EC Section 17584, if participating in the DMP.
(c) If either (a) or (b) are not applicable, the district must budget an amount not less than the average maintenance budget for the three previous fiscal years.
(d) In an effort to ensure that each of its schools is maintained in good repair, the LEA shall expend or encumber by issuing a purchase order or entering into a legal contract or document, or dedicate funds from the sources listed in subsections (a) through (c), above, to correct problems identified in the facilities inspection system required pursuant to EC Section 17070.75(e), which may include items listed in the DMP five-year plan, or the Interim Evaluation Instrument that do not qualify for funding as described in EC Section 17592.72(c)(1). For those projects eligible for ERP funding, the LEA may seek funding at any time provided that the LEA has or will meet the above requirements.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of subsection (d) and Note filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.319. Remaining Needs Assessment Grant Funds.
Note • History
Any funds unapportioned or returned to the OPSC shall be transferred into the School Facilities Emergency Repair Account.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 41207.5, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
Article 3. Emergency Repair Program
Note • History
An LEA seeking an ERP Grant for funding of costs for repairs or replacement of existing structural components or building systems that pose(d) a health and safety threat to the pupils or staff while at school, as defined by EC Section 17592.72(c)(1), shall submit to the OPSC a completed Form SAB 61-03.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New article 3 (sections 1859.320-1859.329) and section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
Note • History
Eligible schools are determined as follows:
(a) An LEA that has a school site meeting all of the following is eligible to submit a Form SAB 61-03:
(1) The school was identified on the list published by the CDE pursuant to EC Section 17592.72.
(2) The school was newly constructed prior to January 1, 2000.
(b) Commencing with the 2007/08 Fiscal Year and for subsequent fiscal years, an LEA that has a school site that is identified by the CDE pursuant to EC Section 17592.72 is eligible to submit a Form SAB 61-03.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.322. Emergency Repair Program Project Funding Order.
Note • History
The Board shall make apportionments on a monthly basis for Grants in the order of receipt of an Accepted Application and for Grant Adjustments in the order of receipt of a complete Form SAB 61-04, as follows:
(a) If sufficient funding is available to provide funding to all applications presented that month, all applications will receive an Apportionment of the eligible costs.
(b) If funding is insufficient in any given month:
(1) Grants will be provided to each application on a prorated basis with the balance placed on the Unfunded List, unless the proration will result in funding less than 25 percent of the eligible project costs. The proration shall be determined by dividing the total funds available by the total eligible costs of all applications Ready for Apportionment. All Grant Adjustments will be placed on the Unfunded List.
(2) If the proration, as determined in (1) above, will be less than 25 percent of the eligible project costs, the Board shall provide Grant funding at 100 percent of the eligible project costs of the Grants based on date order received until funds are no longer available and the remaining Grant applications shall be placed on the Unfunded List. All Grant Adjustments will be placed on the Unfunded List.
(3) The Board will continue to accept and process applications for the purpose of developing an Unfunded List based on the order of receipt of the Accepted Applications.
When funds become available, projects on the Unfunded List will be apportioned in the order of date received. From available funds, Grants will be funded first and Grant Adjustments will be funded second. After an Apportionment has been made by the Board, funds will be released automatically by the OPSC. If local funds have been expended, the Apportionment must be used by the LEA to reimburse the special reserve fund and the original source of funds used to make the LEA expenditures for the ERP project.
Once all ERP funds have been depleted, any applications that have received a prorated Apportionment, a Grant, or a Grant Adjustment will be deemed a full and final Apportionment any applications remaining fully unfunded on the Unfunded List will be returned to the LEA, and the Unfunded List shall be dissolved.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.71 and 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of section and Note filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.323. Eligible Project Costs.
Note • History
Funding will be provided to meet the LEA share of the repair costs of Emergency Facilities Needs as defined in Education Code Section 17592.72(c)(1). To be eligible for funding consideration, the total project cost request on the Form SAB 61-03 must be $5000 or higher unless the LEA can justify its request for a lesser amount. Funding of eligible projects costs shall be limited to the minimum work required on existing structural components or building systems to mitigate the health and safety hazard, plus application documentation preparation and submittal costs, if any, as permissible under Regulation Section 1859.323.2(j).
Replacement of existing structural components or building systems is permissible provided the project is in compliance with provisions of Section 1859.323.1.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of first paragraph filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.323.1. Replacement Projects.
Note • History
Funding of eligible replacement costs shall be provided only if it is more cost-effective to replace rather than repair a structural component or building system that poses a health or safety threat to pupils or staff while at school. For purposes of this section, it is more cost-effective to replace a structural component or building system when the estimated cost of an eligible repair is at least 75 percent of the cost of replacement.
If the cost to repair the component or system is less than 75 percent of the current replacement cost and the district elects to replace the component or system, then Grant funding shall be equal to the estimated cost of repair. Projects that use this option are not eligible for an increase to the Grant at the time of Grant Adjustment pursuant to Section 1859.324.1.
If the request is for replacement components or systems, a cost comparison must be prepared. The cost comparison shall consist of a repair cost estimate and a Like-Kind Material/System replacement cost estimate provided by qualified individual(s) or firm(s).
Replacement of a structural component or building system shall be limited to the use of a Like-Kind Material/System except when the work in the project proposes to use an alternative building material or system which is requested by the LEA. The cost comparison must also include the estimated cost of replacement using an alternative building material or system. If replacement with an alternate material/system is more costly than replacement with a Like-Kind Material/System, the LEA will receive funding for the alternate material/system in an amount not to exceed the cost of replacement with a Like-Kind Material/System. If it is determined that the only possible replacement is with the alternate material/system, the LEA will receive funding for the actual cost of replacement with the alternate material/system.
If the request is for replacement components or systems that included structural deficiencies, the cost comparison must also include a report from a licensed design professional identifying the minimum work necessary to obtain Division of the State Architect's approval.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.323.2. Ineligible Expenditures.
Note • History
An Emergency Repair Program Grant may not be used for any of the following:
(a) New square footage, components, or building systems that did not previously exist.
(b) Nonessential Repairs.
(c) Cosmetic Repairs.
(d) Land acquisition.
(e) Furniture and equipment.
(f) Salaries of LEA employees except when permitted pursuant to Public Contract Code Section 20114.
(g) Costs covered under warranty or by insurance.
(h) Costs normally borne by others including, but not limited to, public utility companies.
(i) Costs to repair or replace facilities with structural damage if the project meets the facility hardship or rehabilitation criteria set forth in School Facility Program Regulation Sections 1859.82 and 1859.83(e).
(j) Application documentation preparation and submittal costs that exceed two percent of the total project cost or $5,000, whichever is less. The total project cost shall be calculated by adding all other eligible costs and re-calculated upon the grant adjustment determination pursuant to Section 1859.324.1.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. New subsection (j) filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
Note • History
An Emergency Repair Program Grant shall be used to fund the LEA's eligible costs, as defined by Sections 1859.323 and 1859.323.1 as follows:
(a) For schools ranked in deciles one to three, inclusive, based on the 2003 Academic Performance Index that meet requirements defined by Section 1859.321(a) and all of the following provisions:
(1) If contracts for services or work were signed for the project, contracts must have been entered into on or after September 29, 2004.
(2) Funds must have been Expended on or after September 29, 2004.
(3) Accepted Applications on or before June 30, 2007. If these ERP regulations are not in effect by March 31, 2007, LEAs may submit applications for 90 days following the effective date of the regulations.
(b) For schools ranked in deciles one to three, inclusive, based on the 2006 Academic Performance Index that meet requirements defined by 1859.321(b) and all of the following provisions:
(1) If contracts for services or work were signed for the project, contracts must have been entered into on or after July 1, 2005.
(2) Funds must have been Expended on or after July 1, 2005.
(3) Accepted Applications on or before June 30, 2010.
(c) For schools ranked in deciles one to three, inclusive, based on the 2009 Academic Performance Index that meet requirements defined by 1859.321(b) and all of the following provisions:
(1) If contracts for services or work were signed for the project, contracts must have been entered into on or after July 1, 2008.
(2) Funds must have been Expended on or after July 1, 2008.
(3) Accepted Applications on or before June 30, 2013.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of section heading and section filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.324.1. Grant Adjustments.
Note • History
After review of a Form SAB 61-04, projects that require a Grant Adjustment will be presented to the Board for approval based upon one of the following review determinations:
(a) If the expenditures are less than the Grant, the Grant will be deemed the full and final apportionment for the project and the OPSC shall recommend to the Board that the Apportionment be reduced by the amount of savings realized by the LEA. The savings, which include any interest earned on the Grant funds, either declared by the LEA or determined by the OPSC, must be returned to the State when the LEA submits the form SAB 61-04 to the OPSC. If the LEA fails to make the required payment, the OPSC shall notify the Controller and the LEA in writing, and the Controller shall deduct an amount equal to the amount due by the LEA under this subdivision from the LEA's next principal apportionment or apportionments of state funds to the LEA, other than basic aid apportionments required by Section 6 of Article IX of the California Constitution. Any amounts obtained pursuant to this Section shall be deposited into the School Facilities Emergency Repair Account and will be made available for the funding of future ERP Grants and Grant Adjustments.
(b) If the expenditures are greater than the Grant apportionment, provided the additional expenditures are associated with the project's original scope, the OPSC shall recommend to the Board that the Apportionment be increased. The Grant Adjustment will be deemed as the full and final apportionment for the project.
(c) If the expenditures are equal to the Grant, no further Board action is necessary. The Grant will be deemed as the full and final apportionment for the project.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
3. Amendment of subsection (a) filed 8-31-2009; operative 8-31-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 36).
§1859.324.2. Interest Earned on ERP Grants.
Note • History
All interest earned on ERP Grant funds provided pursuant to Section 1859.324 shall be:
(a) Applied to eligible project costs for the project, as approved by the SAB, and pursuant to Section 1859.323; or
(b) Returned to the State.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 8-31-2009; operative 8-31-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 36).
§1859.325. School Facility Due Diligence.
Note • History
To ensure that the LEA is exercising due diligence in the administration of its facility accounts and is using an Emergency Repair Program Apportionment to supplement existing funding for the maintenance of school facilities, the OPSC may conduct a review of the LEA's facility maintenance accounts pursuant to the provisions of Section 1859.328.
In the event that the Board finds that an LEA is failing to exercise due diligence or supplanting has occurred, the Board shall notify the county superintendent of schools in which the LEA is located and may deny future funding under these regulations.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.326. Expenditures and Audit.
Note • History
The projects shall be subject to audit to ensure that the expenditures incurred by the LEA were made in accordance with the provisions of Sections 1859.323, 1859.323.1, 1859.323.2, 1859.324, 1859.327, and 1859.328.
After a full and final Apportionment has been made pursuant to Regulation Section 1859.324.1, should the OPSC notify the LEA of an impending ERP audit of the expenditures reported on the Form SAB 61-04, an audit by the OPSC shall commence within six months. Once the audit has commenced, the OPSC shall complete the audit within six months of the notification unless additional information requested from the LEA has not been received.
Should the OPSC conduct an audit of the expenditures and information provided by the LEA, which may include certifications, for the project and make a finding that some or all of the expenditures were not made in accordance with the provisions of EC Section 17592.72(c) and Regulation Sections 1859.323 through 1859.329 inclusive, the OPSC shall recommend to the Board that the apportionment be adjusted based on the audit findings. Upon adoption of the audit findings by the Board, the LEA must submit a warrant for any amount identified as being owed within 60 days of the Board's action. If this does not occur, the OPSC shall initiate collection procedures as delineated in Section 1859.324.1(a).
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of section heading and section filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order, including amendment of final paragraph, transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.327. Duplication of Emergency Repair Program Expenditures.
Note • History
If the LEA's expenditures for the Emergency Repair Program Grant involve proposed work also included in a SFP or DMP project, the LEA must ensure all of the following:
(a) No work or expenditures are duplicated.
(b) After eliminating the work to be funded with the Emergency Repair Program Grant from the SFP or DMP project, the remaining work continues to meet the SFP or DMP requirements.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
§1859.328. Supplement, Not Supplant, Emergency Repair Program Grant Funds.
Note • History
Emergency Repair Program Grant funds must be used to supplement, not supplant funds already available for routine, deferred, planned and scheduled maintenance, or emergency repairs of school facilities. In accordance with these requirements, the LEA must comply with all of the following at the time the Accepted Application and the Form SAB 61-04 are submitted to the OPSC:
(a) Deposit the funding level required for the current fiscal year pursuant to EC Section 17070.75 in the Routine Restricted Maintenance Account, if participating in the SFP.
(b) If participating in the DMP, the district:
(1) For applications submitted prior to January 1, 2006, has deposited an amount equal to the State's matching share of the maximum basic grant, calculated pursuant to EC Section 17584, for the latest available determination; and
(2) For applications submitted on or after January 1, 2006, has deposited an amount equal to the maximum basic grant, calculated pursuant to EC Section 17584, for the latest available determination; and
(3) Will deposit an amount equal to the maximum basic grant, calculated pursuant to EC Section 17584, for the next scheduled determination.
(4) Shall not transfer excess local funds in accordance with EC Section 17583 from the deposits made as specified in (2) and (3), above.
(c) If either (a) or (b) are not applicable, the district must budget for the current fiscal year an amount not less than the average maintenance budget for the three previous fiscal years.
(d) In an effort to ensure that each of its schools is maintained in good repair, the LEA shall expend or encumber by issuing a purchase order or entering into a legal contract or document, or dedicate funds from the sources listed in subsections (a) through (c), above, to correct problems identified in the facilities inspection system required pursuant to EC Section 17070.75(e), which may include items listed in the DMP five-year plan, or the Interim Evaluation Instrument that do not qualify for funding as described in EC Section 17592.72(c)(1). For those projects eligible for ERP funding, the LEA may seek funding at any time provided that the LEA has or will meet the above requirements.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment of first paragraph and subsection (d) filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.329. Withdrawal and Amendment of Applications.
Note • History
In the event an LEA has omitted costs from the Form SAB 61-03 at the time of submittal and the project has not received a Grant Apportionment from the Board, the LEA may withdraw its application and resubmit a revised Form SAB 61-03. The resubmitted application shall receive a new processing date by the OPSC. If the Board has already provided a Grant Apportionment for the project, the LEA may request the additional cost on the Form SAB 61-04. Additional expenditures must be associated with the project's original scope. If the Board has already provided a Grant Adjustment for the project, the LEA will not be able to receive additional funding for the project and the Apportionment provided by the Board will be considered full and final.
NOTE
Authority cited: Section 17592.73, Education Code. Reference: Sections 17592.72 and 17592.73, Education Code.
HISTORY
1. New section filed 5-31-2005 as an emergency; operative 5-31-2005 (Register 2005, No. 22). A Certificate of Compliance must be transmitted to OAL by 9-28-2005 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-31-2005 order transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
3. Amendment filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
§1859.330. Time Limit on Grant Apportionment.
Note • History
The LEAs that receive ERP Grants shall comply with all of the following provisions:
(a) When the Division of the State Architect's review and approval is not required, within 15 months of the Grant apportionment the LEA shall:
(1) Complete the emergency repair or replacement; and
(2) Submit the Form SAB 61-04 to the OPSC.
(b) When the Division of the State Architect's review and approval is required, within 21 months of the Grant apportionment the LEA shall:
(1) Complete the emergency repair or replacement; and
(2) Submit the Form SAB 61-04 to the OPSC.
If the LEA does not meet the Time Limit on Grant Apportionment, the Apportionment will be rescinded without further Board action. Within 60 days of the OPSC notification, the LEA must submit to the State a warrant for the amount of the Apportionment and any interest earned on State funds. If this does not occur, the OPSC shall initiate collection procedures as delineated in 1859.324.1(a). Any rescinded funds returned to the State will be made available for the funding of future ERP Grants and Grant Adjustments. The LEA may re-file Form SAB 61-03 to request a Grant for the rescinded projects provided it meets the provisions of Section 1859.324 at the time of re-filing.
NOTE
Authority cited: Sections 17592.72 and 17592.73, Education Code. Reference: Section 17592.72, Education Code.
HISTORY
1. New section filed 7-2-2007 as an emergency; operative 7-2-2007 (Register 2007, No. 27). A Certificate of Compliance must be transmitted to OAL by 12-31-2007 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-2-2007 order transmitted to OAL 11-5-2007 and filed 12-18-2007 (Register 2007, No. 51).
3. Amendment of subsections (a) and (b) filed 8-31-2009; operative 8-31-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 36).
Subgroup 6. School Housing Aid for Compensatory Education Purposes
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16210-16215, Education Code.
HISTORY
1. Amendment of subsection (a) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 69, No. 11.
2. Repealer of Subgroup 6 (Articles 1-8, Sections 1860-1860.21) filed 10-27-82; effective thirtieth day thereafter (Register 82, No. 44).
Subgroup 7. School Housing Aid for Districts Impacted by Seasonal Agricultural Employment
Article 1. Definitions
Note • History
(a) For the purposes of these regulations, the terms set forth below shall have the following meanings:
(1) Article 5.
Article 5, Chapter 8, Part 10 of Division 1 of the Education Code.
(2) Board.
State Allocation Board.
(3) DCE.
Director of Compensatory Education.
(4) Eligible School District.
Any school district:
(A) Whose application for aid under Article 5 has the approval of DCE; and
(B) Which, as determined by the DCE, experiences emergency increases in school enrollments, because of the influx for temporary periods in the school year of large numbers of persons employed in seasonal agricultural work, of such magnitude as to make it impossible or impractical to accommodate the additional pupils in existing school buildings and facilities available to the district.
(5) Executive Officer. Executive Officer of the State Allocation Board.
(6) “Expenditures may be made to a school district pursuant to the provisions of Sections . . . 3 (Article 5) of this Act,” as contained in Section 4 of Chapter 106, first extraordinary session of 1966.
This clause is deemed to authorize any expenditures under Article 5.
(7) “The means specified by Section 16042” as used in Section 16231. This shall be deemed to mean only the form which methods of availability may take and not the various collateral provisions contained in Section 16042, which are peculiar to that section.
(8) Original District. The first district who purchases or constructs portables as the agent of the State.
(9) Portable School and Classroom Buildings. As used in Article 5, this term shall be deemed to include furnishings therefor which are deemed necessary by the Board for the approved use of such buildings.
(10) Sections referred to. Unless otherwise specified, sections referred to in these rules shall be deemed to mean sections of the Education Code.
(11) Moving Expenses. May include any costs required for dismantling from one site and re-erection on another site prepared for the portables involved.
NOTE
Authority cited: Section 16009, Education Code. Reference: Sections 16230-16234, Education Code.
HISTORY
1. New Subgroup 7 (Sections 1861, 1861.1 through 1861.25), filed 7-15-66 as an emergency; effective upon filing (Register 66, No. 22).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 9-30-66 (Register 66, No. 33).
3. Amendment of subsections (a)(1) and (a)(7) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Article 2. Method of Availability of Portable Facilities
§1861.1. Acquisition by Board and Conveyancing to District.
(a) Upon application by a school district approved by DCE, the Board may expend monies available under Article 5 for the acquisition by the Board of new or used portable buildings and related facilities and equipment, and thereafter convey the same to the eligible district. The conveyancing may take the form of sale, lease, outright grant, or other suitable form of conveyancing as determined by the Board, and shall be subject to such terms and conditions as may be approved by the Board.
Article 3. Eligibility Requirements
(a) Portable classroom buildings and related facilities may be made available for any grade level approved by DEC.
(a) No lease of portable facilities shall be approved by the Board unless the property upon which the facilities are to be placed and the location thereof, together with the facilities to be leased and the length of such lease, including options for extensions, have been approved by DCE, provided that the rental consideration and all other provisions of such a lease shall be within the discretion of the Board. The approval of a lease of facilities by DCE shall be deemed to be the approval of the lease or any portion of said facilities for the term approved by DCE, unless DCE indicates to the contrary.
(a) No application shall be acted upon by the Board under Article 5, unless DCE has indicated in connection therewith what, if any, priorities such application shall be given. The Board shall not accumulate applications for priority purposes, but shall act upon them as received from DCE.
§1861.5. Consultation with the Advice of DCE.
(a) Whenever consultation with and advice of DCE is required under Article 5, the Executive Officer or his delegate shall obtain the same prior to the submission of any recommended application to the Board. Such advice shall be reported to the Board by the Executive Officer.
Article 4. Facilities
(a) Facilities which may be made available pursuant to Article 5 include:
(1) Classroom and related portable buildings. (These may be purchased by the Board as completed units or constructed by the Board on sites on which they are to be placed.)
(2) Site preparation and installation costs necessary for the placement of portable buildings.
(3) On or off-site utility extension and other utility costs (including connection fees) necessary for the proper functioning of portable buildings, but excluding monthly utility service fees.
(4) Furniture and equipment.
(5) Maintenance and repair costs of portable buildings, not otherwise required to be provided by a district.
(6) Costs of moving by original vendor of portables to original site and assembly thereon. Costs of subsequent dismantling and moving as deemed warranted by the Board, providing that the Board may exercise its option to enter into contracts for the moving of portables as hereinafter specified in Section 1861.17.
(a) The Board will not pay site restoration costs after termination of use of facilities by a district pursuant to this article provided that it may in its discretion do so in conjunction with the preparation of said site for the receipt of subsequent facilities conveyed to such district by the Board.
(a) The Board will not acquire a site for a district under this article.
§1861.9. Quality of Facilities.
(a) The facilities provided under Article 5 shall be of a quality and cost approvable by the DCE and the Board.
§1861.10. Furniture and Equipment.
(a) Furniture and Equipment provided under this Article shall be of a kind, quality, quantity and cost approvable by the DCE and the Board.
Article 5. Applications
§1861.11. Form of Application.
(a) To obtain aid under this Article, the following must be submitted:
(1) Application on forms provided by the Board.
(2) Layout plans showing site preparation and stationing of portables in question. Such plans should clearly identify the location of such site.
(3) A statement by the district specifying how any costs auxiliary to the buildings themselves, but necessary for their use, are to be met.
(4) A statement of the estimated costs of all of the facilities requested by the district. The estimate should be made by a person currently employed or retained by the district deemed competent for this purpose by profession, training, or experience.
Article 6. Financial Requirements
§1861.12. Payments by Districts Creditable Against Rental Obligations.
(a) Whenever it deems the same appropriate, the Board may authorize or direct a district to pay any portion of the construction, purchase or installation costs of portables and apply such costs against rentals of any portables under Article 5, (or other consideration due the State) whether arising in the period commencing after such payments, or in a subsequent period.
Article 7. Acceptance of Aid
(a) The acceptance of any aid pursuant to Article 5 shall be deemed subject to:
(1) The terms of said Article.
(2) The regulations pertaining thereto.
(3) The terms and conditions of any resolution of the Board making such aid available.
(4) Any bi-lateral contract between an affected district and the Board.
(b) In addition, a school district by the acceptance of aid pursuant to this article agrees to hold the State of California harmless from any claims asserted against the State by virtue of alleged negligence of the district or third parties in the construction, installation, maintenance, or transit of portable facilities.
(a) Each payment for facilities approved by the Board, when required to be made, shall be certified by the Executive Officer to the State Controller who shall draw his warrant for such payment in the manner prescribed by law.
Article 8. Moving, Storage, Maintenance
§1861.15. Delivery and/or Installation of Portables by Original Vendor.
(a) The original district may, subject to approval of the Board, contract with the vendor of portables for the delivery thereof to the original site and the installation of the same thereon, or both.
§1861.16. Moving of Portables by Districts; Obtaining of Bids.
(a) The obtaining of bids and the awarding of a contract by a district for the moving of portables leased under this Article shall be in the manner prescribed by the Education Code, and shall be subject to approval by the Board.
(b) The aware of a bid may be made only to a licensed mover having adequate equipment for the purpose and experienced in the moving of similar structures.
§1861.17. Option of State to Enter into Moving Contracts with Vendors or Other Movers.
(a) Except in cases where the Board determines otherwise, any district, to whom portables which are reposing in the district of a former lessee are leased, shall dismantle and move the same at its own expense from where they are situated. However, such district shall receive a credit for such expenses against the rental it would be obliged to pay during the lease period immediately following the moving. In the event the aforesaid credit exceeds the amount of such rental, no reimbursement will be paid the district by the State.
(b) Notwithstanding the foregoing, if the Board deems it more advantageous to the State, it may authorize the Executive Officer, after consultation with the State Traffic Manager, to enter into moving contracts with vendors or other movers for the moving of particular portables (or portables generally) acquired pursuant to Article 5 provided that, in the event it exercises such option, nothing herein shall be construed as preventing the Board from recouping any of the costs of such moving through rentals of said portables to districts affected by this article.
§1861.18. Removal of Portable Facilities.
(a) Facilities leased by the Board for location on a particular site shall not be removed for any purpose from said site without the approval of the Board.
§1861.19. Storage of Buildings by District Pending Next Lease.
(a) The Executive Officer shall include in any lease agreement with a district otherwise authorized by the Board a provision that the lessee shall allow buildings leased to remain on its premises free of cost to the State, after the expiration of its lease and prior to the time the next lessee of such buildings agrees to remove the same, provided that nothing herein shall be construed to prevent the district on which such buildings are to remain in the interim to use them during such period, if permitted by the terms of the State's agreement therewith.
§1861.20. Maintenance and Repair Costs Not Otherwise Provided by District.
(a) Where no district is obligated to provide for the maintenance and repair of portable buildings, or if so obligated fails to do so, the Executive Officer is authorized to expend such sums as he deems appropriate for that purpose from funds appropriated pursuant to this chapter, provided that nothing herein shall be construed to relieve any district from any obligation arising out of any contract entered into pursuant to this chapter.
Article 9. Miscellaneous Provisions
§1861.21. Leases Discretionary with Respect to Any Particular School District.
(a) Subject to the provisions of these rules, and in particular to Section 1861.3 thereof, whether a lease shall be entered into with respect to any particular school district, and the provisions of said lease, are within the discretion of the Board.
§1861.22. Affidavits of Vendors Regarding Security Interests; Discharge of Same.
(a) No funds shall be authorized by the Executive Officer for the purchase of portable units (including furnishings contained therein) unless the vendor files an affidavit with the Executive Officer in close proximity to the time of the proposed transfer of funds by the State that there are no chattel mortgages, title retentions, security interest, or liens of any kind against such property, recorded or unrecorded, and that he has no knowledge of any that will be given or obtained. In the event that such affidavits cannot be furnished because of the existence of security interests or liens of any kind, suitable provisions shall be made by the vendor for the release of such security interests prior to or at the time of the payment to such vendors.
History
(a) The Executive Officer may insure in the name of the State, through the insurance adviser of the Department of General Services, portable buildings belonging to the State against vandalism, theft of furnishings, and damage in transit (and against such other risks as he deems advisable, except fire insurance prohibited under the terms of Section 11007 of the Government Code) to such extent and in such amounts as the Executive Officer deems appropriate.
HISTORY
1. Editorial correction of section number (Register 80, No. 26).
§1861.24. Actions of the Board to Be Deemed to Embody Provisions of Resolution Forms Approved by It for That Purpose.
History
(a) Actions of the Board pursuant to Article 5 shall be deemed to incorporate all of the provisions of the resolution form adopted by the Board for the purposes of such action. The Executive Officer shall utilize such resolution form in advising the affected school district of the Board action, but is authorized to modify such form before transmitting it to the district to the extent the specific action of the Board is inconsistent with such form.
HISTORY
1. Editorial correction of section number (Register 80, No. 26).
(a) Exceptions may be made to these regulations where the board finds that the application thereof would be inequitable in practice or would result in an undue hardship on the pupils of the district affected.
Subgroup 8. Children's Center Construction Aid
HISTORY
1. Repealer of Subgroup 8 (Sections 1862-1862.14) filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1). For prior history see Register 69, Nos. 2, 15, 25, 42, and 50.
Subgroup 8.5. Emergency School Classroom Law of 1979
Article 1. Definitions
Note • History
(a) For the purposes of these regulations, the terms set forth below shall have the following meanings:
Chapter 25. Chapter 25, Part 10, Education Code.
Board. State Allocation Board.
Executive Officer. Executive Officer of the State Allocation Board.
Eligible District Any school district or county superintendent of schools which demonstrates a need for additional classroom facilities in accordance with priorities established by the Board.
Portable Classrooms. Single classroom factory-built buildings which are constructed in accordance with performance specifications adopted by the Board.
Authorized Agent. A person authorized to act on behalf of the governing board of the eligible district in matters relating to an application for lease of portable classrooms.
NOTE
Authority cited: Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
HISTORY
1. New Subgroup 8.5 (Sections 1862.50-1862.56) filed 8-23-79; effective thirtieth day thereafter (Register 79, No.34). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 12-21-79.
2. Certificate of Compliance transmitted to OAH 12-19-79 and filed 1-17-80 (Register 80, No. 3)
Article 2. Acquisition of Portable Classrooms
§1862.51. Acquisition of Portable Classrooms by the Board.
Note • History
(a) The Board may from time to time as it determines the need in accordance with priorities adopted herein authorize the Office of Procurement of the Department of General Services to acquire portable classrooms the Board deems will be required by eligible school districts for up to the next twelve months.
For each portable classroom so acquired a minimum of furniture and equipment necessary to make the classroom functional may be acquired by the Board. The buildings shall be placed on the school site and connected to the nearest electrical energy source at State expense.
NOTE
Authority cited: Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
HISTORY
1. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).
Article 2.5.
Note • History
NOTE
Authority cited: Section 17788, Education Code. Reference: Sections 10115 et seq., Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1862.51.2. Regulatory Provisions.
Note • History
NOTE
Authority cited: Section 17788, Education Code. Reference: Sections 10115 et seq., Public Contract Code, and Section 17788.5, Education Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
Article 3. Applications for Lease
§1862.52. Form of Application.
Note • History
(a) Applications for lease of portable classrooms pursuant to Chapter 25, shall contain the following:
A resolution on forms provided by the Board, by the governing board of the eligible district authorizing the filing of an application and the signing of a lease agreement or agreements for such numbers of portable classrooms as the Board may approve. The leases shall contain such terms and conditions as are required by existing law and by these regulations.
A completed application on forms provided by the Board.
Layout plans clearly showing the location on the site of the proposed portable classroom buildings as well as the location of existing buildings.
A certification by the authorized agent that the district has hired or will hire a teacher for each portable classroom leased to the district for the term of the lease.
A certification or other evidence, satisfactory to the Board, that the district has no available bond proceeds which could be used for the purchase of classroom facilities.
NOTE
Authority cited: Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
HISTORY
1. Amendment filed 10-31-86; effective thirtieth day thereafter (Register 86, No. 44).
Article 4. Lease Agreements
Note • History
Lease agreements executed by the authorized agent of the school district shall be subject to such conditions as may be required by the board in addition to the following:
A year to year renewable term beginning September 1 and ending August 31 of each year.
Lease payments of $2,000 per year for each portable classroom. The first year rental shall be prorated on a 12 month basis from the date of installation to the following August 31. Payments are to be made upon execution or renewal of each lease.
The district shall be required at its own expense to provide a near flat surface, not exceeding 9 inches in grade from the highest to the lowest point, for placement of each portable classroom. Access to the site shall also be provided by the district at its own expense.
The district shall be responsible to the State for any damages occurring to the portable classrooms and shall keep them insured, at its own expense, to the benefit of the State, at all times against fire and lightning, with extended coverage, and vandalism and malicious mischief, for the full insurable value of the property less any deductible amount for which the district is willing to accept such responsibility. The district shall at its own expense undertake all necessary maintenance repairs, renewal and replacement to ensure that the portable classrooms, furniture and equipment are at all times kept in good repair, working order and condition.
The district shall hold the State of California harmless from any claims asserted against the State by virtue of alleged negligence of the district or third parties in the operation or maintenance of portable classrooms.
Facilities leased by the Board for location on a particular site may not be altered, relocated or removed from the site without approval of the Board, nor shall any interest held by the district under this lease be assignable.
Upon expiration of a lease, the district shall allow buildings covered by such lease to remain in place on the site free of cost to the State for a period not to exceed 120 days, pending removal by the State.
NOTE
Authority cited: Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
HISTORY
1. Amendment filed 10-31-86; effective thirtieth day thereafter (Register 86, No. 44).
Article 5. Priorities
Note • History
Portable classrooms shall be approved and made available to those districts in the following order:
(a) A demonstrated need based upon loading all existing classrooms in the district with the average class sizes shown below using a one year projection of the district's current enrollment converted to average daily attendance by a .97 factor:
Average Class Sizes:
Kindergarten 55 * 9-12 27
1-8 30 Special Education 10 **
* If the district's kindergarten has traditionally met as single session, load at 27 (provide documentation with application/worksheet).
** Alternative loading utilizing average class sizes shown in Board regulation 1865.34 of Title 2, Div. 2, Ch. 3, Subch. 4, Group 1, may be used.
(b) A demonstrated need based upon approval of a new construction project on a districtwide basis pursuant to the Lease Purchase Law of 1976. Said district shall be eligible to lease at least the same number of emergency portable classrooms as approved new teaching stations under the Lease-Purchase Program if the need for applications filed pursuant to subdivision (a) has been met for a period of at least 30 days.
(c) A demonstrated need based upon approval of a new construction project on a High School Attendance Area basis pursuant to the Lease-Purchase Law of 1976. Said district shall be eligible to lease at least the same number of emergency portable classrooms as approved new teaching stations under the Lease-Purchase Program provided a determination has been made by the Board that no portable facilities are available in other High School Attendance Areas within the district which could be economically and practicably utilized as emergency classroom facilities and the need for applications filed pursuant to subdivision (b) has been met for a period of at least 30 days.
(d) A district that is not otherwise eligible pursuant to (a), (b), or (c) and agrees to hire an additional teacher for each additional portable classroom placed in the district and the need for applications filed pursuant to subdivision (c) has been met for a period of at least 30 days.
NOTE
Authority cited: Section 15503, Government Code; and Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
HISTORY
1. Amendment filed 8-7-86; effective thirtieth day thereafter (Register 86, No. 32).
Article 6. Miscellaneous Provisions
§1862.55. Maintenance and Repair Costs Not Otherwise Provided by District.
Note
(a) Where a district is not obligated to provide for the maintenance and repair of portable buildings, or if obligated and fails to do so, the Executive Officer is authorized to expend such sums as he deems appropriate for that purpose from funds appropriated pursuant to this chapter, provided that nothing herein shall be construed to relieve any district from any obligation arising out of any contract entered into pursuant to this chapter.
NOTE
Authority cited: Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
Note
(a) Exceptions may be made to these regulations where the Board finds that the application thereof would be inequitable in practice or would result in an undue hardship on the pupils of the district affected.
NOTE
Authority cited: Sections 17785-17795, Education Code. Reference: Sections 17785-17795, Education Code.
Subgroup 9. School Housing Aid for Rehabilitation and Replacement of Structurally Inadequate School Facilities
Article 1. Definitions
Note • History
(a) In connection with the administration of the provisions of Article 9, Chapter 8, Part 10, Division 1, Education Code, and for the purposes of these regulations, the terms set forth below shall have the following meanings:
(1) The Act. Article 9, Chapter 8, Part 10, Division 1, Education Code.
(2) Application. A request for an apportionment for a specific purpose, or purposes, as provided by the Act and these regulations, on forms prescribed by the State Allocation Board, properly executed, together with such other information as may be required.
(3) Apportionment or Conditional Apportionment. Amount of State funds apportioned by the Board for purposes o the application. This amount is based on the formula in Section 16330 of the Education Code. The ratio of State and district matching funds will remain fixed for all apportionments for each application as the ratio established when the application is approved.
(4) Assessed Valuation. For the purposes of determining the basic computed State matching ratio of assistance under Section 16330, the modified assessed valuation for the preceding fiscal year as determined in accordance with Sections 41200, et seq. of the Education Code.
(5) Authorized Agent. An official or staff member of the school district or the office of the county superintendent of schools appointed and authorized by resolution of the governing board of the school district to represent that body in all matters pertaining to the Act other than those requiring action by the governing board of the school district.
(6) Board. The State Allocation Board.
(7) District. An applicant school district.
(8) Executive Officer. The Executive Officer of the State Allocation Board.
(9) Facility. All or a portion of any parcel of land, on or off-site improvement, utility, building or other building area, or furniture and equipment.
(10) Project. The purpose or purposes for which a school district has applied for an apportionment or apportionments under the provisions of the Act.
(11) Replacement. The acquisition or construction of a facility or facilities through an apportionment to replace all or a portion of a substandard school.
(12) Rehabilitation. The reconstruction, renovation, alteration and/or conversion of a substandard building.
(13) Sections. All sections referred to herein, unless the context indicates otherwise, shall be deemed to refer to sections of the Education Code.
(14) Substandard Building. A school building which, pursuant to a determination made by the Board, does not comply with the provisions of the Field Act (Sections 39140 through 39156, Education Code) and constitutes a threat to the safety of those using the facility because of structural instability.
(15) Grade Level. For the purposes of Section 16330, the grade level of a project application made by a high school district, including any project which contains grades 7 and 8, shall be deemed to be the high school grade level. The grade level of a project application made by an elementary school district, including any project which contains grades 7 and 8, shall be deemed to be the elementary grade level. The grade level of a project application made by a unified district shall be deemed to be the high school grade level for any project which includes grades 7 or 8 and any grades above, or the elementary school grade level if it contains any combination of grades below grade 9.
(16) Grade Level for the Purposes of Repayment Under Section 16335.2 The grade level for which an application is made, as defined in Subsection (15) preceding, and for which an apportionment is received, shall also be deemed to be the grade level operated by the district, within the meaning of Section 16335.
(17) “Expended” Funds Derived by Applicant From Taxes Levied under Section 39230. If a school district has been an applicant under Article 9 of Chapter 8 of Part 10 of the Education Code and has levied taxes pursuant to Section 39230 for the purpose of matching apportionments under said Article by the State Allocation Board, such funds shall be deemed to have been “expended” within the meaning of Section 39233, though not actually disbursed, so as not to require, pursuant to Subsection 39233(b), their application to reduce any outstanding Article 9 apportionments to the district where:
(i) Such funds are held or encumbered by the district for the purpose of discharging obligations under contracts entered or to be entered into for projects for which the board has already made an apportionment under Article 9, or
(ii) Such funds have been earmarked by the district, by resolution or other action thereof, for use for a project eligible for an apportionment to the district under Article 9, whether by virtue of Section 16330.5 or any other section of said Article, taking into consideration the district's allowable new building construction area under Article 9 and the cost standards of the board pursuant thereto.
NOTE
Authority cited: Section 16316, Education Code. Reference: Sections 16310-16344, Education Code.
HISTORY
1. New Subsection (a)(17) filed 6-26-78 as an emergency; effective upon filing (Register 78, No. 26). For prior history, see Register 77, No. 18.
2. Certificate of Compliance filed 9-21-78 (Register 78, No. 38).
Article 2. Application Procedure
Note • History
To secure an apportionment a school district shall submit the following pursuant to Section 16323 and the authority conferred upon the Board by Section 16316:
(a) A resolution of the governing board of the applicant district authorizing the application.
(b) A statement of the estimated cost of the project certified by a licensed architect or structural engineer currently employed or retained by the district.
(c) Layout (preliminary) plans showing the entire construction project, including the specific location thereof, for which a district desires an apportionment.
(d) Environmental impact documents prepared in accordance with the requirements of Section 1863.30 et seq. of these regulations.
(e) Such other information as may be required by the Director of General Services.
NOTE
Authority cited: Section 16316, Education Code. Reference: Sections 16310-16344, Education Code.
HISTORY
1. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 75, No. 27.
§1863.3. Filing and Review of Applications.
Applications shall be filed with the Executive Officer who shall submit copies to the Director of General Services for report and recommendation to the Board after reviewing and making the investigations and determinations necessary pursuant to administering the provisions of the Act.
§1863.4. Changes in Application After Original Approval.
An applicant for an apportionment may, after approval of an application, request approval by the Board of changes within any project applied for. Such changes may be approved by the Board provided the changes are deemed necessary to properly achieve the essential purposes of the application as originally approved.
History
(a) The Board determines it is in the interests of the pupils of the state generally to give priority consideration to those districts which will not have their resources diminished by deductions from the State School Fund attributable to apportionments which they are unable to recoup because of the limiting effect of Article XIII.A of the Constitution.
(b) Notwithstanding any other provisions of these regulations, for the purpose of making apportionments or of the release of funds under apportionments already made where such latter funds have been encumbered by binding obligations on the part of the districts, applicant districts shall be divided into Groups A, B and C.
(1) Group A shall consist of those districts which the Executive Officer reasonably determines will be able to levy offset taxes over and above the 1% limitation provided by Section 1(a) of Article XIII.A of the Constitution to replace the full amount of deductions from the State School Fund apportionments attributable to the apportionments requested or to the release of apportioned funds.
(2) Group B consists of those districts which do not fall within Group A but which have legally binding obligations or commitments with respect to funds not yet released.
(3) Group C consists of districts which do not fall within either Groups A or B.
(c) Groups A and B shall have first and equal priority and shall be accommodated on a first come first served basis subject to the provision of Subsection (d) hereof.
(d) In any cases when the Board finds that the application of this regulation inequitable or would result in an undue hardship on the pupils of the districts affected as compared with pupils of other districts, irrespective of the group in which such other districts fall, the Board may make exceptions to this regulation.
HISTORY
1. Repealer and new section filed 6-26-78 as an emergency; effective upon filing (Register 78, No. 26).
2. Certificate of Compliance filed 9-21-78 (Register 78, No. 38).
Article 3. Eligible Facilities
§1863.6. Allowable School Building Area.
Note • History
(a) Allowable building area shall be computed as follows:
(1) The amount of new building area for which an apportionment may be made for the purposes of replacing substandard school buildings at an attendance center, shall be based upon the number of units of average daily attendance which were housed in the substandard buildings being replaced and the building area limitations contained in Education Code Sections 16047, 16052, 16053, 16054 and 16055. For the purposes of this section the average daily attendance housed in substandard buildings shall be considered to be 0.97 of the enrollment assigned to such buildings at the time of the March 1971 or the October 1971 Report to the State Department of Education. In the event a school district has buildings at more than one attendance center to be replaced at a grade level, the enrollment date must be the same for all applications from the district for that grade level. If the substandard building was abandoned between February 1, 1971 and March 31, 1971, the enrollment shall be that assigned to such building on the most recent date prior to abandonment. In the event that less than all of the building area of the attendance center is to be replaced, the units of average daily attendance attributable to the substandard buildings shall be deemed to be the units of average daily attendance of the entire attendance center multiplied by a ratio computed by dividing the building area of the substandard buildings by the total building area of the attendance center.
(2) If the substandard building area to be replaced includes exceptional children, hereby defined as physically handicapped, educationally handicapped and mentally retarded minors, the enrollment reported for such children shall be excluded in computing the number of units of average daily attendance and allowable building area in subsection (a)(1) and in lieu thereof, the allowable building area for exceptional children shall be determined as follows:
(A) Divide the number of pupils of each type by the maximum class size established by law for special day classes for the type of pupils and increase the quotient to the next highest integer where a fractional amount is produced.
(B) Multiply the number computed in (A) by the maximum building area allowance shown below when the facility is planned for the following types of exceptional children:
Embedded Graphic 02.0025
(C) When the chronological age span of educable mentally retarded minors is greater than four years, the maximum class size shall be 15 pupils.
(D) When facilities are to be constructed for orthopedically handicapped or cerebral palsy minors, additional building area allowances shall be made for elementary schools to provide adequate space for occupational therapy, physical therapy, and related auxiliary services of up to 5,200 square feet if the facility is designed for one to three classes and up to 7,000 square feet for four to eight classes. Facilities constructed for junior and senior high schools shall be allowed additional building area of up to 600 square feet for auxiliary services.
(E) When facilities are to be provided for minors having speech defects or disorders, 200 square feet of additional building area per school is permitted.
(3) If the units of average daily attendance in grades kindergarten through 6 of an elementary district, computed on the same date and in the same manner specified by Subsection (a)(1), is less than 300, computation of units of average daily attendance in Subsection (a)(1) shall be made on the total enrollment of the district. The building area allowed such small schools, in accordance with Education Code 16047, shall be as follows:
(A) In an applicant district maintaining any combination of grades kindergarten through 6 with less than 300 units of average daily attendance in such grades:
ADA Units Maximum
in Kindergarten Building Area
and Grades 1-6 (Sq. Ft.)
6-25 1,600
26-50 3,800
51-75 5,700
76-100 7,200
101-133 8,415
134-166 10,200
167-199 12,000
200-232 13,360
233-285 15,675
286-299 16,500
(B) In an applicant district maintaining any combination of grades kindergarten through 8 with less than 300 units of average daily attendance in grades kindergarten through 6, there shall be allowed, in addition to the maximum total building area shown above, a maximum area of 75 square feet for each attendance unit in grades 7 and 8.
(4) If the substandard building area to be replaced includes high school pupils attending continuation classes, the enrollment reported for such pupils shall be excluded in computing units of average daily attendance and allowable building area in Subsection (a)(1) and in lieu thereof, the computed number of pupil units attending continuation classes shall be submitted therefor as herein provided.
(A) “Pupil Units attending continuation classes” is a figure computed as follows: First determine the average number of pupil hours of high school attendance in continuation classes per school day in the highest three months of the latest 12 months, then divide said average by six. In making this computation, pupil hours during the regular school day in excess of 15 per week shall be included. Pupil hours for evening or Saturday classes shall be excluded. Multiply the final figure obtained in the preceding calculation by a growth factor which is computed by dividing the “projected enrollment” by the applicable March or October graded enrollment for the most recent year. The figure obtained in the number of “Pupil Units attending continuation classes.”
(B) In the event the building area to be replaced includes a continuation high school, building area shall be allowed for the continuation high school in accordance with the following schedule:
Pupil Units of
Continuation Square Feet of
High School Building Area
21 to 40 4,800
41 to 60 4,800 + 120 for each pupil
unit over 40
61 to 90 7,200 + 115 for each pupil
unit over 60
91 to 120 10,650 + 105 for each pupil
unit over 90
121 to 150 13,800 + 90 for each pupil
unit over 120
Over 150 16,500 + 60 for each pupil
unit over 150
For purposes of this section a continuation high school is defined as a continuation high school which is physically and operationally distinguishable from other schools. If the continuation high school shares space with another type of school, it can be considered to be a continuation high school within the meaning of this section only if the district can show conclusively that the continuation facility is in fact a separate institution with its own administration, teaching staff, and course of study, located in a clearly identifiable building area.
(5) Exceptions may be made where the Board finds that the application of this subsection (1863.6(a)) would be inequitable or would result in an undue hardship on the pupils of the district affected.
(b) For the purpose of computing the allowable area of new school building construction which shall not exceed the area of the building being replaced pursuant to Section 16326 of the Act, the existing and proposed building area shall be computed in accordance with the following:
(1) All measurements shall be made from exterior rough wall lines.
(2) Totally enclosed space shall be counted as full area. Among the various types of space to be included shall be areas such as:
(A) Basement rooms and basement boiler rooms.
(B) Heater rooms, including those above the normal floor level.
(C) Each floor of multi-story buildings.
(D) The area of completely enclosed stairs for each floor level served.
(3) Certain partially enclosed areas shall be counted as full area and shall include:
(A) Open, covered areas which provide shelter between buildings that are less than 20 feet apart.
(B) Mezzanines open on one or more sides which may easily and readily be used or converted to use as instructional space or passageways.
(C) Each floor of library stacks.
(4) Covered unenclosed space shall be counted as one-half of the actual area. Included in such space are:
(A) Open, covered passages, arcades, shelters, porches and planting areas.
(B) Open, covered areas which provide shelter between buildings that are 20 feet apart or more.
(C) Overhangs and sun control devices which are so designed and located that they function as, and in lieu of, covered walks or other sheltered areas.
(D) Mezzanines for storage purposes.
(5) Areas which shall not be counted include:
(A) Eaves and sun control devices except as specified above.
(B) Unsheltered platforms and steps.
(C) When isolated from building structures, the area of incinerators, pumphouses, transformer vaults, and service yards.
(D) That portion of the area below the first floor of a multi-story building used exclusively for employee parking, provided the Board finds that other means of parking are not economically feasible.
(E) Elevator shafts where constructed in order to comply with Chapter 7 of Division 5 of the Government Code (commencing with Section 4450), relating to facilities for handicapped persons.
NOTE
Authority cited: Section 16316, Education Code. Reference: Section 16326, Education Code.
HISTORY
1. Amendment of subsections (a)(1), (a)(3) and (b) filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 74, No. 51.
§1863.7. Building Cost Standards.
Note • History
(a) For the purposes of establishing current building cost standards for new construction in accordance with Section 16323 of the Act, a study and report thereon shall be made to the Board by the Director of General Services.
(b) Pursuant to the report submitted under Subsection (a) of this regulation, the Board shall establish allowable school building cost standards, which cost standards shall be effective until next revised.
(c) After the initial adoption of allowable building cost standards by the Board, a continuing study of such costs shall be conducted by the Director of General Services.
(d) No application or bid shall be approved and no apportionment shall be made for any construction which exceeds the allowable costs established as provided herein, except as provided by Section 16332. In the event, however, that it is conclusively shown from any studies by the Director of General Services that actual building costs in an area or portion of an area differ substantially from the allowable costs established for the area, the Board may at any time revise the allowable building cost standards for the area.
(e) The Director of General Services shall determine whether the cost of building construction included in any application or bid is within the allowable building cost. The District shall provide all information the Director of General Services may require for this purpose.
NOTE
Authority cited: Section 16316, Education Code. Reference: Section 16323, Education Code.
HISTORY
1. Amendment of subsections (a) and (d) and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Note • History
(a) An existing substandard school facility may be replaced pursuant to Section 16319 of the Act if, upon investigation, the Board finds that the structural stability of the facility constitutes a potential threat to the safety of those using the facility, and it would not be economical or good practice to remedy such conditions by repairing or reconstructing the facility.
(b) All requests for replacement of existing facilities shall be accompanied by:
(1) Full detail prepared by competent authority regarding the existing condition and deficiencies of such facilities, together with complete information regarding any other circumstances involved that would justify replacement;
(2) A statement of the estimated cost and the practicability of remedying the deficiencies of each facility as compared with replacement costs:
(3) A certified resolution of the governing board of the district, to which is attached a full description of the facility to be replaced, together with a title report and plat in the event real property is involved, and containing:
(A) A statement that the facility described in the attachment is the facility which is to be replaced.
(B) A plan, satisfactory to the Director of General Services, for disposition of the facility to be replaced, specifying the proposed manner of disposition and the date by which disposition is to be accomplished, provided however that such disposition shall in any case be subject to Section 16318.
(c) Facilities not complying with the Field Act demolished by the district subsequent to June 4, 1971, the effective date of Article 9, but prior to the effective date of an application, may be replaced by the Board if the Board finds that it would not have been economical or good practice to have rehabilitated such facilities to comply with such Act. Any application for such replacement shall be accompanied by:
(1) Full detail prepared by competent authority regarding the structural deficiencies of such facilities.
(2) A statement (1) of the estimated cost of having rehabilitated such facilities versus replacement of the same, and (2) of the practicability of having rehabilitated such facilities in the light of such replacement cost or other factors.
(3) A certified resolution of the governing board of the district, to which is attached a full description of the facilities demolished.
(4) Full detail of the method used for demolition, such as sold to the highest bidder, demolished by negotiated contract, etc., including how the demolition value was established and an accounting of any funds received therefrom.
(d) In cases of partial replacement of a school plant, where structurally adequate buildings are rendered nonfunctional as a result of the replacement, such reconstruction shall be permitted to existing adequate facilities as is necessary to make such existing facilities function in the same manner as they were functioning prior to removal of the structurally inadequate facilities.
NOTE
Authority cited: Section 16316 Education Code. Reference: Sections 16318 and 16319, Education Code.
HISTORY
1. Amendment of subsections (a) and (b)(3)(B) filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 74, No. 3.
§1863.9. Rehabilitation Considered As Replacement.
Where the Board has approved an application which includes rehabilitation of school building facilities, and the Board thereafter makes a finding that by reason of bids actually received, or for other good cause, it would not be economical or good practice to rehabilitate such facilities or portions thereof, such application and approval shall be considered, retroactive to the original dates thereof, to be an application for, and an approval of, the replacement rather than the rehabilitation of such facilities or portions thereof.
§1863.10. Site Development Standards.
(a) The Board shall establish standards for allowable utility services, off-site development, service site development, and general site development to insure that such site development will be within the limits of that which it deems necessary for the adequate operation of the school plant in accordance with good engineering practices. The Director of General Services shall make such studies and reports as may be required to assist the Board in establishing these standards.
(b) For the purposes of this regulation, site development shall be classified as follows:
(1) Utility Services may include but are not limited to facilities required to bring such water, sewer, electricity, telephone, and fuel supply services to such suitable point on the site as may be necessary.
(2) Off-site Development may include but is not limited to such street improvements as are in line with the approved standards of the Board and as are determined by the Director of General Services to be necessary. In the event a city, county, or city and county requests a higher standard of improvement, or improvements in excess of that determined by the Director of General Services to be necessary, the resultant excess costs shall be borne by said city, county, or city and county with or without recourse to the provisions of Section 2117 of the Streets and Highways Code.
(3) Service Site Development may include but is not limited to site clearance, rough grading, and drainage which may b required to make a site usable in accordance with standards established by the Board.
(4) General Site Development in connection with new construction, may include but is not limited to any other development of a site, including such item as grading (except rough grading), walks, curbs, roadways, parking areas, fencing, flagpoles, incinerators, hard-surfaced and turfed play areas and playground equipment.
§1863.11. Furniture and Equipment.
Apportionments may include funds for such additional furniture and equipment as determined by the Director of General Services to make the rehabilitated or replaced facilities properly function. Costs shall not exceed current costs of similar items which the district purchases for other schools.
(a) The acquisition of new school sites or additions to existing sites shall be eligible under an application only where such acquisition is necessary in connection with the construction of new school buildings which replace substandard structures.
(b) No apportionment shall be made for a site until the school district has furnished the Board at its own expense with two independent appraisals of the market value of the site made by competent appraisers. However, the costs of these appraisals, as well as other incidental site costs, may be included within the application, and shall be subject to the approval of the Board.
§1863.12.5. Temporary Housing.
Note • History
NOTE
Authority cited: Section 19700.57, Education Code. Additional authority cited: Section 15503, Government Code.
HISTORY
1. New section filed 6-19-74 as an emergency; effective upon filing (Register 74, No. 25).
2. Certificate of Compliance filed 9-18-74 (Register 74, No. 38).
3. Repealer filed 12-30-76; effective thirtieth day thereafter (Register 77, No. 1).
Article 4. District Financial Requirements
§1863.13. District Financial Requirements.
(a) In addition to any other requirements of the Act, these regulations, and the apportionment resolution, a district shall contribute the following funds as soon as they become available to the district toward the cost of the project or, if the project be completed, toward the reduction of any apportionments previously made; the contributions to be proportionate to the District's and State's participation in the project.
(1) The net proceeds from the sale, or the fair value as determined by the Director of General Services, whichever is greater, or the net revenue derived from the lease or rental of the following:
(A) Facilities required by the Board to be disposed of.
(B) Improvements, materials, crops and natural resources on a site or sites purchased under an application.
(2) Interest earned on any funds available for cost of a project including interest reasonably attributable to such funds where the same are commingled with other funds earning interest.
(b) The Director of General Services shall determine, on behalf of the Board, the amount of funds a district is required to contribute under subsections (1) and (2) above. Such determination shall be binding upon the district; however, after receipt of written notice of such determination, the district may file an appeal with the Board within six months thereafter, in which event the decision of the Board may affirm or modify the determination of the Director of General Services.
Article 5. Project Budget
§1863.14. Contents of Project Budget.
Note • History
(a) The project budget prescribed by the Board shall be set up under major categories as follows: Sites; Plans; Construction; Tests; Inspection; Furniture and Equipment; and Contingencies. The initial approval of an application shall be based upon the estimated costs as included in these major categories. However, final approved costs within these major categories shall have the following limitations:
(1) Sites:
(A) Actual costs for the acquisition of a site in excess of the estimated cost as originally approved shall be allowed only after specific approval of the Board.
(B) For the purposes of this subsection (1863.14(a)(1)(B)), the term “district” shall include any person or entity with whom the district contracts under Section 7261.5, Government Code, acting on behalf of the district. Relocation costs to landowners or persons displaced pursuant to Sections 7260 et seq. of Chapter 16, Division 7, Title 1 of the Government Code, hereinafter referred to as the “Relocation Assistance Law,” in conjunction with an acquisition of a site for which an apportionment is made may be deemed to be a part of the cost of acquisition subject to the following conditions:
1. The school district shall certify that it has adopted regulations pursuant to the Relocation Assistance Law, as required by Section 7267.8, Government Code, or has contracted with a party or entity specified in Section 7261.5, Government Code, for the performance of services under said law.
2. A request for payment under the Relocation Assistance Law shall be accompanied by:
a. A citation to the pertinent portions of the law and regulations to the extent the latter are applicable.
b. A copy of any such pertinent portion of the regulations, and
c. Any factual justification that may be applicable in connection with the citation referred to in “a.,” including, where applicable, justification by the district subject to the written approval of the Executive Officer, of the reasonableness of any cost of expense applied for by the district under Sections 7262 and 7263, Government Code, that is required to be “reasonable” by said sections.
3. That any offer by the district for said site as specified in Sections 7267.2 or 7267.7, Government Code, shall not exceed the highest qualified appraisal of such site made for the purposes of obtaining an apportionment from the Board for the acquisition thereof.
4. That any decision by the district under Section 7266, Government Code, (pertaining to the reviewing of the application of an aggrieved person) shall not be in contravention of this subsection 1863.14(a)(1)(B).
5. That any cost in conjunction with Section 7264.5, Government Code, (relating to the actual provision of housing) shall be justified in writing by the district and approved in writing by the Executive Officer.
6. Nothing in this section shall be deemed to impose upon a school district a fiscal burden in connection with an obligation to a landowner or displaced person that did not exist prior to the adoption of this section.
(C) Relocation assistance in connection with the acquisition of real property shall be administered by the Board in accordance with State Relocation Guidelines adopted by the California Commission of Housing and Community Development.
(D) Before State funds are released for any portion of the construction costs, evidence shall be presented, satisfactory to the Director of General Services, that good title to the site for said project is vested in the school district, or will be vested in the school district, when the purchase of the site is completed. A use permit deemed by the Director of General Services to be satisfactory, may be considered to be good title for the purpose of this subsection.
(E) No site financed in whole or part under the act shall be required or contracted for without the written approval of the Director of General Services, provided that any such contract may be entered into subject to such written approval. Prior to obtaining such approval copies of any proposed contracts and escrow instructions shall be submitted to the Director.
(2) Plans:
(A) Fees for architectural and engineering services, including architectural supervision, shall not exceed the customary fees for such services as approved by the Director of General Services.
(B) Any cost for or incidental to redesigning or replanning, incurred as a result of bids in excess of allowable construction cost standards, shall not be eligible for reimbursement under the Act.
(3) Construction: The amount for construction shall be limited to the lowest acceptable bid as approved in writing, by the Director of General Services. No contract for construction financed in whole or in part under this act shall be awarded prior to such approval.
(4) Tests: The amount for tests and related inspection shall be limited to the actual costs of tests which are required by Title 21 of the California Administrative Code or other applicable provisions of law, or which are in accordance with good or accepted practice as approved by the Director of General Services.
(5) Inspection: The amount for inspection shall be limited to the actual costs for the legal duration of the construction contract which shall be deemed to terminate on the date of completion of the work as specified in the contract or as it is changed through such valid extensions as may be approved by the Director of General Services. Additional inspection costs beyond such date shall be allowed only upon a time-worked basis, and only to the extent they are in excess of any damages recoverable by the district from the contractor for the period of the inspection. It shall be presumed that any such inspection costs are offset by damages recoverable by the district from the contractor by way of liquidated damages or compensatory damages, unless the district submits a written opinion from the county counsel holding otherwise, and stating his reasons for such conclusion.
(6) Furniture and Equipment: The amount for furniture and equipment shall be that determined pursuant to Section 1863.11 hereof.
(7) Contingencies:
(A) An amount may be included for contingencies which shall not exceed such maximums as the Board or the Director of General Services may prescribe for any class of application or value of facilities in a project budget.
(B) Contingency funds may be used only after specific written approval by the Director of General Services for items of construction or other approved project costs where the cost increase or the item required is necessary for the completion of a facility which has been approved by the Board.
NOTE
Authority cited: Section 16316, Education Code. Reference: Section 16316, Education Code.
HISTORY
1. Renumbering of subsections (a)(1)(B) and (a)(1)(C) to (a)(1)(D) and (a)(1)(E) and new subsections (a)(1)(B) and (a)(1)(C) filed 12-19-73 as an emergency; effective upon filing (Register 73, No. 51).
2. Certificate of Compliance filed 3-21-74 (Register 74, o. 12).
3. Amendment of subsection (a)(1)(C) filed 3-21-74 as an emergency; effective upon filing. Certificate of Compliance included (Register 74, No. 12).
4. Amendment of subsection (a)(1)(C) filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). 9-17-71 as an emergency; effective upon filing. Certificate of Compliance included (Register 71, No. 38).
§1863.15. Revision of a Project Budget.
History
(a) The Director of General Services may revise any item within the construction project budget upward or downward, and pursuant to his determination under Section 1863.13 (b) may increase the contribution of the district with a corresponding reduction in State aid and/or apportionment, provided that nor revision authorized under this subsection results in an increase in the total amount of the project budget prescribed by the Board or contemplates an expenditure not otherwise permitted by the Act of these regulations.
(b) The Director of General Services may reduce any apportionment or State aid as may be necessary to reflect any revision or increase in contribution made by him pursuant to (a) above.
(c) Notwithstanding, (a) or (b) the Director of General Services shall readjust any budget as necessary to comply with any decision of the Board after appeal taken pursuant to Section 1863.13, supra.
(d) No change order shall be approved or become a basis for revising a construction contract because of additional work performed or to be performed after the notice of completion has been filed or the project has been accepted by the governing body of the school district, whichever first occurs.
HISTORY
1. Amendment of subsections (a) and (b) filed 9-17-71 as an emergency; effective upon filing. Certificate of Compliance included (Register 71, No. 38).
In instances where a school district is not required by the provisions of the Education Code to make purchases or have other work performed by contracts which have been let pursuant to competitive bids, the Director of General Services nevertheless may require such competitive bids whenever he deems it to be in the best interests of the State.
Article 6. Apportionments
§1863.17. Conditional Apportionment.
Note • History
(a) In addition to complying with any other requirements of these regulations or the Act, the Board at the time of making a conditional apportionment, shall:
(1) Establish the basic computed State matching ratio of assistance under Section 16330 of the Act, and specify the amount of local matching funds to be deposited by the school district as a condition of an apportionment.
(2) Approve a total estimated cost and budget for the project.
(3) Prescribe the purposes for which the apportionment may be expended.
(4) Fix the rate of interest to be paid by the district on the State funds apportioned to it in accordance with the provisions of Section 16334 of the Act.
NOTE
Authority cited: Section 16316, Education Code. Reference: Section 16334, Education Code.
HISTORY
1. Amendment of subsections (a)(1) and (a)(4) filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1863.18. Modification of Apportionment.
Notwithstanding anything to the contrary in these regulations, the Board shall have power to modify any apportionment or resolution of apportionment, either conditional or final, where the Board determines that good cause exists therefor.
§1863.19. Unencumbered Balance in the State School Building Fund of a School District.
Except as otherwise provided by the Act the share proportionate to the State's contribution toward a project under the Act, of any money in the State School Building Fund of a school district which remains an unencumbered balance in excess of the amount required to liquidate all approved costs or expenditures necessary to complete a project shall be returned by the district to the State within sixty (60) days after notice of completion of the construction project has been filed or the project has been accepted or occupied by the governing body of the school district, whichever first occurs.
Article 7. General
§1863.20. Performance and Payment Bond.
In connection with any construction of facilities by a district authorized under this Act, the district shall require of the contractor a payment bond as required by Chapter 7 (commencing at Section 3247) Title 15, Part 4, Div. 3, California Civil Code, and a faithful performance bond in not less than a similar amount.
§1863.21. Approval of Final Plans and Specifications.
No district shall advertise for construction bids or award a contract with respect to a project for which an apportionment has been made until the Director of General Services has received the final plans and specifications and has advised the district that such final plans and specifications are consistent with the application as approved by the Board.
§1863.22. Title to Real Property.
The district shall furnish satisfactory evidence of good title to all real property acquired, developed, or improved through the expenditure of an apportionment.
§1863.23. Disposition of Replaced Facilities.
Note • History
(a) Property, real or personal, replaced through an apportionment shall be disposed of pursuant to these regulations in a manner approved by the Executive Officer and the net proceeds therefrom contributed as a reduction of any apportionment pursuant to Education Code Section 16318.
The “net proceeds” shall include only that portion of the proceeds attributable to the buildings replaced where the sale or lease pursuant to (b)(1) or (b)(5) of this regulation involves land not replaced through an apportionment.
Whenever the State's matching ratio has been increased by virtue of any apportionments pursuant to Education Code Sections 16336, 16339, 16339.6 or 16339.7 (supplemental loan), the entire “net proceeds” as determined above shall be applied as a reduction of the apportionments.
(b) For the purposes of Education Code Section 16318, “disposed of” is defined as one of the following:
(1) Sale to others of replaced real property and buildings thereon at market value.
(2) Demolition of the buildings, where no real property has been replaced.
(3) Sale to others at market value of the buildings and physical removal from the site, where no real property has been replaced.
(4) Conversion of the use of the building to other than a “school building” as set forth in Section 39214 or conversion to a recreational or community use for which the building is not a “school building” as defined by Section 39141. Such conversion may be approved by the Executive Officer only upon contribution by the district of a sum to be applied as a reduction of the apportionment of not less than $1.00 for each square foot of building area so converted plus the fair market value of any replaced real property to be retained with the building. Any building so converted shall have posted in a conspicuous place on such building a public notice stating that such building does not meet the structural standards imposed by law for earthquake safety for a school building.
(5) Lease of replaced land and/or improvements at fair market value. Before a lease can be approved, the district must submit and the Executive Officer approve a plan of disposition to be implemented at the expiration or termination of the lease. The plan submitted by the district must be in accordance with (1), (2), (3), or (4) above.
(c) Any school district which has received an apportionment for the replacement of a school building or real property based upon a plan of disposition of the replaced property and has neither complied with such plan nor submitted an alternate plan acceptable to the Executive Officer within 2 years of such apportionment or by March 1, 1978, whichever occurs later, shall be deemed to have elected to dispose of such replaced property pursuant to Regulation 1863.23(b)(4) and shall be required to contribute as a reduction of its apportionment an amount equal to $1.00 for each square foot building area plus the fair market value of any replaced real property to be retained with the building.
NOTE
Authority cited: Section 16316, Education Code. Reference: Section 16318 and 16341, Education Code.
HISTORY
1. New subsection (c) filed 4-26-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 76, No. 18.
2. Amendment of subsections (a) and (b) and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
3. Amendment filed 11-25-77 as an emergency; effective upon filing (Register 77, No. 48).
4. Certificate of Compliance filed 3-1-78 (Register 78, No. 9).
§1863.24. Director of General Services.
The Director of General Services shall perform all acts necessary to carry out the provisions of the Act except such functions as are reserved to the Board and to other agencies by law or by these regulations and shall provide such staff assistance to the Board as may be necessary. This shall include adoption of such operating procedures as he deems essential to carrying out the provisions of the Act that are not in conflict with said Act or these Regulations.
§1863.25. Compliance with Laws.
All laws, ordinances, and regulations otherwise applicable to any project undertaken pursuant to an apportionment made under the Act shall remain applicable to said project unless otherwise provided by the Act or these regulations.
§1863.26. Limitation of State Responsibility.
In making an apportionment, neither the State nor any department or agency thereof, shall be required to assume any responsibility not otherwise imposed upon it by law.
§1863.27. Environmental Impact Requirements.
Note • History
NOTE
Authority cited: Authority cited: Section 19700.57, Education Code.
HISTORY
1. New section filed 3-19-73 as an emergency; effective upon filing (Register 73, No. 12).
2. Certificate of Compliance filed 6-22-73 (Register 73, No. 25).
3. Repealer filed 3-21-75 as an emergency; designated effective 4-1-75 (Register 75, No. 12).
4. Certificate of Compliance filed 7-3-75 (Register 75, No. 27).
§1863.28. Unforeseen Emergency Conditions Justifying an Emergency Meeting of the Board with Less Than One Week's Notice.
Note • History
For this purpose, an unforeseen emergency condition exists where
(1) A statute has been enacted which would allow the State Allocation Board to authorize continued use of school facilities until completion of replacement facilities or until June 30, 1978, whichever occurs first, but did not become effective in time for a district to request consideration as a regular agenda item of the Board, and where
(2) existing authorization terminates June 30, 1977, which is prior to the next regular meeting of the Board.
NOTE
Authority cited: Section 16316, Education Code. Reference: Section 11125, Government Code.
HISTORY
1. New section filed 6-24-77 as an emergency; effective upon filing (Register 77, No. 26).
Article 8. Environmental Impact Requirements
Note • History
These requirements are set forth in the following sections of Title 14, of the California Administrative Code:
SECTION NUMBERS
15001-15007 15231
15020-15021 15233
15041-15045 15261-15262
15050 15269
15052 15274
15060-15065 15300
15070-15074 15300.2
15080-15096 15300.4
15100-15112 15302
15120-15132 15314
15140-15153 15350-15368
15162-15170 15370-15376
15201-15205 15378-15385
15207-15227
NOTE
Authority cited: Sections 21001, 21082, 21083 and 21087, Public Resources Code. Reference: Sections 21082, 21083 and 21087, Public Resources Code.
HISTORY
1. New Article 8 (Sections 1863.30-1863.48) filed 3-21-75 as an emergency; designated effective 4-1-75 (Register 75, No. 12).
2. Certificate of Compliance filed 7-3-75, except as to Section 1863.32 (Register 75, No. 27).
3. Repealer of former Article 8 (Sections 1863.30-1863.48) and new Article 8 (Sections 1863.30) filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
Note • History
NOTE
Reference: Section 1500 et seq., Resources Code.
HISTORY
1. Amendment filed 7-3-75 as an emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 27).
2. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.33. Applicability of These Rules.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.34. Applicability of CEQA and Guidelines.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.35. Required Filing by a District.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.36. Categorical Exemptions.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.37. Notice of Exemption-Rejection by Executive Officer.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.38. Non-Exempt Projects--Initial Study.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.39. Negative Declaration--Requirements and Attachments.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.40. Negative Declaration--Rejection by Executive Officer If Not in Conformity with Law.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.41. Negative Declaration--Non-Rejection If in Accordance with Law.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.42. EIR--General Requirements.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.44. EIR for More Than One Project.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.45. EIR--Rejection by Executive Officer for Non-Conformity with Law.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.46. EIR Evaluation by the Board.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.47. Feasibility Studies.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1863.48. Exceptions to Current Requirements.
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
Subgroup 10. School Sites: Nonuse Payments
Article 1. Definitions
Note • History
(a) In connection with the administration of the provisions of Sections 39015 to 39018, inclusive, of Article 1, Chapter 1, Part 23, Division 3, Title 2, Education Code and for the purposes of these regulations, the terms set forth below shall have the following meanings:
(1) The Act. Sections 39015 through 39018, above.
(2) This Regulation. Shall be deemed to refer to Sections 39015 through 39018 thereof.
(3) Subject Sections. Shall be deemed to refer to Sections 39015 through 39018 of the Education Code.
(4) “Use” Within Five or Seven Year Period Specified by Section 39015.
(A) Use Prior to Effective Date of This Act Within 5 or 7 Year Period from Date of Acquisition. A district shall not be deemed to have used a site prior to the effective date of the act (January 1, 1974), within the 5 or 7 year period from the date of acquisition specified by Section 39015, unless it has within such 5 or 7 year period either:
1. entered into a lease in accordance with law which at any time in the future will result in improvements of a substantial nature on the site, or
2. made any other use thereof which either:
a. included the use of substantial improvements on the site at the time of acquisition, or
b. resulted at any time in such improvements on the site. For the purposes of this paragraph:
(i) bleachers or backstops regularly used for Little League play shall be deemed to be a substantial improvement to the site, and
(ii) the growing of agricultural or other plants shall not be deemed to be a substantial improvement to the site unless done as part of a regular school program for the benefit of the pupils of the district.
(B) Use Subsequent to the Effective Date of the Act. A site shall not be deemed to be used within the meaning of the five or seven year period of the date of acquisition specified by Section 39015 subsequent to the effective date of the act unless the use made thereof is for the specific purpose for which acquired, or for a purpose of similar dignity, as for example:
1. used to house students for all Department of Education programs authorized by the Legislature and operated by public school districts for which the district is receiving ADA apportionments. This would include Adult Education if ADA apportionments are being received,
2. used to house Special Education students,
3. used for District Administration including such support facilities as warehousing and maintenance facilities,
4. used for preschool or child care centers when operated by or under contract with public school districts or county superintendents of schools.
(5) “Purpose for Which It Was Intended” in Section 39015. The phrase “Purpose for which it was intended” in Section 39015 shall be deemed to mean the specific purpose for which the site was acquired or a purpose of similar dignity, for example:
(A) the substitution of a school of one grade level for a school of a different grade level, or
(B) used for the following reasons:
1. to house students for all Department of Education programs authorized by the Legislature and operated by public school districts for which the district is receiving ADA apportionments. This would include Adult Education if ADA apportionments are being received,
2. to house Special Education students,
3. for District Administration including such support facilities as warehousing and maintenance facilities,
4. for preschool or child care centers when operated by or under contract with public school districts or county superintendents of schools.
(6) “Will Utilize the Property . . . Within a Reasonable Period of Time” in Section 39015. The term “utilize” in the heading of this subparagraph shall refer to the same type of use as specified in (4) B above. A “reasonable period of time” shall be deemed to be a fixed period of time specified by the Board or a period of time dependent upon one or more contingent or indefinite occurrences, with or without a cutoff date, which the Board deems reasonable under the circumstances of the case. Generally, a reasonable period of time shall not exceed three years, unless the Board determines a longer period is warranted by the facts.
(7) Evidence. “Evidence” shall include information or documentation bearing upon the matter sought to be shown.
(8) Future Use. “Future Use” shall be deemed to mean “use,” as defined in (4)B above within a “reasonable period of time,” as defined in (6) above.
NOTE
Authority cited: Sections 39015-39018, Education Code. Reference: Section 39015, Education Code.
HISTORY
1. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18). For prior history, see Register 75, No. 31.
2. Amendment filed 11-7-88; operative 12-7-88 (Register 88, No. 46).
Article 2. Procedures
§1864.2. Cooperation by School Districts.
Every school district shall furnish the Executive Officer within a reasonable period of time specified by him and on forms prescribed thereby, with such attachments as may be desirable such information as may be requested by him in order for the Executive Officer or the Board to perform their functions under this regulation.
§1864.3. Evidence of Use--Determination by Executive Officer If Favorable; Otherwise by Board.
Note • History
The Executive Officer may determine that the site has been so used if he determines the evidence warrants the same, for the following:
(A) Where the district furnishes evidence of use within the meaning of Section 1864.1(4) A or B above,
(B) Where the district furnishes evidence that a school site has been utilized for one-half or more of the number of days in a year by a school district or by any other governmental entity pursuant to agreement with the school district for school or community playground, playing field, or other outdoor recreational purposes.
Otherwise, he shall submit the question of use or non-use to the Board for its determination.
NOTE
Authority cited: Section 39015, Education Code. Reference: Section 39015, Education Code.
HISTORY
1. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
§1864.4. No Evidence of Past Use.
Note • History
Where a district fails to furnish to the Executive Officer evidence of past use within the meaning of Section 1864.1(4)A above, within a reasonable time prescribed by such officer, the Executive Officer shall make a determination of non-use, which shall constitute the Board's determination referred to in 39017.
NOTE
Authority cited: Sections 39015-39018, Education Code. Reference: Section 39017, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1864.5. Non-Use Determination by the Board.
Where the Executive Officer, pursuant to Section 1864.3, has not made a favorable determination that the site has been used, the Board shall consider the evidence submitted and shall make such determination of use or non-use.
§1864.6. Board's Determination of Future Use.
When any finding of non-use has been made pursuant to Section 1864.4 or 1864.5, the district shall be given a reasonable time, as determined by the Executive Officer, to furnish evidence of future use to the Board for its determination as to whether the same will occur, together with the recommendation by the Executive Officer as to the Board's action with respect thereto.
§1864.7. Determination That Reasonable Time Has Elapsed Prior to the Expiration of Maximum Period Specified.
Note • History
When the Board has made a determination that a district will use the site within a reasonable period of time, it may subsequently determine that such reasonable period has elapsed, though less than the time specified, where the Board receives information that satisfies it, that such site will not be used during such period for the purpose for which it was intended within the meaning of Section 1864.1(a)(5). Any affected district shall, if it desires, be given an opportunity to be heard by the Board prior to such determination. Any such determination shall be deemed a determination of non-use at the time it is made for the purposes of Section 39017. For the purpose of this paragraph, the term “period” as used herein may include either a fixed period or an open-ended period.
NOTE
Authority cited: Sections 39015-39018, Education Code. Reference: Section 39015, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1864.8. Purchase Price Modification Factor.
Note • History
Any school district subject to non-use payments pursuant to Section 39015, Education Code may furnish the Board with a copy of a current appraisal of the fair market value of the site under consideration made either by a qualified independent appraiser or the county assessor. The Executive Officer may use such appraised value as the modified purchase price for determination of non-use payments pursuant to Section 39015.
NOTE
Authority cited: Sections 39015-39018, Education Code. Reference: Section 39015, Education Code.
HISTORY
1. Repealer and new section filed 3-21-75 as an emergency; effective upon filing (Register 75, No. 12).
2. Certificate of Compliance filed 7-3-75 (Register 75, No. 27).
3. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1864.9. No Certification Where Acquisition for Nominal Consideration.
Note • History
Where a district has acquired the property for a nominal consideration, no certification shall be made by the Executive Officer to the State Controller with respect to each fiscal year prescribed by Section 39016. A consideration shall be deemed to be nominal with respect to any fiscal year during which a certification would otherwise be made by the Executive Officer, where it appears likely to him that it would result in a deduction by the Controller during the next succeeding fiscal year of less than $5 for any of the installments specified in Section 39016.
NOTE
Authority cited: Sections 39015-39018, Education Code. Reference: Section 39016, Education Code.
HISTORY
1. Amendment of section and new NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
§1864.10. Lease-Purchase Same As Sale.
Note • History
When a district has entered into a lease-purchase agreement with another public agency which will result in the transfer of title for the site to such public agency upon completion of the purchase, such lease-purchase shall be considered to be a sale within the meaning of Section 39017, Education Code.
NOTE
Authority cited: Sections 39015-39018, Education Code. Reference: Section 39017, Education Code.
HISTORY
1. New section filed 4-24-75 as an emergency; effective upon filing (Register 75, No. 17).
2. Certificate of Compliance filed 8-1-75 (Register 75, No. 31).
3. Amendment of section and NOTE filed 4-29-77; effective thirtieth day thereafter (Register 77, No. 18).
Subgroup 11. Regulations Relating to the Leroy F. Greene State School Building Lease-Purchase Law of 1976
(Chapter 22, Part 10, Division 1, Education Code)
Article 1. Definitions
Note • History
For the purpose of these regulations, the terms set forth below shall have the following meanings, subject to the provisions of the act:
(a) The Act. Chapter 22, Part 10, of the Education Code.
(b) Board. The State Allocation Board.
(c) Executive Officer. The executive officer of the State Allocation Board.
(d) Application. A request pursuant to the act to lease a project. Such request shall be on forms prescribed by the board, together with such other information as may be required by the executive officer.
(e) District or Applicant School District. Any school district applying for a project or the county superintendent of schools qualifying as an applicant pursuant to Section 2553 of the Education Code.
(f) District Representative. One or more individual members of the district's staff appointed by it as “district representative” to file an application with the board on behalf of the district and to act as liaison between the board and the district.
(g) Agent of the Board. The applicant school district appointed by the board as its agent to perform specifically authorized acts necessary to construct and equip the project.
(h) Facility. All or a portion of any real property, site improvement, utilities, buildings, or furniture and equipment contained in a project.
(i) Lease Agreement with Option to Purchase. An agreement between an applicant school district and the State to lease with an option to purchase a project, as defined in the act, from the State.
(j) Lease-Purchase Project. A project for which the district has or intends to enter into one or more lease agreements with option to purchase on a given site.
(k) Reconstruction. Reconstruction for the purpose of Section 1721 shall be considered the substantial architectural alteration or modification of a building in order to bring it to modern educational standards.
(l) Construction. Construction for purposes of Education Code Section 17702.1 shall include the correction of structural deficiencies in a school building previously constructed pursuant to Article 3 of Chapter 2 of Part 23 of Division 3 of Title 2 of the Education Code when it is determined by the Board that such deficiencies constitute a serious health and safety hazard.
NOTE
Authority cited: Section 17705, Education Code. Reference: Section 17702.1, Education Code.
HISTORY
1. New Subgroup 11 (Sections 1865.1-1865.95, not consecutive) filed 2-3-78; effective thirtieth day thereafter (Register 78, No. 5).
2. Amendment of subsections (e) and (g) filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
3. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
4. New subsection (l) filed 5-4-81; effective thirtieth day thereafter (Register 81, No. 19).
Article 2. General Provisions
The purpose of these regulations is to prescribe the procedures necessary for the implementation and administration of the Leroy F. Greene State School Building Lease-Purchase Law of 1976 (hereinafter referred to as “the act”).
§1865.3. What May Be Provided.
Note • History
The act provides for the construction, reconstruction, or replacement of school facilities by the State Allocation Board under an agreement between a school district and the State.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Amendment filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
Note • History
Any school district may qualify to file an application for a lease-purchase project and enter into a lease agreement with option to purchase with the board, providing such applicant school district has sufficient building area entitlement as determined pursuant to the provisions of Article 4 of these regulations to justify the application being filed for new building construction or reconstruction.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Repealer and new section filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
Note • History
The executive officer shall perform all acts necessary to carry out the provisions of the act except such functions as are reserved to the board and to other agencies by law or by these regulations.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Amendment filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
§1865.6. Limitation of State Responsibility.
In approving an application for a lease-purchase project and making funds available therefor, neither the State nor any department or agency thereof shall assume any responsibility not otherwise imposed on it by statute or these regulations.
§1865.7. References to Education Code Prior to Recodification of 1976.
Note • History
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Repealer filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
The insurance required by Section 17738 of the act shall be in an amount that will guarantee full replacement or repair of the facilities for which claims are made.
Note • History
(a) Priority points shall be computed and assigned to applications whenever the board determines that there will be insufficient funds to meet the estimated needs for all districts in any given fiscal year. Whenever the assignment of priority points is required, applications that are in order for approval shall be considered by the board in sequence according to the number of priority points credited to each application. The board shall from time to time establish the minimum number of priority points necessary to qualify an application for approval consideration by the board. Such minimum shall be based upon the funds available and the estimated needs for the fiscal year.
(b) Priority points shall be computed on a districtwide basis, except for those districts having four or more high school attendance areas (excluding continuation high schools). In such case, points shall be considered on the basis of the attendance area of the project and all attendance areas adjacent thereto.
(c) For the purposes of computing priority points pursuant to the provisions of Section 17716 of the act, all existing building areas except central administration and maintenance facilities, shall be considered.
(d) Priority points for new construction shall be allowed as follows:
(1) Five priority points shall be allowed for each percent of the maximum allowable building area which may be included in an application as new building area (not replacement area).
(2) One priority point shall be allowed for each percent of the maximum allowable building area which may be included in an application as new building area replacing existing inadequate building area.
(3) One priority point shall be allowed for each 5% of increase between the current average daily attendance and the average daily attendance 5 years previously. The current average daily attendance will be based on the enrollment as determined by Section 1865.30(b).
(4) One priority point shall be allowed for each month that the application of the district has been in good order and awaiting approval.
(5) Two priority points shall be allowed for each 30 units of ADA unhoused.
(6) Priority points shall be allowed for the degree of utilization of the facilities in the district or attendance area by dividing the pupil capacity of all the facilities in the district or attendance area, computed by State aid standards, into the actual average daily attendance of the district or attendance area and multiplying such quotient by 10.
(e) Priority points for reconstruction shall be allowed as follows:
(1) Priority points shall be allowed equal to the quotient resulting from the equation (30 + y2) / (30 - y), where y equals the age, in excess of thirty years, of the building to be reconstructed, but not to exceed 253 points.
(2) Twenty five (25) points shall be allowed for each year in which the age of the building exceeds 57 years.
(3) One priority point shall be allowed for each percent of the pupils of the District or high school attendance area housed in buildings which are older than 30 years.
(4) Priority points shall be allowed for the degree of utilization of the building to be reconstructed by dividing the pupil capacity of the school computed by State aid standards, into the actual number of pupils in attendance in the school and multiplying such quotient by 100.
(5) One priority point shall be allowed for each month that the application of the district has been in good order and awaiting approval.
(6) Priority points computed pursuant to (1) and (2) above shall be reduced by 50% for any building that has been structurally reconstructed within the past 40 years.
(f) If any computation of priority points results in a fraction of a point that is less than one-half, such fraction shall be disregarded and the number of priority points shall be taken as the next lowest whole number. If such computation results in a fraction of a point which is one-half or more, such fraction shall be disregarded and the number of priority points shall be taken as the next highest whole number.
(g) Approvals and lease agreements made in priority order pursuant to this section shall be limited to that portion of a project pertaining to the acquisition of a site and the preparation of construction plans and specifications. Such approvals shall be limited to not more than 25% of the funds made available for the program.
NOTE
Authority cited: Sections 17705 and 17716, Education Code. Reference: Sections 17705, 17716 and 17721, Education Code.
HISTORY
1. New subsection (d)(6) filed 3-24-86; effective thirtieth day thereafter (Register 86, No. 13). For prior history, see Register 84, No. 41.
§1865.10. Priority Points for Construction.
Note • History
(a) Priority points may be computed and applied in the consideration of approvals for construction funds. Such priority points shall be maintained as a separate series from priority points computed pursuant to Section 1865.9 of these regulations, and shall be identified as “priority points for construction.” Any such computation of priority points for construction shall be determined as prescribed by said Section 1865.9, except as follows:
(1) The term “maximum allowable building area” in Section 1865.9(d)(1) shall mean the most recent computation of such area rather than that which applied at the time the application was first approved.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. New section filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
§1865.11. Priority Points for Remote Attendance Center.
Note • History
(a) Upon a finding by the board that an extreme hardship exists as a result of an attendance center of a school district being located in a remote area, in excess of 30 miles from any other attendance center of the district, the board may base the computation of priority points for the remote attendance center in the same manner as if it was a separate school district.
(b) In addition to the provisions of subsection (a), a finding by the board that an extreme hardship exists for an attendance center of a school district due to unique circumstances of topography and emerging population trends, the board may base the computation of priority points for the attendance center in the same manner as if it was a separate school district.
NOTE
Authority cited: Sections 17705 and 17763, Education Code. Reference: Section 17763, Education Code.
HISTORY
1. New section filed 6-26-80; effective thirtieth day thereafter (Register 80, No. 26).
2. New subsection (b) filed 7-28-82; effective thirtieth day thereafter (Register 82, No. 31).
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115-10115.10, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115, 10115.1 and 10115.2, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Editorial correction of printing error in subsection (e) (Register 91, No. 46).
3. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1865.13. Minority and Women Business Enterprise Goals.
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115 and 10115.2, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1865.14. Requirements of Awarding Department Agent.
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115-10115.2, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1865.15. Requirements of Awarding Department.
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115, 10115.1, 10115.2, and 10115.3(a), Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer of section and editorial correction of Note filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1865.16. Requirements of Bidder.
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115-10115.2, 10115.10, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115.2 and 10115.2, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115, 10115.1 and 10115.2, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Section 10115.3(a), Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1865.20. Penalties for Fraudulent Bidders.
Note • History
NOTE
Authority cited: Section 17705, Education Code and Section 15503, Government Code. Reference: Sections 10115-10115.10, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 20).
2. Repealer filed 3-13-96 as an emergency; operative 3-13-96 (Register 96, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-11-96 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-13-96 order transmitted to OAL 6-14-96 and filed 7-23-96 (Register 96, No. 30).
§1865.22. Filing and Review of Applications.
Note • History
A complete application shall be filed with the executive officer of the board.
NOTE
Authority cited: Sections 17705 and 17717, Education Code. Reference: Section 17717, Education Code.
HISTORY
1. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
§1865.23. Changes in Application After Original Approval.
An applicant may, after approval of an application but prior to entering into a lease-purchase agreement, request approval of changes within the application.
Article 4. Eligible Facilities
§1865.30. Estimated Average Daily Attendance (ADA).
(a) The estimated ADA of a school district or attendance area as required by Section 17740 of the act for determining the allowable building area shall be computed by this section. No estimate will be used unless approved by the executive officer of the board.
(b) For the purpose of estimating ADA, the following definitions shall apply:
(1) “Enrollment” means the graded enrollment of minors of the district as reported to the Department of Education on Form R-30 (or any succes--
sor form). Comparable enrollment data for the end of the first or sixth school month may be acceptable if verified by the appropriate county superintendent of schools.
Enrollment shall include only those students who actually reside in the school district and any students who reside in the district but attend school in other than the district of residence. Enrollment shall exclude high school pupils who attend continuation classes.
(2) “Projected enrollment” means graded enrollment as determined by the cohort survival method for a period of two years for the elementary grades and for a period of three years for the high school grades.
(3) “Pupil units attending continuation classes” is computed as follows: First determine the average number of pupil hours of attendance in high school continuation classes per school day in the highest three months of the latest 12 months, then divide the average by six. In making this computation, pupil hours during the regular school day in excess of 15 per week shall be included. Pupil hours for evening or Saturday classes shall be excluded. Multiply the final figure obtained in the preceding calculation by a factor which is computed by dividing the “projected enrollment” by the “current enrollment.” The result is the “pupil units attending continuation classes.”
In the event the district is applying for a continuation high school facility and has students who have not yet been screened and assigned to continuation classes because of lack of suitable space, the district may submit an identified list of such pupils. The average number of pupil hours of high school attendance in continuation classes per school day as computed above may be augmented by the pupil hours obtained by multiplying the number of names on the list by three, or in the event the district can prove that continuation high school pupils attend classes for an average of more than three hours per day, such larger multiplier may be used. When an identified list of prospective continuation high school pupils is used, the number of pupils on such list shall be excluded from the graded enrollment.
(4) “Exceptional children” means those pupils assigned to special education classes as of the latest enrollment, plus a verified count of such pupils who are not attending classes of the district but will become a part of the attendance of the district when approved facilities for such pupils have been completed.
(5) “Estimated average daily attendance” means the projected enrollment multiplied by .97 plus the exceptional children assigned to special education classes, plus the pupil units attending high school continuation classes.
(6) “Housecount” means an enumeration of new housing units that are under construction, i.e. units that have at least reached the stage of foundations in place, and have not yet been completed and occupied, classified by type of housing unit as the board may prescribe. Such housing units shall not include hotel or motel accommodations or other living quarters generally used as transient or short-term accommodations, but may include spaces under construction for mobile homes which the board determines to be essentially for long-term occupancy. The definition of housecount prescribed herein may be modified from time to time as may be necessary to classify new housing units in the most appropriate manner for the purpose of measuring the pupil yield of such units.
(c) The projected enrollment shall be determined by the cohort survival method in accordance with the following and by the use of such forms and instructions as the board may prescribe.
(1) List either the latest enrollment for the end of the first school month or the subsequent sixth school month and the enrollment for the same period for the three preceding years. All applications approved by the board after April 30 of any given year shall be based on the enrollment as of the end of the sixth school month of the most recent year. Such enrollment shall be listed by level for each grade included in the application. High school applications shall also list the four highest grades of component elementary enrollment.
(2) Determine the numerical change in enrollment between each given grade in one year and the next higher grade in the succeeding year for each period and grade listed in (1) above. With respect to kindergarten enrollment (or first grade enrollment if no kindergarten is maintained), determine the numerical change in kindergarten (or first grade) enrollment between each period listed in (1) above, or alternatively, annual changes in enrollment based on a local census or survey of preschool children conducted according to such procedures as the board may prescribe.
(3) Compute the average annual change in enrollment for each grade maintained at the grade level of the application. The average shall be a weighted average computed by multiplying the most recent annual change in enrollment by three, the next most recent change by two, and the earliest change by one, and dividing the sum of the weighted changes by six.
(4) Progress the latest reported enrollment through the applicable two or three year projection period, modifying the grade progression each year by the average annual change for each grade as computed in (3) above.
(d) From the projected enrollment, compute the estimated average daily attendance as defined in Subsection (b)(5) above.
(e) In the event that there is good reason to believe the number of pupils being added from construction of new housing units exceeds the number implicit in the cohort survival computation and when the land area of the district is less than 75% developed, the board may, at its discretion, modify the estimated average daily attendance as follows:
(1) Determine the graded enrollment one year from the latest reported enrollment by a one-year grade progression, adjusted for dropouts at the high school level.
(2) Determine the enrollment derived from new homes implicit in the cohort survival computation as follows: (i) Subtract the enrollment computed in (1) above from the one-year projection of enrollment as determined by the cohort survival method; (ii) To the remainder, add two percent of the latest enrollment for the end of the first or sixth school month, whichever is applicable. If the foregoing computations result in a negative number, the number shall be deemed to be zero.
(3) Determine the pupil yield per housing unit of housecount, as established by a survey of occupied housing units in the district, for the current year and the two preceding years. The survey shall take into consideration the different pupil yields of multiple and single family housing units or other significant yield characteristics. The current year yield factor for each type of housing unit shall be modified by the average annual difference of the factor for each type for the two preceding years.
(4) I the event that prior year data referred to in (3) is unavailable, the current yield factor shall be modified as the board shall prescribe.
(5) Establish the pupil yield of the housecount by multiplying the number of housing units in the housecount by the applicable yield per housing unit as determined above. Subtract the enrollment from new homes determined in (2) above from the yield of the housecount; the result of this computation is the amount by which the graded enrollment computed under the cohort survival method shall be changed.
(6) The housecount and surveys described in (3) and (4) shall be conducted by the district in accordance with methods, procedures, and standards which are approved by the Office of Local Assistance with respect to each specific case.
(f) Other provisions of this section notwithstanding, high school enrollment of a district or attendance area for the end of the first school month may be used for estimating ADA.
§1865.31. Estimated Average Daily Attendance--High School Attendance Area.
(a) As permitted by Section 17741, a district may file an application based upon a high school attendance area rather than a districtwide basis. A high school district or a unified school district filing on a high school level would base its application on enrollment estimated to attend such high school and upon facilities already existing in such high school attendance area. An elementary school district or unified district filing on an elementary level would base its application on the enrollment and existing facilities of the elementary schools serving the high school attendance area under consideration.
(b) The estimated average daily attendance of a high school attendance area as permitted by Section 17741 of the act for determining the allowable building area, when the district is applying only on a high school attendance area basis as opposed to a districtwide basis, shall be computed in the same manner as that set forth in regulation 1865.30, except that the enrollment used in such computation shall be that of the high school attendance area rather than the entire district and shall be certified by the district.
(c) In those instances where the high school attendance area results in a split in individual attendance areas of the contributing elementary or junior high schools, an assignment of enrolled pupils in such split attendance areas shall be made by the district in a manner satisfactory to the executive officer.
§1865.32. Application for Site and/or Plans.
In order to expedite a total school facility, a school district may first apply for a project which includes only the advance purchase of the land and preparation of plans and specifications. The acquisition of the site and the plans preparation shall be based on justification documents for the total school facility.
§1865.32.5. Utilization of Existing Facilities.
Note • History
(a) If the board determines that it will not be economical or practical to utilize all existing facilities of the district, project approval then will be contingent upon the agreement by the district to dispose of any salable interest in any building or site that the board determines cannot be utilized and contribute the net proceeds of the sales to the State School Building Lease-Purchase Fund as rents pursuant to Section 17732 of the act.
(b) Approval of a project applied for pursuant to Section 17741 of the act will be contingent upon the conditions specified in subdivisions (a) and (b) of this section.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17722 and 17732, Education Code.
HISTORY
1. New section filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Amendment of subsection (b) filed 5-4-81; effective thirtieth day thereafter (Register 81, No. 19).
3. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
§1865.33. Computation of Allowable School Building Area.
Note • History
(a) No project shall be approved, the building area of which, when added to the area of adequate school construction existing in the applicant school district or the applicable high school attendance area if the application is filed on such basis, will provide a total area of school building construction in excess of that computed pursuant to Education Code Sections 17740 through 17749.
(b) All of the existing building area owned or operated by the district regardless of conditions or purpose for which used, shall be reported to the board by the district as prescribed in this regulation. Where an allowable building area is computed on the basis of an attendance area as provided by Section 17741 of the act, the existing building area shall be considered the building area within such attendance area.
(c) Existing adequate building area shall include all existing building area not otherwise excluded by the act or these regulations, building area for which applications have been approved under any state or federal building program, any building area being acquired by any lease-purchase agreement, proposed building area which has been otherwise financed or any building area which has been used to justify any site and/or plans lease-purchased project under this act. Existing building area shall be excluded as follows:
(1) The area of any building to which Article 3 of Chapter 2, Part 23 of the Education Code would not apply.
(2) The area of any relocatable structure for temporary use building under lease pursuant to Education Code Sections 39243 or 39246.
(3) The area of any district administration or district maintenance facilities except those constructed pursuant to the Leroy F. Greene State School Building Lease-Purchase Law of 1976.
(d) Existing and proposed building area shall be computed in accordance with the following:
(1) All measurements shall be made from exterior rough wall lines.
(2) Totally enclosed space shall be counted as full area. Among the various types of space to be included shall be areas such as:
(A) Basement rooms and basement boiler rooms.
(B) Heater rooms, including those above the normal floor level.
(C) Each floor of multi-story buildings.
(D) The area of completely enclosed stairs for each floor level served.
(3) Certain partially enclosed areas shall be counted as full area and shall include:
(A) Open, covered areas which provide shelter between buildings that are less than 20 feet apart.
(B) Mezzanines open on one or more sides which may easily and readily be used or converted to use as instructional space or passageways.
(C) Each floor of library stacks.
(4) Covered unenclosed space shall be counted as one-half of the actual area. Included in such space are:
(A) Open, covered passages, arcades, shelters, porches, and planting areas.
(B) Open, covered areas which provide shelter between buildings that are 20 feet apart or more.
(C) Overhangs and sun control devices which are so designed and located that they function as, and in lieu of, covered walks or other shelter areas.
(D) Mezzanines for storage purposes.
(5) Areas which shall not be counted include:
(A) Eaves and sun control devices except as specified above.
(B) Unsheltered platforms and steps.
(C) When isolated from building structures, the area of incinerators, pumphouses, transformer vaults, and service yards.
(D) Elevator shafts where constructed in order to comply with Chapter 7 of Division 5 of the Government Code (commencing with Section 4450), relating to facilities for handicapped persons.
(E) That portion of the area below the first floor of a multistory building used exclusively for employee parking, provided the board finds that other means of parking are not economically feasible.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17740-17749, Education Code.
HISTORY
1. New subsection (c)(3) filed 6-26-80; effective thirtieth day thereafter (Register 80, No. 26).
2. Amendments of subsections (b) and (c) filed 5-4-81; effective thirtieth day thereafter (Register 81, No. 19).
§1865.34. Allowable School Building Area for Facilities for Exceptional Children.
Note • History
(a) In conformity with the requirements of Section 17747 of the Education Code, the board establishes allowable building areas for the education of physically handicapped, educationally handicapped, and mentally retarded minors, to be computed as follows:
(1) Divide the number of eligible pupils by the maximum class size established by law for special day classes for the type of pupils to be enrolled and increase the quotient to the next highest integer where a fractional amount is produced.
(2) Multiply the number computed in (1) by the maximum building area allowance shown below when the facility is planned for the following types of exceptional children:
Embedded Graphic 02.0026
(3) When the chronological age span of educable mentally retarded minors is greater than four years, the maximum class size shall be 15 pupils.
(4) When facilities to be constructed will include occupational therapy, physical therapy, and related auxiliary spaces for orthopedically handicapped minors, additional building area allowances for such spaces of up to 5,200 square feet shall be made if the facility is designed for one to three classes and up to 7,000 square feet for four to eight classes.
(5) When facilities are to be constructed for deaf-blind multihandicapped, a one-time additional building area allowance of 500 square feet per school will be made for the initial construction of facilities.
(6) When facilities are to be constructed for blind or partially seeing minors served in an integrated instructional program which is housed in two or more schools, the building area allowance may be allocated among the schools when approved by the Department of Education. No area of instruction shall be allowed which is less than 200 square feet.
(7) When facilities are to be provided for minors having speech defects or disorders, additional building area per school is permitted. This additional area allowance is limited to:
(a) 200 square feet of new building area per school in schools constructed after July 1, 1968, where such schools are designed to permit utilization for remedial and other special services.
(b) 200 square feet of new building area per school in schools constructed between July 1, 1933 and July 1, 1968, where such additional area allowance is used for the construction of a new speech facility.
(c) Conversion of existing facilities or a combination of new construction and conversion of such existing facilities to provide housing for such minors having speech defects or disorders, provided the cost does not exceed the computed cost for 200 square feet of new classroom construction based upon cost standards adopted by the board.
(d) The acquisition of mobile speech therapy facilities, provided the cost does not exceed the combined computed cost for 200 square feet of new classroom construction, based upon cost standards adopted by the board, at all such schools which will be served by the mobile facility.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Amendment filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
3. Amendment filed 6-1-81 as an emergency; effective upon filing (Register 81, No. 23).
4. Order of Repeal of 6-1-81 emergency order filed 6-5-81 by OAL pursuant to Government Code Section 11349.6 (Register 81, No. 23).
§1865.35. Allowable Building Area for Small Elementary School Districts.
(a) For the purpose of computing the building area allowance for small elementary school districts in accordance with Section 17743 of the Education Code, the following shall apply:
(1) In an applicant district maintaining any combination of grades kindergarten through 6 with an estimated average daily attendance of less than 300 in such grades:
Estimated ADA Maximum
in Kindergarten Total Building
and Grades 1-6 Area (Sq. Ft.)
6-25 1,600
26-50 3,800
51-75 5,700
76-100 7,200
101-133 8,415
134-166 10,200
167-199 12,000
200-232 13,360
233-285 15,675
286-299 16,500
(2) In an applicant district maintaining any combination of grades kindergarten through 8 with an estimated average daily attendance of less than 300 in grades kindergarten through 6, there shall be allowed, in addition to the maximum total building area shown above, a maximum area of 75 sq. ft. for each attendance unit in grades 7 and 8.
§1865.36. Allowable Building Area for Continuation High Schools.
Note • History
(a) The estimated average daily attendance for continuation high schools shall be based on those pupil units attending continuation classes (as defined in Section 1865.30(b)(3) of these regulations) which are assigned to the continuation high school.
(b) Building area shall be allowed for the continuation high school in accordance with the following schedule:
Pupil Units
of Continuation Square Feet of
High School Building Area
5 to 20 2,300
21 to 40 2,300 + 125 for each pupil unit over 20
41 to 60 4,800 + 120 for each pupil unit over 40
61 to 90 7,200 + 115 for each pupil unit over 60
91 to 120 10,650 + 105 for each pupil unit over 90
121 to 150 13,800 + 90 for each pupil unit over 120
Over 150 16,500 + 60 for each pupil unit over 150
(c) For purposes of this section, a continuation high school must be physically and operationally distinguishable from other schools. If the continuation high school shares space with another type of school, it can be considered to be a continuation high school within the meaning of this section only if the district can show conclusively that the continuation facility is in fact a separate institution with its own administration, teaching staff, and course of study, located in a clearly identifiable building area.
NOTE
Authority cited: Sections 17705 and 17742, Education Code. Reference: Sections 17740-17751, Education Code.
HISTORY
1. Amendment of subsection (b) filed 3-5-90; operative 4-4-90 (Register 90, No. 10).(p. 71.72.50.6.1)
§1865.37. Minimum Essential Instructional Facilities.
In the event the existing area of the district as determined pursuant to Section 17742 of the act results in a district being unable to apply for the minimum amount of essential instructional facilities required, the existing area may be reduced, with the approval of the board, by an amount sufficient to permit such essential instructional facilities to be constructed under the act. Such reduction shall be construed as being for the purpose of alleviating any substantial hardship which might otherwise occur.
§1865.38. Building Cost Standards.
(a) Pursuant to Section 17717 of the act, the board shall establish allowable school building cost standards which shall be effective until next revised.
(b) No application or bid shall be approved and no funds shall be provided for any construction which exceeds the allowable costs established as provided herein. In the event, however, that it is shown from any studies by the board that actual building costs in an area or portion of an area differ substantially from the allowable costs established for the area, the board may at any time revise the allowable building cost standards for the area or create additional areas and establish appropriate allowable cost standards for such additional areas.
§1865.39. Unconventional Sources of Energy.
Where a school district requests an increased cost allowance for the design and construction of facilities which will conserve unreplenishable energy resources pursuant to Section 17718 of the act, a life cycle cost comparison must be submitted to the board. Such cost comparison shall be prepared by a competent authority and provide for the amortization of the increased cost allowance over a period not to exceed the lesser of 30 years or the term of the lease.
§1865.40. Reconstruction or Replacement.
Note • History
(a) No project shall be approved for reconstruction, the cost of which will exceed cost standards established by the board for replacement of the amount of area equivalent to the actual reconstruction area.
(b) Replacement. No building shall be replaced until the board has made a finding that it would not be economical or good practice to reconstruct the school facilities to meet present-day educational and structural standards.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17705, 17716 and 17721, Education Code.
HISTORY
1. Amendment of subsection (a)(1) filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance including amendment filed 6-26-80 (Register 80, No. 26).
3. Amendment filed 10-10-84; effective thirtieth day thereafter (Register 84, No. 41).
Note • History
(a) Site development for new building area may be included as a part of the project and classified as follows:
(1) Utility Services may include but are not limited to facilities required to bring water, sewer, electricity, telephone, and fuel supply services to such suitable point on the site as may be necessary for the functioning of a project.
(2) Off-site Development may include but is not limited to such street improvements as are in line with the approved standards of the board and as are determined by the executive officer to be necessary. However, whenever a school building to be constructed pursuant to an apportionment under the act is situated in a city, city and county, or county which requires the construction of any street or road connected with the school premises on which the building is situated, the board shall review the requirement and recommend to the entity in question a plan of construction adequate to meet the needs of the school district and safety of the public. Thereafter, if any different plan of improvement or improvement to higher standards than so recommended is required by such entity, the additional cost shall be borne by the entity as provided in Section 2117 of the Streets and Highways Code.
(3) Service Site Development may include but is not limited to site clearance, rough grading, and drainage which may be required to make a site usable in accordance with standards established by the board.
(4) General Site Development may include but is not limited to any other development of a site, including such items as grading (except rough grading), walks, curbs, roadways, parking areas, fencing, flagpoles, incinerators, hand-surfaced and turfed play areas, landscaping, and playground equipment.
In the event the proposed construction consists of an addition to an existing school plant (whether financed by State Funds or by other means) the countable existing construction area and the existing site development shall be evaluated by the Director of General Services in determining any allowance for general site development.
(b) Site development for reconstruction is limited to replacement of walks or paving which are destroyed as a result of the reconstruction work, and may be required for handicapped requirements. Off-site work and utilities will not be considered unless justification has been submitted that the reconstructed facility cannot be adequately functional without such improvements.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17705, 17716 and 17720, Education Code.
HISTORY
1. Repealer of subsection (a)(3) and new subsections (a)(3), (a)(4), and (a)(4)(A) filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Amendment filed 10-10-84; effective thirtieth day thereafter (Register 84, No. 41).
§1865.42. Furniture and Equipment.
(a) Furniture and equipment may be included as part of the project.
(b) Cost standards for furniture and equipment shall be established on a quarterly basis by the board based upon the kinds, quality, quantities, and costs of furniture and equipment most commonly acquired by school districts for comparable facilities.
(c) Before requesting funds for furniture and equipment for a project, the district shall give full consideration to all usable furniture and equipment existing in the district. The district may apply for funds to provide such furniture and equipment as needed to complete the project within the standards established by the board. The furniture and equipment allowance for replacement or reconstruction projects cannot exceed 50% of the allowance for comparable new facilities unless specifically approved by the board.
(d) An allowance will be calculated for each construction project in accordance with 1865.42(b) and (c) above. The amount so calculated will be authorized as the cash allowance for the project to be expended by the district in furnishing and equipping the project.
(e) Furniture and equipment shall be purchased by the district by competitive bidding where required to do so by the Education Code or other provisions of law. However, even where the district is not otherwise required to purchase the same through competitive bidding, the board may require the district to do so where it believes that it is likely that such bidding would result in a lower cost than other methods.
§1865.43. Repairs, Renewals, and Replacements.
Note • History
(a) The district shall make all repairs, renewals and replacements necessary to keep the project in good repair, working order and condition at all times. All costs for this purpose will be borne by the district.
(b) In the event the project requires repairs, renewals or replacements as a result of damages from any cause, casualty, or otherwise, the district shall make the same. In such event the board shall contribute any insurance funds available to it for this purpose.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Repealer and new section filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
Article 5. Project Approvals and Lease-Purchase Agreements
§1865.50. Approval of Applications.
Note • History
The board may approve in whole or in part any application submitted pursuant to the Act. Upon receipt of the application, the executive officer shall review it for proper form and compliance with statutes and regulations of the board. After such review and any necessary corrections, the executive officer shall present the application to the board with recommendations, in whole or in such part as will satisfy the board's policy of approving funds for feasibility studies, site acquisition and/or preparing plans and specifications, and project construction in separate increments, whereupon the board shall consider the application provided it (the application) has sufficient priority to warrant such consideration. If the application meets with the board's approval, it shall grant its approval and shall make an apportionment for the financing of the project from any sources available for such purposes. The apportionment shall be conditioned upon the district subsequently entering into a lease-purchase agreement with the state. After such approval and apportionment of funds, the executive officer of the board shall authorize the district, as the agent of the board, to perform all acts necessary to effectively complete the particular phase of the approved project. Such authorization shall be specifically set forth in writing to the district and shall be conditioned upon the district having entered into or subsequently entering into a lease-purchase agreement with the board either in the form of (1) a lease-purchase for feasibility studies, (2) the lease-purchase of a site and/or plans, or (3) the lease-purchase of an entire project. Failure on the part of the district to enter into such agreement shall invalidate such authorization, and any obligations incurred as a result thereof shall become the sole responsibility of the district. Upon receipt of successive phases of the project, the executive officer shall have the authority to amend the project budget within the apportionment so made or to reduce the total apportionment to conform to the project as bid. The executive officer is authorized to enter into a lease-purchase agreement or agreements with the district on behalf of the board.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Amendment filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance including amendment filed 6-26-80 (Register 80, No. 26).
Note • History
(a) In addition to complying with any other requirements of these regulations or the act, the board, at the time of making an apportionment, shall:
(1) Approve a total estimated cost and a budget for the project.
(2) Prescribe the purposes for which an apportionment may be expended.
(3) Prescribe the manner, terms, and conditions for releasing the apportionment to the district.
(b) Notwithstanding anything to the contrary in these regulations, the board shall have power to modify any apportionment or resolution of apportionment where it determines good cause exists therefor.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Repealer of subsections (a)(4)-(5) filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
Note • History
The rental payments required by Section 17732 of the act will become due and payable on September 15 following the date the lease-purchase agreement is executed and on each successive September 15th thereafter during the life of this agreement. The payment may be in the form of a contribution toward the cost of an ongoing project or as a direct remittance. An Annual Certification of Funds Available for Rents shall be submitted by each district prior to August 15 each year. The payment required for a district desiring to exercise an option to purchase shall be the total cost of the project less any rental payments made or to be made from sources identified in Section 17732(c) and (d) of the act.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Repealer and new section filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
Article 6. Project Budget
§1865.60. Contents of Project Budget.
Note • History
(a) The project budget prescribed by the board shall be set up in such a manner as to contain all costs attributable to the project, categorized as follows: Sites; Plans; Construction; Tests; Inspection; Furniture and Equipment; and Contingencies. Within these major categories the following limitations shall apply:
(1) Sites:
(A) The board shall not authorize the expenditure of any funds for real property in excess of the fair market value of such property.
(B) Relocation assistance costs to landowners or persons displaced pursuant to Sections 7260 et seq. of Chapter 16, Division 7, Title I of the Government Code, referred to as the “Relocation Assistance Law,” in conjunction with an acquisition of a site for which an application for a lease-purchase project is made, shall be administered by the district affected in accordance with the requirements of said sections.
(2) Plans:
(A) Fees for architectural and engineering services, including architectural supervision, shall not exceed the standards established by the board.
(B) The board shall require that each architectural contract contain a clause to the effect that the architect shall be responsible for making, without additional cost to the district, any changes or redesigning made necessary as a result of the bids exceeding the cost standards established by the board.
(C) Any other plan fees or changes required by law.
(3) Construction: Costs shown for construction shall not exceed the cost standards established by the board.
(4) Tests: The amount for tests shall be limited to the actual costs of tests which are required by Title 21 of the California Administrative Code or other applicable provisions of law, or which are in accordance with good or accepted practice.
(5) Inspection: The amount for inspection shall be limited to such amounts as is required to insure that the project is completed in accordance with plans and specifications and any other legal requirements.
(6) Furniture and Equipment: The amount for furniture and equipment shall be limited to that determined pursuant to Section 1865.42 hereof.
(7) Contingencies:
(A) An amount may be included for contingencies which shall not exceed such maximums as the board may prescribe for any class of application or value of facilities in a project budget.
(B) Contingency funds may be used only after specific approval by the executive officer for items of construction or other approved project costs where the cost increase or the item required is necessary for the completion of a facility which has been approved by the board.
NOTE
Authority cited: Section 17705, Education Code. Reference: Section 17729, Education Code.
HISTORY
1. New subsection (a)(2)(C) filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
3. Amendment of subsection (a)(2)(A) filed 5-4-81; effective thirtieth day thereafter (Register 81, No. 19).
§1865.61. Revision of a Project Budget.
(a) The executive officer may revise any item within a project budget, upward or downward, provided that no such revision results in an increase in the total amount of the project budget approved by the board.
(b) The executive officer may reduce any apportionment as may be necessary to reflect any revision made pursuant to (a) above.
Article 7. Disposition of Property
§1865.70. Disposition of School Buildings or Land.
Note • History
Whenever a district disposes by sale or lease of any land or buildings no longer needed for school purposes, the net proceeds therefrom shall be remitted to the state, as rental payments pursuant to Education Code Section 17732. Such payment(s) shall be applied to the outstanding balance of any approved projects in the order(s) of approval.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Repealer and new section filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
§1865.70.5. Justification of Surplus School Site.
Note • History
Whenever disposition of a surplus school site is required as a condition of approval of a project and an apportionment of funds pursuant to Education Code Section 17760 et. seq., the existence of the surplus school site shall be deemed to be justified in accordance with the provisions of Education Code Section 17762 while the disposition process is occurring.
NOTE
Authority cited: Sections 17705 and 17763, Education Code. Reference: Section 17762, Education Code.
HISTORY
1. New section filed 7-28-82; effective thirtieth day thereafter (Register 82, No. 31).
§1865.71. Disposition of Excess Improvements Acquired with Site Purchase.
Note • History
(a) Excess improvements acquired with a site purchase shall be offered for sale prior to the advertising of a project for construction bids, in accordance with the method and manner prescribed for the sale of personal property under Section 39520 et seq. of the Education Code. The net proceeds received from any such disposition shall be deposited in the County School Lease-Purchase Fund as a credit against the cost of the project.
(b) When facilities acquired with a site purchase have been offered for sale pursuant to Section 39520 et seq. of the Education Code and no acceptable bids are received prior to the time the construction project is ready to be advertised for construction bids, the district shall adopt a resolution making a finding that the property is of insufficient value to defray the costs of arranging a subsequent sale as provided by Section 39521(b) of the Education Code and proceed to demolish such property using funds approved in the project for this purpose.
NOTE
Authority cited: Section 17705, Education Code. Reference: Sections 17700-17749, Education Code.
HISTORY
1. Amendment of subsection (a) filed 3-17-80 as an emergency; effective upon filing (Register 80, No. 12). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 7-16-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
Article 8. Lease-Purchase of Sites and Plans
§1865.75. Advance Purchase of Sites and Preparation of Plans.
(a) Except as otherwise provided by the act or these regulations, the provisions of these regulations shall apply to applications for sites and/or plans and specifications made pursuant to Section 17720 of the act.
(b) Nothing contained in the regulations shall be construed to prohibit the executive officer from entering into a lease agreement with option to purchase for a site and/or plans pursuant to Regulation 1865.32 without construction, even though such items may constitute only a part of the project as approved by the board. A lease-purchase agreement or agreements may be subsequently entered into by the executive officer for the balance of the project.
Article 9. Environmental Impact Requirements
Note • History
These requirements are set forth in the following sections of Title 14, of the California Administrative Code.
SECTION NUMBERS
15001-15007 15231
15020-15021 15233
15041-15045 15261-15262
15050 15269
15052 15274
15060-15065 15300
15070-15074 15300.2
15080-15096 15300.4
15100-15112 15302
15120-15132 15314
15140-15153 15350-15368
15162-15170 15370-15376
15201-15205 15378-15385
15207-15227
NOTE
Authority cited: Sections 21001, 21082, 21083 and 21087, Public Resources Code. Reference: Sections 21082, 21083 and 21087, Public Resources Code.
HISTORY
1. Repealer of former Article 9 (Sections 1865.80-1865.95) and new Article 9 (Section 1865.80) filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46). For history of former Article, see Register 78, No. 5.
§1865.81. Definitions. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.82. CEQA Officer. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.83. Applicability of These Rules. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.84. Applicability of CEQA and Guidelines. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.85. Required Filing by a District. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.86. Categorical Exemptions. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.87. Notice of Exemption--Rejection by Executive Officer. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.88. Non-Exempt Projects--Initial Study. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.89. Negative Declaration--Requirements and Attachments. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.90. Negative Declaration--Rejection by Executive Officer If Not in Conformity with Law. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.91. EIR--General Requirements. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.92. EIR Attachments. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.93. EIR for More Than One Project. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.94. EIR--Rejection by Executive Officer for Non-Conformity with Law. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
§1865.95. EIR Evaluation by the Board. [Repealed]
History
HISTORY
1. Repealer filed 11-14-86; effective thirtieth day thereafter (Register 86, No. 46).
Subgroup 12. State School Deferred Maintenance
Article 1. Definitions
Note • History
(a) In connection with the administration of the provisions of California Education Code (EC) Sections 17582 through 17588 and 17591 through 17592.5, inclusive, of Article 1, Chapter 5, Part 10.5, Division 1, Title 1, and for the purpose of these regulations, the terms set forth below shall have the following meanings:
“The Act” means EC Sections 17582 through 17588 and 17591 through 17592.5, above.
“Board” means the State Allocation Board.
“Complete Application” means a district has submitted with the application, all documents to the Office of Public School Construction (OPSC) that are required as identified in the General Information Section of the Form SAB 40-22 and the OPSC has accepted and completed a preliminary approval review.
“Critical Project” shall have the meaning set forth in Section 1866.5.
“Deferred Maintenance” means the repair or replacement work performed on school facility components that is not performed on an annual or on-going basis but planned for the future and part of the Form SAB 40-20.
“District or Applicant School District” shall mean an entity identified in Section 1866.1(a).
“Division of the State Architect” means the State office within the Department of General Services that reviews school building plans and specifications for structural, fire safety, and access compliance.
“Extreme Hardship Grant” means a grant provided by the State to complete the critical project, as provided by EC Section 17587 and Regulation Section 1866.5.2.
“Financial Test” shall have the meaning set forth in Section 1866.5(a).
“Five Year Plan” Shall have the meaning set forth in Section 1866.4.
“Form SAB 40-20” means the Five Year Plan, Form SAB 40-20 (Rev. 12/10), which is incorporated by reference.
“Form SAB 40-21” means the Certification Of Deposits, Form SAB 40-21 (Rev. 12/10), which is incorporated by reference.
“Form SAB 40-22” means the Extreme Hardship Funding Application, Form SAB 40-22 (Rev. 10/07), which is incorporated by reference.
“Form SAB 40-23” means the Fund Release Authorization, Form SAB 40-23 (New 04/02), which is incorporated by reference.
“Form SAB 40-24” means the Expenditure Report, Form SAB 40-24 (Rev. 12/10), which is incorporated by reference.
“Like-Kind Material/System” means a building material or system that is substantially identical in function to the existing building material or system to be replaced.
“Matching Funds” means an amount of funds the district deposits into the “district deferred maintenance fund” to receive either a maximum or prorated basic grant.
“Maximum Basic Grant” means an amount of State funds apportioned by the Board for purposes of the Form SAB 40-20. This amount is based on the formula specified in EC Section 17584(a).
“Prorated Basic Grant” means the prorated amount of the maximum basic grant apportioned by the Board due to insufficient funding for the Deferred Maintenance Program (DMP).
“Office of Public School Construction (OPSC)” means the State office within the Department of General Services that assists the Board as necessary and administers the DMP.
“OPSC Deferred Maintenance Extreme Hardship Workload List” means a list of extreme hardship funding applications authorized by EC Section 17587 for which the district has submitted all necessary application documents to the OPSC that are required to be submitted as identified in the General Information Section of the Form SAB 40-22 but not yet included on the DMP Extreme Hardship Unfunded List.
“OPSC Extreme Hardship Unfunded List” means an information list of unfunded critical projects awaiting an Extreme Hardship Grant under the provisions of the DMP.
“OPSC Modernization Workload List” means a list of School Facility Program (SFP) modernization projects for which the district has submitted all necessary application documents to the OPSC that are required to be submitted as identified in the General Information Section of Form SAB 50-01, Enrollment Certification/Projection, (Revised 03/05); Form SAB 50-02, Existing School Building Capacity, (Revised 09/02); Form SAB 50-03, Eligibility Determination, (Revised 09/06); and Form SAB 50-04, Application for Funding, as specified in Section 1859.2 “Form SAB 50-04,” under the SFP.
“Repair” means the work necessary to restore deteriorated or damaged building systems such as plumbing, heating, air conditioning, electrical, roofing, flooring, and wall systems. The exterior and interior painting of school buildings, asphalt paving, the inspection, sampling and analysis of building materials to determine the presence of asbestos-containing materials, the encapsulation or removal of asbestos-containing materials, the inspection, identification, sampling, and analysis of building materials to determine the presence of lead-containing materials, the control, management, and removal of lead-containing materials, or such other items as may be approved by the Board, to such condition that the school buildings may be effectively utilized for their designated purposes.
“Replacement” means the work necessary to replace those school building systems itemized in “Repair” above, which are either worn out or obsolete to the extent that they no longer effectively perform their functions.
“Routine Maintenance” means the school facility component work performed on an annual or on-going basis each year to keep building facilities in proper operating condition.
“School Facility Program (SFP)” means the Leroy F. Greene School Facilities Act of 1998.
“SFP Modernization Unfunded List” means an information list of unfunded modernization projects approved under the provisions of the SFP.
“Total Estimated Cost” means an estimated cost of the critical project on which the extreme hardship grant is calculated.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582-17592.5, Education Code.
HISTORY
1. New Subgroup 12 (Articles 1-6, Sections 1866-1866.10) filed 4-18-80 as an emergency; effective upon filing (Register 80, No. 16). A Certificate o Compliance must be transmitted to OAH within 120 days or emergency language will be repealed 8-17-80.
2. Certificate of Compliance filed 6-26-80 (Register 80, No. 26).
3. New subsection (a)(10) filed 4-30-81; effective thirtieth day thereafter (Register 81, No. 18).
4. Amendment of subsection (a)(10) filed 2-27-86; effective thirtieth day thereafter (Register 86, No. 9).
5. Amendment of subsection (a)(7) and (8) filed 12-15-86; effective thirtieth day thereafter (Register 86, No. 52)
6. Amendment of section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
7. Amendment of definitions of “Deferred Maintenance,” “Maximum Basic Grant,” “OPSC Modernization Workload List” and “Repair” and new definition of “Like-Kind Material/System” filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
8. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
9. Amendment of definitions of “Deferred Maintenance,” “Form SAB 40-20,” “Maximum Basic Grant” and “OPSC Modernization Workload List” filed 5-26-2005 as an emergency; operative 5-26-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-23-2005 or emergency language will be repealed by operation of law on the following day.
10. Amendment of definition of “OPSC Modernization Workload List” filed 10-27-2005; operative 10-27-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 43).
11. Certificate of Compliance as to 5-26-2005 order transmitted to OAL 9-19-2005 and filed 10-31-2005 (Register 2005, No. 44).
12. Change without regulatory effect amending definition of “OPSC Modernization Workload List” filed 8-11-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 32).
13. Amendment of definition of “OPSC Modernization Workload List” filed 2-16-2007; operative 2-16-2007 (Register 2007, No. 7).
14. Amendment of Application for Funding (incorporated by reference) and amendment of definition of “OPSC Modernization Workload List” filed 4-25-2007; operative 4-25-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 17).
15. Amendment of definition of “OPSC Modernization Workload List” filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
16. Amendment of definition of “OPSC Modernization Workload List” filed 7-18-2007; operative 7-18-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 29).
17. Amendment of definition of “OPSC Modernization Workload List” filed 8-31-2007; operative 8-31-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 35).
18. Amendment of definitions of “Form SAB 40-22” and “OPSC Modernization Workload List” filed 4-10-2008; operative 4-10-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 15).
19. Amendment of definition of “OSPC Modernization Workload List” filed 4-30-2008; operative 4-30-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 18).
20. Change without regulatory effect amending definitions of “Form SAB 40-20,” “Form SAB 40-21” and “Form SAB 40-24” filed 1-13-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 2).
Article 2. Eligibility to Receive DMP Grants
§1866.1. Prerequisites to Receiving a Basic or Extreme Hardship Grant.
Note • History
The prerequisites to receiving a grant, as provided by the Act and these regulations, include the following:
(a) Operate as one of the following:
(1) A public elementary, unified, or high school district that serves any combination of kindergarten through twelfth grade pupils; or
(2) A County Superintendent of Schools (CSS) that serves any combination of kindergarten through twelfth grade pupils; or
(3) A regional occupational center identified in EC Section 17592.5; and
(b) That the governing board of an applicant school district has established a restricted fund to be known as the “district deferred maintenance fund” for the specific purposes as specified in EC Section 17582(a) and these regulations; and
(c) That the applicant school district has a Board approved Form SAB 40-20 complying with Section 1866.4, which includes the fiscal year of funding.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582, 17584, 17587, 17591 and 17592.5, Education Code.
HISTORY
1. Amendment of article heading, section heading, section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of subsection (c) filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment of subsection (c) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
Article 3. DMP Application Procedure
§1866.2. DMP Application for Basic Grant.
Note • History
An eligible district seeking funding for a DMP Basic Grant shall complete and file with the OPSC the Form SAB 40-20.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17591, Education Code.
HISTORY
1. Amendment of article heading, section heading and section and new Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.3. DMP Application for Extreme Hardship Grant.
Note • History
An eligible district seeking funding for a DMP extreme hardship grant shall complete and file with the OPSC the Form SAB 40-22.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. Amendment filed 4-30-81; effective thirtieth day thereafter (Register 81, No. 18).
. 2. Amendment filed 7-28-82; effective thirtieth day thereafter (Register 82, No. 31).
3. Amendment of section heading, section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
4. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
Article 4. Basic Grant Request and Apportionment
§1866.4. Five Year Plan Requirements.
Note • History
EC Section 17591 establishes the need of filing with the Board a five year plan for deferred maintenance needs of the district. The Form SAB 40-20, is a summary of proposed projects the district plans on completing annually over the next five fiscal years using the basic grant. The fiscal year the plan commences is determined by the fiscal year in which it was filed. New and revised plans are accepted on a continuous basis for the current fiscal year up to the last working day in June. Revisions are not accepted for prior fiscal years.
(a) Under the following circumstances, a revised plan would need to be submitted to the OPSC:
(1) The plan has expired.
(2) Work will be performed that is not listed on the plan or at a school not listed on the plan.
(3) If work listed on the plan was performed using an SFP modernization, CSFP Rehabilitation (as defined in SFP Regulation Section 1859.2) or Federal Renovation Program (FRP) grant, pursuant to Section 1866.13.
(b) A district submitting a new plan or revising a plan under (a) above must be able to certify that the plans and proposals for expenditures of funds, listed on the Form SAB 40-20 submitted to the OPSC, were discussed at a public hearing at a regularly scheduled meeting with the district's governing board, pursuant to EC Section 17584.1(a).
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582, 17584.1 and 17591, Education Code.
HISTORY
1. Amendment of article heading, section heading, section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of first paragraph and subsection (b) filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment of first paragraph and subsection (b) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
4. Amendment of subsection (a)(3) filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
§1866.4.1. Permissible Use of the DMP Basic Grant.
Note • History
The district may include on its Form SAB 40-20 a repair or replacement project, provided it meets all the following criteria:
(a) Conforms to the deferred maintenance activities authorized in EC Section 17582(a) or these regulations, which has approached or exceeded its normal life expectancy or has a history of continued repairs indicating a shortened life expectancy, and;
(b) Performed at a district owned facility, which is used for school purposes. A district that is currently leasing relocatables from the State Relocatable Classroom Program may include deferred maintenance work on the Form SAB 40-20 for these facilities.
(c) Facilities owned by a CSS or leased facilities that are required to be maintained by the CSS, which it is authorized to use pursuant to Article 3 commencing with EC Section 17280, Chapter 3, may be included on the Form SAB 40-20.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17280, 17582 and 17591, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of first paragraph and subsections (b) and (c) filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.4.2. Calculation of Basic Grant and Apportionment of Basic Grant.
Note • History
After December 1 each year, the Board shall apportion to districts a DMP basic grant for the preceding fiscal year. A maximum basic grant is calculated as stated for each of the following:
(a) School districts and regional occupational centers using the formula set forth in EC Section 17584(a).
(b) CSSs who meet the provisions of EC Sections 17584, 17591 and, if applicable, 17585, an amount equal to one dollar ($1.00) for each one dollar ($1.00) of local funds up to a maximum of one-half percent of the total general funds and adult education funds budgeted by the CSSs for the fiscal year, exclusive of any amounts budgeted for capital outlay, debt service or revenues that are passed through to other local educational agencies, to the extent of funds legally available pursuant to EC Section 17080.
If sufficient State funding is not available, the Board shall apportion to all districts except those that are receiving a basic grant with an extreme hardship grant, a prorated amount of the maximum. This amount is known as the prorated basic grant.
A district's unresolved complaints, pursuant to EC Section 35292.5, will be presented to the Board prior to the annual basic grant apportionment for the fiscal year in which the complaint was filed. If the Board determines that a violation of EC Section 35292.5 has occurred, the district will receive a 30 day notice to correct the violation. Districts that do not correct the violation within 30 days of the date of the written notice shall be deemed ineligible for the basic grant and the funds may be distributed to other eligible districts.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 2553 and 17584, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of subsection (a) filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment of first paragraph and new final paragraph filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.4.3. District Deposit of Matching Share.
Note • History
To receive the basic grant pursuant to Section 1866.4.2, districts are required to deposit a matching share into their District Deferred Maintenance Fund established pursuant to EC Section 17582(a). The State will match this amount dollar-for-dollar not to exceed the basic grant apportioned by the Board. The district's deposit must be a cash contribution from unmatched carryover pursuant to Section 1866.4.4, or from the district's restricted Ongoing and Major Maintenance Account, or from any source not otherwise prohibited by law or regulation.
If the district has established an Ongoing and Major Maintenance Account under the provisions of EC Section 17070.75(b)(1), any annual deposits in excess of 2 1/2 percent into that fund may be used towards the district's matching share. Districts may either:
(a) Report the excess amount in the Ongoing and Major Maintenance Account being used towards the match on the Form SAB 40-21. These funds are not available for eligible deferred maintenance projects listed on the Form SAB 40-20, until transferred into the District Deferred Maintenance Fund.
(b) Transfer the excess funds from the Ongoing and Major Maintenance Account to the District Deferred Maintenance Fund and report the total dollar matching share on the Form SAB 40-21. These funds are available to the district to perform work on the Form SAB 40-20.
NOTE
Authority cited: Section 15503, Government Code Reference: Sections 17070.75, 17582 and 17584, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of subsections (a) and (b) filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment of subsections (a) and (b) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
4. Amendment of first paragraph filed 4-10-2008; operative 4-10-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 15).
§1866.4.4. Carryover of Unmatched State Funds.
Note • History
Any funds deposited and not matched by the State can be carried over to the next fiscal year. A district can apply unexpended, unmatched balances past the next fiscal year under the provisions of EC Section 17583, and then reaffirm by specific action of the district's governing board the encumbrance of such funds for deferred maintenance purposes.
Carryover that has been reported on the Form SAB 40-21 is considered matched and therefore cannot be applied as carryover in subsequent fiscal years.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582 and 17583, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of second paragraph filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.4.5. County Superintendents of Schools Funding Limitations. [Repealed]
Note • History
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 2553, 39618-39619.2 and 39620, Education Code; and Sections 15502-15503, Government Code.
HISTORY
1. New section filed 9-8-89 as an emergency; operative 9-8-89 (Register 89, No. 37). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-8-90.
2. Certificate of Compliance including amendment transmitted to OAL 12-1-89 and filed 12-29-89 (Register 90, No. 2).
3. Repealer of article 4.5 heading and repealer of section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.4.6. Release of State Funds.
Note • History
The CSSs shall report the district's deposit on the Form SAB 40-21. The Form is due to the OPSC no later than 60 days after the maximum or prorated basic grant is apportioned by the Board. Any Form SAB 40-21 received after 60 days will be brought to the Board on a case-by-case basis to determine if the funds will be released.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17584, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.4.7. Failure to Deposit Matching Funds.
Note • History
A total deposit less than the maximum amount will require the district to comply with the reporting requirements of EC Section 17584.1. The OPSC will present to the Board in March reports received annually and request that any unmatched apportionments be adjusted to reflect actual amount of funds deposited.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17584 and 17584.1, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
Article 5. Extreme Hardship Grant Application and Apportionment
§1866.5. Eligibility Requirements.
Note • History
(a) A district may be eligible for an extreme hardship grant, provided the district demonstrates to the Board that there is a critical project on the Form SAB 40-20, which meets all the following criteria:
(1) Financial Test
The total estimated cost of the critical project is greater than two times the district's maximum basic grant.
(2) Health and Safety Test
The project if not completed in one year could result in serious damage to the remainder of the facility or would result in a serious hazard to the health and safety of the pupils attending the facility.
(b) An extreme hardship grant is available to Repair or replace an existing school building component, authorized by EC Section 17582 or these regulations, located within existing district owned classrooms and/or subsidiary facilities (corridors, toilets, kitchens and other non-classroom space located on a school site), if the district can demonstrate to the satisfaction of the Board that the health and safety of the pupils is at risk. Replacement of a school facility component shall be limited to the use of a Like-Kind Material/System except in the following circumstances and with the concurrence of the OPSC:
(1) the work in the project proposes to use an alternative building material or system that performs the same function as a no longer available building material or system, or
(2) the work in the project proposes to use an alternative building material or system that performs the same function as a building material or system which is uneconomical to replace, or
(3) the work in the project proposes to use an alternative building material or system which is requested by the district and is less costly than a Like-Kind Material/System Replacement.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582, 17587 and 17588, Education Code.
HISTORY
1. Amendment filed 4-20-87; operative 5-20-87 (Register 87, No. 17).
2. Amendment of article and section headings, repealer and new section and amendment of Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
3. Amendment filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
4. Amendment of subsection (a) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.5.1. Application Submittals.
Note • History
(a) For the OPSC to deem an application complete, a district requesting an extreme hardship grant shall submit to the OPSC the Form SAB 40-22, along with all documents requested in the General Information Section of the Form. Additional documentation identifying how the request meets the requirements of EC Section 17587 may be required.
(b) More than one Form SAB 40-22 may be submitted by a district in a fiscal year provided each project meets the eligibility requirements set forth in Section 1866.5. The OPSC will present projects to the Board in the order of date received. Complete applications are accepted on a continuous basis; those received prior to the last working day in June are ensured consideration for funding by the Board in the next funding cycle.
(c) The district shall submit a detailed cost estimate supporting the construction costs and any justification documents that will support the work with the Form SAB 40-22. If the extreme hardship grant request contains work on relocatable facilities, a cost/benefit analysis must be prepared by the district and submitted to the OPSC that indicates the total cost to remain and mitigate the problem is less than 50 percent of the current replacement cost of the facility. The Board will approve reasonable and appropriate funds to mitigate the conditions, which makes the project qualify as a hardship under EC Section 17587, if the costs are consistent with the Saylor Current Construction Costs.
(d) If the work detailed in the cost estimate is for other than a Like-Kind Material/System Replacement the district may be required to submit substantiating evidence to the OPSC demonstrating that the alternative material or system meets the requirements of Section 1866.5(b)(1), (2), or (3). All costs of work in the project which exceed the cost of a Like-Kind Material/System Replacement or when appropriate, the cost of an acceptable alternative material or system replacement, shall be paid by the district.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 12-4-86; effective thirtieth day thereafter (Register 86, No. 49).
2. Amendment of subsection (a) filed 11-5-87; operative 12-5-87 (Register 87, No. 46).
3. Renumbering of former section 1866.5.1 to section 1866.5.3 and new section 1866.5.1 filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
4. New subsection (d) filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
5. Amendment of subsections (a)-(c) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.5.2. Determination of Extreme Hardship Grant Amount and District Contribution.
Note • History
(a) An extreme hardship grant for the first critical project in any given fiscal year for a district with a maximum Basic Grant and State matching share that is less than $1,000,000, shall be determined by either of the following:
(1) For a total project cost that is less than $1,000,000, the extreme hardship grant will be determined by taking the total project cost less the district's maximum basic grant, less the State's matching share.
(2) For a total project cost that exceeds $1,000,000, the extreme hardship grant will be determined by taking $1,000,000 less the district's maximum basic grant, less the State's matching share. The total of that amount plus 50 percent of any project costs above $1,000,000 will be the State's hardship contribution. The district's contribution will be 50 percent of the remaining excess above $1,000,000 and the district's maximum basic grant.
(b) An extreme hardship grant for the first critical project in any given fiscal year for a district with a maximum basic grant and State matching share that exceeds $1,000,000, shall be determined by the following:
(1) From the total project cost deduct the district's maximum Basic Grant and State matching share. The remaining amount will be divided in half between the district and the State.
The district shall be required to contribute the maximum basic grant and State's matching share at the time the Board apportions funding for the project.
(c) An extreme hardship grant for each additional hardship project beyond one in any given fiscal year shall be determined by dividing the total project cost in half. A cash contribution of 50 percent will be required from the district.
(d) A district with only one school may include other major repair or replacement work deemed essential for basic utilization and functioning of the school, without being subject to subsection (c).
If a district receives an unfunded approval pursuant to Section 1866.5.3, the extreme hardship grant will be an estimate based on the current maximum basic grant and state matching share and will be re-calculated using the maximum basic grant and state matching share at the time of funding by the Board.
NOTE
Authority cited: Section 15503, Government Code; and Section 17588, Education Code. Reference: Sections 17587 and 17588, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.5.3. Project Priorities Due to Insufficient State Funds.
Note • History
(a) When funds are not available, project requests that meet the criteria for funding are presented to the Board on a continuous basis throughout the fiscal year and are included on an unfunded list based on the date the complete critical hardship application was received by the OPSC.
(b) The Board shall utilize the following prioritized list to apportion extreme hardship grants for critical projects when funds become available:
Priority Description Priority No.
A project that meets the requirements of (c) below. 1
All other eligible projects as defined in EC Section
17582(a) or these regulations. 2
(c) At the time the complete application is filed with the OPSC, a district requesting Priority One status shall submit a resolution passed by the district's governing board that includes the following:
(1) Describe in detail the health and safety or structural problems present that preclude the pupils from remaining in the facility and the proposed action by the district's governing board.
(2) Identify the facility or facilities on the school site that will be affected by the closure and the dates of closure.
(3) Identify how the board plans on housing the pupils until the facility can be re-opened.
An assessment will be made by the OPSC and the Board to determine if the critical project meets the Priority One requirements.
(d) When funds become available, the requests included on the OPSC Extreme Hardship Unfunded List will receive funding in the following order, provided the project still meets Section 1866.5(a):
(1) Increases, if the original request has already received an apportionment.
(2) Priority One Projects.
(3) All other eligible projects as defined in EC Section 17582(a) or these regulations.
Within each category, projects will be funded in the order the project was placed on the unfunded list. Projects that do not receive funding will remain on the unfunded list for a future funding cycle.
(e) The Board may make exceptions to the priorities on a case-by-case basis for the benefit of the pupils affected.
(f) The Board shall maintain a sufficient reserve for unexpected emergencies and on-going cost increases.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17587 and 17588, Education Code.
HISTORY
1. Renumbering of former section 1866.5.1 to section 1866.5.3, including amendment of section heading, section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
Note • History
(a) Reimbursement of eligible architect/engineering expenditures will be allowed up to five months prior to the date that the hardship project is accepted for processing by the OPSC.
(b) After written determination by the OPSC that the project is approvable, reimbursement of eligible construction expenditures will be allowed. If a district incurs construction costs prior to that date, all construction expenditures for the project will not be reimbursed.
(c) In the case where a project meets the criteria of priority one hardship pursuant to Section 1866.5.3(c), districts can contact the OPSC to request an expedited determination of the eligibility of the hardship project. The OPSC will respond within five working days. If OPSC does not respond within five working days, the project will be deemed approvable for eligible construction expenditures.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.5.5. Permissible Uses of Extreme Hardship Grant Funds.
Note • History
The extreme hardship grant shall be used for the critical project approved by the Board and only expenditures relating to the minimum work necessary to mitigate the problem shall be recognized as eligible project costs. Architect or engineer's fees up to 12 percent of the construction costs will be deemed eligible as well as reasonable testing, inspection, and plan checking fees. The grant may not be used for any of the following:
(a) Construction costs incurred prior to the OPSC determining that the project is approvable, except for costs associated with temporary measures necessary to immediately mitigate the problem.
(b) Expenditures required by local mandate that are not prescribed in State law.
(c) Asbestos abatement, sampling, testing necessary as a result of a SFP modernization project or a Federal Renovation Program project.
(d) Non-owned facilities.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.5.6. Ongoing Project Cost Increase.
Note • History
A district may request an increase in funding for ongoing project costs under either one of the following conditions:
(a) The additional construction costs are a result of the lowest bidder exceeding the cost of the work approved by the Board for the extreme hardship grant. The OPSC may request that the project be re-bid prior to processing the increase for funding.
(b) Additional related work is encountered within the scope of the work originally approved by the Board for the extreme hardship grant.
Any Board approved increase to the extreme hardship grant will be subject to the requirements of Section 1866.5.2.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17587 and 17588, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.5.7. Release of State Funds.
Note • History
The OPSC will release State funds that have been apportioned by the Board to the district after submittal by the district of the Form SAB 40-23, and supporting documentation requested in the General Instruction Section of the form. A district must submit the Form SAB 40-23 within one year of the apportionment of the extreme hardship grant for the project. After reviewing the submittal, the OPSC may request to the Board, based on the supporting documentation, that the extreme hardship grant be adjusted to reflect the actual project costs.
Should the district only provide documentation to support the release of funding for a portion of the project, the OPSC shall prorate the fund release based on the supporting documentation.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of first paragraph filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.5.8. Progress Report and Time Limit on Extreme Hardship Grant Apportionment.
Note • History
Within one year of the extreme hardship grant apportionment by the Board the district shall:
(a) Complete the critical project; and
(b) Submit the Form SAB 40-23 and supporting documentation pursuant to Section 1866.5.7.
(c) If (b) above has not been met within six months of Board apportionment, the district is required to submit a progress report in the form of a narrative to the OPSC. The report shall contain a timeline of the project showing the progress that has been made and how the district plans on completing the project by the one year deadline. Should the district not meet the one year deadline, the entire extreme hardship grant shall be presented to the Board for rescission and, if applicable, the portion of the Basic Grant the district received due to the extreme hardship grant funding unless the district submits a request for time extension.
(d) The Board may approve a time extension for the project based on the following:
(1) A provision for a six-month time extension if the district has completed the plans and they have been submitted to the DSA for approval.
(2) A provision for a six-month time extension when the plans are DSA approved and the project is currently out to bid.
(3) A provision for up to a nine-month time extension when the district can demonstrate to the Board that circumstances exists beyond the district's control.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17587 and 17588, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of subsection (b) filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.5.9. Exemptions to District Contribution.
Note • History
Monitoring costs required by a public agency relating to the removal of an underground toxic tank that cannot be funded by any other source, shall be exempted from a project's total cost for the purpose of determining the district contribution as required in Section 1866.5.2(a)(2) or (b)(1).
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.6. Method of Payment to School District. [Repealed]
Note • History
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 39618-39621, Education Code.
HISTORY
1. Repealer filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
Article 6. Miscellaneous
§1866.7. Control of Expenditures.
Note • History
EC Section 17582(c) provides that the governing board of each school district shall have complete control over the apportioned funds and the earnings of funds once deposited in the district deferred maintenance fund, provided that no funds deposited in the district deferred maintenance fund pursuant to EC Section 17584(a) may be expended by the governing board for any purpose except those specified in EC Section 17582(a).
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17582, Education Code.
HISTORY
1. Amendment of article heading, section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
§1866.8. Expenditures by Districts Subject to Public Contract Code.
Note • History
Any expenditures by a district from the proceeds of an apportionment made for the purposes set forth in EC Sections 17582 and 17587 must comply with all laws, specifically the Public Contract Code (PCC) and the California Code of Regulations (Title 24). An “emergency” contract must be awarded under the provisions of the PCC Section 20113.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582, 17584 and 17587, Education Code.
HISTORY
1. Amendment of section heading, section and Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.9. Program Reporting Requirements.
Note • History
A district receiving funds in accordance with Section 1866.5.2 shall submit an expenditure report from the district on the Form SAB 40-24. The expenditure report shall be due no later than two years from the date any funds were released.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. Amendment of section heading, repealer and new section and amendment of Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
Note • History
When the district has received funds pursuant to Section 1866.5.2, the project will be audited to assure that the expenditures incurred by the district were made in accordance with the provisions of EC Sections 17582(a) and 17587, and Section 1866.5.5.
When the OPSC receives the final expenditure report from the district on the Form SAB 40-24, an audit of the expenditures by the OPSC shall commence within one year of the report for all extreme hardship grant apportionments made by the Board after these regulations become effective. The OPSC shall complete the audit within six months, unless additional information requested by the district has not been received.
The district shall be required to maintain all appropriate records that support all district certifications and expenditures for all costs associated with the extreme hardship grant for a period of not less than four years from the date the notice of completion is filed for the project in order to allow other agencies, including, without limitation, the Bureau of State Audits and the State Controller to perform their audit responsibilities.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of first and second paragraphs filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
§1866.10. Limitation of State Responsibility.
Note • History
In making an apportionment, neither the State nor any department or agency thereof, shall be required to assume any responsibility not otherwise imposed upon it by law.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582-17592.5, Education Code.
HISTORY
1. Amendment of Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.11. Payment and Performance Bonds. [Repealed]
Note • History
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 39618-39621, Education Code.
HISTORY
1. New section filed 6-26-80; effective thirtieth day thereafter (Register 80, No. 26). 2. Repealer filed 4-30-81; effective thirtieth day thereafter (Register 81, No. 18).
2. Repealer filed 4-30-81; effective thirtieth day thereafter (Register 81, No. 18).
3. Amendment of Note filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.12. Earned Interest on DMP Grants.
Note • History
Earned interest on State funds received in accordance with the Act shall be treated as follows:
(a) One half of any interest earned on DMP grant funds provided pursuant to Section 1866.4.2 may be applied towards the district match in any given fiscal year.
(b) All interest earned on DMP grant funds provided pursuant to Section 1866.5 shall be applied to eligible project costs for the project pursuant to Section 1866.5.5 or returned to the State.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582, 17584, and 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
§1866.13. Duplication of Applications.
Note • History
If the district's application for an extreme hardship grant involves proposed work also included in a SFP modernization project currently included on the SFP Modernization Unfunded List or the OPSC Modernization Workload List or in a CSFP Rehabilitation project, the district must certify that, after reducing the work to be funded with the extreme hardship grant from the SFP modernization or CSFP Rehabilitation project, the cost estimate for the remaining work in the modernization or CSFP Rehabilitation project is at least 60 percent of the total SFP or CSFP grant amount provided by the state and the district's matching share. The cost estimate may not include planning, tests, inspection or furniture or equipment. If the district cannot make this certification, the SFP modernization or CSFP Rehabilitation project must be withdrawn prior to the release of any extreme hardship grants to the district.
If the district's application for FRP grants, SFP modernization grants, or CSFP Rehabilitation grants involves work currently included on the district's Form SAB 40-20, pursuant to Education Code Section 17591, the district must eliminate the projects that will be funded with the FRP grant, SFP modernization grants, or CSFP Rehabilitation grants from the Form prior to the release of any FRP grants, SFP modernization grants, or CSFP Rehabilitation grants to the district.
NOTE
Authority cited: Section 15503, Government Code. Reference: Sections 17582, 17587 and 17591, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment of second paragraph filed 11-24-2004; operative 11-24-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 48).
3. Amendment of second paragraph filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
4. Amendment of second paragraph filed 5-17-2007; operative 5-17-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 20).
5. Amendment of first paragraph filed 4-10-2008; operative 4-10-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 15).
§1866.14. Amending and Withdrawal of Extreme Hardship Funding Applications.
Note • History
The district may not amend the Form SAB 40-22 submitted to the OPSC that has not received Board approval to increase the scope of work. At the option of the district, the funding application may be withdrawn and resubmitted to include the additional work. The district must request that the application be withdrawn and removed from the OPSC Deferred Maintenance Extreme Hardship Workload List. The resubmitted application will receive a new processing date by the OPSC.
NOTE
Authority cited: Section 15503, Government Code. Reference: Section 17587, Education Code.
HISTORY
1. New section filed 1-13-2003; operative 1-13-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 3).
2. Amendment filed 2-28-2005; operative 2-28-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 9).
Article 7. Asbestos Abatement
Note • History
(a) The State Allocation Board will fund 50% of each eligible district's abatement projects. The state Allocation Board may increase the apportionment to a district, upon request, if the required district contribution shown below in excess of 1/2 of 1% of the district's budgeted General Fund and Adult Education Fund, less capital outlay and debt service.
Required
A.D.A. District Contribution
4,499 or less 25% of project cost
4,500 or more 50% of project cost
In order to receive an increased apportionment, the district must agree to contribute into the State Asbestos Abatement Fund the lesser of the 1/2 of 1% figure each year for a period of five years or the full percentage of the required district contribution. Installment payments will cease at the time the required district contribution is attained or at the end of five years, whichever occurs first.
(b) Funds may be apportioned on estimated project cost, however, any savings realized after the project is completed will revert to the State Asbestos Abatement Fund. A district certification of project completion must be submitted to OAL within 30 days of completion.
NOTE
Authority cited: Section 15503, Government Code; and Sections 16009 and 39619.6, Education Code. Reference: Sections 49410, 49410.2 and 49410.7, Education Code.
HISTORY
1. New Article 7 (Section 1867.2) filed 11-7-86; effective thirtieth day thereafter (Register 86, No. 45). For history of former Article 7, see Register 81, No. 18.
Article 8. Child Care and Development
§1868.1. Extended Day-Care Definitions.
Note • History
(a) Board--The State Allocation Board.
(b) Eligible Contracting Agency--A licensed extended day-care services entity under contract with the Superintendent of Public Instruction.
(c) Relocatable Facility for Lease--A factory-built structure constructed in accordance with performance specifications prepared by the State Allocation Board.
(d) Child Care and Development Facility--Any building or part thereof in which child care and development services are provided.
(e) Authorized Agent--A person authorized to act and execute a lease on behalf of the governing body of the extended day-care services agency.
NOTE
Authority cited: Sections 15463 and 15503, Government Code. Reference: Sections 8277.7, 8493-8498, 16009, 16313, 17005 and 17788, Education Code.
HISTORY
1. New section filed 3-3-87; effective thirtieth day thereafter (Register 87, No.10).
§1868.2. Relocatable Facilities.
Note • History
(a) Relocatable facilities leased to qualifying child care and development contracting agencies shall be utilized solely for the operation of a child care and development facility.
(b) Minor renovations and repairs may be performed to relocatable facilities if the work performed is the minimum amount necessary to comply with State and local health and safety standards and licensing requirements. The dollar amount may not exceed $2,500.00 per facility. Any work necessary in excess of this amount must be approved by the Board.
(c) If the Board determines that the need for an existing relocatable child care facility has ceased, it may take possession of the facility and dispose of it in the manner most advantageous to the State.
NOTE
Authority cited: Sections 15463 and 15503, Government Code. Reference: Sections 8277.7, 8493-8498, 16009, 16313, 17005 and 17788, Education Code.
HISTORY
1. New section filed 3-3-87; effective thirtieth day thereafter (Register 87, No.10).
§1868.3. Cost Reimbursement for Initial Utility Services Installation (Non-State Funded Extended Day Child Care Facilities).
Note • History
Upon receipt of a request first submitted to and approved by the Superintendent of Public Instruction (as required by Education Code Section 8478), the Board may reimburse extended day care agencies for the costs of initial utility service installation when such facilities have not been acquired with State funds. Utility services may include but are not limited to water, sewer, electricity, telephone and fuel supplies from the nearest point of connection to the child care facility.
Reimbursement for initial utility services installation is limited to:
(a) such costs incurred after September 24, 1987.
(b) such costs incurred after January 1, 1986 in the case of relocatable facilities acquired by public, nonprofit agencies formed in 1984.
Payment of the reimbursement is contingent upon available State Child Care Facilities Fund resources at the time the request is received by the State Allocation Board.
NOTE
Authority cited: Sections 15463, 15490 and 15502, Government Code; and Sections 8477, 8477.3 and 8478, Education Code. Reference: Sections 8477, 8477.3 and 8478, Education Code.
HISTORY
1. New section filed 8-15-88; operative 9-14-88 (Register 88, No. 34).
Note • History
(a) Board--The State Allocation Board.
(b) Eligible Agency
(1) Contracting Agency--A child care and development program (except for those providing extended day-care services) which is under contract with the Department of Education or will be under contract prior to the expenditure of any funds.
(2) Non-contracting Agency--A private nonsectarian child care and development program not under contract with the Department of Education and not providing extended day-care services.
(c) Authorized Agent--A person authorized to act and execute a lease or loan agreement on behalf of the governing body of the child care and development agency.
(d) Child Care and Development Facility--Any building or part thereof in which child care and development services are provided.
(e) Relocatable Facility for Lease--A factory-built structure constructed in accordance with performance specifications prepared by the Board.
NOTE
Authority cited: Sections 15463, 15490, 15502 and 15503, Government Code. Reference: Sections 8493-8498, 16009, 16313, 17005 and 17788, Education Code.
HISTORY
1. New section filed 3-3-87; effective thirtieth day thereafter (Register 87. No.10).
Note • History
(a)A recipient of a loan for renovation shall agree to use the renovated facility for the purpose of child care and development during the specified loan period or longer.
(b)The maximum loan shall not exceed $50,000.00 per eligible facility.
(c)The loan period shall be 3 years for loans from $1.00 to $30,000.00, 4 years for loans from $30,001.00 to $40,000.00 and 5 years for loans from $40,001.00 to $50,000.00.
(d)Loan payments shall be $1.00 per year for the life of the loan.
(e)If a loan recipient ceases to use the facility for the purposes of child care and development prior to the specified loan period, the Board shall exercise its option to collect the outstanding balance of the loan, plus interest, by demanding payment from the bond required in Section 1869.3.
NOTE
Authority cited: Sections 15463, 15490, 15502 and 15503, Government Code. Reference: Sections 8493-8498, 16009, 16313, 17005 and 17788, Education Code.
HISTORY
1. New section filed 3-3-87; effective thirtieth day thereafter (Register 87, No. 10).
§1869.3. Bonding Requirement/Repayment Assurance.
Note • History
As a condition to receiving a loan for renovation or repair, the recipient (a private, non-profit child care and development program performed pursuant to Education Code Section 8262; a child care and development program conducted pursuant to Education Code Sections 8225, et seq.; or a child care and development program operated by, or a facility owned by, a public entity) will be required to (1) provide a bond to insure the loan repayment; or (2) the certification provided in the form set out in Section 1869.4, assuring that a public entity has the ability to repay the loan, or in the case of a non-public entity, satisfactory evidence, such as an independent audited financial statement that is acceptable to the Executive Officer of the State Allocation Board, that indicates the non-public agency has the ability to repay the loan.
NOTE
Authority cited: Sections 15502 and 15503, Government Code. Reference: Sections 8493-8496, Education Code.
HISTORY
1. New section filed 3-3-87; effective thirtieth day thereafter (Register 87, No. 10.)
2. Amendment filed 2-15-89 as an emergency; operative 2-15-89 (Register 89, No. 8). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 6-15-89.
3. Certificate of Compliance transmitted to OAL 6-13-89. Order of Repeal of 2-15-89 emergency order filed 7-13-89 by OAL pursuant to Government Code Section 11349.6 (Register 89, No. 28).
4. Amendment filed 7-13-89 as an emergency; operative 7-13-89 (Register 89, No. 28). A Certificate of Compliance must be transmitted to OAL within 120 days, by 11-10-89, or emergency language will be repealed.
5. Certificate of Compliance as to 7-13-89 order transmitted to OAL 10-19-89 and disapproved by OAL on 11-20-89 (Register 89, No. 47).
6. Amendment refiled 11-22-89 as an emergency; operative 11-22-89 (Register 89, No. 47). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 3-22-90.
7. Certificate of Compliance as to 11-22-89 order transmitted to OAL 2-7-90 and filed 3-1-90 (Register 90, No. 10).
§1869.4. Certification to the State Allocation Board.
Note • History
PUBLIC ENTITY
I hereby certify that, as a recipient of a loan for the renovation and repair of a facility for child care and development services, the
_________________________________________________
(Legal Name of Contracting Agency)
has sufficient revenues to pay the principal and interest on the above loan and to maintain the operation of the child care facility as required by law.
__________________________________________________
(Legal Name of Contracting Agency)
By________________________________________________
(Authorized Agent)
Date_______________________________________________
NOTE
Authority cited: Sections 15502 and 15503, Government Code. Reference: Sections 8493-8496, Education Code.
HISTORY
1. New section filed 2-15-89 as an emergency; operative 2-15-89 (Register 89, No. 8). A Certificate of Compliance must be transmitted to OAL within 120days or emergency language will be repealed on 6-15-89.
2. Certificate of Compliance transmitted to OAL 6-13-89. Order of Repeal of 2-15-89 emergency order filed 7-13-89 by OAL pursuant to Government Code Section 11349.6 (Register 89, No. 28).
3. New section filed 7-13-89 as an emergency; operative 7-13-89 (Register 89, No. 28). A Certificate of Compliance must be transmitted to OAL within 120 days, by 11-10-89, or emergency language will be repealed.
4. Certificate of Compliance as to 7-13-89 order transmitted to OAL 10-19-89 and disapproved by OAL on 11-20-89 (Register 89, No. 47).
5. New section refiled 11-22-89 as an emergency; operative 11-22-89 (Register 89, No. 47). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 3-22-90.
6. Certificate of Compliance as to 11-22-89 transmitted to OAL 2-7-90 and filed 3-1-90 (Register 90, No. 10).
Subchapter 6. Real Estate Division--Relocation Assistance Program
(Originally Printed 4-6-74)
Article 1. General
Note • History
The following terms shall mean:
“Average Annual Net Earnings” means one-half of any net earnings of the business or farm operation, before Federal and State income taxes, during the two taxable years immediately preceding the taxable year in which the business or farm operation moves from the real property acquired, or during such other period as the Department determines to be more equitable for establishing such earnings, and includes any compensation paid by the business or farm operation to the owner, his spouse or his dependents during such period. The term “owner” as used in this definition includes the sole proprietorship, the principal partners in a partnership, and the principal stockholders of a corporation, as determined by the Department. For purposes of determining a principal stockholder, stock held by a husband, his wife and their dependent children shall be treated as one unit.
“Base Monthly Rent” means the lesser of the average monthly rental paid by the displaced person for the three-month period prior to initiation of negotiations for the parcel and 25% of the displaced person's average monthly income. The economic rent may be considered the average monthly rental when the displaced person was the owner-occupant of the acquired dwelling or if the rental actually paid was not reasonably equal to market rentals for similar dwellings. The “average monthly rental paid” shall include any supplements supplied by others, except when required by law, such supplement is to be discontinued upon vacation of the property.
“Business” means any lawful activity, excepting a farm operation, conducted:
(1) Primarily for the purchase, sale, lease or rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property; or
(2) Primarily for the sale of services to the public; or
(3) Primarily by a non-profit organization; or
(4) Solely for the purpose of moving and related expenses under Section 1873.06, for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted.
“Comparable Replacement Dwelling” means a dwelling which satisfies each of the following standards:
(1) Decent, safe and sanitary (as defined in Section 1872), and comparable to the acquired dwelling with respect to number of rooms, habitable living space and type and quality of construction, but not lesser in rooms or living space than necessary to accommodate the displaced person.
To the extent practicable and consistent with this section, the replacement dwelling should be functionally equivalent and substantially the same as the acquired dwelling, but not excluding newly constructed housing.
(2) In an area not subjected to unreasonable adverse environmental conditions from either natural or man-made sources, and not generally less desirable than the acquired dwelling with respect to public utilities, public and commercial facilities and neighborhood conditions, including schools and municipal services, and reasonably accessible to the displaced person's present or potential place of employment; provided that a potential place of employment may not be used to satisfy the accessibility requirement if the displaced person objects for a reasonable cause.
The Act and these regulations do not require the replacement dwelling be generally as desirable as the acquired dwelling with respect to environmental characteristics. Though a displaced person does not have to accept a dwelling subject to unreasonable adverse environmental conditions, neither is the Department required to duplicate environmental characteristics, such as scenic vistas or proximity to the ocean, lakes, rivers, forests or other natural phenomena.
If the displaced person so requests, every reasonable effort shall be made to relocate such person within or near to his existing neighborhood. Whenever practicable, the replacement dwelling shall be reasonably close to relatives, friends, services or organizations with whom there is an existing dependency relationship.
(3) Available on the private market to the displaced person and available to all persons regardless of race, color, sex, marital status, religion, or national origin in a manner consistent with Title VIII of the Civil Rights Act of 1968.
(4) Within the financial means of the displaced person. A replacement dwelling is within the financial means of the displaced person if the monthly housing costs (including payments for mortgage, insurance and property taxes) or rental cost (including reasonably comparable utility and recurring expenses such as gardening, garaging, and similar necessary fees) minus any replacement housing payment available to the person under the provisions of these regulations does not exceed twenty-five percent (25%) of the person's average monthly income. A replacement dwelling is within the financial means of a displaced person also if the purchase price of the dwelling, including related increased interest costs and other reasonable expenses, does not exceed the amount of just compensation provided for the acquired dwelling and the replacement housing payments available to the person under these regulations.
“Conventional Loan” means a promissory note secured by a trust deed or mortgage made by a bank or savings and loan associations. A conventional loan is not insured or guaranteed by an agency of the State or Federal government.
“Counted Room” means that space in a dwelling unit containing the usual quantity of household furniture, equipment and personal property. It shall include such space as a recreation room, living room, library, study, dining room, kitchen, laundry room, basement, bedroom, and garage. Rooms or storage areas which contain substantial amounts of personal property equivalent to one or more rooms may be counted as additional rooms.
“Date of Initiation of Negotiations for the Parcel” means the date of the first written offer to purchase the real property.
“Department” means the Department of General Services acting in connection with any acquisition by the State Public Works Board.
“Displaced Person” means any person who moves from real property, or who moves his personal property from real property, either as a result of the acquisition of such real property, in whole or in part, by the Department or by any person having an agreement with or acting on behalf of a public entity, or as the result of a written order from the Department to vacate the real property for public use.
A displaced person may or may not qualify as an “eligible person,” as defined in these regulations.
“Dwelling” means the primary residence of a person, including any single-family residence, a single-family unit in a two-family, multi-family or multipurpose building, a unit of a condominium or cooperative housing project, a nonhousekeeping unit, a mobile home, r any other residential unit considered to be part of the real property acquired. A residence need not be decent, safe and sanitary to be a dwelling. A second home shall be considered to be a dwelling only for the purpose of establishing eligibility for payment of moving expense benefits.
“Economic Rent” means the reasonable rental expectancy if the property were available for rent or lease on the open market based on the rent or lease payment being paid for comparable space as distinguished from actual or contract rent or lease payment paid for the acquired property.
“Effective Rate of Interest” means the annual percentage rate paid on the debt of a mortgage as a result of including debt service charges in the total interest to be paid on the mortgage debt, as an incident to the extension of credit, when such debt service charges are normal to the market.
“Elderly Household” means a household in which the head of household or spouse is 62 years or older.
“Eligible Person” means any displaced person who is, or becomes, lawfully entitled to any relocation payment under these regulations.
“Existing Patronage” means the net annual average dollar volume of business transacted during the two taxable years immediately preceding the taxable year in which the business is relocated.
“Family” means two or more individuals, one of whom is the head of a household, plus all other individuals regardless of blood or legal ties who live with and are considered a part of the family unit. Where two or more individuals occupy the same family dwelling with no identifiable head of a household, they shall be treated as one family for replacement housing payment purposes.
“Farm Operation” means any activity conducted solely or primarily for he production of one or more agricultural products or commodities, including timber, for sale or home use and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.
“Gross Income” means the total annual income of an individual, or where a family is displaced, the total annual income of the adult members of the household, irrespective of other expenses and voluntary or involuntary deductions and including, but not limited to, salaries, wages, public assistance payments, tips, commissions, unemployment, rents, royalties, dividends, interest, profits, pensions and annuities, less the following:
(1) A deduction of $500 for each dependent in excess of three.
(2) A deduction of ten percent (10%) of the total annual income for an elderly or handicapped household.
(3) A deduction for recurring, extraordinary medical expenses (defined for this purpose to mean medical expenses in excess of three percent of total annual income) where not compensated for or covered by insurance or other sources, such as public assistance or tort recovery.
(4) A deduction of reasonable amounts paid for the care of children or sick or incapacitated family members when determined to be necessary to employment of the household head or spouse, except that the amount deducted shall not exceed the amount of income received by the person thus released.
Gross income is divided by twelve (12) to ascertain the average monthly income. Relocation and property acquisition payments are not to be considered as income for determination of financial means.
“Handicapped Household” means a household in which any member is handicapped or disabled.
“Mobile Home” means a structure, transportable in one or more sections, which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities and includes the plumbing, heating, air conditioning, and electric systems contained therein. A self-propelled vehicle is not a mobile home.
“Mortgage” means such classes of liens, including Deeds of Trust as are commonly given to secure advances on, or the unpaid purchase price of, real property, under the laws of the State of California, together with the credit instruments, if any, secured thereby.
“Moving Expense” means the costs necessary to pack, crate, disconnect, dismantle, load, insure, temporarily store, remove, transport, unpack, uncrate, reassemble, reconnect, reinstall, and unload machinery, equipment, or other personal property (including goods and inventory kept for sale) not acquired by the Department, including connection charges imposed by public utilities for starting utility service and necessary temporary lodging and transportation of eligible persons. Moving expense shall not include:
(1) The cost of construction or improvement at the new location to replace property for which compensation was paid in the acquisition;
(2) Any loss of, or damage to, personal property caused by the fault or negligence of the displaced person, his agent, or employee in the process of moving where insurance to cover such loss or damage was available;
(3) Any payment for moving personal property where such property is purchased as part of the acquisition;
(4) Additional expenses incurred because of living in a new location;
(5) Cost of moving structures, improvements or other real property in which the displaced person reserved ownership;
(6) Interest on loans to cover moving expenses;
(7) Loss of goodwill;
(8) Loss of business or profits;
(9) Loss of trained employees;
(10) Personal injury;
(11) Payments for search costs in connection with locating a replacement dwelling.
“Nonprofit Organization” means a corporation, partnership, individual or other public or private entity, engaged in a business, professional or institutional activity on a nonprofit basis, necessitating fixtures, equipment, stock in trade, or other tangible property for the carrying on of the business, profession or institutional activity on the premises.
“Owner.” A person “owns a dwelling” if he:
(1) Holds fee title, a life estate, a fifty (50) year lease, or a lease with not less than twenty (20) years to run from date of acquisition of the property for the project;
(2) Holds an interest in a cooperative housing project which includes the right of occupancy of a dwelling unit therein;
(3) Is the contract purchaser of any of the foregoing estates or interests;
(4) Has a leasehold interest with an option to purchase;
(5) Owns a mobile unit which under State law is determined to be real property, not personal property;
(6) Who has succeeded to any of the foregoing interests by devise, bequest, inheritance or operation of law. In the event of acquisition of ownership by any of the foregoing methods, the tenure of ownership, not occupancy, of the succeeding owner shall include the tenure of the preceding owner.
“Owner-Occupant” means an owner who occupies the residential dwelling being acquired by the Department as his primary residence.
“Person” means any individual, partnership, corporation or association.
“Prepaid Expenses” means items paid in advance by the seller of real property and prorated between such seller and the buyer of such real property at the close of escrow including, but not limited to real property taxes, fire insurance, home owners' association dues and assessment payments.
“Primary Residence” means a residential dwelling which is occupied as the occupants domicile. A dwelling will qualify as a primary residence when:
(1) The occupant has lived in the dwelling to be acquired for more than 50% of the time in the year prior to the State's first written offer; and
(2) The occupant officially acknowledges the residential dwelling as his primary residence by voter registration, address on tax returns, home owners exemption, mailing address, proximity to occupant's work, schools, etc.
“Purchase” as used in connection with claiming replacement housing payments with respect to:
(1) Real property means the close of escrow by which the title to replacement property was conveyed to the claimant of a relocation payment; or if no escrow was used, “purchase” means the delivery to such claimant of the deed to the replacement property or the delivery of a completely executed installment contract for purchase.
(2) Mobile homes means the registration of the vehicle with the California Department of Motor Vehicles in the name of the claimant.
(3) For purposes of this Article, the leasing of a condominium or other suitable dwelling for a fifty (50) year period, or for a term which exceeds the life expectancy of the displaced person as determined from the most recent life tables in Vital Statistics of the United States, as published by the Public Health Service of the Department of Health, Education and Welfare, shall be deemed a purchase of a condominium or other dwelling.
“Relocation Payment” means any payment made under the provisions of this Article; including, but not limited to, payments for: actual or reasonable moving expense, payments made in-lieu of moving expense, purchase differential payments, rental differential payments, interest differential payments, and payments covering incidental expenses of the acquisition of replacement properties.
“Stated Mortgage Interest Rate” means the annual percentage rate to be paid on the debt of a mortgage as set forth in the mortgage or other credit instrument.
“Tenant-Occupant” means a person who rents or is otherwise in lawful possession of a dwelling, including a sleeping room, which is owned by another and is the displacee's primary residence.
NOTE
Authority cited: Section 7267.8, Government Code. Reference: Section 7268, Government Code and “Guidelines” adopted by the Commission of Housing and Community Development.
HISTORY
1. Amendment filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4). For prior history, see Register 76, No. 24.
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
3. Amendment filed 10-18-77; effective thirtieth day thereafter (Register 77, No. 43).
4. Editorial correction of History 3 (Register 2008, No. 37).
Note • History
(a) General. Prior to the undertaking of a project, the Department shall prepare a Relocation Plan, based upon a survey and analysis of both the housing needs of the affected displaced persons and the available replacement housing, which will assure that, within a reasonable period of time, prior to displacement, to the extent that it can be reasonably accomplished, there will be available in areas not generally less desirable in regard to public utilities and public and commercial facilities, and at rents or prices within the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings, equal in number to the number of, and available to, such displaced persons who require such dwellings and reasonably accessible to their place of employment.
(1) All persons to be displaced, any relocation committee formed of persons displaced shall encourage the formation of a relocation committee consisting of representatives of the residents and interested community organizations in the displacement area and affected displaced persons.
(2) The term “undertaking a project,” for purposes of this section, shall mean the date the Public Works Board authorizes the acquisition or the initiation of negotiations for the acquisition of the affected ownership(s).
(3) The approval of the Relocation Plan vests in the Director of the Department of General Services, as head of the State Agency.
(4) When determining a displacee's financial ability to afford replacement housing, replacement housing payments, and rental rates after acquisition, the displacee shall provide a written statement as to his gross income which will be updated annually or as necessary. Failure to provide such written statement shall require the Department to make determinations on the best data known and available to them.
(b) When considering the availability of replacement housing, the Department shall adjust the available housing inventory in the replacement area, if necessary, by excluding:
(1) Non-decent, safe, and sanitary units;
(2) Uncompleted new construction or rehabilitation which are not likely to be available at the time of displacement.
(3) Those units considered by the Department to be turnover in the replacement area.
(4) Subsidized publicly owned housing which will not reasonably be available to the displacees at the time of displacement.
(c) Each Relocation Plan shall provide a statement as to the need for last resort housing. In the event of a reasonably anticipated need for such housing, an estimate of the cost, including overhead, will be included as a separate amount.
NOTE
Authority cited: Section 7267.8, Government Code. Reference: Section 7268, Government Code.
HISTORY
1. New section filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
Note • History
(a) Eviction of persons in occupancy as of the date of acquisition shall be undertaken only for one or more of the following reasons:
(1) Failure to pay rent, except in those cases where the failure to pay is due to the lessor's failure to keep the premises in habitable condition, is the result of harassment or retaliatory action or is the result of discontinuation or substantial interruption of services.
(2) Performance of a dangerous, illegal act in the unit.
(3) Material breach of the rental agreement and failure to correct breach within 30 days of notice.
(4) Maintenance of a nuisance and failure to abate within a reasonable time following notice.
(5) Refusal to accept one of a reasonable number of offers of replacement dwellings.
(6) The eviction is required by State or local law and cannot be prevented by reasonable efforts on the part of the public entity.
(7) The building has structural defects existent at the time of purchase by the Department.
NOTE
Authority cited: Section 7267.8, Government Code. Reference: Section 7268, Government Code.
HISTORY
1. New section filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
History
(a) Relocation assistance and benefits, as provided in these regulations, shall be available to:
(1) Any person who lawfully occupies property from which he will be displaced.
(2) Any person in lawful occupancy who will move from real property or will move his personal property from real property because he will be displaced from other real property on which he conducts a business or farm operation.
(3) Any person in lawful occupancy who moves from real property as a result of its acquisition by the Department for a public use whether the move is voluntary or involuntary.
(4) Any person in lawful occupancy at the time of initiation of negotiations who moves as the result of the pending acquisition and the property from which he is displaced is subsequently acquired for a public use.
(b) Any person who becomes an occupant of real property after in termination of the tenancy sooner than otherwise would be expected. The Department should inform prospective tenants regarding the projected date of displacement.
(c) Subsequent sale to a private person of housing provided by the State as last resort housing does not establish eligibility for relocation assistance or benefits for any person in occupancy at the time of such sale.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1872. Standards for Decent, Safe, and Sanitary Dwellings.
History
(a) A decent, safe, and sanitary dwelling is one which meets all of the following minimum requirements:
(1) Conforms with all applicable provisions for existing structures that have been established under State or local building, plumbing, electrical, housing and occupancy codes and similar ordinances or regulations.
(2) Has a continuing and adequate supply of potable safe water.
(3) Has a kitchen or an area set aside for kitchen use which contains a sink in good working condition and connected to hot and cold water, and an adequate sewage system. A stove and refrigerator in good operating condition shall be provided when required by local code, ordinances or custom. When these facilities are not so required by local codes, ordinances, or custom, the kitchen area or area set aside for such use shall have utility service connections and adequate space for the installation of such facilities.
(4) Has an adequate heating system in good working order which will maintain a minimum temperature of 70 degrees in the living area, excluding bedrooms, under local outdoor design temperature conditions. A heating system will not be required in those geographical areas where such is not normally included in new housing.
(5) Has a bathroom, well-lighted and ventilated and affording privacy to a person within it, containing a lavatory basin and a bathtub or stall shower, properly connected to an adequate supply of hot and cold running water, and a flush closet, all in good working order and properly connected to a sewage disposal system. a bathroom, well-lighted and ventilated and affording privacy to a person within it, containing a lavatory basin and a bathtub or stall shower, properly connected to an adequate supply of hot and cold running water, and a flush closet, all in good working order and properly connected to a sewage disposal system.
(6) Has an adequate and safe wiring system for lighting and other electrical services.
(7) Is structurally sound, weathertight, in good repair and adequately maintained.
(8) Each building used for dwelling purposes shall have a safe unobstructed means of egress leading to safe open space at ground level. Each dwelling unit in a multi-dwelling building must have access either directly or through a common corridor to a means of egress to open space at ground level.
In multi-dwelling buildings of three stories or more, the common corridor on each story must have at least two means of egress.
(9) Has 150 square feet of habitable floor space for the first occupant in a standard living unit and at least 100 square feet of habitable floor space for each additional occupant. The floor space is to be subdivided into sufficient rooms to be adequate for the family. All rooms must be adequately ventilated. Habitable floor space is defined as that space used for sleeping living, cooking or dining purposes, and excludes such enclosed places as closets, pantries, bath or toilet rooms, service room, connecting corridors, laundries, and unfinished attics, foyers, storage spaces, cellars, utility rooms and similar spaces.
(b) A decent, safe and sanitary sleeping room is one which includes the minimum requirements contained in paragraph (a), subparagraphs (2), (4), (5), (6), (7), and (8) of this section and the following:
(1) At least 100 square feet of habitable floor space for the first occupant and 50 square feet of habitable floor space for each additional occupant.
(2) Lavatory, bath and toilet facilities that provide privacy, including a door that can be locked if such facilities are separate from the room.
(c) A decent, safe, and sanitary mobile home is one which includes the minimum requirements contained in paragraph (a), subparagraphs (2), (3), (4), (5), (6), (7), (8), and (9) of this Section except that it may have 70 square feet of habitable floor space for each additional occupant, and the following:
(1) Bears the insignia of approval issued by the State of California, Department of Housing and Community Development, pursuant to the California Health and Safety Code, except those manufactured prior to September 1, 1958.
(d) The Department may approve exceptions to the standards in this Section where unusual conditions exist.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
Article 2. Relocation Payments
§1873. Relocation Payments--General Provisions.
History
(a) Appeals. Any displaced person aggrieved by a determination as to eligibility for a relocation payment, or the amount of such payment, may have his application reviewed by a Relocation Appeals Board designated by Director of the Department of General Services to hear such appeals. The Appeals Board shall make its recommendations to the Director who will make the final decision on the appeal. The Department shall inform all displaced persons of their right of appeal. They shall be furnished the address of the Relocation Appeals Board. They shall be given full opportunity to be heard and a prompt decision shall be made. Appeals must be submitted prior to the final date specified in subsection (d) of this Section for applying for relocation payments.
(b) Form of Application. Application for relocation payments or appeals shall be made by the State under an Order of Possession.
(c) Payment Date. No relocation payment shall be made by the Department prior to the date title to the property vests in the State of California through close of purchase escrow or Final Order of Condemnation or the date of possession by the State under an Order of Possession.
(d) Time Limit on Filing Applications. Except as otherwise provided, applications for relocation payments must be submitted to the Department within 18 months from the date of vacation of the acquired property or the date he receives final compensation for the property, whichever is later.
(e) Assignment of Relocation Payments. The payments described in this Article may be made directly to the displaced person upon proper application, or upon proper instruction addressed to the Department and attached to his application for payment, the payments may be made directly:
(1) To a lessor or landlord for rent; or
(2) To a moving company for moving expenses; or
(3) To an escrow agent pursuant to paragraph (f) of this subsection.
(f) Payments into Escrow. In cases where a displaced person qualifies for the payments described in this Article except that he has not yet purchased or occupied a suitable replacement dwelling, the Department, after inspecting the proposed replacement dwelling and finding that it meets the standards for decent, safe and sanitary set forth in Section 1872 of this Article, may deposit the amount of the replacement housing or rent supplement for which the displaced person may be eligible in an escrow with a bank, trust company, licensed escrow agency, building and loan or savings and loan association, or title company to the account of the displaced person with instruction for payment of such funds from escrow. Such escrow instructions shall be adequate to assure compliance with provisions of this Article relating to purchase and occupancy and to assure return of such funds from escrow to the Department in the event of noncompliance with such provisions.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1873.01. Moving and Related Expense Payments--General Provisions for All Relocated Individuals, Families, Businesses and Farms.
History
(a) Eligibility to Receive Moving Cost Payment.
(1) Any individual, family, business or farm operator is eligible to receive payment for the reasonable expenses of moving his personal property when
(A) He is in lawful occupancy at the initiation of negotiations for the acquisition of the real property; and
(B) He moves from the real property or moves his personal property from the real property subsequent to the date of initiation of negotiation; or,
(C) The real property is subsequently acquired.
(b) One Move Per Person. No moving expense payment will be made for more than one move of a displaced person except where found by the Department to be in the public interest and prior approval is secured.
(c) Payment Only After Move Completed. Moving expense payments shall be made only after the move has been accomplished except as provided in subsections (d) and (e) of this Section.
(d) Payments in Advance. In case of undue hardship, payment of moving expenses to an eligible displacee may be made in advance of moving.
(e) Partial Payments. The Department may make partial payments of moving expense claims when such claims are based on the actual costs of moving, provided the amount of such partial payment does not exceed the actual cost incurred up to the time such payment is claimed.
(f) Payments Directly to Mover. By written prearrangement between the Department, the displaced person and the mover, a displaced person may present unpaid moving bills to the Department and the Department may pay the mover directly.
(g) Distance Limited to 50 Road Miles. The allowable expense for transportation shall not exceed the cost of moving 50 road miles measured from the point from which the move was made to the point of relocation via the most commonly used routes between such points. In special cases where the Department determines that relocation cannot be accomplished within the 50 mile area, the allowable expense for transportation may be increased with the prior approval of the Department.
(h) Storage. When an actual expense basis is used and the Department determines that it is necessary for a relocated person to store his personal property for a reasonable time, not to exceed twelve months, the cost of such storage shall be paid as a part of the moving expense. Payment shall not be made for storage of personal property on the property being acquired or on other property owned by the relocatee. Storage expense shall not be paid where the displaced person elects payment under any of the schedules set forth in Section 1873.02 (c) of this Article.
(i) Cost of Advertising for Bids. The expenses incurred in advertising for packing, crating and transportation are reimbursable when the Department determines that such advertising is necessary. Payment of such expense shall be limited to complicated or unusual moves where advertising is the only practical method of securing bids.
(j) Inspection of Books and Records. All books and records kept by a displaced person as to actual moving expense incurred shall be subject to review and audit by a Department representative during reasonable business hours.
(k) Owner-Retained Dwellings. When an owner retains his dwelling, the cost of moving it onto the remainder or replacement land is not eligible as a part of the cost of moving personal property. If the owner chooses to use his dwelling as a means of moving personal property, payment shall be based on the schedules set forth in Section 1873.02 (c) of this Article.
(l) Personalty Sold to Others. If a displaced person who is eligible to receive payment for moving expenses under subsection (a) of this Section sells, conveys, or transfers title to personal property located on real property acquired by the State to another person, such other person shall not be eligible to receive payment of moving expense except as provided for direct losses of tangible personal property in Section 1873.03 (c) of this Article.
(m) Moves From Separate Property. Where the acquisition of real property used for a business or farm operation which is eligible for a payment under subsection (a) of this Section causes a person to vacate a dwelling or other real property separate from and not acquired by the State, or move his personal property from other real property separate from and not acquired by the State, said person is eligible for reimbursement of the appropriate moving expenses under Sections 1873.02, 1873.03(b), (c) and (d), 1873.05 and 1873.06.
(n) Moves From Partial Takings. Where only a portion of a larger parcel is acquired, a displaced person shall be eligible for moving expense payment only where the removal of his personal property from the property acquired is necessary and is not otherwise compensated.
(o) Insurance. The cost of insurance premiums covering the reasonable replacement value of personal property for loss and damage while in storage or transit is reimbursable.
(p) Removal and Reinstallation Expense. The expense of removal, reinstallation and reestablishment of machinery, appliances and other items of personal property which were not acquired by the Department, including reconnection of utilities to such items, and which does not constitute an improvement to the replacement site (except where required by law), are reimbursable. Such removal, reinstallation, reestablishment or reconnection costs or items classified as real property by the Department and which were retained by the owner, are not reimbursable.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
§1873.02. Moving Payments to Individuals and Families.
History
(a) General. A displaced individual or family eligible under Section 1873.01 (a) is entitled to receive a payment for moving his personal property, himself and his family. Such displaced persons have the option of payment on the basis of actual, reasonable moving expenses or a moving expense schedule.
(b) Actual, Reasonable Moving Expenses.
(1) Moves by For-Hire Carriers. A displaced individual or family may be paid the actual, reasonable cost of a move accomplished by for-hire carriers. The displaced person may elect, with Departmental approval, either of the following options:
(A) The displaced person shall secure at least two estimates from responsible for-hire carriers and submit them to the Department for approval prior to the move. The Department will authorize payment for the move based on the lowest of such bids or estimates.
Payment shall be made by the Department upon presentation of the paid, receipted and itemized bill after the claimant has moved from the premises.
If this creates a financial hardship on the displacees, the Department will secure an assignment from the displacee to allow direct payment to be made to the mover upon presentation of itemized bills after claimant has moved from the premises.
(B) The displaced person shall be given a moving service authorization by the Department and may select a for-hire carrier from the list of eligible for-hire carriers established by the Department. When the for-hire carrier has completed the move, the original moving service authorization will be returned to the Department by the fore-hire carrier with the itemized moving cost bill. The Department shall pay the for-hire carrier directly. Such moves shall be at the minimum rates, rules and regulations prescribed and established by the California Public Utilities Commission.
(2) Self Moves. In the case of a self move the displaced individual or family may be paid his actual moving costs, supported by receipted bills or other evidence of expenses incurred but such payment may not exceed the estimated cost of moving commercially. The estimated cost may be prepared by a commercial moving company or, when not in excess of $1,000, by a qualified Department employee other than the employee handling the claim.
(3) Cost of Transportation of Displacees. The costs of transportation of displaced individuals and families to the new location are also eligible. Such costs may be on a mileage basis, not to exceed 15 cents per mile, or reasonable, actual fees if commercial transport is used and may include special services such as the cost of an ambulance to transport displaced invalids.
(4) Cost of Meals and Lodging. The actual reasonable costs of meals and lodging are eligible when the Department determines such costs are required because of unforeseen circumstances or practical necessities of the moving operation.
(c) Moving Expense Schedules.
(1) In lieu of actual and reasonable moving expense, any individual or family displaced from a dwelling unit may elect to receive a payment which shall cover all items and incidentals necessary to the vacating of the property acquired according to the following:
(A) A moving expense allowance not to exceed $300 and determined in accordance with established Federal Highway Administration schedules maintained by the California Department of Transportation, and
(B) A dislocation allowance of $200.
(2) The owner-occupant of a multi-family dwelling may elect to receive payment for his own dwelling unit under this Section, and is eligible to receive payment under Section 1873.03 for his personal property in other units of the multi-family dwelling.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment of subsection (c) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1873.03. Moving Payments to Business or Farm.
History
(a) General. (1) The owner of a displaced business or farm eligible under Section 1873.01 (a) is entitled to receive a payment for actual reasonable moving and related expense which include:
(A) Actual reasonable expenses in moving his business, farm, or other personal property as provided in subsection (b), below.
(B) Actual direct losses of tangible personal property in moving or discontinuing his business or farm, as provided in subsection (c), below.
(C) Actual reasonable expenses in searching for a replacement business or farm, as provided in subsection (d), below.
(2) In lieu of the payment for actual expenses and losses as specified in subsection (a) (1) (A), (B) and (C) of this Section a displaced business or farm may be eligible for a fixed payment as provided in subsection (e).
(b) Actual Reasonable Moving Expenses.
(1) The owner of a business or farm may be paid the actual, reasonable cost of a move accomplished by a commercial mover. Where possible, at least two firm bids shall be obtained prior to the move and submitted to the Department for approval. The Department will authorize payment based on the lowest bid.
(A) Where appropriate, the Department may give the displaced business a Moving Service Authorization in accordance with the provisions of Section 1873.02.(b)(1)(B).
(2) Self Moves.
(A) A business or farm which performs the move on its own account shall prepare a certified inventory of the items of personal property to be moved. When the department can obtain two acceptable bids or estimates from qualified estimators based on the certified inventory, the owner of the displaced business or farm may be paid an amount equal to the low bid or estimate, without negotiation. When circumstances warrant, the Department may negotiate a lower amount not to exceed the lower of the two acceptable bids or estimates. The amount to be paid shall be agreed upon in writing in advance of the move. Upon completion of the move the owner must certify in his claim for payment that the items listed in the certified inventory were actually relocated. If the Department finds that the items actually relocated differ significantly from the certified inventory, payment of moving cost shall be adjusted accordingly.
(B) If two estimates cannot be obtained, the owner may be paid his actual, reasonable moving costs supported by receipted bills or other evidence of expenses incurred.
(C) A qualified employee of the Department, other than the employee who is handling the claim, may make a moving expense finding not to exceed $1,000.00. The amount of such moving expense finding may be paid the owner of the business or farm upon completion of the move without supporting evidence of actual expenses incurred.
(3) Alternate Payments.
(A) The provisions of subsection (c) of this Section contain the criteria under which reimbursement is based for personal property which is not moved to the new site.
(B) When personal property which is used in connection with the business or farm to be moved is of low value and high bulk and the estimated cost of moving would be disproportionate in relation to the value, the Department may negotiate and agree, in writing, with the owner for an amount not to exceed the difference between the cost of replacement of comparable item(s) on the market and the amount which would probably have been received for the item(s) on liquidation.
(c) Actual Direct Losses of Tangible Personal Property. Reimbursement for the actual direct losses of tangible personal property is allowed when a person who is displaced from his place of business or farm is entitled to relocate such property in whole or in part but elects not to do so. Payments for actual direct losses may only be made after a bona fide effort has been made by the owner to sell the item involved. When the item is sold the payment will be determined in accordance with subsection (c) (1) or (c) (2) of this Section. If the item cannot be sold the owner will be compensated in accordance with subsection (c) (3) of this Section. The sales prices, if any, and the actual, reasonable costs of advertising and conducting the sale shall be supported by a copy of the bills of sale or similar documents and by copies of any advertisements, offers to sell, auction records, and other documentation supporting the bona fide nature of the sale.
(1) If the business or farm is to be reestablished and an item of personal property which is used in connection with the enterprise is not moved but promptly replaced with a comparable item at the new location, the reimbursement shall be the lesser of:
(A) The replacement cost of the item not moved minus the net proceeds of the sale; or
(B) The estimated cost of moving the item.
(2) If the business or farm is being discontinued or the item is not to be replaced in the reestablished enterprise the payment will be the lesser of:
(A) The difference between the depreciated value of the item in place and net proceeds of the sale; or
(B) The estimated cost of moving the item.
(3) If a bona fide sale is not effected under subsection (c) (1) or (c) (2) of this Section because no offer is received for the property, the owner shall be entitled to the reasonable expenses of the sale. The displaced owner shall arrange to have the personalty removed from the premises at no cost by a junk dealer, etc. If this fails the Department shall remove the item in the most economical manner.
(4) When personal property is abandoned with no effort made by the displaced owner to dispose of such property by sale or by removal at no cost as specified in the above paragraphs, the owner will not be entitled to moving expenses, or losses, for the items involved.
(d) Actual Reasonable Expenses In Searching For a Replacement Business or Farm. (1) The owner of a displaced business or farm may be reimbursed for the actual reasonable expenses in searching for a replacement business, not to exceed $500.00. Such expenses may include transportation expenses, meals, lodging away from home and the reasonable value of time actually spent in search, including the fees of real estate agents or real estate brokers if actually required and paid by the displaced business.
(A) Receipted Bills. All expenses claimed except value of time actually spent in search must be supported by receipted bills.
(B) Time Spent In Search. Payment for time actually spent in search shall be based on the applicable hourly wage rate for the person conducting the search but may not exceed $10.00 per hour. A certified statement of the time spent in search and hourly wage rate shall accompany the claim.
(e) In Lieu of Actual Moving Expenses. In lieu of the payments described in subsections (b), (c), and (d) of this Section, an owner of a discontinued or relocated business or farm is eligible to receive a payment equal to the average annual net earnings of the enterprise except that such payment shall be not less than $2,500.00 nor more than $10,000.00 providing the following requirements are met:
(1) Department Shall Determine. In order for the owner of a business or farm to be entitled to this payment, the Department shall determine that:
(A) The business or farm cannot be relocated without a substantial loss of its existing patronage. Loss of existing patronage is determined by comparing existing patronage as defined in Section 1870 of this Article to the estimated net income of the business for the 12 month period after relocation. Such determination shall be made only after consideration of all pertinent circumstances, including but not limited to the following factors:
1. The type of business or farm conducted by the displaced owner;
2. The nature of the clientele of the displaced business or farm;
3. The relative importance of the present and proposed location to the displaced business or farm.
4. Availability of replacement sites within the financial means of the displaced business or farm.
5. Competitive advantage of the existing location.
6. In case of a partial taking of a business or farm, the determination of whether the property remaining is no longer an economic unit.
7. Substantial additional capital expense required, or higher operating costs at the replacement site.
(B) The business or farm is not part of a commercial enterprise having at least one other establishment which is not being acquired which is engaged in the same or similar enterprise. The Department may determine by suitable criteria that the remaining facility is not another “establishment” for purposes of this section.
(C) The business or farm contributes materially to the income of the displaced owner. A part-time individual or family occupation in the home which does not contribute materially to the income of the displaced owner is not eligible for this payment.
(2) Owner Must Provide Information. To be eligible for the payment in lieu of actual and reasonable moving expense, the displaced business or farm must make its income tax and sales tax returns and its financial statements and accounting records available for audit for confidential use by the Department.
(3) In Business or Farming Less Than 2 Years. If the business or farm affected can show that it was in operation 12 consecutive months during the two taxable years prior to the taxable year in which it is required to relocate, had income during such period and is otherwise eligible, the owner of an enterprise is eligible to receive the in lieu payment. Where the business or farm was in operation for 12 consecutive months or more but was not in operation during the entire two preceding taxable years, the payment shall be computed by dividing the net earnings by the number of months the business or farm was operated and multiplying by 12. A taxable year is defined as any 12-month period used by the business or farm in filing income tax returns.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment of subsections (b), (d) and (e) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1873.04. Moving Payments to Farm Operators.
History
HISTORY
1. Repealer filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
§1873.05. Moving Payments to Nonprofit Organizations.
History
(a) A displaced nonprofit organization eligible under Section 1873.01 (a) is eligible to receive payments for either
(1) Actual reasonable moving expenses, actual direct losses of tangible personal property, actual reasonable expenses in
(2) In lieu of actual expenses in accordance with Section 1873.03 (b), (c), (d), and (e), a payment in the amount of $2,500 if the Department determines that:
(A) The nonprofit organization cannot be relocated without a substantial loss of its existing patronage. The term “existing patronage” as used in connection with nonprofit organizations only includes the persons, community or clientele serviced or affected by the activities of the nonprofit organization; and
(B) The nonprofit organization is not part of an enterprise having at least one other establishment not being acquired which is engaged in the same or similar activity.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective on filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
History
(a) General.
(1) The owner of a displaced advertising sign eligible under Section 1873.01 (a) is eligible to receive a payment for actual reasonable moving and related expenses which include:
(A) Actual reasonable expenses in moving his advertising sign as provided in subsection (b) of this section.
(B) Actual direct losses of tangible personal property as provided in subsection (c) of this section; and
(C) Actual reasonable expenses in searching for a replacement sign site as provided in subsection (d) of this section.
(2) An owner of an advertising sign who is otherwise eligible for moving payments will not be eligible if he moves his sign to a site in violation of State, Federal or local regulations.
(3) The provisions of this paragraph do not apply separately to an advertising sign owned by and located on of the business or farm being displaced. Those signs considered personal property, including signs eligible under Section 1873.01(m) are to be considered items of the business or farm and included under the provisions of Section 1873.03.
(b) Actual Reasonable Moving Expenses. The owner of a displaced sign may be reimbursed for his actual, reasonable moving expenses in accordance with the provisions of Section 1873.03 (b)(1) and (2).
(c) Actual Direct Losses of Tangible Personal Property. The owner of a sign may be reimbursed for actual direct losses when he is entitled to relocate the sign but does not do so. The amount of such loss will be the lesser of:
(1) The depreciated reproduction cost of the sign as determined by the Department; or
(2) The estimated cost of moving the sign.
(d) Actual Reasonable Expenses in Searching for a Replacement Sign Site.
(1) The owner of a displaced advertising sign may be reimbursed for his actual reasonable expenses in searching for a replacement sign site not to exceed $100.00. Such expenses may include transportation expenses, meals, lodging away from home and the reasonable value of time actually spent in search, including the fees of real estate agents or brokers if actually required and paid for by the displaced sign owner.
(A) Receipted Bills. All expenses claimed except value of time actually spent in search must be supported by receipted bills.
(B) Time Spent in Search. Payment for time actually spent in search shall be based on the applicable hourly wage rate for the person conducting the search but may not exceed $10.00 per hour. A certified statement of the time spent in search and hourly wage rate shall accompany the claim.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Repealer of subsections (e), (f), (g) and (h) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1874. Replacement Housing Payments.
History
(a) General Provisions.
(1) In addition to other payments provided by this Article, eligible individuals and families displaced from their primary residence, including condominiums, cooperative apartments and mobile homes purchased by the State are eligible for replacement housing payments in accordance with this Article.
(2) Displaced individuals or families are not required to relocate to the same occupancy (owner or tenant) status but have other options according to their ownership status and tenure of occupancy as described in Sections 1874.01 to 1874.07, inclusive, of this Article.
(3) Not more than one replacement housing or rental payment shall be made for each dwelling unit except in the case of multi-family occupancy of one dwelling unit as specified in subsection (f) of this Section.
(b) Requirement to Receive Payments.
(1) In addition to the tenure of occupancy provisions the displaced person is otherwise eligible for the appropriate payments when he relocates and occupies a decent, safe and sanitary dwelling within a one-year period beginning on the later of the following dates:
(A) The date on which the owner received final payment for all costs of the acquired dwelling in negotiated settlements; or in the case of condemnation, the date on which the required amount is deposited into court for the benefit of the owner; or
(B) The date on which he actually vacates the acquired real property.
(2) A displaced person who has entered into a contract for the construction or rehabilitation of a replacement dwelling and, for reasons beyond his reasonable control, cannot occupy the replacement dwelling within the time period shown above shall be considered to have purchased and occupied the dwelling as of the date of such contract. The replacement housing payment or rental payment under these conditions shall be deferred until the displaced person has actually occupied the replacement dwelling.
(3) A displaced person who has entered into a legally binding contract for purchase of a replacement dwelling and, for reasons beyond his reasonable control, cannot secure title to and occupancy of the replacement dwelling within the time period shown above shall be considered to have purchased and occupied the dwelling as of the date of such contract. The replacement housing or rental payment under these conditions shall be deferred until title to the premises vests in and the displaced person has actually occupied the replacement dwelling.
(c) Inspection for Decent, Safe and Sanitary Standards. Before making payment to the relocatee the Department shall inspect the replacement dwelling and determine whether it meets the standards for decent, safe and sanitary housing as set forth in Section 1872 of this Article. Such determination by the Department that a dwelling meets the standards for decent, safe and sanitary housing is made solely for he purpose of determining the eligibility of relocated individuals and families for payments under this Article and is not a representation for any other purpose.
(d) Applicants Must Certify Eligibility. Applicants for any payment made under Sections 1874 to 1874.07, inclusive, must certify that, to the best of their knowledge and belief, the replacement dwelling meets the standards for decent, safe and sanitary housing specified in Section 1872 of this Article and that they are eligible for the payment requested.
(e) Ownership of Replacement Dwelling Prior to the Initiation of Negotiations. Any person who has obtained legal ownership of a replacement dwelling prior to the initiation of negotiations on the project and occupies the replacement dwelling after being displaced but within the time limit specified in subsection (b) of this Section is eligible for replacement housing payment if the replacement dwelling meets the requirements of Section 1872 of this Article.
(f) Multiple Occupancy of Same Dwelling Unit. The Department shall determine if the multiple occupancy of a single dwelling unit will require proration of replacement housing payments based on equitable criteria consistent with the intent of the displacees and the Relocation Act (Government Code Sections 7260, et seq.).
(g) Joint Residential and Business Use. Where displaced individuals or families occupy living quarters on the same premises as a displaced business, farm or nonprofit organization, such individuals or families are separate displaced persons for purposes of determining entitlement to relocation payments.
(h) Dependents. A dependent who is residing separate and apart from the person or family providing support, whether such separate residence is permanent or temporary, shall be entitled to payment under these regulations, but such payment shall be limited to the period during which the displaced dependent resides in the replacement dwelling. At the time the dependent vacates that dwelling, no further payment under these regulations shall be made to such person. For the purposes of this paragraph, a “dependent” shall be a person who derives fifty-one percent (51%) or more of his income in the form of gifts from any private person or any academic scholarship or stipend. Full-time students shall be presumed to be dependents but may rebut this presumption by demonstrating that over fifty percent (50%) of their income is derived from sources other than gifts from another person or academic scholarships or stipends.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment of subsection (f) and new subsection (h) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1874.01. Replacement Housing Payments to Owner-Occupant for 180 Days or More Who Purchases a Replacement Dwelling.
History
(a) General.
(1) A displaced owner-occupant of a dwelling may receive additional payments, the combined total of which may not exceed $15,000.00, for the additional cost necessary:
(A) To purchase replacement housing;
(B) To compensate the owner for the loss of favorable financing on his existing mortgage in the financing of replacement housing; and
(C) To reimburse the owner for incidental expenses incident to the purchase of replacement housing when such costs are incurred as specified herein.
(2) The owner-occupant is eligible for such payments when:
(A) He has been in occupancy of the dwelling to be acquired as his primary residence for at least 180 consecutive days immediately prior to and including the date of initiation of negotiations for the parcel; and
(B) The property was acquired from him by the State; and
(C) He purchased and occupied a decent, safe and sanitary dwelling within the time period specified in Section 1874(b).
(b) Purchase Differential Payment.
(1) Amount of Payment. The replacement housing payment is the amount, if any, when added to the amount for which the Department acquired his dwelling, equals the actual cost which the owner is required to pay for a decent, safe, and sanitary dwelling, or the amount determined by the Department as necessary to purchase a comparable replacement dwelling, whichever is less. In the case of a prior owned dwelling, the actual cost of the prior owned dwelling will b based on the historical cost incurred at the time of its purchase. Any additional cost to bring the prior owned dwelling up to minimum decent, safe and sanitary standards may be included in the historical cost.
(2) Determination of Amount Necessary to Purchase Comparable Replacement Housing. The Department shall determine the amount necessary to purchase comparable replacement housing by any reasonable method the Department finds necessary.
(c) Interest Differential Payment.
(1) General.
(A) Interest differential payments are provided to compensate a displaced person for the increased interest costs he is required to pay for financing a replacement dwelling and shall be allowed only when both of the following conditions are met:
1. The dwelling acquired by the Department was encumbered by a bona fide mortgage which was a valid lien on such dwelling for not less than 180 days prior to the initiation of negotiations; and
2. The mortgage on the replacement dwelling bears a higher effective rate of interest than the stated mortgage interest rate on the acquired dwelling.
As used in this subsection the term “mortgage” shall include those liens as are commonly given to secure advances on, or the unpaid purchase price of, mobile homes or other vehicles, under the laws of the State of California, together with the credit instruments, if any, secured thereby.
(B) The interest differential payment will be based on and limited to the lesser of the following amounts:
1. The present worth of the right to receive the monthly difference in mortgage payments on the existing mortgage using the old and new interest rates; or
2. The present worth of the right to receive the monthly difference in mortgage payments on the new mortgage using the old stated and new interest rates.
(2) Payment Computation. The Department shall determine the amount of the interest differential payment.
(3) Interest Rate of Replacement Dwelling Mortgage. The interest rate of the mortgage on the replacement dwelling to be used in the computation shall not exceed the prevailing interest rate currently charged by mortgage lending institutions in the vicinity.
(4) Discount Rate. The present worth shall be based on a discount rate equal to the prevailing interest rate paid on savings deposits by commercial banks in the general area in which the acquired dwelling is located.
(5) Points and Loan Fees.
(A) To the amount of the increased payment shall be added the following:
1. The amount actually paid, if any, as points by the eligible displaced owner in the purchase of the replacement dwelling, not to exceed an amount calculated by multiplying the prevailing point rate by the amount of the eligible portion of the mortgage on the replacement dwelling, or the probable replacement cost of the acquired dwelling as determined by the Department whichever is less. A “point” is defined as 1% of the outstanding mortgage balance.
2. The amount actually paid, if any, as loan origination or service fees by the eligible displaced owner in the purchase of the replacement dwelling, not to exceed one percent of either the mortgage on the acquired dwelling, or 1% of the probable replacement cost of the acquired dwelling as determined by the Department, whichever is less.
(6) Variable Rate Mortgages.
(A) The interest rate of the mortgage on the acquired property shall be deemed to be that stated in the mortgage except that in those mortgages wherein the lender has the lawful right to make periodic adjustments in the interest rate, the interest rate in effect at the time of acquisition by the Department shall be used in the increased interest cost computation.
(B) The interest rate of the mortgage on the replacement dwelling shall be deemed to be the rate which will be applied to determine the first periodic payment of principal and interest on said mortgage.
(d) Incidental Expenses.
(1) Amount of Payment. The incidental expenses payment is the amount necessary to reimburse the homeowner for the actual costs incurred by him incident to the purchase of the replacement dwelling, but not for prepaid expenses. Such expenses shall be reasonable and legally required or customary in the community. Such costs may include, but are not limited to, the following items where actually paid by the displaced homeowner:
(A) Legal, closing and related costs including title search, preparing conveyance contracts, notary fees, surveys, preparing drawings or plats and charges paid incident to recordation;
(B) Lenders, Federal Housing Administration or Veterans Administration appraisal fee;
(C) Federal Housing Administration or Veterans Administration application fee;
(D) Certification of structural soundness when required by lender, Federal Housing Administration or Veterans Administration;
(E) Credit report;
(F) Owner's title policy or abstract of title;
(G) Escrow agent's fee;
(H) State real estate transfer tax;
(I) Sales or transfer taxes;
(J) No fee, cost, charge or expense is reimbursable as an incidental expense when it is determined to be a part of the debt service, or finance charge under the Truth in Lending Act, Title I, Public Law 90-321, and Regulation Z issued pursuant thereto by the Board of Governors of the Federal Reserve System.
(e) Owner Retention of Dwelling. Where an owner-occupant retains his dwelling, the replacement housing payment shall be computed in accordance with the appropriate paragraph below:
(1) Dwelling is Decent, Safe and Sanitary. The payment, if any, shall be the amount by which the costs to relocate the retained dwelling exceeds the appraised value of the dwelling.
The costs to relocate may include the reasonable costs of acquiring a new site and other expenses incident to retaining, moving the dwelling and restoring it to a condition comparable to that before the move.
(2) Dwelling is Not Decent, Safe and Sanitary. The payment shall be computed as shown above except that the costs to cure the decent, safe and sanitary deficiencies shall be included in the costs to relocate.
(3) Limitations. The payment computed under Paragraphs (1) or (2) of this subsection may not exceed the amount which the owner would have obtained under subsection (b)(1) of this Section or, if no comparables are available on which to make such a determination, the cost of a new dwelling adequate to accommodate the displaced person.
HISTORY
1. Amendment of subsection (d)(1) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4). For prior history, see Register 76, No. 24.
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
3. Amendment of subsection (c)(1) filed 10-18-77; effective thirtieth day thereafter (Register 77, No. 43).
§1874.02. Rental Differential Payment to Owner-Occupant for 180 Days or More Who Rents a Replacement Dwelling.
History
(a) General. An owner-occupant eligible for a replacement housing payment under Section 1874.01(a) who elects to rent a replacement dwelling is eligible for a rental differential payment not to exceed $4,000.00.
(b) Computation and Disbursement of Payment. The payment shall be computed and disbursed in accordance with the provisions of Section 1874.05(b), (c), and (d) except that:
(1) the present rental rate shall be economic rent as determined by market data; and
(2) the payment may not exceed the maximum amount which he would have received had he elected to receive a purchase differential payment under Section 1874.01(b).
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment of subsection (b) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1874.03. Replacement Housing Payment to Owner-Occupant for Less Than 180 Days but Not Less Than 90 Days Who Purchases a Replacement Dwelling.
History
(a) General. A displaced owner-occupant otherwise eligible under Section 1874.01 (a) except that he has owned and occupied the dwelling for less than 180 days but not less than 90 days may receive an amount, not to exceed $4,000.00, to enable him to make a downpayment on the purchase of a replacement dwelling and reimbursement for actual expenses incident to such purchase; or for additional costs to relocate his retained dwelling in accordance with the following.
(b) Computation of Downpayment and Incidental Expenses.
(1) The amount of the downpayment shall be determined by the Department as the amount required as a typical downpayment on a comparable dwelling if such purchase was financed with a conventional loan, plus the amount required to be paid by the purchaser as points and/or an origination or loan services fee (not to exceed one percent of the probable replacement cost of the acquired dwelling as determined by the Department or one percent of the loan on the replacement dwelling whichever is less), if such fees are normal to real estate transactions in the area.
(2) The expenses incident to the purchase of replacement housing as provided in Section 1874.01(d);
(3) Upon purchase and occupancy of a decent, safe and sanitary dwelling by the relocatee within the time limits specified by Section 1874(b) the relocatee may be reimbursed:
(A) The amount of the downpayment determined in subsection (b)(1) of this Section and the eligible incidental expenses if the total amount of both does not exceed $2,000.00, or if more than $2,000.00;
(B) $2,000.00, plus 50 percent of the amount in excess of $2,000.00 providing the relocatee contributes 50 percent of the amount in excess of $2,000.00. In no event may the combined payments exceed $4,000.00.
(4) The full amount of the downpayment must be applied to the purchase price and eligible incidental costs, such downpayment and incidental costs claimed must be shown in the closing statement.
(c) Owner Retention of Dwelling. The owner may retain his dwelling and the replacement housing payment, if any, will be determined in accordance with the provisions of Section 1874.01(e)(1) and (2) but in no event will such payment exceed $4,000.00.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
§1874.04. Rental Differential Payment to Owner-Occupant for Less Than 180 Days but Not Less Than 90 Days Who Rents a Replacement Dwelling.
History
(a) General. A displaced owner-occupant otherwise eligible under Section 1874.01 (a) except that he has owned and occupied the dwelling for less than 180 days but not less than 90 days and elects to rent a replacement dwelling is eligible for a rental differential payment not to exceed $4,000.00.
(b) Computation and Disbursement of Payment. The payment will be computed and disbursed in accordance with the provisions of Section 1874.05 (b), (c) and (d) except that the present rental rate shall be economic rent as determined by market data.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
§1874.05. Rental Differential Payment to Tenant-Occupant for Not Less Than 90 Days Who Rents a Replacement Dwelling.
History
(a) General. A displaced tenant is eligible for a rental differential payment not to exceed $4,000.00, if:
(1) He has been occupying the dwelling to be acquired as his primary residence for at least 90 consecutive days immediately prior to and including the date of initiation of negotiations; and
(2) The property was subsequently acquired; and
(3) He rented and occupied a decent, safe and sanitary dwelling within the time period specified in Section 1874(b);
(b) Computation of Payment. (1) The payment, not to exceed $4,000.00, shall be determined by subtracting forty-eight (48) times the base monthly rental from:
(A) Forty-eight (48) times the monthly amount which the tenant actually pays for a replacement dwelling, or if lesser;
(B) Forty-eight (48) times the monthly amount determined by the Department as necessary to rent a comparable replacement dwelling.
(c) Department to Determine Method. The Department shall determine the amount necessary to rent a comparable replacement dwelling.
(d) Disbursement of Rental Differential Payments. (1) Rental differential payments shall be paid in a lump sum, monthly) or at other intervals determined as appropriate by the Department.
(2) If an installment payment is determined appropriate, the tenant must certify to the Department prior to receiving each installment payment that he is occupying decent, safe and sanitary housing. In the case where installment payments are being made to a dependent, he must certify that he is actually occupying the replacement property as specified in Section 1874(h).
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment of subsections (b) and (d) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1874.06. Replacement Housing Payment to Tenant-Occupant for Not Less Than 90 Days Who Purchases a Replacement
History
(a) General. A displaced tenant eligible for a rental replacement housing payment under Section 1874.05 (a) who elects to purchase a replacement dwelling is eligible to receive an amount, not to exceed $4,000.00, to enable him to make a downpayment on the purchase of a comparable replacement dwelling including the expenses incident to such purchase.
(b) Computation of Payment. The payment shall be computed in accordance with the provisions of Section 1874.03 (b).
HISTORY
1. Amendment of subsection (a) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1874.07. Replacement Housing Payment to Tenant of a Sleeping Room for Not Less Than 90 Days.
History
(a) General. A displaced tenant of a sleeping room who is eligible for a replacement housing payment under Section 1874.05 (a) may receive an amount not to exceed $4,000.00 as a comparable replacement dwelling in accordance with the following paragraphs.
(b) Rental Differential Payment.
(1) The payment, not to exceed $4,000.00, shall be computed in accordance with the provisions of Section 1874.05(b).
(2) The Department's determination of the amount necessary to rent and the disbursement of the rental differential payments shall be as provided in Section 1874.05 (c) and (d).
(c) Downpayment. The downpayment amount, including the expenses incident to purchase of the comparable replacement dwelling are to be computed in accordance with the provisions of Section 1874.03 (b).
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment of subsections (b)(1) and (b)(2) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
History
(a) Acquisition of Mobile Homes. The Department may purchase mobile homes where:
(1) The structural condition of the mobile home is such that it cannot be moved without substantial damage or unreasonable cost; or
(2) The mobile home is owner-occupied as a primary residence and is not a decent, safe and sanitary dwelling unit as defined in Section 1872 (c) of this Article and the decent, safe and sanitary deficiencies cannot be remedied at a reasonable cost.
(3) The mobile home is owner-occupied as a primary residence, and there are no adequate mobile home sites available in which to relocate the displacee's mobile home.
(b) Partial Acquisition of Mobile Home Park. Where the Department determines that a sufficient portion of a mobile home park is taken to justify the operator of such park to move his business the owners and occupants of the mobile home dwellings not within the actual taking but who are forced to move shall be eligible to receive the same payments as though their dwellings were within the actual taking.
(c) Mobile Homes as Replacement Dwellings. A mobile home may be considered a replacement dwelling provided:
(1) The mobile home meets standards of decent, safe and sanitary as provided in Section 1872 (c);
(2) The mobile home is placed in a fixed location:
(A) In a mobile home park which is licensed and operating under State law; or
(B) In a mobile home subdivision wherein the displaced person owns the lot on which the mobile home is placed; or
(C) On real property owned or leased by the displaced person in other than a mobile home subdivision, provided such placement is in accordance with State and local laws or ordinances and provided such placement was made under permit from the State or local agency.
(d) Computation on Next Highest Type. When a comparable mobile home is not available it will be necessary to calculate the replacement housing payment on the basis of the next highest type of dwelling that is available and meets the applicable requirements and standards, i.e., a higher type mobile home or a conventional dwelling.
(1) “Not available” as used in this subsection includes, but is not limited to, those cases where mobile homes cannot be relocated in mobile home parks within a reasonable distance from the place of dislocation because of lack of available spaces or because of the standards and rules of the mobile home parks where spaces are available.
(e) General Provisions. The general provisions for moving expenses and replacement housing payments of Sections 1873.01 and 1874 of this Article are also applicable to owners and tenants of mobile homes.
HISTORY
1. Amendment filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
§1875.01. Moving Expenses for Mobile Homes.
History
(a) General. The eligibility requirements of Section 1873.01 (a) and the provisions of Sections 1873.01 and 1873.02 are applicable to owners and occupants displaced from a mobile home.
(b) Owners of Mobile Homes. (1) The owner of a mobile home may be reimbursed for the actual reasonable costs of moving the mobile home or other personal property in accordance with the provisions of Section 1873.02 (b); or
(2) If the owner occupies the mobile home, whether the mobile home is moved or not, he may elect to be reimbursed in accordance with Section 1873.02 (c).
(3) The cost of moving a mobile home on an actual cost basis may include the cost of detaching and reattaching fixtures and appliances where applicable. When required at the replacement site, the Department may include, as moving expenses, necessary costs of skirting, awnings, etc.
(c) Mobile Home Tenants. Tenants who are displaced from a mobile home may elect to be reimbursed for moving their personal property on an actual reasonable cost basis as specified in Section 1873.02 (b) or in accordance with Section 1873.02 (c).
HISTORY
1. Amendment of subsections (b) and (c) filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21). awnings, etc.
§1875.02. Replacement Housing Payments--Mobile Homes.
History
(a) The owner-occupant of a mobile home and site who purchases both a replacement dwelling and site shall be provided a replacement housing payment in accordance with Sections 1874.01 or 1874.03, as appropriate. If the owner-occupant rents both a replacement dwelling and site, he shall be provided a payment in accordance with Sections 1874.02 or 1874.04, as appropriate.
(b) The owner-occupant of a mobile home and site who purchases a replacement dwelling and rents a replacement site shall be provided a payment in accordance with Sections 1874.01 and 1874.02. The payment shall be limited to the lesser of:
(1) The amount as determined by the Department as necessary to purchase a conventional replacement dwelling; and
(2) The amount as determined by the Department as necessary to purchase a replacement mobile home (in accordance with Section 1874.01) plus the amount necessary to rent a replacement site (in accordance with Section 1874.02) to a maximum of $15,000.
(3) If an owner-occupant for over 90 days but less than 180 days, the owner-occupant of a mobile home would only be eligible for payments provided by Sections 1874.03 or 1874.04 to a maximum of $4,000.
(c) The owner-occupant who owns a site from which he moves a mobile home shall be provided a replacement housing payment under Sections 1874.01 or 1874.03 if he purchases a replacement site and under Sections 1874.02 or 1874.04 if he rents a replacement site.
(d) The owner-occupant of a mobile home which is acquired and who rents the acquired site shall be provided payment as follows:
(1) If a mobile home is not available, the amount required to purchase a conventional replacement dwelling (in accordance with Section 1874.01); and
(2) The amount necessary to purchase a replacement mobile home (in accordance with Section 1874.01) plus the amount necessary to lease, rent, or make a down payment on a replacement site (in accordance with Sections 1874.02 and 1874.03) to a maximum of $15,000.
(3) If an owner-occupant of a mobile home for more than 90 days but less than 180 days, the owner-occupant shall only be eligible for payments provided by Sections 1874.03 or 1874.04, to a maximum of $4,000.
(4) If he elects to rent a replacement mobile home and site, the amount required to do so computed in accordance with Section 1874.02.
(e) The tenant-occupant who rents a mobile home and site shall be provided payments in accordance with Sections 1874.05 and 1874.06.
(f) Similar principles shall be applied to other possible combinations of ownership and tenancy upon which a claim for payment might be based.
HISTORY
1. Amendment filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4). For prior history, see Register 76, No. 24.
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
3. Amendment of subsection (d)(4) filed 10-18-77; effective thirtieth day thereafter (Register 77, No. 43).
§1875.03. Replacement Housing Payments for Owner-Occupants of Mobile Homes for Less Than 180 Days but More Than 90 Days. [Repealed]
History
HISTORY
1. Repealer filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4). For prior history, see Register 76, No. 24.
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1875.04. Replacement Housing Payments to Tenants of Mobile Homes for 90 Days or More. [Repealed]
History
HISTORY
1. Repealer filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4). For prior history, see Register 76, No. 24.
2. Certificate of Compliance filed 5-17-77 (Register 77, No. 21).
§1876. Housing Provided As a Last Resort--General.
Note • History
(a) When it is determined that adequate replacement housing is not available, or cannot otherwise be made available, the Department shall take steps to provide comparable replacement housing. Such steps shall include, but not be limited to, the following:
(1) Provide for payments over and above the limits established in this chapter which will put the comparable replacement housing that is available within the financial means of the displacees. Under no circumstances will a rental subsidy exceed a period of 48 months.
(2) Provide for the purchase or construction of comparable replacement housing which can be made available to the displacee, within his financial means and reasonably accessible to his place of employment.
NOTE
Authority cited: Sections 7267.8 and 7268, Government Code.
HISTORY
1. New section filed 3-11-76 as an emergency; effective upon filing (Register 76, No. 11).
2. Certificate of Compliance filed 6-11-76 (Register 76, No. 24).
3. Amendment filed 1-18-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Certificate of Compliance filed 5-17-77 (Register 77, No. 21). (Register 76, No. 11).
§1877. Temporary Moves for Rehabilitation.
Note • History
(a) If temporary displacement is required because of a program of residential rehabilitation the occupants displaced may be provided at State expense with the following:
(1) Temporary housing in motels or apartments. Displacee shall continue to be liable for payment of rent on the unit from which they have been temporarily displaced.
(2) Transportation of displacees.
(3) Moving of personal property.
(4) Storage of personal property.
(5) Gas and electricity in temporary residence.
(6) Telephone transfers.
(7) If displacees are moved from housekeeping units to accommodations without kitchens meals shall be provided. The Department may contract with restaurants, or at its option the Department may provide a meal allowance of $12.00 per day for each displacee. The meal allowance may be paid in advance when deemed appropriate by the Department.
NOTE
Authority cited: Section 8169.2, Government Code. Reference: Sections 41397 and 41557, Health and Safety Code.
HISTORY
1. New section filed 1-20-78 as an emergency; effective upon filing (Register 78, No. 3). For history of former Section 1877, see Registers 77, No. 4, 77, No. 21 and 77, No. 43.
2. Certificate of Compliance filed 5-22-78 (Register 78, No. 21).
§1878. Permanent Moves for Rehabilitation.
Note • History
In any program of residential rehabilitation within the “core area” of Sacramento as defined in Section 8160.1 of the Government Code, permanently displaced persons who are eligible for relocation assistance under Section 41397 of the Health and Safety Code shall receive relocation assistance in conformance with Sections 1870 through 1876 of this subchapter.
NOTE
Authority cited: Section 8169.2, Government Code. Reference: Sections 41397 and 41557, Health and Safety Code.
HISTORY
1. New section filed 2-6-78 as an emergency; effective upon filing (Register 78, No. 6).
2. Certificate of Compliance filed 5-22-78 (Register 78, No. 21).
Article 3. Appraisal Review by the State
Note • History
Appraisal reports prepared for the acquisition of any land or interest therein by or with funding from an “acquisition agency” as defined in Public Resources Code Section 5096.501(a) must conform to the following minimum standards in order to be considered for Appraisal Review by the State.
(a) Appraisal reports shall be prepared and signed by an appropriately Licensed or Certified Real Estate Appraiser in good standing (pursuant to Part 3, commencing with Section 11300 of Division 4 of the Business and Professions Code, and the California Code of Regulations, Title 10, Section 3701).
(b) Appraisal reports shall include descriptive photographs and maps of sufficient quality and detail to clearly depict the subject property and any market data relied upon, including the relationship between the location of the subject property and the market data.
(c) Appraisal reports shall include a complete description of the subject property land, site characteristics and improvements. Valuations based on a property's development potential shall include:
(1) Verifiable data on the development potential of the land (e.g., Certificates of Compliance, Tentative Map, Parcel Map, Final Map).
(2) A description of what would be required for a development project to proceed (e.g., legal entitlements, infrastructure).
(3) Presentation of evidence that sufficient demand exists, or is likely to exist in the future, to provide market support for the development.
(d) Appraisal reports shall include a statement by the appraiser indicating to what extent land title conditions were investigated and considered in the analysis and value conclusion (a Preliminary Report should be included as an attachment to the appraisal report when available).
(e) Appraisal reports shall include a discussion of implied dedication, prescriptive rights or other unrecorded rights (see Civil Code Sections 801-813, 1006-1009) that may affect value, indicating the extent of investigation, knowledge, or observation of conditions that might indicate evidence of public use. If the appraiser has no knowledge of or has not observed such conditions, a statement to that effect shall be included in the appraisal report. (This regulation does not require the appraiser to render an opinion regarding the legality of any such unrecorded right.)
(f) Appraisal reports including more than nominal value for specialty interests, including but not limited to timber, water, minerals, or carbon credits, shall include a separate valuation prepared and signed by a certified or registered professional qualified in the field of specialty interest. This valuation shall be reviewed and approved by a second qualified, certified or registered professional, considered by the appraiser, and appended to the appraisal report.
NOTE
Authority cited: Section 5096.517, Public Resources Code. Reference: Sections 5096.501 and 5096.517, Public Resources Code.
HISTORY
1. New section filed 1-23-2012; operative 2-22-2012 (Register 2012, No. 4).
Subchapter 7. Office of Procurement
Article 1. Rules for Prequalification of Vendors
§1890. Uniform Standards for Prequalification of Vendors.
Note • History
(a) As used in this section
(1) “Vendor” means manufacturer, fabricator, wholesale distributor, broker or other persons and firms regularly engaged in the sale of materials, supplies or equipment.
(2) “Standard specification” means those purchasing standards established by the Director of General Services under authority of Public Contract Code Section 10307.
(3) “Product” means unmanufactured, partially manufactured or finished materials, supplies and equipment.
(4) “Bid invitation” means those bid invitations issued by the Department of General Services as required in Public Contract Code Section 10302.
(5) “Accounts” means businesses or governmental jurisdictions other than State agencies to whom applicant vendors are regularly supplying the product offered to the State.
(b) Vendors seeking to prequalify to receive bid invitations shall present evidence that they have the ability, resources, and facilities to adequately supply the State. The following tests shall be applied by the Department of General Services in considering vendor applications for prequalification.
(1) Requirements of the State. Lists of prequalified vendors shall be established where evidence exists that the State requires products competitively offered by applicant vendor. If, during the twelve (12) months preceding application, the aggregate purchases by the State of products substantially similar to those competitively offered are more than five thousand dollars ($5,000) and, during this same period, any single purchase exceeded one thousand dollars ($1,000), a list of prequalified vendors shall be established.
(2) Geographic Limits. Vendors may be prequalified to receive bid invitations for purchases for delivery within those market areas of the State in which the vendor regularly conducts his business. If a vendor applies for prequalification outside the normal market area in which his offices, warehouses or other facilities are located, he shall show evidence of satisfactory service to accounts located within each of the market areas for which he is requesting prequalification.
(3) Compliance With Standards. Where standard specifications for products have been established by the Department, the vendor shall present evidence that the product offered complies with such standards.
(4) Experience. The vendor shall show evidence of adequate experience in selling and providing post-purchase service to accounts with requirements similar to those of the State. Vendors with less than two years of experience in selling the products offered shall provide evidence of satisfactory service to other accounts purchasing the product offered in quantities and qualities similar to that normally required by the State.
(5) Inventories. The vendor shall have readily available to him an inventory of new products and, if applicable, replacement or repair parts for the products offered and such inventories shall be of sufficient size and scope to permit timely delivery of the products and parts in compliance with the normal requirements of the State within the market areas for which the vendor requests prequalification. If such readily available inventories are less than the normal annual State requirements for the product offered within the geographic area of prequalification, the vendor shall show evidence of his ability to augment these inventories from other sources adequate to assure the timely delivery of these products.
(6) Post-Purchase Service and Technical Assistance. For products of a type normally requiring the vendor to employ or make available trained or licensed personnel to provide post-purchase service and technical assistance, the vendor shall show evidence that such personnel will be readily available on a timely basis to the State at such locations as required by the State.
(7) Licenses. The vendor shall hold all licenses and permits required by law to furnish materials, or to perform services required under the contract or purchase order.
(8) Fabrication to State Specifications. When the product offered requires manufacture or fabrication to specifications established by the State, the vendor shall show that facilities and personnel capable of manufacturing or fabricating the product in compliance with the State specification are readily available to him.
(c) Vendors seeking prequalification to receive bid notices shall complete a standard application form and questionnaire prescribed and furnished by the Department of General Services. The Department of General Services may also require such additional or supplemental information as it deems necessary.
(d) The Department of General Services may require any vendor to resubmit evidence of his qualifications at such times, and under such conditions as it may require. The question whether a particular bidder is a “responsible bidder,” within the requirements of Public Contract Code Section 10301, involves an evaluation of the bidder's experience, facilities, reputation, financial resources, and other factors existing at the time of contract award. Prequalification of a vendor to be placed on a prequalified vendor list shall not foreclose the State from determining that the vendor is not a “responsible bidder” within the statutory requirements at the time of contract award for purposes of that award.
NOTE
Authority cited: Sections 10303 and 10315, Public Contract Code. Reference: Sections 10301, 10302, 10303 and 10307, Public Contract Code.
HISTORY
1. New article (§§ 1890 and 1891) filed 9-13-55 as an emergency; effective upon filing (Register 55, No. 14).
2. Amendment filed 3-11-65 as procedural and organizational; effective upon filing (Register 65, No. 4).
3. Amendment filed 12-13-67; effective thirtieth day thereafter (Register 67, No. 50).
4. Amendment filed 12-23-76; effective thirtieth day thereafter (Register 76, No. 52).
5. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
6. Repealer of subsection (b) and relettering of subsections (c)-(e) to subsections (b)-(d) filed 10-22-82 by OAL pursuant to Government Code Section 11349.7(j) (Register 82, No. 43).
7. Amendment of subsections (b) and (d) filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
8. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
9. Change without regulatory effect of subsections (a)(2), (a)(4) and (d) filed 4-14-87; operative 5-14-87 (Register 87, No. 16).
§1891. Removal of Names from Bidders Lists. [Repealed]
Note • History
NOTE
Authority cited: Sections 10303 and 10315, Public Contract Code. Reference: Section 10303, Public Contract Code.
HISTORY
1. Amendment filed 3-11-65 as procedural and organizational; effective upon filing (Register 65, No. 4).
2. Amendment of subsection (a) filed 4-7-78; effective thirtieth day thereafter (Register 78, No. 14).
3. Repealer filed 10-22-82 by OAL pursuant to Government Code Section 11349,7(j) (Register 82, No. 43).
4. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
Article 2. Purchases on Behalf of Local Agencies
§1895. General Provisions. [Repealed]
Note • History
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. New Article 2 (Sections 1895, 1895.1 through 1895.16) filed 10-7-64; effective thirtieth day thereafter (Register 64, No. 20).
2. Amendment filed 12-23-76; effective thirtieth day thereafter (Register 76, No. 52).
3. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
4. Repealer filed 10-22-82 by OAL pursuant to Government Code Section 11349.7(j) (Register 82, No. 43).
5. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.1. Authorization of Local Governing Body.
Note • History
There shall be attached to every Local Agency Purchase Request a certified copy of the resolution, order, motion, or ordinance of the local governing body by law having power to purchase, authorizing submission of the purchase request by the official signing the request on behalf of the local agency.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
Note • History
Cities governed by a charter specifying detailed purchasing procedures shall follow the charter requirements, and may not avail themselves of the purchasing services of the State Department of General Services. Chartered cities submitting Local Agency Purchase Requests shall attach to each request a certification, signed by or on behalf of the city attorney, advising that the requested purchase by the State Department of General Services does not conflict with the provisions of the city charter.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.3. Submission of Requests. [Repealed]
Note • History
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Repealer of last sentence filed by OAL 10-22-82 pursuant to Government Code Section 11349.7(j). (Register 82, No. 43).
3. Repealer filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
4. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.4. Funding and Payment to Vendor. [Repealed]
Note • History
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Repealer filed 10-22-82 by OAL pursuant to Government Code Section 11349.7(j) (Register 82, No. 43).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.5. Specifications Not to Restrict Competition.
Note • History
To be acceptable to the Department of General Services, requests for restrictive specifications shall include a statement that the local agency has determined that the article of the specified brand or trade name is the only article which properly meets the needs of the agency, and shall include sufficient factual data in support of such local agency determination to afford the Department of General Services a reasonable basis for concurrence in such local agency determination. Requests containing restrictive specifications not adequately supported by written justification will not be processed by the Department of General Services.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.6. Local Bidders to Receive Bid Invitations.
Note • History
Local agencies may indicate on a separate sheet attached to the local agency request form any local bidders which the requesting agency wishes to receive bid invitations. All listed local bidders shall receive bid invitations.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.7. F. O. B. Point--Destination. [Repealed]
Note • History
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Repealer filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.8. Cash Discount Considered in Bid Evaluation.
Note • History
Discounts involving discount periods of less than 20 days shall not be included in the calculation of low bid.
NOTE
Authority cited: Section 10324, Public Contract Code. Reference: Section 10324, Public Contract Code.
HISTORY
1. Amendment filed 4-21-82; effective thirtieth day thereafter (Register 82, No. 17).
2. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
3. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
4. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.9. Specifications Development and Sample Analysis.
Note • History
Inspections or specifications development requiring expert personnel or special equipment may be undertaken by the Department of General Services and Office of Procurement staff only if the local agency requests such service.
If, in the opinion of the Department of General Services, such service is required to consummate a requested purchase and the cost of the service required exceeds the normal indirect costs for similar purchases, the Department of General Services shall notify the requesting agency of this prior to processing the purchase request. No service of this type shall be undertaken without prior concurrence of the local requesting agency. An additional charge for this service based on costs to the Department of General Services (manhours, travel, laboratory or inspection fees) shall be made.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.10. Cost of Service--Charge to Local Agency.
Note • History
(a) The Department of General Services shall charge the local agency a percentage of the purchase price which shall be computed to be the average of the costs incurred in making purchases for that local agency. When it is necessary to assume extra costs for such items as consultant services, special equipment, lab fees, or similar non-routine costs, the average costs shall not be added to the purchase cost for purposes of determining whether the State can purchase at a lower price than can the local agency.
(b) If a local agency withdraws its request prior to the date the Office of Procurement mails bids or if the Office of Procurement finds that it cannot, for some reason, accept the request for processing, no charge shall be made except for special services rendered in accordance with the preceding sections. Full charge shall be made for the Office of Procurement costs if the local agency withdraws its request subsequent to bid mailing regardless of whether a purchase order is issued.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.11. Delivery--Date Normally Specified. [Repealed]
Note • History
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Repealer filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.12. Confirmation of Purchase Request and Inquiries Regarding Status. [Repealed]
Note • History
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Repealer of last sentence filed 10-22-82 by OAL pursuant to Government Code Section 11349.7(j) (Register 82, No. 43).
3. Repealer filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
4. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.13. Final Authorization to Purchase.
Note • History
It shall be the sole responsibility of the local agency to determine whether the requested purchase can be made by the State “upon the same terms, conditions and specifications at a price lower than the local agency can obtain through its normal purchasing procedures” within the limitations of Public Contract Code Section 10324. In order that the local agency may be in a position to make this determination, the State shall furnish the local agency with a complete copy of the Invitation for Bid, showing all terms, conditions and specifications. Upon bid opening, the State shall advise the local agency of the lowest responsible bid price received and shall request direction from the local agency as to whether to purchase. The purchase shall not be completed unless the local agency then promptly replies and so directs, by telegram or otherwise, in writing.
Two complete copies of the Purchase Order shall be sent to the local agency promptly upon issuance by the Office of Procurement, in order that the local agency may be in a position to properly audit and inspect the purchase.
NOTE
Authority and reference cited: Section 10324, Public Contract Code.
HISTORY
1. Amendment filed 12-23-76; effective thirtieth day thereafter (Register 76, No. 52).
2. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
3. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
4. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
5. Change without regulatory effect filed 4-14-87; operative 5-14-87 (Register 87, No. 16).
6. Editorial correction of Authority and Reference cites (Register 95, No. 6).
Note • History
On request, the State shall distribute cost information to local agencies in two ways, (1) a list of selected non-contract “indicator” commodities covering a range of product areas shall be periodically compiled so that local agencies have some insight into prices obtained by the State and (2) annual State contract bid invitations and notifications which contain cost and specification information adequate for local agency evaluation.
NOTE
Authority cited: Section 10324, Public Contract Code. Reference: Section 10325, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Amendment filed 3-4-83; effective thirtieth day thereafter (Register 83, No. 10).
3. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
§1895.15. Emergency Purchases--Justification. [Repealed]
Note • History
NOTE
Authority cited: Section 14814, Government Code. Reference: Section 14809, Government Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Repealer filed 10-22-82 by OAL pursuant to Government Code Section 11349.7(j) (Register 82, No. 43).
§1895.16. Late or Defective Deliveries.
Note • History
After issuance of the Purchase Order by the State Office of Procurement to the vendor, the State Office of Procurement shall have no further responsibility with regard to the purchase. It shall be the responsibility of the local agency to deal directly with the vendor concerning any late or defective delivery.
NOTE
Authority cited: Section 10329, Public Contract Code. Reference: Section 10324, Public Contract Code.
HISTORY
1. Editorial correction of NOTE filed 10-22-82 (Register 82, No. 43).
2. Editorial correction of NOTE filed 3-8-84 (Register 84, No. 10).
Subchapter 8. Office of Small Business Procurement and Contracts
Article 1. General Provisions
Note • History
The purpose of this subchapter is to set forth the rules for applying the small business and the non-small business subcontractor preferences; and the rules, roles, responsibilities and rights of businesses and the state as they pertain to small business certification.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14835, 14837, 14838 and 14839.1, Government Code.
HISTORY
1. New Subchapter 8 (Sections 1896, 1896.2, 1896.20 and 1896.30) filed 4-19-74 as an emergency; designated effective 5-1-74. Certificate of Compliance included (Register 74, No. 16).
2. Amendment of subsections (k)(3) and (l)(1) filed 12-31-75 as an emergency; designated effective 1-1-76 (Register 76, No. 1).
3. Amendment of subsections (k) and (l) filed 6-19-78; effective thirtieth day thereafter (Register 78, No. 25).
4. Amendment filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39).
5. Amendment of subsection (m)(1)(B) filed 10-13-78; effective thirtieth day thereafter (Register 78, No. 42).
6. Editorial correction of NOTE filed 12-6-82 (Register 82, No. 50).
7. Amendment of subsections (l) and (m) and new subsection (n) filed 10-7-85; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 85, No. 41).
8. Amendment filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
9. Certificate of Compliance including amendment of subsection (k) transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
10. Change without regulatory effect amending section filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
11. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Article 2. Small Business Preference
Note • History
The Department shall have the sole responsibility for determining the eligibility of and certifying small businesses pursuant to the provisions of the Small Business Procurement and Contract Act, Article 1 of Chapter 6.5, Part 5.5 of Division 3, Title 2, Government Code, commencing with § 14835.
When authorized by the applicant, the Department may share certification data and information with other state, federal, or local agencies for purposes of enabling the applicant to become certified as a small business with these other public agencies.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14835, 14837 and 14839.1, Government Code.
HISTORY
1. Amendment filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39).
2. Editorial correction of NOTE filed 12-6-82 (Register 82, No. 50).
3. Amendment filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
4. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
5. Repealer of article 2 heading and repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Note • History
The terms defined in this article shall have the following meanings whenever they appear in this subchapter:
(a) Affiliate or affiliation refers to a relationship of direct or indirect control or shared interests, as determined in § 1896.12, between the applicant or a small business and another business.
(b) ALJ means Administrative Law Judge, as defined in Government Code § 11502, assigned by the Office of Administrative Hearings to consider and rule on appeals of certification denial, decertification, and sanctions.
(c) Applicant means a business that has filed an application for certification as a small business with the Department on the Small Business Certification Application, STD. 813, REV. 1/2002, which is incorporated by reference.
(d) Assignment means a transfer of rights, responsibility, or property.
(e) Awarding department means any agency, department, office, board, commission, institution, hospital, the California State universities and colleges, and any other entity empowered by law to enter into contracts on behalf of the State of California.
(f) Bid means an offer made in response to a solicitation.
(g) Business means an entity organized for profit including, but not limited to, an individual, sole proprietorship, partnership, limited liability partnership, corporation, limited liability company, joint venture, association or cooperative; or solely for purposes of the Prompt Payment Act (Government Code 927 et seq.), a duly authorized nonprofit corporation.
(h) Commercially useful function means:
(1) The contractor or subcontractor is responsible for the execution of a distinct element of the work of the contract; carrying out its obligation by actually performing, managing or supervising the work involved; and performing work that is normal for its business services and functions; and
(2) The contractor or subcontractor is not further subcontracting a greater portion of the work than would be expected by normal industry practices.
(3) The contractor or subcontractor is responsible, with respect to materials and supplies provided on the subcontract, for negotiating price, determining quality and quantity, ordering the material, installing (when applicable), and paying for the material itself.
(4) A contractor or subcontractor will not be considered as performing a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to achieve the appearance of small business participation.
(i) Department means the Department of General Services.
(j) Disabled veteran-owned small business means a business defined pursuant to Government Code § 14838(f)
(k) Employee means an individual employed by a business that is either:
(1) Reported as an employee to the State of California, Employment Development Department (EDD) on the business's Quarterly Wage and Withholding Report or other format accepted by EDD; or
(2) Reported as an employee by the business on another state's report equivalent to the EDD's Quarterly Wage and Withholding Report.
(l) Gross annual receipts means “Total Gross Receipts or Sales”, less “Returns and Allowances,” as reported on the business' income tax returns, as filed with the federal Internal Revenue Service.
(m) Independently owned and operated means a business concern that independently manages and controls the day-to-day operations of its own business through its ownership and management, without undue influence by an outside entity or person that may have an ownership and/or financial interest in the management responsibilities of the applicant business or small business.
(n) Joint Venture means an association of businesses established by written agreement to engage in and carry out a single business venture for joint profit, for which purpose they combine their efforts, property, money, skills and/or knowledge.
(o) Local agency means any county, city, city and county, district, public authority, public agency, school district, and any other political subdivision or public corporation in the State, but does not include the State.
(p) Manufacturer means a business as defined in Government Code § 14837(c), pursuant to the determination criteria set forth in Section 1896.12.
(q) Microbusiness means a small business that, together with affiliates, has average annual gross receipts of three million, five hundred thousand ($3,500,000) or less over the previous three years, as adjusted by the Department pursuant to Government Code §14837(d)(2), or is an manufacturer, as defined in Government Code §14837, with 25 or fewer employees.
(r) Net bid price means the verified price of a bid, after all adjustments described in the solicitation have been made.
(s) Non-Profit Corporation means, for purposes of the Prompt Payment Act, California Government Code § 927 et. seq, a duly authorized non-profit corporation.
(t) Non-small business means a responsible bidder that is not certified as a small business.
(u) Principal office means where the business is headquartered and conducts the management and operations of the business.
(v) Responsive bid means a bid that clearly substantiates compliance without material deviation with all specifications, requirements, and the terms and conditions of the solicitation.
(w) Small business means a business that meets the eligibility requirements contained herein, that has been certified by the Department as a small business. For the purposes of these regulations, whenever the term small business is used, it means certified small business and includes microbusinesses.
(x) Solicitation means the notification to prospective bidders that an awarding department wishes to receive bids for furnishing goods, services, information technology, or construction.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 927, 927.2, 11370.2, 11502 and 14837, Government Code; Section 999, Military and Veterans Code.
HISTORY
1. Amendment and renumbering of Section 1896.20 to Section 1896.4 filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39). For prior history, see Register 74, No. 16.
2. Editorial correction of NOTE filed 12-6-82 (Register 82, No. 50).
3. Amendment filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
4. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
5. Change without regulatory effect amending section and Note filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
6. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
7. Amendment of subsection (q) filed 1-11-2007; operative 1-11-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 2).
8. Amendment of subsection (q) and Note filed 12-21-2009; operative 1-20-2010 (Register 2009, No. 52).
Article 2. Small Business Preference
§1896.6. Application of the Small Business and Non-Small Business Subcontractor Preferences.
Note • History
(a) Small businesses will be granted the five percent (5%) small business preference on a bid evaluation by an awarding department when a responsible non-small business has submitted the lowest-priced, responsive bid or a bid that has been ranked as the highest scored bid pursuant to a solicitation evaluation method described in § 1896.8, and when the small business:
(1) Has included in its bid a notification to the awarding department that it is a small business or that it has submitted to the Department a complete application pursuant to § 1896.14 no later than 5:00 p.m. on the bid due date, and is subsequently certified by the Department as a small business; and
(2) Has submitted a timely, responsive bid; and
(3) Is determined to be a responsible bidder.
(b) Non-small business bidders will be granted a five percent (5%) non-small business subcontractor preference on a bid evaluation by an awarding department when a responsible non-small business has submitted the lowest-priced responsive bid or a bid that has been ranked as the highest scored bid pursuant to a solicitation evaluation method described in §1896.8, and when the non-small business bidder:
(1) Has included in its bid a notification to the awarding department that it commits to subcontract at least twenty-five percent (25%) of its net bid price with one or more small business(es); and
(2) Has submitted a timely, responsive bid; and
(3) Is determined to be a responsible bidder; and
(4) Submits a list of the small business(es) it commits to subcontract with for a commercially useful function in the performance of the contract. The list of subcontractors shall include their name, address, phone number, a description of the work to be performed, and the dollar amount or percentage (as specified in the solicitation) per subcontractor.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14837 and 14838, Government Code.
HISTORY
1. New section filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39).
2. Amendment filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
3. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
4. New article 2 heading and repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
§1896.8. Computing the Small Business and the Non-Small Business Subcontractor Preferences.
Note • History
(a) Awards Made to the Lowest Responsive, Responsible Bidder
(1) The five percent (5%) small business or non-small business subcontractor preferences are used for bid evaluation purposes when determining a contract award in the following situations:
(A) There is at least one small business competing, and award of the contract will be made to the lowest responsive, responsible bidder. The preference shall be computed as follows:
1. Five percent (5%) is computed from the lowest, responsive and responsible bid of a business that is not a small business. This results in the preference amount.
2. The preference amount is subtracted from the small business' bid amount.
(B) There is at least one non-small business competing that is subcontracting at least twenty-five percent (25%) of its net price bid to one or more small businesses, and award of the contract will be made to the lowest responsive, responsible bidder. The preference shall be computed as follows:
1. Five percent (5%) is computed from the lowest, responsive and responsible bid of a business that is not a small business, or is not subcontracting to a small business. This results in the preference amount.
2. The preference amount is subtracted from the bid of the non-small business that is subcontracting at least twenty-five percent of its net price bid to one or more small businesses.
(b) Awards Based on Highest Scored Proposal
(1) The five percent (5%) small business preference or non-small business subcontractor preferences are used for bid evaluation purposes when determining a contract award in the following situations:
(A) There is at least one small business competing, and award of the contract is to be made to the highest scored responsive bid submitted by a responsible bidder following an evaluation process that weighs factors other than price, together in a formula with price. The preference shall be computed as follows:
1. The awarding department shall specify the minimum number of points, if any, that a bid must receive in order to be deemed responsive and of acceptable quality. If a small business does not achieve the specified minimum number of points, it shall not be entitled to the five percent (5%) preference.
2. Five percent (5%) of the score of the highest scored responsive bid submitted by a responsible non-small business is computed as specified in the solicitation. The result of the calculation is a number that represents the preference points.
3. The preference points are then included in the formula as specified in the solicitation to determine the highest scored bidder.
(B) There is at least one non-small business competing that is subcontracting at least twenty-five percent (25%) of its net price bid to one or more small businesses, and award of the contract is to be made to the highest scored responsive bid submitted by a responsible bidder following an evaluation process that weighs factors other than price, together in a formula with price. The preference shall be computed as follows:
1. The awarding department shall specify the minimum number of points, if any, that a bid must receive in order to be deemed responsive and of acceptable quality. If a non-small business does not achieve the specified minimum number of points, it shall not be entitled to the five percent (5%) preference.
2. If the non-small business achieves the specified minimum number of points, five percent (5%) of the score of the highest scored responsive bid submitted by a responsible non-small business that is not subcontracting a minimum of twenty-five percent (25%) of its net price bid to one or more small businesses is computed as specified in the solicitation. The result of the calculation is a number that represents the preference points.
3. The preference points are then included in the formula as specified in the solicitation to determine the highest scored bidder.
(c) If, after application of the small business preference to the bid of a small business, that bid is equal to the lowest priced, responsive bid from a responsible non-small business, or equal to the highest scored bid offered by a responsible non-small business, as applicable, the contract shall be awarded to the small business for the amount of its bid.
(d) If, after application of the non-small business subcontractor preference, a responsible non-small business that has submitted a responsive bid is the lowest bidder, and does not displace a small business from winning the award, the contract shall be awarded to the non-small business for the amount of its bid.
(e) In no event shall the amount of the small business or non-small business subcontractor preferences awarded on a single bid exceed $50,000, and in no event shall the combined cost of the small business or non-small business subcontractor preference and preferences awarded pursuant to any other provision of law exceed $100,000. In bids that the state has reserved the right to award by line item, or make multiple awards, the small business preference shall be applied to maximize the participation of small businesses.
(f) In the event of a precise tie between the bid of a small business and the bid of a disabled veteran business enterprise that is also a small business, the award shall go to the disabled veteran business enterprise that is also a small business.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 4535.2, 7084, 7118 and 14838, Government Code; and Sections 12102 and 12162, Public Contract Code.
HISTORY
1. New section filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39).
2. Editorial correction of NOTE filed 12-6-82 (Register 82, No. 50).
3. Amendment filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
4. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
5. Change without regulatory effect amending section filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
6. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
§1896.10. Substitution of a Small Business Subcontractor.
Note • History
(a) After award of a contract based in part on the application of the Non-Small Business Subcontractor preference, the contractor must use the small business subcontractor(s) and/or supplier(s) proposed in the bid to the state unless a substitution is requested in writing to the awarding department and the awarding department approves the substitution in writing prior to the commencement of any work. The substitution request must include at least the following:
(1) An explanation of the reason for the substitution.
(2) The contractor must substitute a small business with another small business. However, if the small business substitution cannot occur, the contractor must include a written justification and the steps that were taken to try to acquire a new small business subcontractor and how that portion of the contract will be fulfilled.
(3) A description of the work to be performed, identified both as a task(s) and as a dollar amount or percentage of the overall contract that the substituted business will perform. The substituted business(es), if approved, shall be required to perform a commercially useful function in the contract pursuant to § 1896.6.
(b) The request for substitution of a small business and the awarding department's approval or disapproval cannot be used as an excuse for noncompliance with any other provision of law, including but not limited to, the Subletting and Subcontracting Fair Practices Act ( § 4100 et seq., Public Contract Code) or any other contract requirements relating to substitution of subcontractors.
(c) If a contractor requests substitution of its subcontractor(s)/supplier(s) by providing a written request to the awarding department in accordance with § 1896.10, the awarding department may consent to the substitution in any of the situations set forth in Public Contract Code § 4107 of the Subletting and Subcontracting Fair Practices Act.
(d) Prior to approval of the prime contractor's request for the substitution, the awarding department, or its duly authorized officer, shall give notice in writing to the listed subcontractor of the prime contractor's request to substitute and the reasons for the request to substitute. The notice shall be served by certified or registered mail to the last known address of the subcontractor. The listed subcontractor that has been so notified shall have five (5) working days after the receipt of the notice to submit written objections to the substitution to the awarding department. Failure to file these written objections shall constitute the listed subcontractor's consent to the substitution. If written objections are filed, the awarding department shall give notice in writing of at least five (5) working days to the listed subcontractor of a hearing by the awarding department on the prime contractor's request for substitution.
(e) Failure of the contractor to subcontract with the small businesses listed on its bid to the state, or follow these substitution rules may be grounds for the Department to impose sanctions pursuant to Government Code § 14842.5 and §1896.16. In the event such sanctions are to be imposed, the contractor shall be notified in writing and entitled to a hearing pursuant to §§ 1896.18 and 1896.20.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14837 and 14842.5 Government Code; and Section 4107, Public Contract Code.
HISTORY
1. Amendment and renumbering of Section 1896.30 to Section 1896.10 filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39). For prior history, see Register 74, No. 16.
2. Editorial correction of NOTE filed 12-6-82 (Register 82, No. 50).
3. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Article 3. Certification
§1896.12. Eligibility for Certification as a Small Business.
Note • History
(a) To be eligible for certification as a small business, a business must meet all of the following qualifying criteria:
(1) It is independently owned and operated; and
(2) The principal office is located in California; and
(3) The officers of the business in the case of a corporation; officers and/or managers, or in the absence of officers and/or managers, all members in the case of a limited liability company; or the owner(s) in all other cases, are domiciled in California; and
(4) It is not dominant in its field of operation(s), and
(5) It is either:
(A) A business that, together with all affiliates, has 100 or fewer employees, and annual gross receipts of fourteen million dollars ($14,000,000) or less as averaged for the previous three tax years, as adjusted by the Department pursuant to Government Code § 14837(d)(3); or
(B) A manufacturer as defined herein that, together with all affiliates, has 100 or fewer employees.
(b) To be eligible for designation as a microbusiness, a business must meet all the qualifying criteria in subparagraph (a), and in addition, must be either:
(1) A business that, together with all affiliates, has annual gross receipts of three million, five hundred thousand dollars ($3,500,000) or less as averaged for the previous three tax years, as adjusted by the Department pursuant to Government Code §14837(d)(3); or
(2) A manufacturer as defined herein that, together with all affiliates, has 25 or fewer employees.
(c) Joint ventures must be certified on a bid-by-bid basis. The joint venture shall not be subject to the average annual gross receipts and employee limits imposed by this subchapter. However, each individual business participating in the joint venture must be certified as a small business.
(d) Certification Determination
(1) In determining if a business is eligible for certification, the Department may consider the applicant's or small business' organizational structure, operations and business relationships during the previous three tax years (or years the business has been in existence if fewer than three tax years), and may request the applicant provide copies of income tax returns as filed with the California Franchise Tax Board in addition to the required federal income tax returns and schedules, as filed with the federal Internal Revenue Service, or other documentation deemed necessary for the Department to make a final certification determination.
(2) In determining if a business is eligible for small business certification, the applicant business, together with all affiliates, has been in existence less than three years shall have 100 or fewer employees, and an average annual gross receipts of $14 million or less as averaged by the number of years in existence, as adjusted by the Department pursuant to Government Code, § 14837(d)(3).
(3) In determining if a business is eligible for microbusiness certification, the applicant business, together with all affiliates, has been in existence less than three years shall have an average annual gross receipts of $3.5 million or less as averaged by the number of years in existence, as adjusted by the Department pursuant to Government Code, § 14837(d)(3).
(4) The Department's determination of whether a business is a manufacturer may be based on, but not limited to:
(A) Whether the business, with its own facilities, performs the primary activities in transforming inorganic or organic substances into the end item being acquired, and is not a packager or, in the case of kits, a final assembler. The end item must possess characteristics that, as a result of mechanical, chemical, or human action, it did not possess before the original substances, parts, or components were assembled or transformed. The end item may be finished and ready for utilization or consumption, or it may be semi-finished as a raw material to be used in further manufacturing.
(B) The factors considered by the federal Small Business Administration pursuant to Title 13, Code of Federal Regulations (CFR), Chapter I, Part 121, § 121.406(b)(2).
(C) Whether more than fifty percent (50%) of annual gross receipts, as determined by the Department, result from the manufacture and sale of products manufactured by the business.
(5) The Department's determination of whether the officers, owners or members of a business, as applicable, are domiciled in California may be based on, but not be limited to, a review of:
(A) Voter registration records;
(B) Homeowner's property tax exemption filings;
(C) Driver's licenses;
(D) Utility billings; and
(E) Other documents, acts, occurrences, or events that indicate presence in California is more than temporary or transient.
(6) The Department's determination of whether the Principal Office of a business is located in California shall be based on:
(A) In the case of a corporation, the location where the corporate officers manage, direct and control the operations must be located within California;
(B) In the case of Limited Liability Companies, the location where the Manager(s) and/or Officer(s) or Members manage, direct and control the operations must be located within California;
(C) In all other cases, the location where the owner(s) manage, direct and control the operations must be located within California.
(7) The Department's determination of whether a business is affiliated with another business may be based on, but not limited to, historical and current factors including ownership, management, financial and/or business relationships or ties with another business, familial relationships, contractual relationships, assignments, passage of title to goods or merchandise, and other related matters.
(A) The Department may additionally consider the following in determining affiliation:
1. The applicant business assigns a contract, in whole or in part, to another business.
2. There exists common management with the applicant business and another business.
3. The applicant business and another business share facilities, equipment, systems, or employees.
4. There is a familial relationship with the applicant business and another business and both businesses are in the same industry.
5. A person or business has assisted the applicant business with activity to meet bond/security requirements.
(B) The following types of business relationships shall not be considered affiliations:
1. A franchise and/or license agreement provided that the franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership.
2. A manufacturer's or service provider's representative provided that a written agreement exists between the manufacturer(s) or service provider(s) and the representative that substantiates the independent nature of the individual businesses.
(8) The Department shall presume an applicant business not to be independently owned and operated if any of the following exists:
(A) An outside person or business concern owns or controls, or has the power to control, fifty percent (50%) or more of the voting stock of the applicant business, or
(B) One or more business owners, general partners, directors, officers or members of an outside business concern controls or has the power to control or influence the day-to-day operations of the applicant business, board of directors and/or owner(s) of the applicant business.
(9) An applicant business concern that exercises or has the ability to exercise a controlling or major influence, on a statewide basis, in a kind of business activity or field of operation in which a number of business concerns are primarily engaged, shall be determined to be dominant in its field of operation. The following criteria, among others, may be considered by the Department in determining if the applicant business is dominant in its field of operation:
(A) Volume of business;
(B) Financial resources;
(C) Competitive status or position;
(D) Ownership or control of materials, processes, licenses agreements and facilities;
(E) Sales territory and nature of business activity.
(e) In order to determine the eligibility of a business for certification as a small business, the Department may consider whatever information is provided to it from records gathered or held by any California state or local agency, any governmental agency of another state, or the federal government.
(f) Businesses that have been certified by or on behalf of other governmental organizations may be eligible for certification as a small business if the organization uses substantially the same or more stringent definitions as those set forth in Government Code § 14837, and substantially the same or more stringent certification analysis process than used by the Department.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Section 14837, Government Code.
HISTORY
1. Renumbering and amendment of former Section 1896.12 to Section 1896.18, and new Section 1896.12 filed 6-6-88, as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88. For history of former section 1896.12, see Register 82, No. 50.
2. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
3. Change without regulatory effect amending section filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
4. New article 3 heading and repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
5. Amendment of subsections (a)(5)(A), (b)(1) and (d)(2)-(3) filed 1-11-2007; operative 1-11-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 2).
6. Amendment of subsections (a)(5)(A), (b)(1) and (d)(2)-(3) and amendment of Note filed 12-21-2009; operative 1-20-2010 (Register 2009, No. 52).
§1896.14. Responsibilities of the Small Business.
Note • History
(a) In order to be considered by the Department for certification as a small business, a business must:
(1) Submit a completed application to the Department, including all required substantiating documentation and information needed by the Department to determine the business' eligibility for small business certification; and
(2) Respond to any deficiency notice from the Department, by the date and time specified by the Department, with all additional information requested, or provide reasons acceptable to the Department regarding why the deficiency request cannot be fulfilled; and
(3) Meet all eligibility requirements as set forth in this subchapter.
(b) A small business must provide written notification to the Department of any changes in its operation or ownership during its certification period that may affect its continuing eligibility as a small business pursuant to § 1896.12. Should a small business be sold during its certification period, the certification is not transferable to the new owners. Should the new business owners choose to do so, they may submit a new application for certification.
(c) Small business contractors and subcontractors shall perform commercially useful functions in each contract they are awarded by state agencies.
(d) Every business certified as a small business shall be subject to reverification of status at any time. Failure by a small business to provide requested information that supports its continued eligibility as a small business, by the date and time specified by the Department, shall be grounds for decertification.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14837, 14842 and 14842.5, Government Code.
HISTORY
1. New section filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
2. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
3. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
§1896.16. Certification by the Department.
Note • History
(a) A business meeting the eligibility and certification requirements set forth herein shall be certified as a small business, and shall be accorded all rights and privileges due pursuant to that certification.
(b) A small business meeting the microbusiness eligibility requirements shall also be designated a microbusiness. If the business exceeds the eligibility requirements for microbusiness designation at any time during the certification period, the microbusiness designation shall be removed. However, as long as the business still meets the eligibility requirements for a small business, the small business certification shall not be affected for the remainder of the certification period.
(c) The Department may certify businesses that have been certified by or on behalf of another governmental organization that uses substantially the same or more stringent definitions as those set forth in Government Code § 14837, and substantially the same or more stringent certification analysis process than used by the Department.
(d) Certification will be valid for up to thirty-six (36) months. Prior to the end of a certification period, in its sole discretion, the Department may extend the certification period up to an additional twenty-four (24) months after certification eligibility reverification or confirmation pursuant to § 1896.12. The total period of certification, including extensions, shall not exceed sixty (60) months. At the end of a 60-month certification period, businesses may re-apply for certification. If eligible, a new certification period of up to 36 months, with extensions up to an additional 24 months, will begin.
(e) The application of a business that does not meet the eligibility requirements for certification as a small business, or does not respond to requests from the Department for additional information, will be denied certification.
(f) If a small business is determined by the Department to no longer meet the eligibility requirements for small business certification, the certification shall be revoked.
(g) If it is determined by the Department that a small business is not performing a commercially useful function on a contract it has been awarded by a state agency, or on a state contract that it is performing as a subcontractor, the certification may be revoked.
(h) Pursuant to Government Code § 14842, the Department may impose the following sanctions on a business that obtains or retains certification as a small business on the basis of having furnished incorrect, incomplete or fraudulent information to the Department, and that has been awarded one or more contracts as a result of the certification:
(1) The business shall pay to the state any difference between the contract amount awarded to the business and the contract amount had it been properly awarded; and
(2) The business shall be assessed a penalty in an amount not more than ten percent (10%) of the amount of the contract involved; and
(3) The business shall be ineligible to transact any business with the state for a period of not less than three months and not more than 24 months.
(4) The small business certification of the business shall be revoked for a period of not less than one year. For additional or subsequent violations, the suspension shall be extended for a period of up to three years.
(i) Pursuant to Government Code § 14842, the Department may impose sanctions on a business that has obtained classification as a small business or microbusiness by reason of having furnished incorrect supporting information or by reason of having withheld information, and that knew, or should have known, the information furnished was incorrect or the information withheld was relevant to its request for classification, and that by reason of that classification has been awarded a contract to which it would not otherwise have been entitled; under conditions set forth in Government Code § 14842, the business may be prohibited from:
(1) Entering into a state project or state contract,
(2) Bidding to an awarding department,
(3) Being a subcontractor to a contractor for an awarding department,
(4) Being a supplier to an awarding department.
(j) Pursuant to Government Code §§ 14842 and 14842.5, the Department may impose sanctions on a person or business for knowing, willful and intentional violations of a penalty of not more than $5,000.
(k) When denying an application for certification, decertifying a small business, or imposing any sanctions, the Department will notify the business in writing. The notice shall include the reasons for the denial, decertification, or imposition of sanctions, as applicable, and provide information regarding the process for appealing the decision(s).
(l) Any decertification issued pursuant to Government Code §§ 14842 or 14842.5 shall apply to the principals of the business, and neither the business nor the principals may re-apply for certification, either as the same business or a new business, for a period of not less than one year, nor more than two years, from the date of certification revocation.
(m) State agencies may reject the bid of a business offering goods, information technology, or services manufactured or provided by a subcontractor if that subcontractor has been declared ineligible to transact any business with the state pursuant to Government Code § 14842.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14837, 14842 and 14842.5, Government Code.
HISTORY
1. New section filed 6-6-88 as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
2. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
3. Change without regulatory effect amending section filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
4. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Article 4. Appeals
§1896.18. Appeal of Certification Denial, Decertification, or the Imposition of Sanctions.
Note • History
(a) A business, having been denied certification as a small business, or having been provided written notice by the Department of its intention to decertify the business as a small business, or of its intention to impose sanctions, may appeal the Department's determination.
(b) An appeal shall be filed with the Department by the date and time specified by the Department in its notice. The appeal shall be in writing and include a detailed written statement of the facts supporting the appeal.
(c) Grounds for appeal shall be:
(1) The applicant should have been certified as a small business based on the information contained in the application including, if applicable, supplemental material submitted to the Department upon its request, as of the date of the Department's notice of certification denial.
(2) The business should remain certified as a small business based on the information contained in the application, including, if applicable, supplemental material submitted to the Department upon its request, as of the date of the Department's notice of decertification determination.
(3) Sanctions should not be imposed, because one or more of the conditions set forth in Government Code §§ 14842 or 14842.5, as applicable, did not exist.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 14842 and 14842.5, Government Code.
HISTORY
1. New section filed 9-25-78; effective thirtieth day thereafter (Register 78, No. 39).
2. Editorial correction of NOTE filed 12-6-82 (Register 82, No. 50).
3. Renumbering and amendment of former Section 1896.12 to Section 1896.18 filed 6-6-88, as an emergency; operative 6-6-88 (Register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88.
4. Certificate of Compliance transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
5. Change without regulatory effect amending subsection (a)(3) filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
6. New article 4 heading and repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Note • History
Appeal hearings shall be conducted in accordance with the Administrative Procedure Act, Chapter 5, Part 1 of Division 3, Title 2, Government Code, commencing with § 11500, except as provided in this subchapter. It shall be the ALJ's sole discretion as to whether to conduct a hearing, or proceed with a decision based solely on the written material. If a hearing is held, the ALJ shall have discretion to limit the number of witnesses and the time allocated to each, authority to permit or limit cross-examination, and exclusive discretion to issue subpoenas and/or subpoena duces tecum. There shall be no right to take depositions, issue interrogatories, or subpoena persons or documents.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 11500, 11501, 11502, 11503, 11504, 11504.5, 11505, 11506, 11507, 11507.3, 11507.5, 11507.6, 11507.7, 11508, 11509, 11511.5, 11511.7, 11512, 11513, 11514, 11515, 11516, 11517, 11518, 11518.5, 11519, 11520, 11521, 11523, 11524, 11526, 11527 and 11528, Government Code.
HISTORY
1. New section filed 6-6-88 as an emergency; operative 6-6-88 (register 88, No. 25). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-4-88. For history of former Section 1896.20, see Registers 78 No. 39 and 74, No. 16.
2. Certificate of Compliance including amendment transmitted to OAL 10-4-88 and filed 11-2-88 (Register 88, No. 46).
3. Change without regulatory effect amending section filed 3-30-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 14).
4. Repealer and new section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Note • History
The decision of the ALJ shall be an order to uphold or deny the appeal, and shall include the imposition of sanctions pursuant to Government Code §§ 14842 and 14842.5, as appropriate. If the ALJ upholds the appeal of a certification denial or decertification, the Department shall certify the business as a small business pursuant to § 1896.16.
NOTE
Authority cited: Sections 14837 and 14843, Government Code. Reference: Sections 11517, 14842 and 14842.5, Government Code.
HISTORY
1. New section filed 8-10-2004; operative 9-9-2004 (Register 2004, No. 33).
Subchapter 9. Small and Minority Business Procurement and Assistance Division--Target Area Contract Preference Act
Article 1. General Provisions
Note • History
As used in these rules and regulations:
(a) “The Act” means the Target Area Contract Preference Act, commencing with Section 4530 of the California Government Code.
(b) “Hire” means to employ on a full-time basis a person or persons for the purpose of performing a contract in accordance with the provisions of the Act.
(c) “Contract for goods” means a contract for the purchase of materials, equipment, and supplies, but excluding a contract with a governmental entity.
(d) “Contract for services” means a contract for the rendering of personal or consultant services, but excluding a contract with a governmental entity. For the purpose of this definition, personal services shall be construed liberally so as to include services requiring little or no discretion, such as but not limited to, blueprinting, photofinishing, laboratory analysis, automobile repairs, office equipment repairs, and reproduction services.
(e) “False certification” means a certification which, either by omission or inclusion, the certifying party knows to be false or should have known to be false.
(f) “California based company” means a corporation or business, of which the principal office is located in California, and the owners, or officers if the firm is a corporation, are domiciled in California.
(g) “50 percent of the labor required” means one-half of the total employee hours needed to perform the contract involved. In computing total employee hours with respect to a contract for goods, the employee hours required for manufacturing the goods offered shall be included regardless of whether a bidder is or is not the manufacturer of the goods.
(h) “Work force” as expressed in the Act means the total number of employees employed for performance of the contract involved.
(i) “Lowest responsible bid or proposal” means that bid or proposal which pursuant to the criteria contained in the solicitation document would be entitled to contract award without regard to any preference.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Sections 4530, 4533, 4533.1, 4534 and 4534.1, Government Code.
HISTORY
1. New Subchapter 9 (Article 1, Sections 1896.30-1896.41) filed 8-3-82; effective thirtieth day thereafter (Register 82, No. 32).
§1896.31. Worksite Preference/Contract for Goods.
Note
Whenever a state agency prepares an invitation for bid (IFB) for a contract for the purchase of goods, the cost of which is estimated to be in excess of $100,000, except a contract where the worksite will be fixed by the terms of the contract, provision shall be made in the IFB for a 5 percent preference for California based companies who certify under the penalty of perjury that no less than 50 percent of the labor required to perform the contract shall be accomplished at a worksite or worksites located in a distressed area.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4533, Government Code.
§1896.32. Hiring Preference/Contract for Goods.
Note
Where a bidder complies with the provisions of rule 1896.31 the state shall award additional preferences ranging from 1 percent to 4 percent in accordance with Government Code Section 4533.1 if the bidder certifies under penalty o perjury it will hire the specified percentage of persons with high risk of unemployment during the period of contract performance.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4533.1, Government Code.
§1896.33. Application of Preferences/Contract for Goods.
Note
Preferences provided for by sections 1896.31 and 1896.32 for a contract for goods shall be granted in an amount equal to a corresponding percentage of the lowest responsible bid: provided, however, that for contract award purposes the total of any preferences for which the low responsible bidder qualifies under any provision of law shall be deducted from the total of any preferences to which a higher bidder may be entitled.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Sections 4533, 4533.1, Government Code.
§1896.34. Worksite Preference/Contract for Services.
Note
Whenever a state agency prepares an IFB or a request for proposals (RFP) for a contract for services, the cost of which is estimated to be in excess of $100,000, except an IFB or a RFP where the worksite is fixed by the terms of the contract, provision shall be made in the IFB or the RFP for a 5 percent preference on the price submitted by California based companies who certify under penalty of perjury that they shall perform the contract at a worksite or worksites located in a distressed area.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4534, Government Code.
§1896.35. Hiring Preference/Contract for Services.
Note
Where a bidder complies with the provisions of rule 1896.34 the state shall award additional preferences ranging from 1 percent to 4 percent in accordance with Government Code Section 4534.1 if the bidder certifies under penalty of perjury it will hire the specified percentages of persons with high risk of unemployment for contract performance.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4534.1, Government Code.
§1896.36. Application of Preference/Contract for Services.
Note
Preferences provided for by sections 1896.34 and 1896.35 for a contract for services shall be granted in an amount equal to a corresponding percentage of the price offered by the lowest responsible bid or the lowest responsible proposal: provided, however, that for contract award purposes the total of any preferences for which the low responsible bidder qualifies under any provision of law shall be deducted from the total of any preferences to which a higher bidder may be entitled.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Sections 4534, 4534.1, Government Code.
§1896.37. Low Bid or Proposal.
Note • History
No preference provided for under Article 1 shall be granted unless the lowest responsible bid or proposal received is in excess of $100,000: provided, further, that if a state awarding authority has reserved the right in its Invitation for Bids or Request for Proposals to award multiple contracts on the basis of individual items, no preference provided for under Article 1 shall be granted for the purpose of a multiple contract award unless the lowest responsible bid or proposal submitted for a particular individual item or group of items that is the basis for contract award, is in excess of $100,000.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Sections 4533 and 4534, Government Code.
HISTORY
1. Editorial correction filed 8-10-82; designated effective 9-2-82 (Register 82, No. 32).
2. Editorial correction of printing error (Register 82, No. 40).
§1896.38. Assistance to Bidders/Department of General Services.
Note
The Department of General Services with the cooperation of the State Office of Planning and Research shall assist prospective bidders in identifying those areas of the state which qualify as distressed areas under the Act and by otherwise being of general assistance.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4532(d), Government Code.
§1896.39. Assistance to Bidders/Employment Development Department.
Note
The Employment Development Department shall assist bidders seeking to certify that they will employ persons with high risk of unemployment in recruiting eligible job applicants and shall certify such applicants, except youths participating in qualified cooperative education programs who shall otherwise be certified.
NOTE
Authority cited: Section 4535.3, Government code.
§1896.40. Contract Provisions.
Note
All IFB's and RFP's and contracts prepared by a state agency relative to contracts for goods or for services which will, or are estimated to exceed $100,000 in cost, and which are subject to the provisions of the Act, will include either expressly or by reference the following:
(a) Contractor or vendor agrees to comply with the requirements of the Target Area Contract Preference Act (Government Code Section 4530, et seq.) and attendant rules and regulations. (Title 2, California Administrative Code, Section 1896.30, et seq.).
(b) Contractor or vendor agrees that the state contracting agency, or its delegee, will have the right to inspect its facilities and operations and to inspect, review, obtain, and copy all records pertaining to performance of the contract or compliance with the requirements of the Act and attendant rules and regulations. Contractor or vendor further agrees that such records shall be maintained for a period of three (3) years after final payment under the contract.
(c) Contractor or vendor agrees with respect to a certification to hire persons with high risk of unemployment, to:
(1) Act in good faith for the purpose of maintaining such persons as employees for the duration of contract performance; and
(2) To make a reasonable effort to replace such persons, who for any reason permanently cease to be on the payroll, with other persons with high risk of unemployment; and
(3) To promptly report to the state contracting agency and thereafter confirm in writing within seven (7) days the names of any such persons who have been terminated or absent from work for more than three (3) consecutive work days and to communicate the reasons for the termination or absence. The contractor or vendor agrees under such circumstances to consult with the state contracting agency and the Employment Development Department with respect to replacement of such persons.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4535, Government Code.
Note
The state contracting agency shall be responsible for conducting the hearings authorized by Government Code Section 4535.1 relative to contract awards obtained due to the furnishing of a false certification. The state contracting agency may enter into an agreement for the purpose of having another state agency or office conduct such hearings and to furnish the state contracting agency with a report of findings and a recommendation.
NOTE
Authority cited: Section 4535.3, Government Code. Reference: Section 4535.1, Government Code.
Subchapter 10. Small Business Office--Late Payments on State Contracts with Small Businesses
§1896.50. Small Business Definitions.
Note • History
For the purpose of determining whether a business qualifies for the penalty established by Government Code Section 926.15, the following definitions of small business shall apply:
(a) “Small Business,” as used with regard to a construction contractor, means an individual or enterprise qualifying for the small business preference under Title 2, Subchapter 8, Section 1896(l) of this code.
(b) “Small Business,” as used with regard to an agreement for the purchase, lease or rental (with option to purchase) of goods, means an individual or enterprise qualifying for the small business preference under Title 2, Subchapter 8, Section 1896(m) of this code.
(c) “Small Business” as used with regard to a Service firm means an individual or enterprise qualifying for the small business preference under Title 2, Subchapter 8, Section 1896(n) of this code.
NOTE
Authority cited: Sections 926.15(e) and 14843, Government Code. Reference: Sections 926.15 and 14839.1, Government Code; and Sections 1896(l), (m) and (n), California Administrative Code; and Section 1101, Public Contract Code.
HISTORY
1. New Subchapter 10 (Sections 1896.50 and 1896.51) filed 6-7-83; designated effective 6-8-83 pursuant to Government Code Section 11346.2(d) (Register 83, No. 24).
2. Amendment filed 10-7-85; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 85, No. 41).
Note
The standards for, and definition of “affiliation” under this subchapter shall be the same as those established by Title 2, Subchapter 8, Section 1896(a) of this code.
NOTE
Authority cited: Sections 926.15(e) and 14843, Government Code. Reference: Sections 926.15(e), Government Code; and Section 1896(a), California Administrative Code.
Subchapter 10.5. Disabled Veteran Business Enterprise Participation Goal Program for State Contracts
Note • History
For purpose of Public Contract Code Section 10295, an awarding department shall demonstrate compliance with the part of Article 1.5 (commencing with Section 10115) of Chapter 2 of Part 2 of Division 2 of the Public Contract Code that concerns Disabled Veteran Business Enterprises or DVBEs and these regulations.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code. Reference: Section 10295, Public Contract Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. Amendment of subchapter heading filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect amending subchapter heading, section and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
Note • History
As used in these regulations:
(a) For the purposes of the DVBE participation program as related to contracts, the term “administering agency” means the Office of Small and Minority Business within the Department of General Services.
(b) The term “awarding department” shall have the meaning set forth in Section 10115.1(a) of the Public Contract Code.
(c) The term “bidder” means any person or entity, persons, firm, sole proprietorship, partnership, corporation, DVBE combination, or joint venture thereof making an offer, a proposal, or submitting a response to a solicitation competitively or non-competitively, for the purpose of securing a contract with an awarding department.
(d) The term “considered” as used in Section 10115.2(b)(5) of the Public Contract Code means that the bidder made a bona fide effort to carry out all actions with regard to DVBEs specified in Section 10115.2(b)(1-5) (except Section 10115.2(b)(3) of the Public Contract Code when the awarding department has waived the advertising requirements of Section 10115.2(b)(3) of the Public Contract Code in the solicitation), and reviewed DVBE responses and carefully evaluated and documented the reasons for not selecting such potential subcontractors. The bidder must consider all responding subcontractors for a specified service based upon the same information and evaluation criteria.
(e) The term “contract” means any agreement as defined by Section 10115.1(b) of the Public Contract Code. It does not include agreements such as those executed pursuant to Chapter 6 (commencing with Section 16850) of Part 3 of Division 4 of Title 2 of the Government Code; subvention aid or local assistance contracts including those contracts providing assistance to local governments and aid to the public directly or through an intermediary, such as a non-profit corporation organized for that purpose; agreements with other governmental entities; and agreements with sheltered workshops (as described in Welfare and Institutions Code Section 19404, et seq.).
(f) The term “control” as applied to “ownership (or management) and control” of DVBE means the DVBE owner(s) and/or DVBE manager(s) must demonstrate expertise specifically in the firm's field of operation in controlling the overall destiny and the day-to-day operations of the firm. Office management, clerical, or other experience unrelated to the firm's field of operations is insufficient to establish control. This control is comprised of two parts -- Managerial and Operational.
(1) To have managerial control, the DVBE owner(s) and/or DVBE manager(s) must demonstrate responsibility for the critical areas of the firm's operations. The DVBE owner(s) and/or DVBE manager(s) must be personally responsible for at least one of the following:
(A) Negotiations, execution and signature of contracts; or
(B) Execution (signature) of financial (credit, banking, bonding) transactions and agreements.
(2) To have operational control, the DVBE owner(s) and/or DVBE manager(s) must demonstrate that he/she independently makes basic decisions in daily operations. Absentee or titular ownership by the DVBE owner(s) and/or DVBE manager(s) must include an active role in controlling the business. Control may be demonstrated in various ways such as:
(A) DVBE owner(s) and/or DVBE manager(s) have the ability to appoint or elect and to remove the majority of the Board of Directors;
(B) No formal or informal restrictions exist to limit voting power or control of the DVBE owner(s) and/or DVBE manager(s);
(C) No third party agreements restrict control by DVBE owner(s) and/or DVBE manager(s);
(D) DVBE owner(s) and/or DVBE manager(s) possess the requisite experience, education, knowledge and qualifications in the firm's field of operations;
(E) Salary/profits of DVBE owner(s) and/or DVBE manager(s) are commensurate with their ownership interest;
(F) DVBE owner(s) receive at least 51% of any dividends paid by the firm including distribution upon liquidation; and
(G) DVBE owner(s) are entitled to 100% of the value of each share of stock they hold if sold.
(H) DVBE owner(s) and/or DVBE manager(s) control the operation of the firm in the following areas:
1. Financial
2. Bonding
3. Supervision - direct responsibility for subordinates
4. Work force - direct responsibility for subordinates or subcontractors
5. Equipment
6. Materials
7. Facilities (office/yard)
(g) The term “Department” or “DGS” means the Department of General Services.
(h) The term “disabled veteran” means a veteran of the military, naval or air service of the United States with a service-connected disability who is a resident of the State of California.
(i) The term “disabled veteran business enterprise” or “DVBE” means a business concern that the Office of Small and Minority Business has certified as a DVBE.
(j) The term “joint venture” or “DVBE combination” means two or more parties who join together for a common business enterprise in which profits, losses and control are shared. The agreement between the parties must be set forth in writing.
(k) The term “Disabled Veteran Business Enterprise (DVBE) Focus and Trade Paper” means a publication that meets all of the criteria of Sections 1896.61(m) and (q).
(l) The term “DVBE contractor, subcontractor or supplier” means any person or entity that satisfies the ownership (or management) and control requirements of Section 1896.61(f); is certified in accordance with Section 1896.70; and provides services or goods that contribute to the fulfillment of the contract requirements by performing a commercially useful function. A DVBE contractor, subcontractor or supplier is considered performing a commercially useful function when it meets the following criteria:
(1) The business concern is: responsible for the execution of a distinct element of the work of the contract; carrying out its obligation by actually performing, managing or supervising the work involved; and performing work that is normal for its business services and functions, and
(2) The business concern is not further subcontracting a greater portion of the work than would be expected by normal industry practices.
(m) The term “papers focusing on disabled veteran business enterprises” used in Section 10115.2(b)(3) of the Public Contract Code or focus papers means any publication that meets all of the following criteria:
(1) has an orientation relating to disabled veteran business enterprise(s);
(2) is known and used by members of the disabled veteran business enterprise community;
(3) primarily offers articles, editorials (if any), and advertisements of business opportunities aimed at disabled veteran business enterprises; and
(4) is available within the geographic area for which the advertisement is placed and for which the services are to be performed.
(n) The term “participation goal” or “goal” means a numerically expressed DVBE objective that bidders are required to make efforts to achieve in accordance with Section 10115(c) of the Public Contract Code.
(o) The term “solicitation” means an announcement to bidders describing a specific purchase or contracting opportunity and its requirements, and which invites bidders to submit offers in response thereto. Such announcements may include, but are not limited to: Invitations for Bid (IFB), Requests for Proposals (RFP), Requests for Qualifications or Request for Quotation (RFQ), or Price Requests.
(p) The term “Statutory Disability” as it is used in this Subchapter means a service-connected disability enumerated under Title 38, United States Code, Section 1114.
(q) The term “trade paper” used in Section 10115.2(b)(3) of the Public Contract Code means a publication that meets all of the following criteria:
(1) has a business orientation relating to the trade or industry for which the advertisement is being placed;
(2) is known and used by members of that trade or industry;
(3) primarily offers articles, editorials (if any), and advertisements of business opportunities aimed at that trade or industry; and,
(4) is available within the geographic area for which the advertisement is placed and for which the services are to be performed.
(r) The term “veteran with a service-connected disability” means the United States Department of Veterans Affairs or United States Department of Defense has declared that the veteran is currently 10 percent or more disabled as a result of service in the armed forces.
NOTE
Authority cited: Sections 14600 and 14615, Government Code. Sections 2052, 10115.3(b) and 10295, Public Contract Code; Section 999.5(b), Military and Veterans Code. Reference: Sections 10115, 10115.1, 10115.2, 10115.3, 10115.5 and 10295, Public Contract Code; and Section 999, Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. New subsection (e) filed 12-16-91 as an emergency; operative 12-16-91 (Register 92, No. 13). A Certificate of Compliance must be transmitted to OAL 4-14-92 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 12-16-92 order including amendment of Note and subsection (e)(2) transmitted to OAL 4-10-92 and filed 5-22-92 (Register 92, No. 22).
4. Amendment of section and Note filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
5. Amendment of section and Note refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of text and Note and filed 8-5-94 (Register 94, No. 31).
7. Editorial correction amending subsection (e) (Register 94, No. 39).
8. Change without regulatory effect amending section and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
§1896.62. Disabled Veteran Business Enterprise (DVBE) Participation Goals.
Note • History
(a) The disabled veteran business enterprise participation program goal established in Public Contract Code Section 10115(c) applies to the overall annual expenditures of the awarding department for contracts as defined by Section 1896.61(e), Subchapter 10.5, Title 2 of the California Code of Regulations.
(b) The director of the awarding department may establish a participation goal either less than or in excess of the statutory goal of 3 percent DVBE(s) for a specific solicitation, project or contract as long as the overall goal of 3 percent DVBE(s) is satisfied as defined by Section 10115(c) of the Public Contract Code.
(c) To qualify as a responsive bidder for contracts awarded as the result of a solicitation process when DVBE participation goal is specified, in addition to meeting all other technical and/or administrative requirements specified in the solicitation, a bidder must document in the bidder's response to the solicitation, at or prior to the time of bid opening, that the bidder made a commitment to fulfill the participation goal, or made a good faith effort to meet the participation goal.
(d) Except as may be changed by Section 1896.62(b), the requirement for satisfying the participation goal shall be deemed to have been met if a bidder:
(1) Is a disabled veteran business enterprise and is committed to perform not less than 3 percent of the dollar amount of the bid with its own forces, or in combination with those of other disabled veteran business enterprises; or
(2) Is a non-DVBE and is committed to use DVBE(s) for not less than 3 percent of the dollar amount of the bid response.
(e) The awarding department shall find that the DVBE combination or joint venture has met the requirements for the participation goal providing the DVBE combination or joint venture satisfies all of the following conditions:
(1) A bidder uses the DVBE status of the bidder's joint venture partner(s) to meet the participation goal; and
(2) Each DVBE joint venture partner used to satisfy the participation goal also satisfies the 51% ownership and/or control requirements for status as a DVBE as an independent enterprise outside the joint venture; and
(3) Each DVBE joint venture partner is responsible for a clearly defined portion of the work, identified both as a task and as a percentage share/dollar amount of the overall project/response to the solicitation. The goal attainment claimed in the response to the solicitation cannot exceed the percentage share of the work to be performed by each DVBE partner as claimed in the joint venture agreement.
(4) If the DVBE combination or joint venture bidder/contractor is unable to satisfy the goal of 3 percent DVBE, using any one of its joint venture partners, the DVBE combination or joint venture bidder/contractor will satisfy the goal as prescribed in Section 1896.62(d). If unable to satisfy the goal the DVBE combination or joint venture bidder/contractor will conduct a good faith effort as prescribed in Section 1896.63.
(f) The bidder's authorized representative shall
(1) list the name of each DVBE firm proposed for use in the performance of the contract;
(2) list the percentage share/dollar amount of the overall contract to be performed by each DVBE; and
(3) describe the task to be performed by such DVBE.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code; and Section 999.5(b), Military and Veterans Code. Reference: Sections 10115 and 10115.2, Public Contract Code; and Section 999(g) and (i), Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. Amendment of section heading, text and Note filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Amendment of section heading, text and Note refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Editorial correction designating subsection (g) (Register 94, No. 8).
5. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of text and Note and filed 8-5-94 (Register 94, No. 31).
6. Change without regulatory effect amending section and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
Note • History
(a) Bidders must satisfy the good faith effort requirement (unless goal is met) at the time of bid opening.
(b) If the participation goal is not met, the bidder shall comply with the requirements of Section 10115.2(b)(1) through (5) including (3) unless the advertising requirements of that subsection are waived by the awarding department. The awarding department shall require documentation of that compliance in the solicitation document. The bidder shall submit documentation of that compliance with the bid.
(c) The awarding department shall evaluate the effort made by the bidder to seek out and consider disabled veteran business enterprises as potential subcontractors for services, materials, labor, supplies or equipment.
In evaluating such effort, the awarding department shall require written evidence that the bidder completed the actions specified in Public Contract Code Section 10115.2(b)(1), (2), (4), and (5). Unless the awarding department waived the advertising requirement, the written evidence must also include advertising as specified in Section 10115.2(b)(3).
Based on this evaluation, the awarding department, in its sole discretion, may find that the bidder has met the good faith effort requirement.
(d) Unless it waives the good faith effort advertising requirements of Section 10115.2(b)(3) of the Public Contract Code, the awarding department shall require that:
(1) Bidders must advertise in trade papers disabled veteran business enterprise focus papers, as specified in the solicitation. Trade papers and disabled veteran business enterprise focus papers as defined in Section 1896.61 must be acceptable to the awarding department.
(2) Unless otherwise specified in the solicitation document, bidders must publish advertisements in trade and focus publications at least 14 calendar days prior to the due date of the response to the solicitation. (Awarding departments may waive the advertising requirement or establish an advertising period of less than 14 calendar days if time limits do not permit a 14 day advertising period.)
(3) Solicitation documents must contain one of the following:
(A) The Office of Small and Minority Business (OSMB) Resource Packet for trade and focus publications; or
(B) A list of trade and focus publications specific to the business of the awarding department; or
(C) The following paragraph:
In accordance with Public Contract Code Section 10115.2(b)(3), bidders must advertise in trade and focus publications unless the DVBE goal is satisfied. The Office of Small and Minority Business (OSMB) publishes a list of trade and focus publications to assist bidders in meeting these contract requirements. To obtain this list, please contact the OSMB and request the “Resource Packet”. The OSMB may be contacted at:
(Awarding Department to list current address and telephone number of OSMB.)
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code, and Section 999.5(b), Military and Veterans Code. Reference: Sections 10115 and 10115.2, Public Contract Code; and Section 999.5(b), Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. Amendment of section and Note filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Amendment of section and Note refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of subsection (a), new subsection (b) and subsection resdesignation, and amendment of subsections (d)(1) and (d)(3)(C) filed 8-5-94 (Register 94, No. 31).
5. Change without regulatory effect amending section and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
Note • History
(a) If a bidder fails to meet the “good faith effort” requirement of Section 1896.63, such bidder shall be deemed not to be a responsive bidder for purposes of an awarding department's evaluation of an award of contract and is thus ineligible for an award. No provision of these regulations, however, shall be deemed to require the awarding department to make an award.
(b) With respect to invitations for bid for the purchase of supplies or equipment pursuant to the provisions of Article 3 of Chapter 2 of Part 2 of Division 2 of the Public Contract Code (commencing with Section 10301) or the acquisition of goods and services pursuant to the provision of Chapter 3 of Part 2 of Division 2 of the Public Contract Code (commencing with Section 12100) where the awarding department has reserved the right to make multiple awards or a single contract award, a bidder shall be deemed responsive regarding the requirement for the making of a good faith effort if there would be compliance with the provisions of Section 1896.63 based on award for a single contract, notwithstanding such bidder may be unable to achieve compliance to meet the established goal if the awarding department exercises the right to make multiple awards.
(c) Substitution of a DVBE
(1) After award of a contract, the successful bidder/contractor must use the DVBE subcontractor(s) and/or supplier(s) proposed in the solicitation response to the State per Section 1896.62 unless a substitution is requested. The bidder/contractor must request the substitution in writing to the awarding department and the awarding department must have approved the substitution in writing. At a minimum the substitution request must include:
(A) A written explanation of the reason for the substitution; and if applicable, the contractor must also include the reason a non-DVBE subcontractor is proposed for use.
(B) A written description of the business enterprise to be substituted, including its business status as a sole proprietorship, partnership, corporation or other entity, and the DVBE certification status of the firm, if any.
(C) A written notice detailing a clearly defined portion of the work identified both as a task and as a percentage share/dollar amount of the overall contract that the substituted firm will perform.
(2) The request for substitution of the DVBE subcontractor/supplier must be approved in writing by the awarding department prior to commencement of any work by the subcontractor/supplier.
(3) The request for substitution of a DVBE and the awarding department's approval or disapproval cannot be used as an excuse for noncompliance with any other provision of law, including, but not limited to, the Subletting and Subcontracting Fair Practices Act (Sections 4100 et seq., Public Contract Code) or any other contract requirements relating to substitution of subcontractors.
(d) Approval by Awarding Department of Contractor's Request for DVBE Substitution
If a contractor requests substitution of its DVBE subcontractor(s)/supplier(s) by providing a written request to the awarding department in accordance with Section 1896.64(c), the awarding department may consent to the substitution of another person as a subcontractor in any of the following situations:
(1) When the subcontractor listed in the bid after having had a reasonable opportunity to do so fails or refuses to execute a written contract, when that written contract based upon the general terms, conditions, plans and specifications for the project involved or the terms of that subcontractor's written bid, is presented to the subcontractor by the prime contractor.
(2) When the listed subcontractor becomes bankrupt or insolvent, or goes out of business.
(3) When the listed subcontractor fails or refuses to perform his or her subcontract.
(4) When the listed subcontractor fails or refuses to meet the bond requirements of the prime contractor.
(5) When the prime contractor demonstrated to the awarding department, or its duly authorized officer, that the name of the subcontractor was listed as the result of an inadvertent clerical error.
(6) When the listed subcontractor is not licensed pursuant to any applicable licensing requirment of any regulatory agency of the State of California.
(7) When the awarding department, or its duly authorized officer, determines that the work performed by the listed subcontractor is substantially unsatisfactory and not in substantial accordance with the plans and specifications, or that the subcontractor is substantially delaying or disrupting the process of the work.
Prior to approval of the prime contractor's request for the substitution, the awarding department, or its duly authorized officer, shall give notice in writing to the listed subcontractor of the prime contractor's request to substitute and of the reasons for the request. The notice shall be served by certified or registered mail to the last known address of the subcontractor. The listed subcontractor who has been so notified shall have five working days within which to submit written objections to the substitution to the awarding authority. Failure to file these written objections shall constitute the listed subcontractor's consent to the substitution.
If written objections are filed, the awarding authority shall give notice in writing of at least five working days to the listed subcontractor of a hearing by the awarding department on the prime contractor's request for substitution.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; Sections 10115.3(b) and 10295, Public Contract Code; and Section 999.5(b), Military and Veterans Code. Reference: Sections 10115.1 and 10115.2, Public Contract Code; and Sections 999(i) and 999.5(b), Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. New subsection (c) and amendment of Note filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. New subsection (c) and amendment of Note refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of subsection (b), repealer and new subsection (c)(1), and amendment of subsections (c)(1)(B)-(C) and Note filed 8-5-94 (Register 94, No. 31).
5. New subsection (d) and amendment of Note filed 8-5-94 as an emergency; operative 8-5-94 (Register 94, No. 31). A Certificate of Compliance must be transmitted to OAL by 12-3-94 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction amending subsection (d)(7) (Register 94, No. 39).
7. Certificate of Compliance as to 8-5-94 order including amendment of subsection (d)(6) transmitted to OAL 11-4-94 and filed 12-20-94 (Register 94, No. 51).
8. Change without regulatory effect amending section and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
§1896.65. Certification by Authorized Representative.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code, Section 999.5(b), Military and Veterans Code. Reference: Sections 2052, 10115.1 and 10115.10, Public Contract Code; and Section 999(g), Military and Veterans Code.
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. Amendment of section heading, text and Note filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Amendment of section heading, text and Note refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with repealer and new subsection (a) and subsection redesignation, amendment of subsections (b)-(b)(1), (c)-(c)(1), and new subsection (c)(2) filed 8-5-94 (Register 94, No. 31).
5. Change without regulatory effect repealing section filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code. Reference: Section 10115.3(a), Public Contract Code.
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. Renumbering of former section 1896.66 to section 1896.75 filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Renumbering of former section 1896.66 to section 1896.75 refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
§1896.67. Adjudicatory and Investigatory Procedures.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code. Reference: Sections 10115.2 and 10115.3(a), Public Contract Code.
HISTORY
1. New section filed 4-16-90; operative 5-16-90 (Register 90, No. 18).
2. Renumbering of former section 1896.67 to section 1896.80 filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Renumbering of former section 1896.67 to section 1896.80 refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
§1896.68. Appeal of Determination.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Section 10115.3(b), Public Contract Code. Reference: Sections 10115.1, 10115.10 and 10295, Public Contract Code.
HISTORY
1. New section filed 12-16-91 as an emergency; operative 12-16-91 (Register 92, No. 13). A Certificate of Compliance must be transmitted to OAL 4-14-92 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 12-16-92 order including amendment of section, designation of subsections (a)-(g), and amendment of Note transmitted to OAL 4-10-92 and filed 5-22-92 (Register 92, No. 22).
3. Change without regulatory effect repealing section filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
Note • History
In order to obtain DVBE certification under this Subchapter, a business concern must do all of the following:
(a) Meet DVBE requirements set forth in this Subchapter and Article 6 (commencing with Section 999) of Chapter 6, Division 4 of the California Military and Veterans Code; and
(b) Provide the following documentation to the Office of Small and Minority Business, no later than five o'clock p.m. (5:00 p.m.) of the bid opening day, unless the regulations (Section 1896 et seq., Title 2, California Code of Regulations) implementing the Small Business Procurement and Contract Act (SBPCA) specify a different time, in which case the submission time for application as identified in the SBPCA shall prevail:
(1) A completed Small Business and/or Disabled Veteran Business Enterprise Certification Application, STD. 812 (as required by Section 1896.95(b)) which is made a part of this regulation; and
(2) A copy of an Award of Entitlement letter from the United States Department of Veterans Affairs or United States Department of Defense which was issued within six (6) months of the date a new certification is sought and which certifies or declares the existence of a service-connected disability of at least 10 percent. In the case of renewal of a DVBE certification, the applicant(s) shall certify in writing that there has been no change in the status of applicant's service-connected disability. In the event that an applicant is seeking certification on the basis of a service-connected Statutory Disability, subsequent renewal of the certification will require that the applicant certify in writing that there has been no change in the status of the service-connected disability.
(c) In reviewing an applicant for, or the validity of a DVBE certification, the Office of Small and Minority Business may require the DVBE applicant to submit additional documents and information that support eligibility to be a certified DVBE.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; Section 999.5(b), Military and Veterans Code, and Sections 10115.3(b) and 10295, Public Contract Code. Reference: Sections 10115.1 and 10115.10, Public Contract Code; and Section 999(g), Military and Veterans Code.
HISTORY
1. New section “Definitions” filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. New section “DVBE Certification” filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect renumbering former section 1896.70 “Definitions” to section 1896.100 filed 1-27-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 4).
4. Editorial correction restoring inadvertently deleted section “DVBE Certification” (Register 94, No. 5).
5. New section “DVBE Certification” refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction deleting section heading, Note and History for former section 1896.70 “Definitions” and amending History notes (Register 94, No. 14).
7. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with repealer of subchapter and article headings and amendment of subsections (b)-(b)(1) filed 8-5-94 (Register 94, No. 31).
8. Editorial correction amending subsection (b)(1) (Register 94, No. 39).
§1896.71. Worksite Preference/Contract for Goods.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.71 to section 1896.101 and repealer of section 1896.71 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.72. Hiring Preference/Contract for Goods.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.72 to section 1896.102 and repealer of section 1896.72 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.73. Application of Preferences/Contract for Goods.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.73 to section 1896.103 and repealer of section 1896.73 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.74. Worksite Preference/Contract for Services.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.74 to section 1896.104 and repealer of section 1896.74 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
Note • History
When an awarding department awards a contract subject to participation goals or good faith effort in accordance with Public Contract Code Section 10115.2, it shall include a provision which in substance provides the following:
Contractor or vendor agrees that the awarding department or its delegatee will have the right to review, obtain, and copy all records pertaining to performance of the contract. Contractor or vendor agrees to provide the awarding department or its delegatee with any relevant information requested and shall permit the awarding department or its delegatee access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with Public Contract Code Section 10115 et seq. and Title 2, California Code of Regulations, Section 1896.60 et seq. Contractor or vendor further agrees to maintain such records for a period of three (3) years after final payment under the contract.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code. Reference: Section 10115.3(a), Public Contract Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section “Hiring Preference/Contract for Services” filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Renumbering of former section 1896.66 “Contract Audits” to section 1896.75 filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect renumbering former section 1896.75 “Hiring Preference/Contract for Services” to section 1896.105 filed 1-27-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 4).
4. Renumbering of former section 1896.66 “Contract Audits” to section 1896.75 refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
5. Editorial correction deleting section heading, Note and History for former section 1896.75 “Hiring Preference/Contract for Services” and amending History notes (Register 94, No. 14).
6. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of first paragraph filed 8-5-94 (Register 94, No. 31).
7. Change without regulatory effect amending second paragraph and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
§1896.76. Application of Preferences/Contract for Services.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.76 to section 1896.106 and repealer of section 1896.76 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.77. Low Bid or Proposal.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.77 to section 1896.107 and repealer of section 1896.77 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.78. Assistance to Bidders/Department of General Services.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Sections 7082, 7095 and 14600, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.78 to section 1896.108 and repealer of section 1896.78 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.79. Assistance to Bidders/Department of Commerce.
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Sections 7082, 7086 and 7095, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.79 to section 1896.109 and repealer of section 1896.79 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.80. Adjudicatory and Investigatory Procedures.
Note • History
Nothing in these regulations shall be construed to impair the right of the awarding department or the Department to initiate adjudicatory or investigatory procedures available for the purpose of ensuring compliance with the requirements of Public Contract Code Section 10115, et seq. and Section 999 et seq. of the Military and Veterans Code and attendant rules and regulations.
Prior to reporting an alleged violation of Public Contract Code Section 10115.10 to the DGS, Office of Small and Minority Business, awarding departments shall investigate the alleged violation and shall prepare a written report of their findings. The written report shall also include a recommendation for action to be taken commensurate with the awarding department's findings and shall be submitted to the Office of Small and Minority Business within 60 working days of the notification to the awarding department of the alleged violation.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code; and Section 999.5(b), Military and Veterans Code. Reference: Sections 10115.2, 10115.3(b), and 10115.10, Public Contract Code; and Section 999.9, Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. New section “Contract Provisions” filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Renumbering and amendment of former section 1896.67 “Adjudicatory and Investigatory Procedures” to section 1896.80 filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect renumbering former section 1896.80 “Contract Provisions” to section 1896.110 filed 1-27-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 4).
4. Renumbering and amendment of former section 1896.67 “Adjudicatory and Investigatory Procedures” to section 1896.80 refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
5. Editorial correction deleting section heading, Note and History for former section 1896.80 “Contract Provisions” and amending History notes (Register 94, No. 14).
6. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of text and Note and filed 8-5-94 (Register 94, No. 31).
7. Change without regulatory effect amending first paragraph and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
Note • History
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7097, Government Code.
HISTORY
1. New section filed 4-22-91; operative 5-22-91 (Register 91, No. 20).
2. Change without regulatory effect renumbering former section 1896.81 to section 1896.111 and repealer of section 1896.81 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.85. Appeal of Determination - DVBE.
Note • History
(a) All decertifications or denials of certification for DVBE status by the Office of Small and Minority Business shall become final unless the DVBE applicant appeals the determination within 30 calendar days of the date of receipt. If the DVBE applicant believes that the determination will result in the wrongful denial of certification by the Office of Small and Minority Business, the DVBE applicant shall mail, hand-deliver, or transmit a facsimile of a signed and dated appeal in writing to the Director of the DGS. Upon receipt of a written appeal from the DVBE applicant which specifies the reasons for good cause, the Director of the DGS may extend the time for the delivery of the appeal in the interest of justice. The Director may accept an untimely appeal upon a showing of good cause.
(b) When the DGS receives a timely DVBE appeal submitted as prescribed by Section 1896.85(a) of these regulations, a hearing officer appointed by the Director shall resolve the appeal based on written materials or an administrative hearing as determined by the hearing officer. Where the appeal is based upon the decertification of a currently certified DVBE, a hearing officer shall resolve the appeal by an administrative hearing.
(c) In the event of an administrative hearing, a hearing officer for the Department shall set the date, time and location for the hearing and shall notify all interested parties as determined by the hearing officer, at least five (5) calendar days in advance of the hearing. The hearing officer may, upon reasonable notice to interested parties, change the date of, postpone or continue the hearing at the request of an interested party upon showing of good cause or upon its own motion. The location of the hearing shall be at the discretion of the hearing officer and shall be situated for the convenience of all parties.
(d) If the hearing officer is going to determine the appeal through written submissions, the hearing officer shall notify all interested parties. Each of the interested parties notified by the hearing officer may submit a written argument which supports its position. The written argument shall be submitted by the deadline established by the hearing officer.
(e) In the event the hearing officer determines that an appeal is to be determined through written submissions, the hearing officer shall base his/her decision upon the hearing officer's evaluation that oral or additional testimony would be unnecessary for a full understanding of the issues.
(f) Interested parties must submit an original and two copies of any written material to the DGS together with proof of service of a copy to each interested party.
(g) At any time the DGS finds that an appeal is clearly insufficient on its face, entirely without merit, or outside the jurisdiction of the DGS, the hearing officer may dismiss the appeal forthwith.
(h) The powers and responsibilities of the hearing officer, the period allowed for rendering a decision and the form of notice shall be the same as those established by Title 2, Subchapter 1.5, Sections 1195.4, 1195.5 and 1195.6 respectively, of the California Code of Regulations.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 10115.3(b) and 10295, Public Contract Code; and Section 999.5(b), Military and Veterans Code. Reference: Sections 10115.1, 10115.10 and 10295, Public Contract Code; and Sections 999(f) and (g), Military and Veterans Code.
HISTORY
1. New section filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of subsections (a)-(b) and Note filed 8-5-94 (Register 94, No. 31).
4. Editorial correction amending subsection (a) (Register 94, No. 39).
§1896.90. Reporting Participation Goals.
Note • History
Data reported by the awarding department as required by Section 10115.5 of the Public Contract Code must be consistent with the regulations governing the awards of the contracts. For contracts with a participation goal, the awards must be reported as claimed by the contractor per Section 1896.62(f). For contracts awarded without a participation goal, the awarding department may report each eligible firm represented in the contract. If it is unknown whether the firm is a certified DVBE, the award(s) must be reported as not qualified.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; Section 10115.3(b), Public Contract Code; and Section 999.5(b), Military and Veterans Code. Reference: Section 10115.5, Public Contract Code; and Section 999.7, Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. Repealer and new section filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
2. Repealer and new section refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 including repealer and new section and amendment of Note filed 8-5-94 (Register 94, No. 31).
4. Editorial correction amending History 3 (Register 94, No. 40).
5. Change without regulatory effect amending section and Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
§1896.91. Disabled Veteran Business Enterprise Goals.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code. Section 999.5(b), Military and Veterans Code. Reference: Sections 999(e), 999.2 and 999.4, Military and Veterans Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 24).
2. New subsection (c) filed 12-16-91 as an emergency; operative 12-16-91 (Register 92, No. 13). A Certificate of Compliance must be transmitted to OAL 4-14-92 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 12-16-91 order transmitted to OAL 4-10-92 and filed 5-22-92 (Register 92, No. 22).
4. Repealer filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
5. Repealer refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
§1896.92. Disabled Veteran Business Enterprise Participation.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code. Section 999.5(b), Military and Veterans Code. Reference: Sections 999.2 and 999.4, Military and Veterans Code. Section 10115.2, Public Contract Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 24).
2. Repealer filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Repealer refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
5. Editorial correction removing extraneous history note (Register 94, No. 40).
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code. Section 999.5(b), Military and Veterans Code. Reference: Section 999(g), Military and Veterans Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 24).
2. Repealer filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Repealer refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Section 999.5(b), Military and Veterans Code. Reference: Section 999(g), Military and Veterans Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 24).
2. Amendment of subsection (b) and new subsection (c) filed 12-16-91 as an emergency; operative 12-16-91 (Register 92, No. 13). A Certificate of Compliance must be transmitted to OAL 4-14-92 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 12-16-91 order transmitted to OAL 4-10-92 and filed 5-22-92 (Register 92, No. 22).
4. Repealer filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
5. Repealer refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
Note • History
The Office of Small and Minority Business shall use the following form for determining certifiable disabled veteran business enterprises: Small Business and/or Disabled Veteran Business Enterprise Certification Application, STD. 812 (Rev. 8-97).
The portions of the STD. 812 concerning disabled veteran business enterprise pertain to the regulations contained in Sections 1896.60 to 1896.95 and are made a part of this regulation (Section 1896.95, Title 2, California Code of Regulations).
The portions of the STD. 812 that specifically relate to small business certification pertain to the Small Business Procurement and Contract Act.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; Section 999.5(b), Military and Veterans Code; and 10115.3, Public Contract Code. Reference: Section 10115.3, Public Contract Code; and Section 999.5(b), Military and Veterans Code; and Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), rehearing denied, ___ F.3d ____ (March 9, 1998).
HISTORY
1. Repealer and new section filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 91, No. 24.
2. Repealer and new section refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with amendment of subsection (a) and filed 8-5-94 (Register 94, No. 31).
4. Amendment of subsection (b) and Note filed 8-5-94 as an emergency; operative 8-5-94 (Register 94, No. 31). A Certificate of Compliance must be transmitted to OAL by 12-3-94 or emergency language will be repealed by operation of law on the following day.
5. Editorial correction amending subsection (a) (Register 94, No. 39).
6. Certificate of Compliance as to 8-5-94 order transmitted to OAL 11-4-94 and filed 12-20-94 (Register 94, No. 51).
7. Change without regulatory effect amending subsection (b) filed 8-1-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 31).
8. Change without regulatory effect repealing subsection (a) and subsection (b) designator and amending Note filed 4-30-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 20).
§1896.96. Adjudicatory and Investigatory Procedures.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code. Section 999.5(b), Military and Veterans Code. Reference: Section 999.5(a), Military and Veterans Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 24).
2. Repealer filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
3. Repealer refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
§1896.97. Monitoring Adherence to the Goals.
Note • History
NOTE
Authority cited: Sections 14600 and 14615, Government Code; Section 999.5(b), Military and Veterans Code. Reference: Section 999.5(a), Military and Veterans Code.
HISTORY
1. New section filed 4-18-91; operative 4-18-91 (Register 91, No. 24).
2. Amendment filed 12-16-91 as an emergency; operative 12-16-91 (Register 92, No. 13). A Certificate of Compliance must be transmitted to OAL 4-14-92 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 12-16-91 order including amendment transmitted to OAL 4-10-92 and filed 5-22-92 (Register 92, No. 22).
4. Repealer filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.
5. Repealer refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 and filed 8-5-94 (Register 94, No. 31).
Subchapter 10.6. DVBE Incentive Program
Note • History
(a) The definitions contained in Section 1896.61 shall apply to this subchapter.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 999.5(a) and 999.5(d), Military and Veterans Code. Reference: Section 999.5(a), Military and Veterans Code; and Section 10115(c), Public Contract Code.
HISTORY
1. New subchapter 10.6 (sections 1896.98-1896.99.120) and section filed 10-9-2007; operative 10-9-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 41). For prior history, see Register 94, No. 31.
§1896.99.100. Incentive Application.
Note • History
(a) Whenever an awarding department applies the DVBE program requirement, it shall offer the incentive as outlined in this subchapter for DVBE participation. Other competitive solicitations may also offer this incentive. For departments having met or exceeded the DVBE 3 percent goal for 2 out of the 3 previous years, their highest ranking executive officer or his/her designee may elect to exempt contracts from the DVBE incentive. The 3 most current published DGS annual reports are used to document a department's DVBE participation goal.
(b) The incentive is applied during the evaluation process and is only applied for responsive bids from responsible bidders proposing the percentage(s) of DVBE participation for the incentive(s) specified in the solicitation. Solicitations may provide an incentive scale under which bidders obtaining higher levels of participation qualify for greater incentives.
(c) For award based on low price, the incentive is applied by reducing the bid price by the amount of incentive as computed from the lowest responsive and responsible bid price. The computation is for evaluation purposes only. Application of the incentive shall not displace an award to a small business with a non-small business.
(d) For award based on high score, the incentive points are included in the sum of non-cost points. The incentive points cannot be used to achieve any applicable minimum point requirements.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 999.5(a) and 999.5(d), Military and Veterans Code. Reference: Section 14838(f), Government Code; and Section 999.5(a), Military and Veterans Code.
HISTORY
1. New section filed 10-9-2007; operative 10-9-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 41).
§1896.99.120. Incentive Amount.
Note • History
(a) For award based on low price, the minimum incentive is 1 percent with or without a cap. Use of a higher incentive percentage(s) not to exceed 5 percent is allowed for a solicitation based upon the need to meet participation goals. For each solicitation, awarding departments' highest ranking executive officer or his/her designee may elect to place a cap of not less than $100,000 on the incentive and/or a cap of not less than $100,000 for all combined incentives and preferences.
(b) For award based on high score, the incentive(s) shall not exceed 5 percent, nor be less than 1 percent of total possible available points, not including points for socioeconomic incentives or preferences.
NOTE
Authority cited: Sections 14600 and 14615, Government Code; and Sections 999.5(a) and 999.5(d), Military and Veterans Code. Reference: Section 999.5(a), Military and Veterans Code.
HISTORY
1. New section filed 10-9-2007; operative 10-9-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 41).
Subchapter 11. Employment and Economic Incentive Act Contract Preferences
Article 1.
Note • History
As used in these rules and regulations:
(a) “The Act” means the Employment and Economic Incentive Act, commencing with section 7080 of the California Government Code.
(b) “Hire” means to employ on a full-time basis a person or persons for the purpose of performing a contract in accordance with the provisions of the Act.
(c) “Contract for goods” means a contract for the purchase of materials, equipment, and supplies, but excluding a contract with a governmental entity.
(d) “Contract for services” means a contract for the rendering of personal or consultant services, but excluding a contract with a governmental entity. For the purpose of this definition, personal services shall be construed liberally so as to include services requiring little or no discretion, such as but not limited to, blueprinting, photofinishing, laboratory analysis, automobile repairs, office equipment repairs, and reproduction services.
(e) “False Certification” means a certification which, either by omission or inclusion, the certifying party knows to be false or should have known to be false.
(f) “California-based company” means a corporation or business, of which the principal office is located in California, and the owners, or officers if the firm is a corporation, are domiciled in California.
(g) “50 percent of the labor required” means one-half of the total employee hours needed to perform the contract involved. In computing total employee hours with respect to a contract for goods, the employee hours required for manufacturing the goods offered shall be included regardless of whether a bidder is or is not the manufacturer of the goods.
(h) “Work force” as expressed in the Act means the total number of employees required to directly fulfill the contract requirements as they are set forth in the specifications and/or instructions at the time that bids are solicited by the State. As used herein the term “work force” shall not include labor or services which are merely incidental to the performance of the contract. This exclusion shall include labor and/or services which are considered administrative overhead/support that is not directly allocated to and budgeted for the performance of the state contract for which a hiring preference, authorized by sections(s) 7095(b) or 7095(d) of the Act, is granted.
(i) “Lowest responsible bid or proposal” means that bid or proposal which pursuant to the criteria contained in the solicitation document would be entitled to contract award without regard to any preference.
(j) “Program area,” in addition to the definition contained in Government Code section 7082(i), shall also mean an enterprise zone established in accordance with the Enterprise Zone Act commencing with section 7070 of the Government Code.
NOTE
Authority cited: Section 7099, Government Code. Reference: Sections 7080, 7082, 7095 and 7097, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.70 to section 1896.100 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
2. Relocation of subchapter 11 heading and relocation and amendment of article 1 heading filed 8-5-94; operative 8-5-94 (Register 94, No. 31).
§1896.101. Worksite Preference/Contract for Goods.
Note • History
Whenever a state agency prepares an invitation for bid (IFB) for a contract for the purchase of goods, the cost of which is estimated to be in excess of $100,000, except a contract where the worksite will be fixed by the terms of the contract, provision shall be made in the IFB for a 5-percent preference for California-based companies who certify under penalty of perjury that no less than 50 percent of the labor required to perform the contract shall be accomplished at a worksite or worksites located in a program area.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.71 to section 1896.101 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.102. Hiring Preference/Contract for Goods.
Note • History
Where a bidder complies with the provisions of rule 1896.71 the state shall award additional preferences ranging from 1-percent to 4-percent in accordance with Government Code section 7095(b) if the bidder certifies under penalty of perjury it will hire the specified percentage of persons living in a high density unemployment area or enterprise zone qualified employees during the period of contract performance.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.72 to section 1896.102 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.103. Application of Preferences/Contract for Goods.
Note • History
Preferences provided for by sections 1896.71 and 1896.72 for a contract for goods shall be granted in an amount equal to a corresponding percentage of the lowest responsible bid: provided, however, that for contract award purposes the total of any preferences for which the low responsible bidder qualifies under any provision of law shall be deducted from the total of any preferences to which a higher bidder may be entitled.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.73 to section 1896.103 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.104. Worksite Preference/Contract for Services.
Note • History
Whenever a state agency prepares an IFB or a request for proposals (RFP) for a contract for services, the cost of which is estimated to be in excess of $100,000, except an IFB or a RFP where the worksite is fixed by the terms of the contract, provision shall be made in the IFB or the RFPfor a 5-percent preference on the price submitted by California-based companies who certify under penalty of perjury that they shall perform the contract at a worksite or worksites located in a program area.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.74 to section 1896.104 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.105. Hiring Preference/Contract for Services.
Note • History
Where a bidder complies with the provisions of rule 1896.74 the state shall award additional preferences ranging from 1-percent to 4-percent in accordance with Government Code section 7095(d) if the bidder certifies under penalty of perjury it will hire the specified percentages of persons living in high density unemployment areas or enterprise zone qualified employees for contract performance.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.75 to section 1896.105 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.106. Application of Preferences/Contract for Services.
Note • History
Preferences provided for by sections 1896.74 and 1896.75 for a contract for services shall be granted in an amount equal to a corresponding percentage of the price offered by the lowest responsible bid or the lowest responsible proposal: provided, however, that for contract award purposes the total of any preferences for which the low responsible bidder qualifies under any provision of law shall be deducted from the total of any preferences to which a higher bidder may be entitled.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.76 to section 1896.106 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.107. Low Bid or Proposal.
Note • History
No preference provided for under the Act shall be granted unless the lowest responsible bid or proposal received is in excess of $100,000: provided, further, that if a state awarding authority has reserved the right in its Invitation for Bids or Request for Proposals to award multiple contracts on the basis of individual items, no preference provided for under the Act shall be granted for the purpose of a multiple contract award unless the lowest responsible bid or proposal submitted for a particular individual item or group of items that is the basis for contract award, is in excess of $100,000.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.77 to section 1896.107 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.108. Assistance to Bidders/Department of General Services.
Note • History
The Department of General Services with the cooperation of the Department of Commerce shall assist prospective bidders in identifying those areas of the state which qualify as program areas under the Act.
NOTE
Authority cited: Section 7099, Government Code. Reference: Sections 7082, 7095 and 14600, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.78 to section 1896.108 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.109. Assistance to Bidders/Department of Commerce.
Note • History
The Department of Commerce shall assist prospective bidders in identifying persons living in high density unemployment areas or enterprise Zone qualified employees under the Act and provide technical information on state hiring tax credits.
NOTE
Authority cited: Section 7099, Government Code. Reference: Sections 7082, 7086 and 7095, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.79 to section 1896.109 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
§1896.110 Contract Provisions.
Note • History
All IFB's and RFP's and contracts prepared by a state agency relative to contracts for goods or for services which will, or are estimated to exceed $100,000 in cost, and which are subject to the provisions of the Act, will include either expressly or by reference the following:
(a) Contractor or vendor agrees to comply with the requirements of the Employment and Economic Incentive Act (Government Code section 7080, et seq.) and attendant rules and regulations. (Title 2, California Code of Regulations, section 1896.70, et seq.).
(b) Contractor or vendor agrees that the state contracting agency, or its delegee, will have the right to review, obtain, and copy all records pertaining to performance of the contract. Contractor or vendor agrees to provide the state contracting agency or its delegee with any relevant information requested and shall permit the state contracting agency or its delegee access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that maybe relevant to a matter under investigation for the purpose of determining compliance with the Act and attendant rules and regulations. Contractor or vendor further agrees that such records shall be maintained for a period of three (3) years after final payment under the contract.
(c) Contractor or vendor agrees with respect to a certification to hire persons living in a high density unemployment area or enterprise zone qualified employees, to:
(1) Act in good faith for the purpose of maintaining such persons as employees for the duration of contract performance; and
(2) To make a reasonable effort to replace such persons, who for any reason permanently cease to be on the payroll, with other persons living in a high density unemployment area or enterprise zone qualified employees; and
(3) To promptly report to the state contracting agency and thereafter confirm in writing within seven (7) days the names of any such persons who have been terminated or absent from work for more than three (3) consecutive work days and to communicate the reasons for the termination or absence. The contractor or vendor agrees under such circumstances to consult with the state contracting agency and the Department of Commerce with respect to replacement of such persons.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7096, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.80 to section 1896.110 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
Note • History
The state contracting agency shall be responsible for conducting the hearings authorized by Government Code section 7097 relative to contract awards obtained due to the furnishing of a false certification. The state contracting agency may enter into an agreement for the purpose of having another state agency or office conduct such hearings and to furnish the state contracting agency with a report of findings and a recommendation.
NOTE
Authority cited: Section 7099, Government Code. Reference: Section 7097, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 1896.81 to section 1896.111 filed 1-27-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 4).
Subchapter 11.5. Contracts Awarded Without Competition
Note • History
NOTE
Authority cited: Section 14600, Government Code; Sections 10340, 10348, 10373 and 10380, Public Contract Code. Reference: Sections 10340, 10348, 10373 and 10380, Public Contract Code.
HISTORY
1. New subchapter 11.5 (sections 1896.200-1896.203) and section filed 9-21-98 as an emergency; operative 9-21-98 (Register 98, No. 39). A Certificate of Compliance must be transmitted to OAL by 1-19-99 or emergency language will be repealed by operation of law on the following day.
2. Repealer of subchapter 11.5 (sections 1896.200-1896.203) and repealer of section by operation of Government Code section 11346.1(g) (Register 99, No. 14).
§1896.201. Contracts Not Requiring Competition.
Note • History
NOTE
Authority cited: Section 14600, Government Code; Sections 10340, 10348, 10373 and 10380, Public Contract Code. Reference: Sections 10340, 10348, 10373 and 10380, Public Contract Code.
HISTORY
1. New section filed 9-21-98 as an emergency; operative 9-21-98 (Register 98, No. 39). A Certificate of Compliance must be transmitted to OAL by 1-19-99 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 99, No. 14).
§1896.202. Reasonableness of Contract Costs.
Note • History
NOTE
Authority cited: Section 14600, Government Code; Sections 10340, 10348, 10373 and 10380, Public Contract Code. Reference: Sections 10340, 10348, 10373 and 10380, Public Contract Code.
HISTORY
1. New section filed 9-21-98 as an emergency; operative 9-21-98 (Register 98, No. 39). A Certificate of Compliance must be transmitted to OAL by 1-19-99 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 99, No. 14).
§1896.203. State's Best Interests.
Note • History
NOTE
Authority cited: Section 14600, Government Code; Sections 10340, 10348, 10373 and 10380, Public Contract Code. Reference: Sections 10340, 10348, 10373 and 10380, Public Contract Code.
HISTORY
1. New section filed 9-21-98 as an emergency; operative 9-21-98 (Register 98, No. 39). A Certificate of Compliance must be transmitted to OAL by 1-19-99 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 99, No. 14).
Subchapter 12. Personal Services Contracts
Note • History
For purposes of complying with Government Code Section 19134, the following definitions apply:
(a) A “Qualifying Contract” is any contract meeting the following conditions:
(1) A contract executed by a state agency with a provider of personal services, and
(2) The contract is in force for 91 days or more, and
(3) The contract includes janitorial, housekeeping, custodian, food service, security guard, laundry or window cleaning services.
(b) “Covered Employee” means a person who performs any of the services identified in 1896.300(a)(3), above, as more than an incidental part of their duties under a Qualifying Contract. Covered Employee does not include either:
(1) A person who performs solely supervisory or administrative services under a Qualifying Contract, or
(2) An owner-operator.
(c) “Employee Benefits” means coverage a contractor provides to a Covered Employee, either through a purchased plan or by self-insurance, for:
(1) Basic health care, as identified in 28 CCR Section 1300.67, and
(2) Dental services, and
(3) Vision services.
(d) “Cash Payment” means a dollar amount a contractor pays to a Covered Employee on a Qualifying Contract in lieu of providing Employee Benefits.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a), (b), (c)(2), (d) and (g), Government Code.
HISTORY
1. New subchapter 12 (sections 1896.300-1896.370) and section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New subchapter 12 (sections 1896.300-1896.370) and section refiled 4-30-2001 as an emergency; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New subchapter 12 (sections 1896.300-1896.370) and section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New subchapter 12 (sections 1896.300-1896.370) and section refiled 12-12-2001 as an emergency; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of subsections (b)-(b)(2) and (c)(1), transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
§1896.310. Contractor Requirements.
Note • History
In order to comply with Government Code Section 19134, a contractor entering into a Qualifying Contract shall provide one of the following:
(a) Employee Benefits to Covered Employees costing not less than 85 percent of the state cost for employee benefits for a State of California employee performing similar work; or
(b) Cash Payments to Covered Employees of an amount not less than 85 percent of the state cost for employee benefits for a State of California employee performing similar work; or
(c) A combination of Employee Benefits and Cash Payments totaling not less than 85 percent of the state cost for employee benefits for a State of California employee performing similar work.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a) and (d), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-30-2001 as an emergency; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 12-12-2001 as an emergency; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of subsections (a)-(c), transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
§1896.320. Benefits and Cash Payment Calculations.
Note • History
State agencies shall refer to the Department of Personnel Administration's Schedule of Employee Benefit Rates (published online by February 1 of each year at www.dpa.ca.gov) to determine the required Employee Benefit and/or Cash Payment amounts for Qualifying Contracts. Each agency shall select for any Qualifying Contract either the Detailed Rates or the Blended Rate appearing on the most recent Schedule. Detailed Rates and Blended Rates are calculated as specified in subsections (a) and (b) below:
(a) Detailed Rates
Detailed rates consist of the State of California costs for employee benefits per employee per month for employees performing services specified in 1896.300(a)(3), and a calculation of 85 percent of these costs per employee per hour. These costs will be provided for three coverage categories: a single employee with no covered dependents, an employee with one covered dependent, and an employee with two or more covered dependents.
Detailed hourly rates are calculated by determining the costs per hour for each of the three coverage categories defined in (a), using the following steps:
(1) Add together the monthly state costs for health benefits, dental benefits and vision benefits for state employees in each of the categories listed above who perform services listed in 1896.300(a)(3); and
(2) Divide the monthly state costs per employee obtained from (a)(1) above by 173.333.
(b) Blended Rates
Blended rates consist of the average of State of California employee benefit costs per employee per month for all employees performing the services specified in 1896.300(a)(3), and a calculation of 85 percent of this cost per employee per hour.
Blended hourly rates, based on the average cost per hour for all employees in all categories, are calculated by the following steps:
(1) Add together the monthly state costs for health benefits, dental benefits and vision benefits for all state employees who perform services listed in 1896.300(a)(3); and
(2) Divide the monthly costs per employee obtained from (b)(1) above by 173.333.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a), (c)(1) and (c)(2), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-30-2001 as an emergency; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 12-12-2001 as an emergency; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of section, transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
§1896.330. Reimbursement to State Agencies.
Note • History
State agencies may refer to applicable Department of Finance Budget Letters for budget instructions regarding reimbursements to state agencies for the costs of Employee Benefits and/or Cash Payments under Qualifying Contracts.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(c)(1) and (f), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-30-2001 as an emergency, including further amendment; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 12-12-2001 as an emergency, including further amendment; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of section heading and section, transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
§1896.340. Qualifying Contract Solicitations.
Note • History
Solicitations for Qualifying Contracts shall include the following provisions requiring compliance with Government Code Section 19134:
(a) Contracting agencies shall notify potential bidders that the contract to be awarded is subject to Government Code Section 19134 and shall instruct potential bidders to include in their bids provisions for Employee Benefits and/or Cash Payments to all Covered Employees.
(b) Contracting agencies shall identify in the solicitation whether provision for Employee Benefits and/or Cash Payments should be bid by the bidder as part of the cost bid or should be committed to by the bidder as a minimum qualifications requirement.
(c) Contracting agencies shall specify the applicable benefit rate(s) for the contract (based on the current Schedule of Employee Benefits Rates published by the Department of Personnel Administration). If the solicitation specifies that Employee Benefits and/or Cash Payments shall be part of the bidder's cost bid, the rate(s) specified in the solicitation shall be used by bidders for cost bod calculations.
(d) Rate changes published by the Department of Personnel Administration after issuance of a solicitation, but prior to the bid due date, shall be included in an addendum to the solicitation.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a), (c)(1) and (f), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-30-2001 as an emergency; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 12-12-2001 as an emergency; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of section, transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
§1896.350. Bids for Qualifying Contracts.
Note • History
Bids for Qualifying Contracts shall include, in addition to all other requirements specified in the solicitation, a commitment by the bidder to comply with the requirements of Government Code Section 19134 and these regulations.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a), (c)(1), (d) and (f), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. Editorial correction of subsection (a)(1) (Register 2001, No. 3).
3. New section refiled 4-30-2001 as an emergency, including renumbering of former section 1896.350 to section 1896.360 and renumbering and amendment of former section 1896.360 to section 1896.350; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-12-2001 as an emergency, including renumbering of former section 1896.350 to section 1896.360 and renumbering and amendment of former section 1896.360 to section 1896.350; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-12-2001 order, including amendment of section, transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
§1896.360. Requirements for Qualifying Contracts.
Note • History
(a) Qualifying Contracts shall contain:
(1) A provision mentioning Government Code Section 19134 and the applicable Employee Benefit rate(s) (blended or detailed);
(2) A provision allowing for adjusting Employee Benefits and/or Cash Payment amounts in the event of a change to the Schedule of Employee Benefit Rates published by the Department of Personnel Administration during the term of the contract. Any published rate changes that occur during the term of the contract shall be given effect by contract amendment, with an effective date retroactive to the date rate changes were published by the Department of Personnel Administration;
(3) A provision that the contractor must submit to the contracting agency monthly reports that comply with Section 1896.370(a);
(4) A provision that the contract is subject to audit for compliance with the provisions of Government Code Section 19134; and
(5) A provision stating that that failure to comply with the provisions of Government Code Section 19134 constitutes a material breach, which could subject the contract to immediate termination by the state.
(b) Before execution of the contract, employers choosing to offer Employee Benefits shall provide evidence of coverage to the contracting agency.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a), (c)(1), (d), (e) and (f), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-30-2001 as an emergency, including renumbering of former section 1896.360 to section 1896.350 and renumbering and amendment of former section 1896.350 to section 1896.360; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 12-12-2001 as an emergency, including renumbering of former section 1896.360 to section 1896.350 and renumbering and amendment of former section 1896.350 to section 1896.360; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of section, transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
Note • History
(a) In order to receive any payment under a Qualifying Contract, a contractor shall provide monthly reports to the contracting agency during the term of a Qualifying Contract. These reports shall include:
(1) The number of Covered Employees who received Employee Benefits and/or Cash Payments in the preceding month;
(2) The name of each Covered Employee who received Employee Benefits and/or Cash Payments in the preceding month;
(3) The number of hours each Covered Employee worked on the Qualifying Contract in the preceding month;
(4) The amount paid to each Covered Employee for Employee Benefits and/or Cash Payments in the preceding month; and
(5) The total monthly cost of Employee Benefits and/or Cash Payments in the preceding month, excluding any administrative or indirect costs.
(b) Qualifying Contracts and documents relating to implementing Government Code Section 19134 may be audited by the contracting state agency, the Department of General Services, and/or the Bureau of State Audits.
(c) Government Code Section 19134(e) provides that failure to provide Employee Benefits or Cash Payments to employees constitutes a “material breach” for any contract for personal services covered by that section. A breach can result in immediate contract termination by the state.
NOTE
Authority cited: Section 19134(f), Government Code. Reference: Section 19134(a), (c)(1), (c)(1), (d), (e) and (f), Government Code.
HISTORY
1. New section filed 12-29-2000 as an emergency; operative 1-1-2001 (Register 2000, No. 52). A Certificate of Compliance must be transmitted to OAL by 5-1-2001 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-30-2001 as an emergency; operative 4-30-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-28-2001 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 8-16-2001 as an emergency; operative 8-16-2001 (Register 2001, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-14-2001 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 12-12-2001 as an emergency; operative 12-15-2001 (Register 2001, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-15-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 12-12-2001 order, including amendment of section, transmitted to OAL 4-15-2002 and filed 5-28-2002 (Register 2002, No. 22).
Chapter 4. Office of the State Treasurer
(Originally Printed 10-29-77)
Subchapter 1. Conflict of Interest Code
Note • History
The Political Reform Act (Government Code Sections 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation (2 California Code of Regulations Section 18730) which contains the terms of a standard conflict of interest code, which can be incorporated by reference in an agency's code, and which may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act after public notice and hearings. The terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission, along with the attached Appendix in which officials and employees are designated and disclosure categories are set forth, are hereby incorporated by reference and constitute the Conflict of Interest Code of the Office of the State Treasurer and the various boards, authorities, commissions and committees chaired by the State Treasurer.
Designated employees shall file statements of economic interests with the FPPC filing officer in the Office of the State Treasurer who will make the statements available for inspection and reproduction. With respect to officials who are determined to manage public investments within the meaning of Government Code Section 87200, the Office of the State Treasurer shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission.
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300 and 87302.
HISTORY
1. New chapter 4 (subchapter 1, articles 1-7, sections 1897-1897.17 and Appendix A) filed 10-27-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 9-22-77 (Register 77, No. 44).
2. Repealer of subchapter 1 articles 1-7, sections 1897-1897.17 and Appendix A) and new subchapter 1 (section 1897 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of Appendix (Register 81, No. 45).
4. Amendment filed 7-23-87; operative 8-22-87 (Register 87, No. 31).
5. Amendment of section and Appendix filed 9-13-93; operative 10-13-93. Submitted for printing only. Approved by Fair Political Practices Commission 8-6-93 (Register 93, No. 38).
6. Amendment of Appendix filed 4-4-96; operative 5-4-96. Approved by Fair Political Practices Commission 2-14-96 (Register 96, No. 14).
7. Editorial correction amending Appendix (Register 97, No. 6).
8. Amendment of section and Appendix filed 6-15-2000; operative 7-15-2000. Approved by Fair Political Practices Commission 5-1-2000 (Register 2000, No. 24).
9. Amendment of Appendix filed 2-11-2003; operative 3-13-2003. Approved by Fair Political Practices Commission 12-12-2002 (Register 2003, No. 7).
10. Amendment of Appendix filed 4-28-2003; operative 5-28-2003. Approved by Fair Political Practices Commission 12-12-2002 (Register 2003, No. 18).
11. Amendment of Appendix filed 1-20-2006; operative 2-19-2006. Approved by Fair Political Practices Commission 11-17-2005 (Register 2006, No. 3).
12. Redesignation and amendment of former Appendix as Appendix A and adoption of new Appendix B filed 3-3-2011; operative 4-2-2011. Approved by Fair Political Practices Commission 12-29-2010 (Register 2011, No. 9).
Appendix A
Designated Employees Disclosure Category
Office of the State Treasurer
Deputy Treasurer 1
CEA (All Levels) 1
General Counsel 1
Staff Counsel (All Levels) 1
Director, Public Finance Division 1
Director, Cash Management Division 1
Consultants* 1
Director, Administration Division 1
Director, Securities Management Division 1
Assistant Director, Investment Division 1
Assistant Director, Public Finance Division 1
Assistant Director, Cash Management Division 1
Director of Legislative Affairs 1
Director of Communications 1
Director of Public Liaison 1
Treasury Program Manager (All Levels) 2
Staff Services Manager (All Levels) 2
Accounting Administrator (All Levels) 2
Associate Treasury Program Officer (Investment
Division) 2
Director, Information Services Division 4
System Software Specialist II 4
System Software Specialist III 4
Senior Program Analyst 4
California Alternative Energy and Advanced Transportation
Financing Authority
Authority Members 1
Executive Director 1
California Debt and Investment Advisory Commission
Commission Members 1
Executive Director 1
Deputy Executive Director 1
Research Manager (All Levels) 1
Staff Services Manager (All Levels) 3
California Debt Limit Allocation Committee
Committee Members 1
Executive Director 1
Staff Services Manager (All Levels) 1
California Educational Facilities Authority
Authority Members 1
Executive Director 1
Deputy Executive Director 1
Treasury Program Manager (All Levels) 3
California Health Facilities Financing Authority
Authority Members 1
Executive Director 1
Deputy Executive Director 1
Treasury Program Manager (All Levels) 3
California Industrial Development Financing Advisory
Commission
Commission Members 1
Executive Director 1
Deputy Executive Director 1
California Pollution Control Financing Authority
Authority Members 1
Executive Director 1
Deputy Executive Director 1
Treasury Program Manager (All Levels) 3
California School Finance Authority
Authority Members 1
Executive Director 1
California Urban Waterfront Area Restoration Financing
Authority
Authority Members 1
Executive Director 1
Local Agency Investment Advisory Board
Board Members 1
Executive Secretary 1
California Tax Credit Allocation Committee
Committee Members 1
Executive Director 1
Staff Services Manager (All Levels) 3
Pooled Money Investment Board
Board Members 1
Executive Secretary 1
ScholarShare Investment Board
Board Members 1
Executive Director 1
Staff Services (All Levels) 3
________
* Consultants shall be included in the list of designated employees and shall disclose pursuant to disclosure category “1” in the code subject to the following limitation:
The Chief Deputy Treasurer may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that are limited in scope and thus is not required to fully comply with the disclosure requirements described in this section. Such determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Chief Deputy Treasurer's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
Officials Who Manage Public Investments
The following individuals are NOT covered by the code because they must file under section 87200 and, therefore, are listed for informational purposes only:
(1) Chief Deputy Treasurer
(2) Deputy Treasurer (with oversight responsibility for the Investment Division)
(3) Director, Investment Division
(4) Pension & Benefits Officer
(5) Pension Investment Officer
(6) Treasurer's Designee for CalPERS and CalSTRS (whose names are listed on an up-to-date public document maintained by the filing officer)
The following procedures may be followed to comply with the requirement to file statements of economic interest for the positions listed above:
One statement of economic interest may be filed indicating on the Form 700 Cover Page the “Office of the State Treasurer,” the title of the position held, and indicating “designee for the State Treasurer.” An attachment should be used to list each board and commission in which the individual makes or participates in governmental decisions. A copy of the statement should be filed with each agency, board or commission in which the State Treasurer's Designee serves as a designee.
An individual holding one of the above listed positions may contact the Fair Political Practices Commission for assistance or written advice regarding their filing obligations if they believe that their position has been categorized incorrectly. The Fair Political Practices Commission makes the final determination whether a position is covered by section 87200.
Appendix B
1. All investments, interests in real property, business positions and income, including loans, gifts and travel payments.
2. All investments, business positions, and income, including loans, gifts, and travel payments, from or with any entity that is of the type to do business with, or receive a grant from (source include those applying for grants), the Office of the State Treasurer, the California Public Employees' Retirement System, the Pooled Money Investment Board, the Local Investment Advisory Board or any state bond financing authority or allocation board or commission. Such sources include, but are not limited to, placement agents, brokers, and investment entities.
3. All interests in real property, all investments, business positions, and income, including loans, gifts and travel payments in any entity that is of the type to do business with the state bond financing authority or allocation board, committee or commission, by which he or she is employed. Such sources include, but are not limited to, placement agents, brokers, and investment entities.
4. All investments, business positions, and income, including loans, gifts and travel payments from or with any entity that is of the type to sell, rent, or lease information technology equipment, software, facilities, supplies or services, to the Office of the State Treasurer. The Chief Deputy Treasurer may determine that a consultant hired to address information technology and telecommunications matters will be subject to this disclosure category. The determination is a public record and shall be retained for public inspection in the same manner and location as this conflict-of-interest code.
Subchapter 2. Security for State Deposits
Article 1. General
Note • History
This chapter is adopted to implement and interpret Sections 16522(g) and 16612(g) of the Government Code to describe the conditions to acceptance, by the State Treasurer, of promissory notes to secure state deposit.
NOTE
Authority cited: Sections 16522(g) and 16612(g), Government Code. Reference: Sections 16522(g) and 16612(g), Government Code.
HISTORY
1. New Subchapter 2 (Sections 1898-1898.10) filed 12-16-77; effective thirtieth day thereafter (Register 77, No. 51).
The following terms shall be used in the manner described below, when used in this Chapter.
(a) “Act” means the Bank Deposits Law, Chapter 4 of Part 2, Division 4, Title 2 of the Government Code or the Savings and Loan Association Deposits Law, Chapter 4.5 of Part 2, Division 4, Title 2 of the Government Code.
(b) “Treasurer” means the Treasurer, State of California.
(c) “Depository” means a Bank or Savings and Loan Association, located in this state, eligible under law to accept state deposits.
(d) “Qualified Trust Company” means the trust department of any state or national bank, in this state, or a trust company authorized to act as such in this state.
(e) “Promissory Note” means a promissory note secured by a first mortgage or first trust deed upon residential real property and improvements, used for residential purposes, located in California, and acceptable by the Treasurer as collateral to secure state deposits.
Article 2. Eligibility and Custody of Notes
Note • History
Promissory notes pledged as security for deposits shall be valued at the unpaid principal balance of the obligation, or the most recent appraisal value, whichever is less. The value of the promissory notes shall at all times exceed by at least fifty percent the amount of the state deposit with the depository. Appraisal values must be reported to the Treasurer no less than annually.
NOTE
Authority cited: Sections 16522(g) and 16612(g), Government Code. Reference: Sections 16522(g) and 16612(g), Government Code.
HISTORY
1. Amendment of section and new Note filed 10-1-2009; operative 10-31-2009 (Register 2009, No. 40).
All promissory notes pledged to secure state deposits may be approved by the Treasurer. The Treasurer may accept as eligible, promissory notes secured by first mortgages and first trust deeds upon residential real property located in California, provided that:
(a) The loan to appraised value ratio is not in excess of 80 percent, unless such loan is federally insured or guaranteed;
(b) The loan has been outstanding at least six months prior to acceptance;
(c) No payment on the loan is more than thirty days past due prior to acceptance.
§1898.4. Assignment of Mortgages and Deeds of Trust.
Unless a power of attorney has been furnished pursuant to Section 1898.6, all pledged mortgages or deeds of trust shall be properly assigned to the Treasurer, in such form as he may prescribe, to protect the security of the state deposits. No such assignment shall be recorded by the Treasurer until such time as the depository fails to pay all or any part of the deposit for which such mortgage or deed of trust stands as security.
§1898.5. Endorsement of Notes.
Unless a power of attorney has been furnished pursuant to Section 1898.6, each promissory note pledged to secure state deposits shall be endorsed to the Treasurer. The endorsement shall be signed by two individ--
uals authorized by resolution of the bank or association to execute such instruments. The form of the endorsement should be as follows:
PAY TO THE ORDER OF THE TREASURER, STATE OF CALIFORNIA, WITHOUT RECOURSE.
By_____________________
By_____________________
§1898.6. Assignment and Endorsement by Power of Attorney.
In lieu of individually assigning each pledged mortgage or deed of trust and placing its unqualified endorsement on each promissory note, pursuant to Sections 1898.4 and 1898.5, a depository may furnish an appropriate resolution of its Board of Directors and an irrevocable power of attorney authorizing the Treasurer to assign the securities to the Treasurer. The resolution and power of attorney shall be in such form as the Treasurer may prescribe.
Note • History
At least monthly, each depository shall furnish the Treasurer a report of the status of each promissory note pledged as collateral to secure state deposits. The report shall be in such form as the Treasurer may prescribe.
NOTE
Authority cited: Sections 16522(g) and 16612(g), Government Code. Reference: Sections 16522(g) and 16612(g), Government Code.
HISTORY
1. Amendment of section and new Note filed 10-1-2009; operative 10-31-2009 (Register 2009, No. 40).
§1898.8. Release and Substitution of Promissory Notes.
History
(a) The Treasurer shall, within four business days of the request therefor, release to the depository all promissory notes, mortgages and/or deeds of trust requested by the depository to be released, so long as the aggregate value of the remaining promissory notes exceeds the minimum value prescribed by Section 1898.2.
(b) A depository may substitute promissory notes, upon the approval of the Treasurer as to the form of the note or notes proposed to be substituted and so long as the aggregate value of the promissory notes left to secure the state deposit (including the note or notes proposed to be substituted) exceeds the minimum value prescribed by Section 1898.2. The Treasurer shall approve or disapprove a substitution within four business days of the request therefor.
(c) A depository shall substitute for a promissory note:
(1) On which any payment is more than 90 days past due;
(2) Which is secured by a mortgage or deed of trust as to which there is a lien prior to the mortgage or deed of trust; or
(3) Which is secured by a mortgage or deed of trust as to which a notice of default has been recorded pursuant to Section 2924 of the Civil Code or an action has been commenced pursuant to Section 725a of the Code of Civil Procedure.
HISTORY
1. Amendment of subsection (c)(3) filed 1-13-78 as an emergency; designated effective 1-15-78. Certificate of Compliance included (Register 77, No. 51).
§1898.9. Return of Promissory Notes, Mortgages and Deeds of Trust.
Whenever a promissory note is released or substituted, such note, if individually endorsed to the Treasurer, and the mortgage or deed of trust securing such note, if individually assigned to the Treasurer, shall be endorsed without recourse or reassigned, as the case may be, prior to its return to the depository.
§1898.10. Custody of the Promissory Notes.
The Treasurer may require that the pledged promissory notes be maintained in the State Vault, or with consent of the depository, may authorize their deposit in a “qualified trust company” or the Federal Home Loan Bank of San Francisco.
Subchapter 3. Value of Promissory Notes Pledged to Secure Local Agency Deposits
Article 1. General
Note • History
This chapter is adopted to implement, interpret or make specific Section 53651(m) of the Government Code to establish procedures for determining the value of promissory notes secured by first trust deeds, pledged to secure local agency deposits.
NOTE
Authority cited: Section 53651(m), Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. New Subchapter 3 (Articles 1-2, Sections 1899-1899.2) filed 7-15-80; effective thirtieth day thereafter (Register 80, No. 29).
Note
The following terms shall be used in the manner described below when used in this Subchapter.
(a) “Local agency” means county, city, city and county, or other public agency or corporation.
(b) “Eligible security (REN)” means “Eligible security (REN)” as defined in the Regulations of the Administrator of Local Agency Security.
NOTE
Authority cited: Section 53651(m), Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
Article 2. Procedures for Determining Value
§1899.2. Value of Eligible Security (REN).
Note
Eligible security (REN) pledged as collateral for local agency deposits shall be valued at the unpaid principal balance of the obligation.
NOTE
Authority cited: Section 53651(m), Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
Subchapter 4. Target Business Enterprise Participation Goals for Professional Bond Services
Article 1. General
Note • History
These rules implement Government Code sections 16850-16857 (which establish minority and women business enterprise participation annual goals) and Military and Veterans Code sections 999-999.8 (which establish disabled veteran business enterprise annual goals) for professional bond services contracts made by awarding departments which issue bonds by or on behalf of the State of California.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16857, Government Code; Sections 999-999.8, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Note • History
The terms used in this subchapter shall have the meanings described in Government Code section 16851 and Military and Veterans Code section 999. In addition, the following definitions apply to terms used in Government Code sections 16850-16853, Military and Veterans Code sections 999-999.5 and this subchapter:
(a) “Disabled Veteran” means a veteran of the military, naval, or air service of the United States with a service-connected disability (without regard to level of disability, as determined by the U.S. Department of Veterans Affairs or the U.S. Department of Defense and as evidenced by an official written document issued in the name of the veteran by either of those federal agencies) who is a resident of the State of California.
(b) “Management and Control” means exercising the power to make policy decisions.
(c) “Financing team” means the specific group of professional bond services underwriting firm(s) working on a bond sale consisting of the senior managing underwriter(s), co-managers, management group and selling syndicate.
(d) “Goal” means the annual percentage of total monies expended for professional bond services that, in accordance with statutory requirements, should be expended for TBE professional bond services.
(e) “Good Faith Effort” means, for purposes of complying with the Treasurer's participation goals for disabled veteran business enterprises (“DVBEs”) that the contractor complied with either (I), (II) or (III) as described below:
(I) At least one DVBE firm participated on the financing team for the subject bond sale and the level of participation is in accordance with the Treasurer's DVBE participation goals; OR
(II) (A) Contact was made with the Treasurer's Office to identify certified DVBE firm(s); and
(B) At least one certified DVBE firm was invited to participate on the financing team; OR
(III) The financing team was formed under the specific direction of the Treasurer's Office.
(f) “Joint Venture” means a union of two or more professional bond services firms for the purpose of providing services for a particular debt financing of the State of California.
(g) “Professional bond services” means services directly participating in the issuance and sale of bonds including, but not limited to, financial advisors, bond counsel, underwriters, underwriter's counsel, financial printers, feasibility consultants, accountants and auditors. “Professional bond services” shall not include ancillary services such as trustee, paying agent, depository, rating agency, credit enhancement provider, investment or escrow services for proceeds of the sale of bonds.
(h) “Subcontract” means an agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of employer and employee) under which any portion of the contractor's obligation under one or more contracts is performed, undertaken or assumed.
(i) “TBE” means a target business enterprise which collectively shall include minority-owned business enterprises (MBEs) as defined in Government Code section 16851(g), women-owned business enterprises (WBEs) as defined in Government Code section 16851(i) and disabled veteran business enterprises (DVBEs) as defined in Military and Veterans Code section 999(g).
(j) “Treasurer” means the Treasurer of the State of California.
(k) “Underwriter's discount” means the difference between the price the underwriter pays the issuer for the bonds and the price at which the underwriter sells the bonds to investors. For program reporting purposes, the following terms shall have the specified definitions:
(1) Management Fee - a fee paid to the managing and co-managing underwriters for handling the affairs of the underwriting syndicate;
(2) Takedown - the income (including income derived from designated and group sales) derived by the selling broker or dealer from the sale of the bonds excluding identified concessions passed through the syndicate or selling group to an investor;
(3) Risk - the amount of compensation for risks incurred by the underwriter in underwriting the bond issue, relating to the difficulty of marketing the issue, bond market conditions, and the amount of bonds remaining to be sold after the execution of the bond purchase agreement.
(4) Expenses - the amount of expenses incurred by the underwriter(s) for “professional bond services.”
(l) “Year” means calendar year.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Article 2. Certification
Note • History
(a) The Treasurer shall compile a list of TBEs that meet the requirements of Government Code section 16851(g) and (i) and the requirements of Military and Veterans Code section 999(g). The list shall be organized by the types of professional bond services (e.g., underwriters, bond counsels, financial advisors). The list shall be known as the “TBE List.”
(b) To be certified as an “Underwriter” on the TBE List, the firm must demonstrate, to the satisfaction of the Treasurer, that the firm:
(1) is licensed as a “broker/dealer” by the federal Securities and Exchange Commission;
(2) is licensed as a “broker/dealer” by all states in which the firm effects transactions in securities and which require such licensing and
(3) is a member of the National Association of Securities Dealers (NASD).
(c) Wholly-owned corporate subsidiaries of corporations shall be eligible for certification as TBEs only if the parent corporation is certified as a TBE. Subsidiaries of certified TBE corporations that are not wholly-owned by the certified TBE corporation shall be ineligible for certification on the TBE List.
(d) Only annual monies expended for professional bond services provided by TBEs included on the TBE List shall be counted for purposes of the participation goals established by section 16850 of the Government Code, section 999.1 of the Military and Veterans Code and section 1899.522 of these regulations.
(e) The TBE List shall also be used as the list of TBEs entitled to notice under Government Code section 16852(a) or Military and Veterans Code section 999.3(a).
NOTE
Authority cited: Section 16853, Government Code; Sections 999.3 and 999.5, Military and Veterans Code. Reference: Sections 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.511. Availability of Data.
Note • History
The Treasurer's Office shall make its TBE List available to other awarding departments.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.512. Application for Certification on TBE List.
Note • History
(a) To be eligible for inclusion on the Treasurer's TBE List, a business enterprise must have a completed application (See section 1899.513(a)) on file with the Treasurer, meet all applicable requirements under this subchapter, and either Government Code section 16851 or Military and Veterans Code section 999. All business enterprises that meet the requirements shall be certified on the TBE List.
(b) Every certified TBE shall be subject to verification of status at any time the Treasurer's Office deems appropriate. Failure of a TBE to provide information within 30 days of a written request by the Treasurer's Office shall be grounds for summary removal from the TBE List.
(1) Veterans who certify disabled veteran status must provide an award letter from the United States Department of Veterans Affairs or Department of Defense which would indicate the existence of a service-connected disability at the time of application for disabled veteran business enterprise status.
(c) A certified TBE shall, within 30 days of the effective date of such changes, give written notice to the Treasurer of any material changes in the management and control or ownership of the certified business enterprise. Failure to notify the Treasurer within this specified period of a material change in management and control or ownership that results in the TBE's no longer meeting the requirements for certification, shall constitute grounds for removal from the TBE List.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.513. TBE List Applications and Certification.
Note • History
(a) Applications for certification on the TBE List shall be in the form provided in Appendix A.
(b) In assessing the suitability of a TBE for professional bond services contracts, the Treasurer may require additional information such as experience resumes, financial statements, insurance requirements, and bonding limits.
(c) The filing of a completed application and inclusion on the TBE List shall not be construed as an endorsement of a business enterprise's ability to perform or guarantee the business enterprise a contract in connection with any bond sale.
(d) The TBE Applications for Certification and related attachments and correspondence are public records subject to the disclosure requirements of the Public Records Act (Government Code section 6250 et seq.).
NOTE
Authority cited: Sections 16853 and 16857, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16853 and 16857, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.514. Application Processing.
Note • History
Every applicant for certification as a TBE shall be notified in writing of any deficiencies in the application within 60 days of the receipt of such application by the Treasurer. If requested by the Treasurer, an applicant shall submit additional written information within 30 days of the date of the Treasurer's request. If the additional information is not received by the Treasurer within the 30-day period, the Treasurer is authorized to immediately deny that applicant's application for certification. On receipt of a completed application, the Treasurer shall notify the applicant in writing of the Treasurer's determination within 60 days of receipt of the completed application.
NOTE
Authority cited: Sections 15376 and 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 15374-15378, 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-1-89 (Register 89, No. 15).
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.515. Appeal of Determination.
Note • History
(a) All determinations of noneligibility for certification of TBE status made by the Treasurer shall become final unless the determination is appealed in a timely manner. Any business enterprise which believes that the determination has resulted in its being wrongly denied certification as a TBE by the Treasurer may file an appeal in writing, signed and dated, with the Treasurer. The appeal must be filed no later than 20 days after the date of notice of decertification or denial of certification. The Treasurer may, upon written request which specifies the reasons for such request, extend the time for filing or waive the time limit in the interest of justice, specifying in writing the reasons for doing so.
(b) Following receipt of an appeal, where the appeal is based upon denial of an application for certification the Treasurer shall determine whether the appeal is to be resolved by the submittal of written documents or by public hearing, or both. When the appeal is based upon the revocation of a currently valid certification, the appeal shall be resolved by public hearing. In the event a public hearing is to be held, the Treasurer shall set a date, time and place for the hearing and shall notify the applicant not less than 20 days in advance of the hearing. The Treasurer may, on the request of the applicant with a showing of good cause or on the Treasurer's own motion, giving advance notice to the applicant, change the date of, postpone or continue the hearing. If the appeal is to be determined through the submittal of written documents, notice shall be sent to the applicant and the applicant may submit written materials in support of its position in accordance with the deadline established by the hearing officer. The determination that the appeal shall be resolved through the submittal of written documents shall be based on the hearing officer's finding that oral or additional testimony would be unnecessary for a full understanding of the issues.
(c) Any written submission to the Treasurer in connection with an appeal under this section shall, at a minimum, include an original and two copies.
(d) At any time the Treasurer finds that an appeal is clearly insufficient on its face, entirely without merit, or outside of the jurisdiction of the Treasurer, the Treasurer may summarily dismiss the appeal without hearing.
(e) Recertification. A person or firm whose application for certification is denied, and any person or firm which is decertified by formal determination of the Treasurer may re-apply for certification (or re- certification). Applications for re-certification must include a written description of the material changes instituted by the applicant warranting reconsideration by the Treasurer.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.516. Request for Review.
Note • History
The Treasurer's determination to include a business enterprise on the TBE List relies on an applicant's certification that the applicant meets the statutory requirements for a minority business enterprise, women business enterprise, or disabled veteran business enterprise. Any person may request in writing that the Treasurer investigate the basis for the inclusion of a business enterprise on the TBE List. The request for review shall:
(1) state the reason(s) for alleging a certified TBE or TBE certification applicant does not meet the statutory requirements and
(2) include supporting evidence that may assist the Treasurer in the investigation of the matter.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850-16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Article 3. Competitive Sales
Note • History
If bonds are to be sold by competitive bid, the notice of sale shall:
(a) Be delivered to all underwriters on the Treasurer's TBE List;
(b) Contain the following statement:
“Firms owned by minorities, women, and disabled veterans are encouraged to respond to this invitation for bid.
The Treasurer has adopted regulations and participation goals for professional bond services firms owned by minorities, women and disabled veterans. These participation goals are set forth in title 2 of the California Code of Regulations in section 1899.522. All bidders must certify awareness of these regulations and goals and that a good faith effort was made to comply with the Treasurer's DVBE participation goals. Successful bidders will be required to submit reports to the Treasurer concerning TBE outreach efforts and professional bond service participation in transactions related to the offer and sale of the bonds that are the subject of this notice of sale.”
NOTE
Authority cited: Section 16853, Government Code; Sections 999.4 and 999.5, Military and Veterans Code. Reference: Section 16852, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Note • History
(a) The form for submitting bids shall contain the following certification which shall be executed by the bidder:
“TBE PARTICIPATION AND DVBE GOOD FAITH EFFORTS. Bidder certifies to all of the following:
(1) Bidder is aware of the Treasurer's regulations and participation goals for target business enterprises offering professional bond services.
(2) Bidder is aware that existing law requires the bidder to demonstrate a good faith effort (as defined in section 1899.501 of title 2 of the California Code of Regulations) toward the Treasurer's participation goals for disabled veteran-owned firms.
(3) Bidder is aware and acknowledges that if the Treasurer concludes that the bidder has not demonstrated a good faith effort, the Treasurer is authorized under existing laws to award the contract to the next lowest responsive and responsible bidder.”
(b) The senior managing underwriter may make the certification required by subdivision (a) on behalf of the syndicate or selling group.
NOTE
Authority cited: Section 16853, Government Code; Sections 999.4 and 999.5, Military and Veterans Code. Reference: Section 16852, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.522. Goals for Competitive Contracts.
Note • History
The Treasurer's annual goals for TBE participation in competitive contracts for professional bond services shall be 15 percent for minority business enterprises, 5 percent for women business enterprises, and 3 percent for disabled veteran business enterprises. These goals need not be met in every competitive bond transaction but will be pursued on an aggregate annual basis considering all competitive bond transactions during a year. These goals will also be described in each notice of sale for bonds to be sold by competitive bid.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Section 16850, Government Code; Sections 999- 999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Note • History
The Senior Managing Underwriter in a competitive sale of bonds shall submit a written report regarding distribution of the underwriter's discount to the Treasurer within 10 days of closing a transaction where the senior managing underwriter's services were used. The report shall be submitted in the form set forth in Appendix B.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850 and 16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Article 4. Negotiated Sales
Note • History
The statutory goals for professional bond services in connection with bonds sold in negotiated transactions need not be met in every individual contract for services but will be pursued on an aggregate annual basis considering all contracts for professional bond services during a year. Thus, during the course of a year, there may be contracts without TBE participation and contracts with TBEs as prime contractor or TBE participation substantially higher than the statutory goal. Contractors in negotiated transactions shall be required to demonstrate that a good faith effort (as defined in section 1899.501 of title 2 of the California Code of Regulations) was made to comply with the Treasurer's participation goals for DVBEs. This requirement shall be satisfied by including a written statement in the report submitted by the senior managing underwriter in accordance with section 1899.532, below.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Section 16850, Government Code; Sections 999- 999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
§1899.531. TBE Qualifications.
Note • History
TBEs shall be considered for only those contracts or participation in contracts commensurate with their experience, capital, and compliance with applicable licensing requirements.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Section 16850, Government Code; Sections 999- 999.5, Military and Veterans Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Amendment filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Appendix A
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Appendix B
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Appendix C
STATE OF CALIFORNIA
OFFICE OF THE STATE TREASURER
TARGET BUSINESS ENTERPRISE
IN PROFESSIONAL BOND SERVICES REPORT
NEGOTIATED SALES
(To be completed by Senior Manager)
In accordance with the Purchase Agreement, this report is to be completed and returned to the State Treasurer's Office, Trust Services Division; 915 Capitol Mall, Room 107; Sacramento, CA 95814 within 10 days of closing of the below mentioned issue.
Issuer
Issue Description
Series Amount $ Date Sold
Senior Manager
Contact Person Phone
1. MANAGEMENT FEE Total: $
Lead Manager's share of management fee $ % of Total %
Co-Managers' share of management fees:
TBE*
Firm(s) Management % of
Co-Manager(s) Yes/No Fee Total
$ %
$ %
$ %
$ %
$ %
$ %
$ %
2. TAKEDOWN
a: Gross Takedown $
Less Identified concessions $
Net takedown $
b: Takedown by Manager/Co-Managers/Syndicate member/Selling group member:
*TBE --means target business enterprise which collectively includes minority business enterprises, or women business enterprises as both of these are defined in Section 16851 of the Government Code, and disabled veteran business enterprise as defined in Section 999 of the Military and Veterans Code.
Takedown
TBE (Excluding
Firm Identified % of
Firm Yes/No Concessions) Total
$ %
$ %
$ %
$ %
$ %
$ %
$ %
If necessary, continue in same format on an attachment labeled “Attachment A.”
3. RISK Total: $
Lead Manager's risk: $ % of Total %
Co-Managers/Syndicate members risk:
TBE
Firm % of
Name Yes/No Amount Total
$ %
$ %
$ %
$ %
$ %
$ %
$ %
If necessary, continue in same format on an attachment labeled “Attachment B.”
4. EXPENSES Total: $
TBE
Professional Bond Firm
Services (PBS) Expenses Firm Yes/No Compensation
Underwriter's Counsel $
Underwriter's Co-Counsel $
Printing--OS/POS $
Printing--Bonds $
Other PBS Expenses:
(Identify)
$
$
$
$
All other Expensers
(non-PBS)
$
$
$
$
5. GROSS SPREAD Total: $
6. DVBE GOOD FAITH EFFORTS
The Senior Managing Underwriter on this bond sale took the actions indicated below to demonstrate a good faith effort to include DVBE firm(s) in this bond sale (indicate by marking with an “X”).
At least one DVBE firm was included in the financing team for this bond sale and the DVBE participation was in accordance with the Treasurer's DVBE participation goals.
Contact was made with the Treasurer's Office to identify Certified DVBEs;
At least one certified DVBE firm was invited to participate on the financing team for this bond sale;
The financing team was formed under the specific direction of the Treasurer's Office.
NOTE
Authority cited: Section 16853, Government Code. Reference: Section 16853, Government Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15).
. A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
Note • History
The Senior Managing Underwriter in a negotiated sale of bonds shall submit a written report to the Treasurer, within 10 days of closing a transaction where the senior managing underwriter's services were used, regarding
(1) distribution of the underwriter's discount; and
(2) the good faith efforts made to include a DVBE in the financing team for the bond sale. The report shall be submitted in the form set forth in Appendix C.
NOTE
Authority cited: Section 16853, Government Code; Section 999.5, Military and Veterans Code. Reference: Sections 16850 and 16853, Government Code; Sections 999-999.5, Military and Veterans Code.
HISTORY
1. New section filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Article 5. Reports [Repealed]
§1899.540. Reports. [Repealed]
Note • History
NOTE
Authority cited: Section 16853, Government Code. Reference: Section 16853, Government Code.
HISTORY
1. New section filed 4-10-89 as an emergency; operative 4-10-89 (Register 89, No. 15). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-8-89.
2. Certificate of Compliance transmitted to OAL 8-8-89 and filed 9-7-89 (Register 89, No. 40).
3. Repeal of article 5 and section filed 6-19-91; operative 6-19-91 (Register 91, No. 42).
Subchapter 5. Redemption of Registered Warrants
Note • History
This subchapter shall apply to the redemption of registered warrants issued by the State Controller's Office pursuant to Chapter 2 of Part 4 of the Government Code (commencing with section 17200). This subchapter shall not apply to reimbursement warrants or refunding warrants.
NOTE
Authority cited: Sections 17210 and 17271, Government Code. Reference: Sections 17210 and 17271, Government Code.
HISTORY
1. New subchapter 5 (sections 1899.570-1899.585) and section filed 7-30-2009 as an emergency; operative 7-30-2009 (Register 2009, No. 31). A Certificate of Compliance must be transmitted to OAL by 1-26-2010 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-30-2009 order transmitted to OAL 12-15-2009 and filed 1-26-2010 (Register 2010, No. 5).
Note • History
Where an individual or entity holding a warrant wishes to redeem the warrant the following procedures shall apply:
(a) Any individual or entity holding a registered warrant issued in the name of the holder may redeem such registered warrant when payment is due directly with the State Treasurer's Office by:
(1) Mailing the registered warrant to the State Treasurer's Office, ATTN: Registered Warrant Desk, 915 Capitol Mall, Sacramento, CA 95814; or
(2) Presenting the registered warrant in person at the State Treasurer's Office at 915 Capitol Mall, Sacramento, California between the hours of 8:00 a.m. and 4:00 p.m.
(b) If the holder is bank or other financial institution, the registered warrant may be presented for redemption pursuant to section (a)(1) or (2), or by cash letter (which may be segregated or combined with any other warrants or items) directly to the State Treasurer's Office.
(c) A holder of a registered warrant may also be able to deposit the registered warrant with a bank or other financial institution, if the bank or financial institution is willing to accept the registered warrant. Only the holder of the registered warrant at the time of redemption is entitled to any interest owed on the registered warrant.
(d) Where the holder of a registered warrant at the time of redemption is an individual or entity other than the individual or entity to whom the State issued the registered warrant the State Treasurer's Office will redeem the registered warrant only if the holder submits with the registered warrant a notarized bill of sale signed by the individual or entity to whom the State issued the registered warrant. This requirement to present an accompanying notarized bill of sale does not apply if the third-party holder of a registered warrant is a state or local government agency, special district, bank or other financial institution, including, but not limited to, a brokerage firm, an investment banking firm, an asset management firm, or a broker-dealer.
(e) With respect to any other warrant validly issued by the State Controller's Office, where an individual other than the individual or entity to whom the warrant was issued holds the warrant, the State Treasurer's Office may prohibit such a third party holder from redeeming the warrant directly with the State and instead require processing through the individual's bank.
NOTE
Authority cited: Sections 17210 and 17271, Government Code. Reference: Sections 17210 and 17271, Government Code.
HISTORY
1. New section filed 7-30-2009 as an emergency; operative 7-30-2009 (Register 2009, No. 31). A Certificate of Compliance must be transmitted to OAL by 1-26-2010 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-30-2009 order transmitted to OAL 12-15-2009 and filed 1-26-2010 (Register 2010, No. 5).
Note • History
(a) If registered warrants are called prior to their maturity date, the State Treasurer shall do all of the following:
(1) Publish a notice of redemption for six consecutive days, excluding Sundays, in newspapers of general circulation serving Sacramento, San Francisco, and Los Angeles;
(2) Post a notice of redemption on the Treasurer's Office website at the same time as the notice is first published pursuant to subsection (a); and
(3) Advise its depository banks of the redemption at the same time as the notice is first published pursuant to subsection (a).
(b) If insufficient funds are available to redeem registered warrants on the maturity date, the State Treasurer shall redeem such registered warrants in the time and order directed by the State Controller, and as approved by the Pooled Money Investment Board.
NOTE
Authority cited: Sections 17210 and 17271, Government Code. Reference: Sections 17210 and 17273, Government Code.
HISTORY
1. New section filed 7-30-2009 as an emergency; operative 7-30-2009 (Register 2009, No. 31). A Certificate of Compliance must be transmitted to OAL by 1-26-2010 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-30-2009 order transmitted to OAL 12-15-2009 and filed 1-26-2010 (Register 2010, No. 5).
Note • History
Whenever the state issues registered warrants, the State Treasurer will post on its website a list of banks and other financial institutions that have advised the State Treasurer of a willingness to accept registered warrants prior to the maturity date.
NOTE
Authority cited: Sections 17210 and 17271, Government Code. Reference: Sections 17210 and 17271, Government Code.
HISTORY
1. New section filed 7-30-2009 as an emergency; operative 7-30-2009 (Register 2009, No. 31). A Certificate of Compliance must be transmitted to OAL by 1-26-2010 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-30-2009 order transmitted to OAL 12-15-2009 and filed 1-26-2010 (Register 2010, No. 5).
Division 3. State Property Operations
Chapter 1. State Lands Commission
(Originally Printed 1-22-45)
Article 1. General Provisions
Note • History
The following definitions shall apply to this Chapter unless otherwise provided.
(a) The term “applicant” includes any person who files an application under these regulations.
(b) The term “person” includes any individual, firm, partnership, business entity, business trust, association, corporation, or governmental entity or agency.
(c) The term “lease” includes a permit, right-of-way, easement, license, compensatory agreement, or other entitlement of use.
(d) The term “structure” means any manmade construction.
(e) The term “submerged lands” means the area lying below the elevation of ordinary low water in the beds of all tidal and nontidal navigable waters.
(f) The term “tidelands” means the area lying between the elevations of ordinary low water and ordinary high water on lands subject to tidal action.
(g) The term “uplands” shall mean lands bordering on navigable waterways.
(h) The term “school lands” refers to all Sections 16 and 36 granted to the State for the benefit of common schools by Chapter 145 of the Federal Statutes of 1853.
(i) The term “lieu or indemnity lands” refers to those lands acquired by the State in place of school lands it previously acquired or school lands to which it did not receive title because they were either mineral in character, had not been sectionalized, or were subject to prior established rights.
(j) The terms “merchandise,” “product” and “commodity” are interchangeable and shall include, goods, wares, chattels, personal property of every description, cargo, freight, mail, vessel's stores and supplies, articles, matter and material.
NOTE
Authority cited: Sections 6002, 6105, 6108, 6301, and 6501, Public Resources Code; and 3 Cal. 3d 462, 478 (tide and submerged lands). Reference: Sections 6301 and 6501, Public Resources Code.
HISTORY
1. Repealer of Article 1 (Sections 1900-1914) and new Article 1 (Sections 1900-1911) filed 6-2-78; effective thirtieth day thereafter (Register 78, No. 22). For prior history, see Registers 77, No. 6; 75, No. 22; 73, No. 9; 69, No. 15; 64, No. 23; 58, No. 5; 55, Nos. 12 and 25, No. 5.
2. Repealer of Article 1 (Sections 1900-1911) and new Article 1 (Sections 1900-1910 not consecutive) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49).
Note • History
The principal office of the Commission is 100 Howe Avenue, Suite 100-South, Sacramento, California 95825, telephone (916) 574-1900. The Commission's Mineral Resources Management Division is located at 200 Oceangate, Suite 1200, Long Beach, California 90802, telephone (310) 590-5201. Applications for exploration or extraction of minerals, oil and gas, or geothermal resources shall be sent to the Mineral Resources Management Division. All other applications shall be sent to the principal office.
NOTE
Authority cited: Sections 6102, 6103.2, 6105, 6108, and 6216, Public Resources Code. Reference: Section 6102, Public Resources Code.
HISTORY
1. Change without regulatory effect amending section filed 8-15-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 33).
2. Change without regulatory effect amending section filed 11-21-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 47).
§1902. Meetings of the Commission.
Note
The commission shall meet at Sacramento on the last Thursday of each month unless, upon due notice, the date and place of meeting are otherwise designated by at least two members.
NOTE
Authority cited: Sections 6104, 6105, and 6108, Public Resources Code. Reference: Section 6104, Public Resources Code.
§1904. Application Requirements and Priority.
Note
Application requirements and priority shall be as set forth in Public Resources Code Sections 6801 and 6223 respectively.
NOTE
Authority cited: Sections 6105, 6108, 6216, 6223, 6301, 6501.2, and 6801, Public Resources Code; and Section 65940, Government Code. Reference: Sections 6223 and 6501.2, Public Resources Code.
§1905. Filing and Processing Fees.
Note
Filing and processing fees shall be paid by applicants at the time of filing an application as follows:
(a) Filing fee $25.00
(b) Processing fee for Commission services computed and charged as follows:
(1) A non-refundable expense deposit for routine or uncomplicated services based on an average cost of such services; or
(2) A refundable expense deposit for non-routine and complicated services based on the estimated costs of such services. Any unexpended portion of such expense deposit shall be refunded to the applicant;
(3) An additional expense deposit for additional or unanticipated services, to be paid within 21 days of written notice being mailed to the applicant. Any unexpended portion of such expense deposit shall be refunded to the applicant.
NOTE
Authority cited: Sections 6105, 6108, 6214, 6218, 6309, 6321, 6502, 6503.5, 6703, and 7706, Public Resources Code. Reference: Sections 6214, 6218, and 7706, Public Resources Code.
Note
The Commission may require deposits of either bond, cash or other acceptable security to insure compliance with terms and conditions of bids, leases, contracts, or any other agreements.
NOTE
Authority cited: Sections 6005, 6105, 6108, 6301, 6405, 6501.2, 6829(d), and 6899, Public Resources Code. Reference: Sections 6501.2, and 6829(d), Public Resources Code.
Note
The Commission may require insurance against such risks and in such amounts that it may determine to be within the best interests of the state.
NOTE
Authority cited: Sections 6005, 6105, 6108, 6301, 6405, 6501.2, 6829, and 6899, Public Resources Code. Reference: Sections 6501.2, 6829, and 6899, Public Resources Code.
Note
(a) Except as otherwise provided in this chapter, when competitive bidding is required, it shall be conducted generally as follows:
(1) The Commission shall cause a notice of intent to receive bids to be published at least once in a newspaper of general circulation in the county in which the lands, interest or project is located and may have such notice published at least once in a newspaper of general circulation in the City of Los Angeles, or San Francisco, or Sacramento. Such notice shall specify the lands or interest (oil, gas or mineral lease; easement; timber; land; etc. for sale or project (public works or consultant contracts, oil, gas or mineral exploration, etc.) for bid, the time and place for the receipt and opening of bids, and the availability of appropriate approved bid packages and forms at the office of the Commission.
(2) The Commission shall at the specified time and place publicly open or have opened the sealed bids and shall award the highest or lowest responsible bidder, as appropriate, unless, in the opinion of the Commission such award is not in the best interest of the State, in which case the Commission may reject all existing bids and call for new ones or terminate bidding.
(3) The Commission shall have broad discretion as to whether a bidder is “responsible” based on what it deems to be in the best interest of the State.
(4) Except as otherwise provided in the bid instructions specifying a shorter period, and/or limiting the firm bid requirement to a specific number of high or low bidders as appropriate, each bid shall be a firm bid, irrevocable for a period not to exceed ninety (90) days from the date of bid opening.
(b) Bidders shall bear all reasonable expenses incurred by the Commission for bid processing and award including costs of approval, advertising and environmental review, in accordance with terms set forth in the approved bid package.
NOTE
Authority cited: Sections 6005, 6105, 6108, 6218, 6405, 6406, 6501.2, 6811, 6815.2, 6827, 6834, 6835, 6836, 6852, 6871.3, 6874, 6900, 6992, 6993, 7052, 7301, 7361, 7501, and 7604, Public Resources Code. Reference: Sections 6005, 6811, 6827, 6834, 6835, 6836, 6852, 6871.3, 6912, 6992, and 7059, Public Resources Code.
§1910. Execution and Delivery of Documents.
Note
All documents to be executed by applicant shall be signed by the applicant and certified, witnessed or acknowledged as required, prior to their execution and delivery by the Commission.
NOTE
Authority cited: Sections 6105, 6106, 6108, and 6504, Public Resources Code. Reference: Sections 6106 and 6108, Public Resources Code.
§1911. Interest and Penalty Payments.
Note • History
(a) Time of Payment
(1) Any payment pursuant to any permit, lease, contract, or other agreement due the Commission shall be paid on or before the date specified in the instrument.
(2) If the date that a sum becomes due and payable to the Commission is a Saturday, Sunday, Federal or State holiday, the due date is extended to the next business day.
(3) Timeliness of receipt of remittances sent by mail to the Commission shall be governed by the postmark date as described in Government Code Section 11002.
(4) In case of a postmark by a private postage meter, the date specified thereon shall be considered as the date of payment. Where a payment is received after the due date and where a question arises as to the actual date of mailing, a declaration executed under penalty of perjury by the person responsible for the mailing of payment to the State specifying the date of mailing shall be considered as evidence of the date of actual mailing.
(b) Interest and Penalty
Unless otherwise provided in the permit, lease, contract, or other agreement:
(1) Simple interest shall be calculated at the rate of one and one-half percent (1 1/2%) per month on the amount due the Commission from the date payment was due the Commission until the date the payment is received.
(2) Penalties shall be calculated at the rate of five percent (5%) on the principal sum due the Commission.
(3) Interest and penalty shall be charged for failure to make a timely payment; or the mode of payment is not honored by a bank, savings and loan, post office, or other financial institution.
(c) Exemption from Interest and Penalty
(1) The Commission may waive the assessment of interest and/or penalty where:
(A) Incorrect instructions were rendered to a party by the Commission's staff, or use by the party of an accounting procedure pursuant to an agreement with a member of the Commission staff; or
(B) Notwithstanding the provisions of paragraph (2) infra, negotiated settlements are approved by the Commission and provide for a waiver of penalty and/or interest.
(2) Penalty only shall be excused where failure to make a timely payment was due to one of the following:
(A) The death or serious illness of a natural party;
(B) Catastrophe, such as fire, flood, theft, vandalism, or riot;
(C) The fact the books and records of a party were impounded by court order, or were in the hands of a Federal or State agency, and unavailable for use by the party;
(D) The discovery by a party, before that of the Commission staff, of the erroneous amount of a party's original payment and the prompt tender by the party of the balance due.
(d) Payments
Payments shall be applied to retire obligations in the following order:
(1) interest and penalty
(2) past principal
(3) current principal
(e) Any person who uses or occupies any lands owned or controlled by the State under the jurisdiction of the Commission without a lease, permit or other agreement and who subsequently obtains a lease, permit or other agreement providing for the payment of back rent, shall pay penalty and interest in accordance with the provisions in (b), (c), and (d) above.
NOTE
Authority cited: Sections 6108 and 6224, Public Resources Code. Reference: Section 6224, Public Resources Code; and Section 11002, Government Code.
HISTORY
1. New section filed 12-6-83; effective thirtieth day thereafter (Register 83, No. 50).
Article 1.5. Meeting Notice and Agenda Requirements
NOTE
Authority cited: Section 6108, Public Resources Code. Reference: Division 6, Public Resources Code.
HISTORY
1. New Article 1.5 (Sections 1950-1954) filed 7-31-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer of Article 1.5 (Sections 1950-1954) filed 11-23-82; effective thirtieth day thereafter (Register 82, No. 48).
Article 2. Leasing or Other Use of Public Lands
Note • History
(a) This article applies to the leasing of all lands under the Commission's jurisdiction for all surface uses except the exploration for or extraction of natural resources including minerals, oil, gas or other hydrocarbons, or geothermal resources or any other natural resources, excluding timber.
(b) Leases or permits may be issued to qualified applicants and the Commission shall have broad discretion in all aspects of leasing including category of lease or permit and which use, method or amount of rental is most appropriate, whether competitive bidding should be used in awarding a lease, what term should apply, how rental should be adjusted during the term, whether bonding and insurance should be required and in what amounts, whether an applicant is “qualified,” etc. based on what it deems to be in the best interest of the State.
(c) Leases or permits for tide or submerged lands shall generally only be issued to riparian or littoral upland owners or use right holders, provided however that such leases or permits may be granted to the best qualified applicant irrespective of riparian or littoral status.
(d) Leases or permits for school, lieu or indemnity lands shall be for value or value enhancement purposes.
NOTE
Authority cited: Sections 6005, 6105, 6108, 6216, 6301, 6309, 6321, 6501, 6501.1, and 6501.2, Public Resources Code. Reference: Sections 6216, 6501.1, and 6501.2, Public Resources Code.
HISTORY
1. Repealer of Article 2 (Sections 2000-2017) and new Article 2 (Sections 2000-2012) filed 2-2-77; designated effective 3-1-77 (Register 77, No. 6). For prior history, see Registers 55, No. 12; 64, No. 23; 65, No. 25; 69, No. 15; 70, No. 11; 73, No. 9; and 75; No. 22.
2. Repealer of Article 2 (Sections 2000-2012) and new Article 2 (Sections 2000-2010) filed 6-2-78; effective thirtieth day thereafter (Register 78, No. 22).
3. Repealer of Article 2 (Sections 2000-2010) and new Article 2 (Sections 2000-2004) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49).
Note
Applications for leases or permits under this article are available from and shall be submitted to the principal office of the Commission.
NOTE
Authority cited: Sections 6105, 6108, 6223, 6321, 6501, 6501.2, and 6502, Public Resources Code. Reference: Sections 6321 and 6502, Public Resources Code.
§2002. Categories of Leases or Permits.
Note
(a) General Lease: Uses may include the following:
(1) Commercial: Income producing uses such as marinas, restaurants, clubhouses, recreation piers or facilities, docks, moorings, buoys, helicopter pads, decks or gas service facilities.
(2) Industrial: Uses such as oil terminals, piers, wharves, warehouses, stowage sites, moorings, dolphins and islands; together with necessary appurtenances.
(3) Right of Way: Uses such as roadways, power lines, pipelines or outfall lines, except when used only as necessary appurtenances.
(b) General Permit: Uses may include the following:
(1) Public agency uses such as public roads, bridges, recreation areas or wildlife refuges having a statewide public benefit;
(2) Public Resources Code Section 6321 protective structures such as groins, jetties, sea walls, breakwaters and bulkheads;
(3) Non income producing uses such as piers, buoys, floats, boathouses, docks, waterski facilities, and campsites not qualifying for a private recreational pier permit under 2002(f). Other uses may include campsites, cabins, dwellings, arks, houseboats, or boathouses provided that when such uses are located on sovereign lands that such uses are not found to be inconsistent with public trust needs.
(c) Grazing Lease: Use includes the feeding of livestock on forage.
(d) Agricultural Lease: Uses may include farming, silviculture and horticulture.
(e) Forest Management Agreement: Uses may include reforestation, improvement of timber growth and soil productivity, vegetation control, reduction of fire and erosion hazards, insect or disease control or any other use that enhances the value of lands subject to the agreement.
(f) Private Recreational Pier Permit: Use is limited to any fixed facility for the docking or mooring of boats constructed for the use of the littoral landowner, as specified in Public Resources Code Section 6503.5, and does not include swimming floats or platforms, sun decks, swim areas, fishing platforms, residential, recreational dressing, storage or eating facilities or areas attached or adjacent to recreational piers, or any other facilities not constructed for the docking or mooring of boats.
(g) Salvage Permit: Use includes the salvage of all abandoned property over and upon ungranted tide and submerged lands of the State which property belongs to the State and is under the Commission's jurisdiction pursuant to Public Resources Code Section 6309. The Commission may retain or sell any or all salvaged property or may allow the permit applicant to retain it.
NOTE
Authority cited: Sections 6105, 6108, 6201, 6210.3, 6221, 6309, 6321, 6322, 6501, 6501.1, and 6501.2, Public Resources Code. Reference: Sections 6201, 6309, 6321, 6501.1, and 6503.5, Public Resources Code.
Note • History
(a) Rental for the various categories of uses shall be generally as follows:
(1) Commercial Use: An annual rental based on any one or combination of the following rental methods, with a minimum rental of $250:
(A) A percentage of annual gross income (the percentage being based on an analysis of the market for like uses and other relevant factors);
(B) 9% of the appraised value of the leased land;
(C) The volume of commodities passing over the lease premises.
(2) Industrial Use: An annual rental based on any one or combination of the following rental methods with a minimum rental of $250:
(A) 9% of the appraised value of the leased land together with 2H per diameter inch per lineal foot of pipelines and conduits on the leased premises;
(B) The volume of commodities passing over the lease premises.
(3) Right-of-Way Use: An annual rental based on any one or combination of the following rental methods with a minimum rental of $100:
(A) 9% of the appraised value of the leased lands, together with compensation for any damage caused to such lands;
(B) 2¢ per diameter inch per lineal foot;
(C) The volume of commodities passing over the lease premises.
(4) General Permits: Annual rental shall be based on 9% of the appraised value of the leased lands with a minimum rental of $50.
(A) No rental shall be charged for public agency use of tide and submerged lands if the Commission at its sole discretion, determines that a statewide public benefit accrues from such use.
(B) Monetary rental for Public Resources Code Section 6321 protective structures may be waived if the Commission determines that a public benefit accrues from the installation of such structures.
(5) Private Recreational Pier Permits: Pursuant to Public Resources Code Section 6503.5 a rent free permit shall be issued to those applicants demonstrating their qualifications under that section as implemented by 2002(f).
(6) Grazing: An annual rental based on appraised value for the intended use.
(7) Agricultural: An annual rental based on any one or a combination of the following rental methods with a minimum rental of $250:
(A) A percentage of annual gross income (the percentage being based on analysis of the market for like uses and other relevant factors);
(B) 9% of appraised value of the leased lands.
(8) Forest Management Agreements: Rental shall constitute enhancement of the land's value resulting from the use.
(9) Salvage Permit: Rental shall be as follows:
(A) A rental of $25.00 per annum per acre, computed on a whole or fractional basis, for the total acreage of the permit area; and
(B) 25% of the net salvage value up to $25,000 and 50% of all such value over that amount for all salvaged property the salvor is permitted to retain; or
(C) The net salvage value of any property the State retains less any rental to which it is entitled; and
(D) Such other consideration as may be deemed by the Commission to be in the best interest of the State.
(b) The following factors shall be considered by the Commission in determining which rental method should apply:
(1) The amount of rental the State would receive under various rental methods;
(2) Whether relevant, reliable and comparable data is available concerning the value of the land proposed to be leased;
(3) Whether a particular method or amount of rental would effectively cause an applicant to use more competitive substitute land or to abandon its project altogether;
(4) Whether the land proposed to be leased has been classified as environmentally significant pursuant to Public Resources Code Section 6371.
(5) The monetary value of actual or potential environmental damage anticipated from an applicant's proposed use to the extent such damage is quantifiable;
(6) Other factors relating to the appropriateness of the proposed rental method.
(c) The following limitations shall apply to rental based on the volume of commodities passing over State lands:
(1) Rental shall not be imposed more than once for the identical commodity passing over the same State land if the ownership of that commodity has not changed.
(2) The rental rate for a right-of-way for passage of a commodity across State lands shall be made proportional to the percentage of the total length of the pipeline or conduit that such right-of-way comprises. For the purposes of this section, the total length of a pipeline or conduit shall be the length of the pipeline or conduit between two facilities, uninterrupted by another facility. “Facility” includes terminal, production, storage, refining, manufacturing, processing, mixing or intermixing facilities.
(d) Rental adjustment during the lease term shall be provided for as appropriate.
NOTE
Authority cited: Sections 6105, 6108, 6309, 6321.2, 6503, 6503.5, and 6504, Public Resources Code. Reference: Sections 6321.2, 6503, 6503.5, and 6504, Public Resources Code.
HISTORY
1. Editorial correction of printing error in subsection (a) (Register 92, No. 22).
Note
(a) The term for leases and permits including any optional renewal periods shall be no longer than necessary to accomplish the intended use or purpose.
(b) The term shall be limited according to standard commercial practices with maximum terms as follows:
(1) General Lease 49 years
General Permit
Forest Management Agreement
(2) Agricultural Lease 25 years
(3) Grazing Lease 10 years
Private Recreational Pier Permit
General Permit Recreational Use
(4) Salvage Permit 1 year but
extendable for
one additional
year.
NOTE
Authority cited: Sections 6008, 6105, 6108, 6309, 6321, 6501, 6501.2, and 6505.5, Public Resources Code. Reference: Sections 6501.2 and 6505.5, Public Resources Code.
Article 2.1. Sale of Public Lands and Timber
Note • History
(a) Sales of tide and submerged lands are prohibited.
(b) Sales of school, lieu or indemnity lands are restricted as follows:
(1) No new purchase applications shall be accepted except those from public agencies, entities or utilities or under the circumstances determined by the Commission to be in the best interest of the State. Such sales may be accomplished with or without competitive bidding.
(2) The Commission on a selective basis may offer individual parcels for sale to the general public pursuant to competitive bidding on terms and conditions set forth in an approved bid package.
(3) An existing lessee on any parcel offered for sale shall have the right to match the highest bid.
NOTE
Authority cited: Sections 6005, 6105, 6108, 6210.2, 6216, 6301, 7301, 7351, 7352, 7357, 7405, 7406, 7409, 7410, and 7418, Public Resources Code. Reference: Sections 6216, 7301, 7352, 7357, and 7410, Public Resources Code.
HISTORY
1. New Article 2.1 (Sections 2030-2034, not consecutive) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49).
Note
Applications for purchase of lands or interests under this article shall be available from and shall be filed with the principal office of the Commission. Purchase applications shall be processed according to the date the application is accepted as complete by the State.
NOTE
Authority cited: Sections 6105, 6108, 6223, 6301, 7301, 7352, 7353, 7355, 7356, 7358, and 7410, Public Resources Code. Reference: Sections 6223 and 7356, Public Resources Code.
Note
The sale price of lands sold under this article shall be equal to or greater than the appraised fair market value of such lands.
NOTE
Authority cited: Sections 6105, 6108, 7301, 7305, 7352, 7410, and 7413, Public Resources Code. Reference: Section 7305, Public Resources Code.
Note
(a) Timber sales shall be conducted pursuant to competitive bidding, on terms and conditions set forth in an approved bid package for a price of no less than appraised fair market value except that:
(1) Sales of small volumes of timber valued at $25,000 or less or emergency salvage sales of fire, insect or disease damaged timber may be sold by direct solicitation of bids; and
(2) The removal of pre-commercial or dead or down trees for the purpose of stimulating the growth of residual trees or to reduce fire, insects, disease or other hazards may be conducted without charge.
(b) Payment shall be:
(1) Based on an estimated volume of standing timber or when appropriate by log scale of the timber designated for sale by species; and
(2) Made in cash in full at the time of bidder award for sales having a price of $25,000 or less, and
(3) Made in two or more installments covering separate cutting blocks for sales having a price greater than $25,000, the first payment to be made at the time of bidder award and subsequent payments to be made at specified times.
(c) Reforestation or rehabilitation may be required as a condition of sale.
NOTE
Authority cited: Sections 6105, 6108, 6211, 6216, 6301, and 7361, Public Resources Code. Reference: Sections 6216 and 7361, Public Resources Code.
Article 2.5. Salvage Permits for Abandoned Property
NOTE
Authority cited: Section 6108, Public Resources Code.
HISTORY
1. New Article 2.5 (Sections 2050-2053) filed 5-30-75; designated effective 6-30-75 (Register 75, No. 22).
2. Repealer of Article 2.5 (Sections 2050-2053) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49). For prior history, see Register 77, No. 6.
Article 2.9. Exploration Permits
§2100. Application for Exploration Permits.
Note • History
General permits are required for the conduct of geophysical surveys and geological surveys on State lands.
(a) Any person who meets the requirements of Section 6801 of the Public Resources Code may apply to the Commission for a geophysical survey or geological survey general permit. Such application shall contain the following:
(1) A description and map of the State lands involved.
(2) Name, address, and status of citizenship of applicant; if the applicant is a corporation, the corporate name and status, the name of the president, the secretary, and an officer authorized to execute contracts and leases and receive service of process.
(3) A description of the proposed survey methods.
(4) The dates when the survey will be commenced and completed.
(5) The purpose for conducting the survey.
NOTE
Authority cited: Section 6108, Public Resources Code. Reference: Sections 6212.2, 6801 and 6826, Public Resources Code.
HISTORY
1. Repealer of Section 2100 in Article 3 and new Article 2.9 (Section 2100) filed 6-25-82; designated effective 8-26-82 (Register 82, No. 26). For history of former section, see Registers 77, No. 6; 73, No. 9; 64, No. 17; and 61, No. 15.
Article 3. Oil and Gas Leases, Exploration Permits, and Operating Requirements
History
HISTORY
1. Repealer filed 6-25-82; designated effective 8-26-82 (Register 82, No. 26).
§2102. Alteration of Facilities.
Any proposed change in, or addition to, pipe line systems or any proposed installation or removal of equipment which can result in a different routing of production to or from the gauge tanks shall be reported to the state inspector giving the reason for such proposed change, addition, installation or removal at least 24 hours prior thereto. Plats and drawings showing the change shall be furnished to the Division of State Lands upon request.
History
(a) All oil shall be stored in tanks suitable for accepted methods of calibration, gauging and sampling as expressed by the American Petroleum Institute Code.
(b) Tanks shall be equipped with such safety devices and fire walls as are required in the area in which such tanks are located.
(c) Sufficient tankage shall be provided by the lessee.
(d) No tank trucks, trailers, tank cars, or vessels will be gauged unless proper certified gauge tables or other adequate evidence of container capacity is presented to the inspector and approved by him in advance of use.
(e) Sediment and other material deposited on or near the bottom of tanks shall be removed to permit proper gauging and sampling at the request of the inspector.
(f) All gauge tanks shall be strapped and calibrated by a disinterested party. The process shall be in accordance with that expressed in the American Petroleum Institute Code. Strapping and calibration of gauge tanks by a representative of an interested party may be permitted only upon advance notification of such action to and approval by the Division of State Lands.
(g) When tanks are to be strapped or restrapped, the inspector shall be notified at least 24 hours in advance to permit him to be a witness to the procedure.
(h) All tanks shall be calibrated in barrels (of 42 gallons per barrel) and the volume expressed in gauge tables computed to the nearest one-hundredth of a barrel for each one-eighth of an inch in tank height, or in accordance with the procedure expressed in the American Petroleum Institute Code.
(i) Gauge tables in duplicate for each gauge tank shall be furnished to the Division of State Lands immediately upon preparation. Additional sets of gauge tables shall be furnished to the Division of State Lands upon request.
HISTORY
1. Amendment filed 8-17-55, effective thirtieth day thereafter (Register 55, No. 12).
(a) At the time of taking the high gauge of a tank the inspector shall seal or lock all inlet lines to the tank and any seals on the tank outlet line shall be removed.
(b) At the time of taking the low gauge of a tank the inspector shall seal or lock all outlet lines from the tank and any seals on the inlet line shall be removed.
(c) In the event any such state tank seal is removed, except by those authorized to do so, payments shall be made to the State for the run as estimated by the inspector at the rate then prevailing for oil of the highest gravity run from the tank during the previous 30 days.
(d) Under no circumstances shall any person other than the inspector remove, break, or alter, any seal or lock installed by the State unless the consent of the inspector in charge of the field is first obtained. Such consent must be confirmed by the inspector in writing, otherwise the procedure specified in Section 2104(c) will govern. Where operations require, seals on bleeder valves and meter by-passes may be removed on the condition that such removal and the time thereof are reported on the applicable daily operating reports. Failure to report such removal may result in the recession of permission to the operator to remove seals from bleeder valves and meter by-passes under any operating conditions.
§2105. Shipments from Sumps or Pits.
Before any shipment of fluid is made any sump or pit, notice shall be given to the inspector. The quantity of the fluid shipped from any sump or pit shall be determined by the inspector and the quality shall be fixed by laboratory tests made pursuant to Section 2108 hereof. In the event that any fluid is shipped from any sump or pit without such determination by the inspector, the full capacity of the sump or pit will be considered to have been run and payments shall be made to the State for this presumed run at the rate then prevailing for oil of the highest gravity run from the lease during the previous 30 days.
(a) Previous to high or opening gauge all free water shall be drawn from the tank until the maximum level of nonmerchantable oil and water shall be at least four inches below the bottom of the outlet connection.
(b) All oil to be gauged and shipped shall be in a marketable condition, i.e., the percentage of bottom sediment and water as shown on test shall not exceed 3 percent, if dehydration or cleaning costs are to be allowed.
(c) Where a tank sample shows a bottom sediment and water content greater than 3 percent and the contents are shipped, the gravity of the wet oil shall be reduced to 3 percent wet gravity and such gravity shall form the payment of the state royalty.
(d) Where an adjustment is made from a wet gravity to another wet gravity or to a dry gravity, the adjustment shall be made by the calculation of the American Petroleum Institute gravity of the oil in the mixture or emulsion or by means of the correction chart published by the Division of State Lands for that purpose, such chart being known as “Gravity of Oil in Mixtures or Emulsions of Oil and Water.” In all adjustments of gravity by calculation, or the use of a correction chart, the specific gravity of the water in the mixture or emulsion shall be considered as 1.0000 at 60 degrees F. unless prior written approval has been secured for another value of specific gravity as determined by tests of the water produced.
(a) Gauges shall be taken by an inspector in the presence of a representative of the lessee. In the event of disagreement, gauges shall be retaken, the average of which shall be binding. In the event that a representative of the lessee is not present after having been given an opportunity to be present, gauges taken by the State shall be binding on the lessee.
(b) Gauges shall be taken as specified in the American Petroleum Institute Code.
(c) Temperature of the oil in a tank shall be taken at the time of gauging with a standard thermometer which shall be immersed not less than two minutes at or about the midpoint of the column of oil, not less than 12 inches from the tank shell, and in the manner expressed in the American Petroleum Institute Code.
(d) Samples for laboratory testing shall be taken at the time of the high or opening gauge.
(e) The method of sampling shall correspond with the method expressed in the American Petroleum Institute Code.
(f) A sample shall consist of one liquid quart and the means for taking such sample shall be furnished by the lessee.
§2107.5. Automatic Custody Transfer.
History
(a) Any applicant holding a lease may submit an application to install lease automatic custody transfer equipment. The application shall include (1) a schematic drawing of the proposed system, and (2) specifications of the major equipment components. The lessee shall afford access to any manufacturer's drawings and equipment specifications of the major equipment components which the commission may deem necessary.
(b) Positive displacement meter installations in lease automatic custody transfer equipment shall comply with specifications outlined in the latest revision of American Petroleum Institute Code No. 1101, unless specifically modified with the approval of the State Lands Division. The equipment shall include a means for proportional sampling for securing laboratory test samples, or a means for quality measurement.
(c) Upon determination that acceptable standards of accuracy for measuring oil shipments have been obtained, the commission will approve oil shipments by lease automatic custody transfer.
(d) The equipment shall be maintained and operated in a manner so as to meet the accepted standards of accuracy for the measurement of oil shipments. Use of this equipment shall be discontinued at any time upon determination by the lessee or the inspector that the standards of measurement of accuracy or quality are not being obtained.
(e) The opening and closing meter readings shall be made with a state gauger present.
(f) A memorandum of transfer (run ticket) shall be furnished the State for each run of oil within 24 hours of the completion of such run.
(g) For each run of oil, a copy of official “Gauger's Report of Oil Run” will be furnished to the lessee.
(h) Where approved lease automatic custody transfer equipment is in operation, the provisions of Sections 2104, 2106(d), 2107 and 2109 of this title are not applicable. Where circumstances require conventional gauging for custody transfer, the aforesaid sections shall apply.
HISTORY
1. New section filed 3-4-60; effective thirtieth day thereafter (Register 60, No. 5).
2. Refiled 6-14-60 (Register 60, No. 14).
(a) All laboratory tests shall be made in accordance with the procedure expressed in the American Petroleum Institute Code and shall consist primarily of the gravity and bottom sediment and water content determination. Samples for laboratory tests shall be furnished by the lessee as required by the State.
(b) Laboratory tests shall be run not later than 24 hours after the time of taking the samples.
(c) The readings and results of tests of oil samples made by the State shall be binding upon the lessee.
(d) Lessee may furnish necessary laboratory equipment to American Petroleum Institute standards, in which event the inspector may make use thereof.
(a) A memorandum of transfer shall be furnished the State for each run of oil from lessee's gauged tanks within 24 hours of the completion of such run.
(b) For each run of oil from the lessee's gauged tanks a copy of an official “Gauger's Report of Oil Run” will be furnished to the lessee.
§2110. Quantity Determination.
History
The volume of oil run shall be the volume corrected to 60 degrees F. according to the schedule “American Petroleum Institute Standard 2540, Table 6 (ASTMD-1250, Tables 6 and 24).”
HISTORY
1. Amendment filed 12-27-73: effective thirtieth day thereafter (Register 73, No. 52).
§2111. Tests and Measurements of Gas.
(a) Gasoline content tests shall be made by or for the lessee at least once a month and at such other intervals as appear to be necessary in the opinion of the inspector.
(b) An inspector shall be permitted to witness any tests for the gasoline content of casinghead gas.
(c) All tests and measurements of gas shall be in accordance with the procedure expressed by the California Natural Gas Association in Bulletins T.S. 351, T.S. 353, T.S. 354, and any revisions thereof.
(a) A daily report in the form prescribed by the Division of State Lands shall be furnished as required.
(b) Monthly reports shall be furnished to the Division of State Lands as required.
No oil or gas well shall be redrilled except upon prior approval of the Division of State Lands. No application to redrill a well shall be approved unless it is shown that such redrill is necessary and in the public interest, and then only provided that:
(a) No point in the redrilled portion of the well, including the bottom thereof, shall be more than 100 feet from the original hole;
(b) No point in the redrilled hole shall be closer than 50 feet to the blanked off portion of any well not under the control of the drilling operator, other than the well to be redrilled;
(c) All redrilling within an oil zone shall be done with any standard circulating medium as used in good engineering practice and as approved specifically by the Division of State Lands.
(d) In case any point in the redrilled hole may come within 200 feet of the portion open to production of any well, other than the well to be redrilled, the applicant shall file with the Division of State Lands:
(1) Written consent from the operator of each well within said 200 feet, waiving any objection to the proposed redrilling operations;
(2) For each well, within said 200 feet, a surety bond, in an amount and for a period to be fixed by the commission, indemnifying the State against any loss, damage, claim, demand or action caused by or connected with the redrilling operations.
(a) No lessee shall drill an oil or gas well on state lands except on prior approval of the Division of State Lands and subject to the terms of the enabling statute and lease and then only provided that any well so drilled within any oil zone, shall be at least 50 feet away from the blanked off portions of any well not within control of the lessee and at least 200 feet away from the perforated section of any well not within the control of the lessee.
(b) As a preliminary condition to approval of the drilling of a well, the lessee shall submit the proposed course of the well with vertical and horizontal projections of said course drawn upon graph paper to a scale of 100 feet to the inch. Upon completion of the well, the lessee shall file with the Division of State Lands a complete survey of the well, electric log, well history, driller's log and all core data.
§2115. Perforations, Plug Backs and Reperforations.
For any well to be perforated or plugged back and reperforated within 200 feet of any well not within the control of the lessee, lessee shall file with the Division of State Lands:
(a) Written consent from any lessee having a well within said 200 feet, waiving any objection to the proposed plug back and reperforating operations, or;
(b) For each well within 200 feet of any well or wells a corporate surety bond in an amount and for a period to be fixed by the commission, for each application, indemnifying the State against any loss, damage, claim, demand or action, caused by or connected with the plug back, perforation or reperforation operations.
All drilling, redrilling, perforating, or reperforating operations within any oil zones shall be done with any standard circulating medium as used in good engineering practice and as approved specifically by the Division of State Lands. Whenever, in the opinion of the inspector, circulation is lost the lessee shall immediately start pumping into the hold such circulation regaining media as are approved in good engineering practice and are most applicable, in the opinion of the inspector, to the zone in which the hole is located.
Whenever the production of a well is determined to have been decreased because of the plugging of the well's perforations, the inspector may require the lessee to wash the well with a suitable perforation washing fluid.
§2118. Accounting for Royalty.
(a) No allowance shall be made for cost of dehydration unless specifically authorized in an existing lease, in which event the allowance shall be the actual cost of dehydration not to exceed 5 cents per net barrel of oil so dehydrated, or the allowance as specified in the lease, whichever is the lesser. Allowance for dehydration will be granted only after lessee has filed with the Division of State Lands an application in duplicate requesting the right to make deduction for dehydration, setting forth the method proposed to be employed and listing the equipment and value thereof installed exclusively for the dehydration of the oil produced from state oil and gas leases. After approval of the application, each operator shall file with the Division of State Lands before the tenth of the month subsequent to that for which dehydration deduction is requested, a detailed statement of the actual cost of dehydration proposed to be deducted from the gross royalty payable for the preceding month.
(b) Tank bottoms and sump oil shipments are to be reported on the following value basis:
Shipments of 0.0 percent to 3.0 percent cut--quoted market price for applicable dry gravity.
Shipments of 3.1 percent to 15.0 percent cut--quoted market price for applicable dry gravity less 5 cents per gross barrel at 60 degrees F.
Shipments of 15.1 percent cut and up--quoted market price for applicable dry gravity less 15 cents per gross barrel at 60 degrees F.
(c) All transfers of dry gas “Returned to Lease” or elsewhere, made by an operator for the use or benefit of other leases or of third parties, will be considered as sales under the terms of the lease.
(d) Whenever under Section 2116 crude oil is used as a circulating medium, the operator shall be allowed a credit of 25 percent of the volume of any foreign circulating oil used. This credit shall be deducted from the total number of barrels produced from the well during the 30-day period immediately following the well's completion.
(e) Whenever the State shall require the operator to use foreign oil to wash perforations of a producing well (Section 2117), the operator shall be allowed credit of 50 percent of the volume of the oil used in such washing as a deduction from the total number of barrel's produced from the well during the period of 30 days immediately succeeding such operations.
(f) Subsection (d) and (e) shall not apply to cases where the volume of circulating oil lost exceeds 5,000 barrels for any one operation. Such cases will be the subject of specific determinations as to periods and the amount of credit to be allowed.
(g) The value of oil used as a circulating medium or for washing perforations shall be that fixed by the lease for the quality and gravity of the oil so produced. Foreign oil is any oil not produced from the specific lease of the affected lessee.
§2119. Diligence of Operation.
All wells capable of producing oil, gas or other petroleum products in commercial quantities shall be operated continuously at the maximum efficient rate of recovery as determined by recognized engineering standards and in accordance with field production schedules acceptable to the Division of State Lands, unless written authorization is otherwise granted.
Note • History
All offshore filled lands or piers or other structure or structures constructed for operations on a state oil and gas lease and all operations including drilling, whether from upland, littoral or offshore locations, shall conform with the rules and regulations of the commission in effect at the time of invitation for bids, in pursuance of which the lease may be awarded, and with the conditions as specified in the bid-lease form.
NOTE
Authority cited for Sections 2120 through 2124; Public Resources Code, Division VI, Sections 6103, 6105, 6108, 6216, 6301, 6873 and 6873.1.
HISTORY
1. New Sections 2120 through 2124 filed 5-28-58 as an emergency; effective upon filing (Register 56, No. 10).
§2121. Suspension of Operations.
The lessee shall suspend any drilling and production operations, except those which are corrective, protective, or mitigative, immediately in the event of any disaster or of contamination or pollution caused in any manner or resulting from operations under a lease. Such drilling and production operations shall not be resumed until adequate corrective measures have been taken and authorization of resumption of operations has been made by the commission.
§2122. Lease Operation Offshore.
For all wells drilled from filled land or other drill sites or structure or structures located seaward of the ordinary high water mark, operations that may be conducted shall conform with the following:
(a) The lessee shall remove the derrick from each well within sixty (60) days after lessee has ceased making use of such derrick in its operations on and with respect to such well.
(b) In the discretion of the commission, all permanent operating sites shall be landscaped with shrubbery, or fenced, so as to screen from public view as far as possible the tanks, pumps or other permanent equipment. Such landscaping and shrubbery, or fencing, are to be kept in good condition.
(c) Oil, tar, or other residuary products of oil, or any refuse of any kind from any well or works, shall be disposed of on shore in a dumping area in conformance with local regulatory requirements.
(d) Suitable and adequate sanitary toilet and washing facilities shall be installed and maintained in a clean and sanitary condition at all times for the use of lessee's personnel.
(e) All drilling and production operations shall be conducted in such manner as to eliminate as far as practicable dust, noise, vibration, or noxious odors.
(f) Pollution and contamination of the ocean and tide lands and all impairment of and interference with bathing, fishing, or navigation in the waters of the ocean or any bay or inlet thereof is prohibited, and no oil, tar, residuary product of oil or any refuse of any kind from any well or works shall be permitted to be deposited on or pass into the waters of the ocean or any bay or inlet thereof.
(g) No permanent filled lands, piers, platforms, or other fixed or floating structures in, on, or over the tide and submerged lands covered by the lease or otherwise available to the lessee shall be permitted to be constructed, used, maintained, or operated where service of less than 20 wells is provided for, without specific authority by the commission. Operating wells not meeting the foregoing requirement shall be completed below such elevation as may be required in each case by the United States, the State, or other competent authority, with the production piped along or below the floor of the ocean to such receiving points as the commission may determine or approve. For nonoperative wells the structures or facilities used for their drilling shall be removed to the satisfaction of the commission within ninety (90) days' time after such wells have been determined to be nonoperative unless a longer period is approved by the commission.
§2123. Lease Operations on Uplands.
For all wells drilled from an upland or littoral drillsite landward of the ordinary high water mark, operations that may be conducted shall conform with the following:
(a) The lessee shall remove the derrick from each well within sixty (60) days after lessee has ceased making use of such derrick in its operations on and with respect to such well.
(b) In the discretion of the commission, all permanent operating sites shall be landscaped with shrubbery, or fenced, so as to screen from public view as far as possible the tanks, pumps, or other permanent equipment. Such landscaping and shrubbery, or fencing, are to be kept in good condition.
(c) All drilling and production operations shall be conducted in such manner as to eliminate, as far as practicable, dust, noise, vibration or noxious odors.
(d) Suitable and adequate sanitary toilet and washing facilities shall be installed and maintained in a clean and sanitary condition at all times for the use of lessee's personnel.
(e) No sign shall be constructed or erected, maintained or placed on the premises except those required by law or ordinance to be displayed in connection with the drilling or maintenance of the well.
(f) Pollution and contamination of the ocean and tide lands and all impairment of and interference with bathing, fishing, or navigation in the waters of the ocean or any bay or inlet thereof is prohibited; and no oil, tar, residuary product of oil or any refuse of any kind from any well or works shall be permitted to be deposited on or pass into the waters of the ocean or any bay or inlet thereof.
(g) Oil, tar, or other residuary products of oil, or any refuse of any kind from any well or works, shall be disposed of onshore in a dumping area in conformance with local regulatory requirements.
§2124. Surrender of Leased Premises.
Each lease shall provide that at the expiration of the lease or sooner termination thereof the lessee shall surrender the premises leased, with all permanent improvements thereon, in good order and condition, or, at the option of the commission and as specified by the commission, the lessee shall remove such structures, fixtures and other things as have been put on the lease by the lessee, all removal costs to be borne by the lessee, subject to the lessee's right to remove his equipment as provided in the statutes. Notwithstanding any provision of these regulations, the lessee shall have the right to remove any and all drilling and producing platforms and other oil field development and producing equipment having a re-use or salvage value.
Article 3.2. Oil and Gas Drilling Regulations
Note • History
(a) This Article 3.2 pertains to oil and gas drilling operations on State oil and gas leases located on State tide and submerged lands under the jurisdiction of the State Lands Commission, and is applicable to operations conducted from mobile rigs, fixed offshore structures and upland locations serving these leases.
(b) In addition to complying with Division 6 of the California Public Resources Code and with Title 2, Division 3, Chapter 1 of the California Administrative Code, the lessee shall comply with all applicable laws, rules and regulations, now or hereafter promulgated, of the United States and of the State of California and of any respective political subdivision thereof, including, but not limited to, those of the Division of Oil and Gas, the Department of Fish and Game, the Division of Industrial Safety, the State Water Resources Control Board, the Regional Water Quality Control Boards, the California Coastal Commission, and any respective successors thereto.
(c) All drilling operations conducted on State oil and gas leases shall be carried on in a proper and workmanlike manner in accordance with accepted good oilfield practice.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
HISTORY
1. New Article 3.2 (Sections 2125-2128) filed 6-13-80; effective thirtieth day thereafter (Register 80, No. 24).
Note
For purposes of this Article 3.2, the following definitions shall apply:
(a) “Drilling operations” include, but are not necessarily limited to, exploratory and development well drilling, redrilling and deepening of a well and well abandonment.
(b) “Staff” shall mean the Executive Officer or other duly authorized member of the staff of the State Lands Commission.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Note
(a) The Staff shall administer this Article 3.2 and shall thereby seek to provide for the prevention and elimination of any contamination or pollution of the ocean and tidelands, for the prevention of waste, for the conservation of natural resources, and for the protection of human health and safety and of property.
(b) The Commission has designed these regulations in as great detail as possible. However, the Commission recognizes that situations may arise which are not specifically covered by this Article 3.2 and that emergency situations may arise which will require immediate decisions by the Staff. In such situations, the Executive Officer or his designee may authorize or direct appropriate procedures to be followed.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Note
(a) General Provisions.
(1) All drilling for oil and gas on State oil and gas leases shall be conducted in accordance with the provisions of this Section 2128.
(2) Prior to the commencement of drilling operations on any well, each well drilling proposal shall be approved by the Staff.
(3) Prior to the commencement of drilling operations on any well, the lessee shall obtain all necessary permits and approvals required by all applicable laws and regulations. The lessee shall file copies of those permits and approvals and related documents with the State Lands Commission prior to the commencement of drilling operations. The lessee shall abide by the terms of those permits and approvals, including but not limited to, any required notifications prior to the lessee's commencement of drilling operations.
(b) Field Drilling Rules. When sufficient geological and engineering information has been compiled on a lease from exploratory and initial development well drilling, the lessee may make application to the Staff for the establishment of field drilling rules. After the Staff has established field drilling rules, subsequent development well drilling shall be drilled in accordance with these rules. Field drilling rules may include but may not be limited to those relative to casing setting depths, casing cementing requirements and blowout prevention equipment.
(c) Well Site Investigation. Prior to commencing drilling operations on any well from a mobile drilling rig, the lessee shall investigate the conditions of the ocean floor and near sub-bottom including sediment characteristics in the area of the proposed well site. The investigation shall be adequate to (1) ascertain the presence of shallow geological anomalies and gather other information to be used as an aid in the design of a safe well drilling and casing program, and (2) determine the presence and location of significant cultural resources. A report of the findings and provisions for mitigating any problems disclosed by the investigation shall be provided to and must be approved by the Staff. Where a number of wells are proposed to be drilled, the area of study may be expanded to cover all the well sites. The plan(s) of investigation shall be in accordance with guidelines provided by the Staff.
(d) Drilling Program. Prior to drilling a well the lessee shall submit with the drilling proposal a detailed well-drilling program to the State Lands Commission that shall include but may not be limited to, the following information:
(1) Well location map; proposed well course; detailed drilling procedures; casing and cementing program; blowout prevention program; drilling mud program; directional survey program; electrical logging, mud logging and sampling programs; and well testing procedures.
(A) In all exploratory well drilling proposals, the lessee shall provide in the detailed drilling procedures a description and depth of the possible drilling hazards that might be encountered in drilling the well. The drilling hazards shall include, but may not be limited to, possible unstable bottom sediments, shallow gas-charged sediments, zones of lost circulation, oil and gas bearing zones, and abnormal pressured zones.
(B) In drilling operations using a mobile drilling rig, the lessee shall provide in the detailed drilling procedures an operational program which describes procedures and personnel assignments to be employed for rig and personnel safety while drilling the hole for and running the surface casing string(s). The program shall cover, but may not be limited to, requirements and procedures for testing and use of the diverter system; establishment of safe penetration rates; monitoring of mud returns for indication of gas and loss of circulation; evaluation of drilling breaks; evaluation of severity of gas shows or kicks; stand-by liquid mud and use in well control; emergency plugging of the well; safeguards while removing the drilling riser for running and cementing the casing string(s); precautionary measures for fire prevention; and, emergency movement of drilling rig off location.
(2) Specifications and performance data of drilling rig; critical operations and curtailment plan; oil spill contingency plan, and hydrogen sulfide contingency plan.
(e) Well Casing Requirements.
(1) All wells shall be cased and cemented in such a manner as to protect all zones that contain oil, gas, or fresh water, so as to provide well control during drilling operations.
(2) The casing setting depths shall be based upon all relevant geological and engineering factors, including the presence of shallow geological anomalies, the presence or absence of hydrocarbons, formation fracture gradients, formation pore pressures, water depth, and zones of lost circulation or of other unusual characteristics. Casing setting depths below the second surface casing shall be justified by calculations of the competency of the preceding casing seat to withstand anticipated mud weights, as well as the pressure generated by simulated well kicks from known or potential gas bearing zones, taking into consideration actual or estimated reservoir pressures, formation fracture gradients, minimum programmed mud weights and anticipated kick volumes.
In situations where formation fracture gradients are not known, a formation leak-off or predetermined equivalent mud weight test shall be conducted to obtain estimated formation fracture gradients for use in the calculations. These tests shall be conducted after drilling a maximum of 50 feet of new hole below the shoe of the second surface casing and intermediate casing strings. Additional tests should be performed as the drilling progresses in order to verify the competency of the formation to withstand anticipated pressures, and to further refine casing setting depths. The results of all the tests shall be recorded on the driller's log and reported to the Staff.
The known and estimated factors and calculations used to determine the casing setting depths, as well as the casing design safety factors and specifications shall be shown in the casing and cementing program required in Section 2128(d)(1).
(3) The lessee shall utilize current technological methods during drilling operations to aid in the prediction of possible abnormal pressured zones in order to minimize the potential for the development of a formation flow or kick.
(4) All casing shall be new pipe or the equivalent and shall be inspected by the lessee in a manner approved by the Staff. The inspection shall be sufficient to detect transverse and longitudinal defects, to determine wall thickness, pipe eccentricity and grade uniformity, and shall include a 100 percent thread check of the exposed threads. Casing inspection reports shall be maintained by the lessee in its district office for a period of five years, and shall be available to the Staff.
(5) Except in cases where casing requirements have been established by field drilling rules or where geological and engineering factors indicate that a different program should be used, the following casing and setting-depth requirements shall be included in all well casing programs. All depths refer to true vertical depth (TVD) below the ocean floor or ground level unless otherwise specified. In order of normal installation the casing strings are identified as conductor, first and second surface, intermediate, and production casing.
(A) Conductor Casing (Referred to as drive or structural casing in USGS Order No. 2). This casing shall be set by drilling, driving, or jetting to a depth of approximately 100 feet below the ocean floor or ground level in order to support unconsolidated sediments and thereby provide hole stability for initial drilling operations. If drilled or jetted in, the fluid circulated to the ocean floor shall be of a type that will not pollute the ocean environment.
(B) First Surface Casing (Referred to as conductor casing in USGS Order No. 2). This casing shall be set at a depth between 300 feet and 500 feet below the ocean floor; provided, however, that this casing shall be set before drilling into shallow formations known to contain oil or gas or, if unknown, upon encountering such formations.
(C) Second Surface Casing (Referred to as surface casing in USGS Order No. 2). This casing shall be set at a depth between 1,000 feet and 1,200 feet below the ocean floor, but may be set as deep as 1,500 feet in the event the first surface casing is set at least 450 feet below the ocean floor.
(D) Intermediate Casing. Intermediate casing shall be set in accordance with the requirements of Section 2128(e)(2). Notwithstanding these requirements, the Staff may specify the use and the setting depth of the intermediate casing. Also, protective casing shall be set at any depth below the second surface casing when required by well conditions such as abnormal pressure, loss of circulation, hole problems, and for the protection of productive zones while performing deeper drilling.
A blank liner may be used as intermediate casing provided the existing casing string is of adequate strength for conducting deeper drilling. The top of the liner shall overlap a minimum of 100 feet into the next larger casing string. The lap shall be tested by a fluid entry or pressure test to determine whether a seal between the liner top and next larger string has been achieved. The test shall be recorded on the driller's log. If the test indicates an improper seal, the top of the liner shall be squeezed with cement and retested.
(E) Production Casing. This casing shall be set before completing the well for production. A blank or combination liner may be run and cemented as production casing providing the existing casing string is of adequate strength for the safe conduct of production operations. The overlap requirement and the testing of the seal between the liner top and next larger casing string shall be conducted as specified in Section 2128(e)(5)d for intermediate liners. The surface casing shall not be used as production casing.
(f) Casing Cementing Requirements.
(1) The lessee shall utilize appropriate cementing technology and casing equipment in order to achieve adequate cement fillup and bonding on all casing cementing operations.
(2) The conductor (if drilled or jetted) and surface casing strings shall be cemented with sufficient cement to fill the annular space back to the surface or ocean floor. Cement fill shall be verified by the observation of cement returns. The cementing operation may be considered adequate if cement is circulated to the surface or ocean floor within the range of the calculated hole volume. In the event that cement returns are not obtained or cement channeling occurs during cementing of the surface casing strings, the lessee shall run a temperature and/or cement bond survey and/or pressure test the casing shoe to evaluate the adequacy of the cement job. If the casing string is thereby determined to be inadequately cemented, the lessee shall recement the casing string or perform other operations as approved by the Staff to ensure the competency of the cement job.
(3) The intermediate casing string(s) shall be cemented with sufficient cement to fill the annular space a minimum of 200 feet into the preceding larger casing string. The protective and production casing strings shall be cemented in a manner such that cement will cover or isolate zones of unusually high or low pressure and zones containing hydrocarbons. Sufficient cement shall be used to provide annular fillup at least 500 feet above the zones to be covered or isolated or above the casing shoe in cases where zonal coverage is not required. A cement bond survey shall be run following primary cementing of the intermediate, protective, and production casing strings to aid in determining whether each string is cemented in accordance with this Section 2128(f)(3). If a casing string is thereby determined not be adequately cemented, the lessee shall recement the casing string as necessary to achieve annular fillup and isolation of zones. If following a primary cementing operation, it has been determined without the aid of a cement bond survey that remedial cementing is necessary, the running of such survey may be deferred until after recementing. The lessee shall verify the adequacy of the remedial cementing operations by running a cement bond survey or by other methods approved by the staff.
(4) A copy of each temperature and cement bond survey shall be filed immediately with the Staff.
(5) After cementing any of the above casing strings, drilling shall not be commenced until after a time lapse of:
(A) 24 hours; or
(B) Sufficient time for the cement to reach a compressive strength of at least 500 pounds per square inch for the bottom 20 percent of the casing string. To determine the time that a minimum compressive strength of 500 pounds per square inch has been attained, the operator shall pretest the cement slurry at the projected hole temperature and pressure at the cementing depth in accordance with API recommended procedures.
(g) Pressure Testing of Casing. Prior to drilling out the plug after cementing, all casing strings except the conductor casing shall be pressure tested to at least the minimum pressure shown in the table below. In the event that the cement is under-displaced, the pressure test shall be conducted after drilling out cement to at least the float collar depth. This test shall not exceed 70% of the minimum internal yield pressure for the casing. If during the test, the pressure declines more than 10 percent in 30 minutes, or if there is any indication of a leak, corrective measures shall be taken so that a satisfactory test is obtained.
Casing String Minimum Surface Pressure Test (psi)
First Surface 200
Second Surface 1,000
Intermediate 1,500 or 0.2 psi/ft., whichever is greater
Protective 1,500 or 0.2 psi/ft., whichever is greater
Liner and Liner Lap 1,500 or 0.2 psi/ft., whichever is greater
Production 1,500 or 0.2 psi/ft., whichever is greater
All casing pressure tests shall be recorded on the driller's log.
(h) Directional Surveys. Each well shall be drilled in accordance with the approved well course.
Except as otherwise provided in field drilling rules, all wells drilled into the leased lands shall be directionally surveyed as drilling progresses giving both inclination and azimuth measurements. Directional survey shots shall be taken below the setting depth of the conductor casing string at intervals not exceeding 250 feet during the normal course of drilling and at intervals not exceeding 60 feet in angle changing portions of the hole. A multishot directional survey shall be run at casing setting depths and/or at total depth.
Results of directional and inclination survey shots shall be reported promptly to the Staff. Copies of all composite and multishot directional surveys shall be filed with the Staff.
(i) Blowout Prevention Equipment Requirements. Blowout prevention equipment systems consist of several component systems that function to operate the blowout preventers and to assist in well control under varying rig and well conditions. These systems include the blowout preventers, closing unit, kill and choke lines, choke manifold, fill-up line, diverter, marine riser, and auxiliary equipment.
Blowout prevention equipment shall be installed, used, maintained, and tested in a manner necessary to assure well control throughout the drilling, completion or abandonment of a well.
All portions of a blowout prevention system shall be designed so that alternate methods of well control are available in the event of failure of any one portion of the system. If one component of the system that is vital to well control becomes inoperative, drilling operations shall be suspended as soon as possible without danger to the well until the inoperative equipment is repaired or replaced.
Unless stated otherwise below, the following requirements pertaining to blowout prevention equipment shall apply to both surface and subsea equipment installations.
All blowout prevention systems shall include the following:
(1) Blowout Preventers.
(A) There shall be a specified minimum number of annular and ram-type preventers on each casing string as tabulated below. On surface installations one preventer shall be a blind ram and on subsea installations one preventer shall be a blind shear ram. Pipe rams shall be provided to fit the pipe in use. Locking devices shall be provided on all ram-type preventers. On subsea installations a remotely operated or automatic locking system shall be required.
1. Surface Installations:
Conductor 1-Diverter System
First Surface 1-Annular
1-Pipe Rams
1-Blind Ram
Second Surface 1-Annular
2-Pipe Rams
1-Blind Ram
Intermediate 1-Annular
2-Pipe Rams
1-Blind Ram
2. Subsea Installations:
Conductor 1-Diverter System
First Surface 1-Annular
1-Pipe Ram
1-Blind Shear Ram
Second Surface 2-Annular
3-Pipe Rams
1-Blind Shear Ram
Intermediate 2-Annular
3-Pipe Rams
1-Blind Shear Ram
(B) In floating drilling operations a bypass valve located on the bottom of the riser may be employed to direct returns to the ocean floor when the formation competency at the conductor setting depth is not adequate to permit circulation of drilling fluids to the vessel.
(C) All blowout preventers and wellhead assemblies shall have a working pressure exceeding the anticipated surface pressure to which it may be subjected. The lessee shall submit in the blowout prevention program required in Section 2128(d) (1) the anticipated surface pressure of the well and its method of determination for each casing string.
(D) Notwithstanding the working pressure requirements determined in (1)b above, all blowout preventers that are used while drilling the hole for surface or intermediate casing shall have a minimum working pressure rating of 2000 psi (2M), except for diverter systems or annular preventers used on the conductor.
(2) Closing Unit System. The closing unit system shall incorporate the following general specifications:
(A) An accumulator unit having a minimum usable hydraulic fluid operating volume, with pumps inoperative, to close all blowout prevention units and still retain a 50 percent volumetric operating reserve at 1200 psi.
(B) A fluid reservoir with a capacity equal to approximately twice the usable fluid capacity of the accumulator system.
(C) The capability to close each ram type preventer within 30 seconds. Closing time shall not exceed 30 seconds for annular preventers size 20 inches and smaller, and 45 seconds for annular preventers larger than 20 inches.
(D) A dual pump system having a discharge pressure equivalent to the rated working pressure of the closing unit. Each pump system shall have an independent alternate source of power and be equipped with automatic switches that activate the pumps when the closing unit manifold pressure drops below 90 percent of the accumulator operating pressure. With the accumulator system removed from service, each pump system shall be capable of closing the annular preventer on the drill pipe being used, plus be capable of opening the hydraulically operated choke line valve and of obtaining a minimum of 200 psi pressure above accumulator precharge on the closing unit manifold within two minutes or less.
(E) There shall be one master control panel which contains a manifold capable of operating and monitoring all of the functions of the closing unit system. All of the controls and gauges in the panel shall be clearly marked and arranged in the same sequence as the valves and the other equipment in the blowout preventer stack which they control. In addition to the master control panel, there shall be a second “remote” or `mini” panel capable of operating all of the functions of the closing unit system. One of the two panels shall be located at the driller's station and the other at least 50 feet from the centerline of the wellbore. Each of the two control panels shall be capable of controlling the hydraulic manifold but the actual hydraulic manifold shall be located away from the rig floor. The driller's control panel shall have a power source independent of the accumulator pump system, or be designed so that in the event of complete destruction of the panel, inter-connecting cable or hose, there would be no interference with the operation of the accumulator pump system.
(F) In addition to the above requirements, closing unit systems for subsea blowout equipment installations shall include the following:
1. The blowout preventer stack shall be equipped with duplicate subsea control pods, each of which shall contain all of the required pilot valves and regulators necessary to operate all blowout preventer stack functions. The control hose bundles may be hydraulic or electro-hydraulic. If hydraulic, the pilot hoses contained within the bundle shall have a minimum internal diameter of 3/16 inch and the power hose shall have a minimum internal diameter of 1 inch. If electro-hydraulic, the electric signal cables may be run integral with the hydraulic power hose or may be run separately. The hose reels shall be so designed that a minimum of four subsea hydraulic functions are operable while running or pulling the blowout preventer stack.
2. The subsea blowout preventer stack shall contain an accumulator volume sufficient to close one annular-type preventer and to open the riser connection without recharge from the surface.
3. The Staff may require that the subsea blowout preventer stack be equipped with an emergency shut-in system that on signal from the surface, will shut in the well in the event the drill vessel loses contact with the stack and the primary blowout prevention control system is lost.
(3) Kill and Choke Lines. The blowout preventer stack shall contain a drilling spool or equivalent connections in the blowout preventer body to provide for separate kill and choke lines. Each kill and choke line shall have a master valve located next to the stack followed by a control valve. Both valves shall be full-opening. The master valve shall not be used for normal opening or closing on flowing fluids.
On surface installations, the control valve on the choke line shall be remotely controllable. On subsea installations, the valves on both the kill and choke lines shall be hydraulically operated. One of the valves on each line shall be “fail-safe” in the closed position. The kill and choke lines on the subsea installation shall be connected through the surface choke manifold to permit pumping into the well through either line.
All connections for valves and fittings shall be flanged, welded or clamped. All lines, including flexible lines, valves and flow fittings shall have a working pressure rating at least equal to the rated working pressure of the blowout preventer stack in use.
On surface installations the kill line, valves and fittings shall have a minimum diameter of 2 inch nominal. The choke line, valves, and fittings shall have a minimum diameter of 3 inch nominal. On subsea installations both kill and choke line assemblies shall have a minimum diameter of 3 inch nominal.
(4) Choke Manifold. A choke manifold shall be installed on the drilling rig and be so located that it is readily accessible to drilling personnel.
The choke manifold design shall consider such factors as anticipated formation and surface pressures, method of well control to be employed, surrounding environment, corrosivity, volume, toxicity, and abrasiveness of fluids.
The portion of the manifold subject to well and/or pump pressure shall have a working pressure equal to the rated working pressure of the blowout preventer stack in use. All connections for valves and fittings shall be flanged, welded or clamped.
The choke manifold shall be equipped with a minimum of two adjustable chokes, one of which shall be remotely controlled. These chokes shall be isolated by at least one valve on each side to allow for repairs or replacement. All valves shall be full-opening. There shall be at least one bleed line with a minimum diameter of 3 inch nominal. The lines downstream of the chokes shall have a minimum diameter of 2 inch nominal. All lines shall be securely anchored and connected in such a manner as to permit flow to a mud/gas separator, vent lines, or to production facilities or emergency storage. Two vent lines shall be provided if necessary to accomplish the downwind diversion. The choke manifold shall be equipped with accurate pressure gauges so that all control operations can be properly monitored.
The choke manifold for a subsea installation shall be equipped with duplicate adjustable choke systems to permit control through either the choke or kill line in addition to a remotely controlled adjustable choke, and to provide tie-is for both drilling fluid and high pressure pump systems.
A choke control station shall be provided that includes all monitors necessary to furnish a complete overview of the well control situation.
(5) Fill-up Line. A fill-up line shall be installed on top of the blowout preventer stack on surface installations and on top of the marine riser on subsea installations.
(6) Diverter System. A diverter system shall be installed on the well prior to drilling below the conductor casing for the purpose of directing flowing formation fluids from the well safely away from the rig and personnel.
Low-pressure annular preventers, rotating heads or special diverters may be used for the diversion of well fluids. All such equipment shall be able to pack-off around the kelly, drill string and casing if run through the diverter. There shall be two diverter vent lines to permit diversion of well fluids while minimizing back pressure on the well. All vent lines shall be at least 6 inch nominal diameter unless otherwise justified by engineering analysis. The two vent lines shall be installed in a manner to accomplish downwind diversion. Valves on the vent lines shall be full-opening and so designed that the proper valve automatically opens when the diverter is activated or can be opened by remote control from the driller's control panel. A description and diagram of the diverter system and information justifying the sizing of vent lines shall be included in the blowout prevention program required in Section 2128(d)(1).
(7) Marine Riser. The marine riser system and its component parts that are employed in drilling operations from mobile drilling rigs shall conform to the design, operation, inspection and maintenance specifications set forth in Sections 6B and 11 of the “API Recommended Practices for Blowout Prevention Equipment Systems, API RP 53, First Edition, February 1976, reissued February 1978,” or subsequent revisions thereto that are approved by the Staff.
(8) Auxiliary Equipment.
(A) The following auxiliary equipment shall be provided and maintained as operationally ready at all times. Any equipment that may be subjected to well pressures shall have a working pressure rating at least equal to the rated working pressure of the blowout preventer stack in use.
1. A kelly cock shall be installed below the swivel and a full-opening lower kelly valve shall be installed below the kelly. The lower kelly valve shall have an outer diameter such that it may be run through the blowout preventers and the last casing string cemented in the well. A wrench to fit each valve shall be maintained at a conspicuous location readily accessible to the drilling crew.
2. A full-opening drill pipe safety valve shall be available on the rig floor at all times and shall be equipped to screw into any drill string member in use. This valve shall have an outer diameter such that it may be run through the blowout preventers and the last casing string cemented in the well.
3. An inside blowout preventer, drill pipe float valve, or drop-in check valve shall be available on the rig floor at all times for use in kick-control and stripping operations. The valve, sub, or profile nipple shall be equipped to screw into any drill string member in use.
4. A safety valve shall be readily available on the rig floor and shall be equipped to screw into the casing string that is being run into the well.
(B) A subsea test tree shall be used in the blowout preventer stack while performing drill stem or production tests from mobile drilling rigs.
(j) Pressure Testing, Operational Testing, Inspection and Maintenance of Blowout Prevention Equipment.
(1) Pressure Testing of Blowout Prevention Equipment.
(A) Ram-type blowout preventers and related control equipment used in surface and subsea installations shall be tested at the rated working pressure of the preventer stack, wellhead, or 70% of the internal yield pressure of the casing, whichever is the lesser. Annular-type preventers shall be tested at 70 percent of this pressure requirement. Both types of preventers and related control equipment shall be tested at low pressure, 200-300 psi. These tests shall be performed as follows:
1. When installed on the well.
2. After setting each casing string.
3. Before drilling into any known or suspected high pressure zone.
4. At least once a week while drilling.
5. Following repairs or replacement that necessitates breaking any pressure seal in the system.
(B) In addition, the subsea blowout prevention system shall be stump-tested on the drilling rig to the applicable rated working pressure before the equipment is installed on the well. The test record shall include the opening and closing times and the hydraulic fluid volumes required for each function.
(C) Diverters shall be tested to their rated working pressure when installed on the well.
(D) The blowout preventer equipment pressure testing procedure shall be alternated between control panel stations and shall be conducted at staggered intervals in order to allow each drilling crew to perform the tests. On subsea installations alternate control pods may be used on successive test periods.
(E) The kelly cock, lower kelly valve, drill pipe safety valve, and inside blowout preventer shall be tested at the same time and pressure as the ram-type blowout preventers.
(F) The testing of all blowout preventer equipment shall be properly recorded in the driller's log.
(2) Operational Testing of Blowout Prevention Equipment.
(A) Ram-type and annular-type blowout preventers and diverters shall be actuated to test for proper functioning on each round trip of the drill pipe, but not more than once every 24 hours during normal drilling operations. Each choke manifold valve and choke, subsea kill and choke line valve, kelly cock, lower kelly valve, and drill pipe safety valve shall be operated daily.
(B) During the operational tests the choke manifold and subsea kill and choke line valves shall be flushed with water to ensure that plugging does not occur. The diverter and vent lines shall be checked daily for plugging as a result of drill cuttings or other debris.
(C) The actuation of preventers and other remotely controlled equipment shall be alternated between control panel stations and shall be conducted at staggered intervals to allow each drilling crew to operate the equipment. On subsea installations alternate control pods may be used on successive operational tests.
(D) A closing unit pump capability test, and accumulator precharge-pressure and closing tests shall be conducted before testing the blowout preventer stack on a well. The tests shall be performed in accordance with the requirements set forth in Section 5A of the “API Recommended Practices for Blowout Prevention Equipment Systems, API RP 53, First Edition, February 1978,” or subsequent revisions thereof that are approved by the Staff.
(E) The emergency shut-in system for the subsea blowout preventer stack described in Section 2128(i)(2)F3. shall be tested when installed on a well and at least once every two weeks thereafter. In the test, the emergency shut-in system shall activate at least one blowout preventer function.
(F) All operational tests shall be properly recorded in the driller's log.
(3) Inspection and Maintenance of Blowout Prevention Equipment. All blowout prevention equipment systems shall be inspected and maintained in accordance with the manufacturer's recommended procedures. All systems shall be visually inspected at least once each day. Subsea blowout preventer and riser systems may be inspected by use of divers or television equipment. Any necessary equipment repair or replacement shall be accomplished without delay; however, full consideration shall be given to well safety before starting any work.
(k) Supervision and Training.
(1) The lessee shall provide on-site company supervision (company toolpusher) of drilling operations on a 24-hour basis. At least one member of the drilling crew or the toolpusher shall maintain rig-floor surveillance at all times, unless the well is secured with blowout preventers, bridge plugs, or cement plugs.
(2) Except as provided below in Section 2128(k)(3), the lessee and drilling contractor personnel engaged in drilling operations on State oil and gas leases located on State tide and submerged lands shall be trained and qualified in well-control equipment, operations and techniques in accordance with the provisions of the USGS Outer Continental Shelf Standard “Training and Qualifications of Personnel in Well-Control Equipment and Techniques for Drilling on Offshore Locations,” No. T 1 (GSS-OCS-T1), First Edition, December 1977, and subsequent revisions thereto that are approved by the Staff. Written certification shall be filed with the Staff on compliance with this provision before commencing drilling operations.
(3) Additional requirements to be included in subsection 3.6 of document GSS-OCS-T1 aforesaid are:
(A) A well control drill plan shall be prepared by the lessee for each well drilling proposal and shall be submitted for Staff approval along with the blowout prevention program that is required in Section 2128(d)(1). The plan shall also stipulate the total time allotted for the crew to complete each type of operational drill.
(B) Well control drills shall be held for each crew on a daily basis until each crew demonstrates its ability to effect proper closure of the well within the time established by the well control drill plan. Thereafter, the drills may be held on a weekly basis for each crew as set forth in subsection 3.6 of document GSS-OCS-T1 aforesaid.
(l) Hydrogen Sulfide.
(1) When drilling operations are planned which will penetrate reservoirs known or expected to contain hydrogen sulfide (H2S), or in those areas where the presence of H2S is unknown, or upon encountering H2S, the preventive measures and the operating practices set forth in U.S.G.S. Outer Continental Shelf Standard, “Safety Requirements for Drilling Operations in a Hydrogen Sulfide Environment,” No. 1 (GSS-OCS-1) Second Edition, June 1979, or subsequent revisions thereto that are approved by the Staff, shall be followed.
(2) The lessee shall submit to the Staff for its approval, a hydrogen sulfide contingency plan for each well proposal as required in Section 2128(d)(2).
(m) Mud Program. The characteristics, use, and testing of drilling mud properties, and the related procedures to be followed during drilling operations, shall be designed so as to prevent loss of well control. Adequate quantities of mud materials shall be maintained at the drill-site and shall be readily accessible for use in well control.
(1) Mud Control
(A) Before starting out of the hole with the drill pipe, the mud shall be circulated with the drill pipe just off bottom, until the mud is properly conditioned. Proper conditioning requires, at a minimum, circulation to the extent that the annulus volume is displaced to insure that the hole is clean and zonal pressures are being controlled by the mud column. When pulling the drill pipe, the annulus shall be filled with mud so that the mud level does not drop below a calculated depth of 100 feet. The number of stands of drill pipe and drill collars that may be pulled before stopping to fill the hole and their equivalent mud displacement volumes shall be calculated and posted at the driller's station. A mechanical, volumetric, or electronic device shall be utilized for accurate measurement of the amount of mud used to fill the hole.
(B) A degasser and mud/gas separator shall be employed on all wells unless not required by field rules. This equipment shall be installed on the mud system prior to commencement of drilling operations, and shall be maintained for use throughout the drilling and completion of the well.
(2) Mud Quantities.
(A) The lessee shall include in the drilling mud program a tabulation by well depths of the minimum quantities of mud material to be maintained at the drill-site. The minimum quantities of mud material required shall be at least equal to the capacity of the downhole and active surface mud system. Sufficient weight material shall be maintained in order to condition the reserve mud to the maximum density programmed.
(B) A daily inventory of the mud materials shall be recorded and maintained at the drill-site. Drilling operations shall be suspended whenever the required minimum quantities of mud materials are not maintained at the drill-site.
(3) Mud-Testing Equipment.
(A) Mud-testing equipment shall be maintained on the drilling rig at all times, and mud tests that are consistent with good operating practice shall be performed at least once each 8-hour period while drilling, or more frequently if conditions warrant.
Continuous mud-logging equipment shall be employed on all exploratory drilling.
(B) The following mud-system monitoring equipment shall be installed (with indicators located at the driller's station) and used throughout the period of drilling, after setting and cementing the conductor casing:
1. Recording mud pit level indicator (volume totalizing type) to determine mud pit volume gains and losses. This indicator shall include a visual audio warning device.
2. Mud-volume measuring device for accurately determining mud volumes that are required to fill the hole on trips.
3. Mud-return or full-hole indicator to determine when returns have been obtained, when returns occur unintentionally, and to determine that returns are approximately equal to the pump discharge rate.
4. Gas-detection equipment to monitor the drilling mud returns.
(n) Drilling Practices.
(1) The volume of mud required to fill the hole shall be carefully observed, and if at any time there is an indication of swabbing or influx of formation fluids, the necessary safety device(s) shall be installed on the drill pipe. The drill pipe shall be run to bottom and the mud properly conditioned to stabilize the well. The mud shall not be circulated and conditioned except on or near bottom, unless well conditions prevent the running of pipe to bottom.
(2) The lessee shall post at the driller's station, for each casing string, the maximum pressure that is allowed to build up against the blowout preventers before controlling the pressure by bleeding through the choke.
(3) The rate of pulling or running drill pipe shall be controlled to ensure that the hole is not being swabbed or that formations exposed to the well bore will not be broken down. Special precautions shall be observed to prevent swabbing when full-hole tools are employed.
(4) All formation fluid that is produced during drlllstem testing shall be directed to the producing or test facilities, and that remaining in the drill string after drillstem testing shall be reverse-circulated from the drill pipe. The mud shall be adequately conditioned prior to pulling the drillstem test tools.
(o) Drilling Inspection. Staff may perform inspections of drilling operations on each rig to verify that the operations are being conducted in accordance with these regulations and the approved well-drilling program.
(p) Redrilling and Deepening. Drilling operations to redrill or deepen a well shall be conducted in accordance with the foregoing drilling regulations and the additional regulations listed below.
(1) A well shall not be redrilled or deepened unless it is determined that the casing exposed in the well will provide adequate strength for the proposed drilling and for subsequent production operations. Where well conditions permit, a casing inspection survey, indicating remaining wall thickness and internal diameter, shall be run to determine the condition of the casing and whether or not it is of adequate strength.
(2) If it is not possible to run a casing inspection survey, the casing shall be pressure tested to at 70% of minimum internal yield pressure or 1.25 times the anticipated surface pressure that it might be subjected to either during the drilling operations or subsequent production operations (including injection), or to the amount stipulated in Section 2128(g), whichever is greater.
(3) If the casing inspection survey indicates that the casing strength is adequate, then the casing also shall be pressure tested as stipulated above in Section 2128(p)(2).
(4) In the event it is determined that the condition of the casing is inadequate, drilling shall not be initiated until corrective measures approved by the Staff are taken by the lessee. This shall include testing of the casing to the maximum pressure stipulated above in Section 2128(p)(2).
(5) A copy of the casing inspection survey shall be filed immediately with the Staff.
(6) Prior to redrilling or deepening a well the lessee shall demonstrate to the Staff that the casing is adequately cemented above the point of new drilling. In the event it is thereby determined that the casing is not adequately cemented, the lessee shall properly recement the casing. The lessee shall verify the adequacy of the remedial cementing operations by running a cement bond survey or by other methods approved by the Staff.
(7) Prior to redrilling a well, all oil, gas and water zones exposed in the well below the kickoff depth shall be properly abandoned in accordance with the plugging and abandonment regulations in Section 2128(q).
(8) If a well is to be redrilled or deepened to a zone(s) having a pressure significantly higher or lower than that of the shallower producing zone(s), which drilling might cause lost circulation and thereby endanger the well, the shallower producing zones shall be squeeze cemented or cased and cemented, prior to penetrating the lower zone(s).
(q) Plugging and Abandonment of Wells. Before any work is commenced to abandon any well, the lessee shall file with the Staff a written notice of intention to abandon the well. The notice shall show the condition of the well and proposed method of abandonment. Written approval shall be obtained from the Staff prior to commencement of abandonment operations.
In the case of a newly drilled dry hole or where other approved operations on a well are in progress, the lessee may commence plugging operations by securing oral approval from the Staff as to the abandonment procedure and the time that plugging operations are to begin. Prior to requesting oral approval, the lessee shall furnish the Staff a description of the mechanical condition of the well, an electric log, a description of all oil and gas shows and tests, and any other well data necessary for review of the abandonment procedure. The lessee shall immediately file a written notice with the Staff of its intention to abandon the well in confirmation of the approved abandonment procedure.
The lessee shall plug and abandon all wells in accordance with the following minimum requirements:
(1) Permanent Abandonment.
(A) Isolation of Zones in Open Hole. In open hole portion of the well, cement plugs shall be spaced to extend from 100 feet below to 100 feet above each oil or gas bearing zone or zone that is productive of hydrocarbons elsewhere in a field, and a cement plug at least 200 feet long shall be placed across the intrazone freshwater-saltwater interface, so as to isolate fluids in the strata in which they are found and to prevent them from migrating into other strata.
(B) Isolation of Open Hole from Casing. Where there is open hole below the casing, a cement plug shall be placed in the deepest casing string by 1. or 2. below, or, in the event lost circulation conditions exist or are anticipated, the plug may be placed in accordance with 3. below:
1. A cement plug placed by displacement method so as to extend from 100 feet below to 100 feet above the casing shoe.
2. A cement retainer with effective back-pressure control set not less than 50 feet, nor more than 100 feet, above the casing shoe with a cement plug calculated to extend from 100 feet below the casing shoe to 50 feet above the retainer.
3. A permanent type bridge plug set within 150 feet above the casing shoe with 50 feet of cement placed on top of the bridge plug. This plug shall be tested prior to placing subsequent plugs.
(C) Plugging or Isolating Perforated Intervals. A cement plug shall be placed opposite all open perforations not previously squeezed with cement. This plug shall extend from 100 feet below to 100 feet above the perforated interval.
(D) Isolation of Zones Behind Uncemented Casing. All oil, gas or fresh water-bearing zones located behind casing in the uncemented portion of the hole shall be squeeze cemented so as to isolate fluids in the strata in which they occur.
(E) Isolating Zones Behind Cemented Casing. Inside cemented casing, a 100 foot cement plug shall be placed above each oil or gas zone and above the shoe of the intermediate or second surface casing. A cement plug at least 200 feet long also shall be placed across the intrazone freshwater-saltwater interface.
(F) Junk in Hole or Collapsed Casing. In the event that junk cannot be removed from the hole and the hole below the junk is not properly plugged, cement plugs shall be placed as follows:
1. Sufficient cement shall be squeezed through the junk to isolate the lower oil, gas, or fresh water zones and 100 feet of cement placed on top of the junk.
2. If the top of the junk is opposite uncemented casing, the casing annulus immediately above the junk shall be cemented with sufficient cement to insure isolation of the lower zones.
(G) Plugging of Casing Stubs. If casing is cut and recovered, a cement plug shall be placed so as to extend from 100 feet within the casing stub to 100 feet above the top of the casing stub.
1. If the stub extends up into the next larger casing string, then a retainer may be set 50 feet above the top of the stub and cement placed 150 feet below and 50 feet above the retainer. If the foregoing methods cannot be used, a bridge plug shall be set 50 feet above the top of the stub and capped with 50 feet of cement.
2. If the stub is below the next larger string, plugging of the open hole interval above the stub shall be accomplished in accordance with Section 2128(q)(1)(A), and, in addition, a cement plug shall be placed so as to extend from 100 feet below to 100 feet above the casing shoe that is exposed above the stub in accordance with Section 2128(q)(1)(B).
(H) Plugging of Annular Space. No casing annular space that extends to the ocean floor shall be left open to drilled hole below. If this condition exists, 200 feet of the annulus immediately above the shoe of the preceding casing string shall be plugged with cement. If an uncemented inner casing string is cut and recovered to accomplish this requirement, the casing stub shall be plugged in accordance with Section 2128(q)(1)(G).
(I) Surface Plug Requirement. A cement plug of at least 100 feet, with the top of the plug not more than 150 feet or less than 50 feet below the ocean floor, shall be placed in the well. Prior to the placement of the surface plug all inside casing strings which are uncemented at the surface plugging depth shall be cut and recovered. Casing cutting methods shall be employed that will not damage the well casing so as to prevent reentry of the well.
(J) Testing of Plugs. The location and hardness of all cement plugs shall be tested by placement of drill string weight (10,000 pounds minimum) on the plug, and by application of pump circulation. A cement plug placed on top of a previously tested bridge plug or retainer need not be tested.
(K) Mud. Each of the respective intervals of the hole between the various plugs shall be filled with mud fluid of sufficient density to exert hydrostatic pressure exceeding the greatest formation pressure encountered while drilling such intervals.
(L) Clearance of Location. All casing and conductor shall be severed and removed from not more than 5 feet below the ocean floor, unless other plans are approved by the Staff. The ocean floor shall be cleared of any other obstructions. A method shall be employed to sever or cut the casing that will not damage the well casing so as to prevent reentry of the well.
(M) Record of Abandonment. All plugging and abandonment operations shall be recorded on the driller's log.
(2) Temporary Abandonment
(A) Any drilling well which is to be temporarily abandoned shall be mudded and cemented as required for permanent abandonment except that the requirements of Section 2128(q)(1), (E), (H), (I), and (L) shall thereupon be deferred. When casing extends above the ocean floor, a mechanical bridge plug (retrievable or permanent) shall be set in the casing between 15 and 200 feet below the ocean floor.
(B) The use of a bridge plug to temporarily exclude an interval when recompleting a well is not permitted, unless the Staff approves in advance adequate plans for its future recovery and proper abandonment of the zone.
(r) Daily Drilling Reports. The lessee shall provide daily telephone reports of drilling activities as required by the Staff.
(s) Log and History of Well.
(1) The lessee shall keep a careful and accurate log, core record, and history of the drilling of each well.
(2) The lessee shall provide field copies of electric logs and other surveys as necessary for the Staff to expeditiously approve subsequent well operations.
(3) Within 60 days following the completion, abandonment, or the suspension of operations of any well, the lessee shall file with the Staff copies of all logs, including electric logs, surveys, drilling records, well histories, core records and related information as measured and recorded for the wells drilled by the lessee into the leased lands.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Article 3.3. Oil and Gas Production Regulations
Note • History
(a) This Article 3.3 pertains to oil and gas production operations on State oil and gas leases located on State tide and submerged lands under the jurisdiction of the State Lands Commission, and is applicable to operations conducted from mobile rigs, fixed offshore structures and upland locations serving these leases.
(b) In addition to complying with Division 6 of the California Public Resources Code and with Title 2, Division 3, Chapter 1 of the California Administrative Code, the lessee shall comply with all applicable laws, rules and regulations of the United States and of the State of California and with any respective political subdivision thereof, including, but not limited to, the Division of Oil and Gas, the Department of Fish and Game, the Division of Industrial Safety, the State Water Resources Control Board, and the Regional Water Quality Control Boards, the California Coastal Commission, and any respective successor thereto.
(c) All production operations on State oil and gas leases shall be carried on in a proper and workmanlike manner in accordance with accepted good oilfield practice.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d). Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
HISTORY
1. New Article 3.3 (Sections 2129-2132) filed 6-13-80; effective thirtieth day thereafter (Register 80, No. 24).
Note
For the purposes of this Article 3.3 the following definitions shall apply:
(a) “Production operations” include but are not limited to well completion or recompletion, remedial and well maintenance work, and production facility and pipeline operation.
(b) “Staff” shall mean the Executive Officer or other duly authorized member of the Staff of the State Lands Commission.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Note
(a) The Staff shall administer this Article 3.3 and shall thereby provide for the prevention and elimination of any contamination or pollution of the ocean and tidelands, for the prevention of waste, for the conservation of natural resources, and for the protection of human health, safety and property.
(b) The Commission has designed these regulations in as great detail as possible. However, the Commission recognizes that situations may arise which are not specifically covered by this Article 3.3 and that emergency situations may arise which will require immediate decisions by the Staff. In such situations, the Executive Officer or his designee may authorize appropriate procedures to be followed.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2132. Production Regulations.
Note
(a) Well Completion.
(1) A well-completion program for each well, whether surface or subsea completed, shall be submitted as a part of the drilling program (Refer to Article 3.2, Section 2128(d)(1)) for approval by the Staff. In the event a completion program cannot be provided with the well-drilling program, the lessee shall submit a completion program for Staff approval prior to commencement of the completion work.
(2) The program shall include detailed information and working drawings as appropriate, of the wellhead assembly, surface and downhole production control equipment, and safety system.
(3) Proposals for subsea well completions shall be reviewed and approved by the Staff on an individual well basis.
(4) Wellhead Equipment.
(A) The wellhead equipment associated with each casing string and tubing string and all valves and fittings which may be subjected to wellbore pressure under any condition, shall have a rated working pressure exceeding the maximum anticipated surface pressure to which they may be subjected.
(B) All wellhead equipment, valves and flow lines installed on offshore wells shall be flange or other nonthread connected. All wellhead equipment, valves and flow lines on upland wells that are designed for a working pressure of 2,000 psi or greater shall be flange or other nonthread connected.
(C) Valves shall be installed to permit fluids to be pumped into each casing string. Two master valves shall be installed on any well capable of flowing.
(D) All wellhead equipment shall be tested by a fluid pressure equal to its rated working pressure after installation on a well.
(E) All wellhead components, valves and flow lines in service upon adoption of these regulations are exempted from the requirements in Section 2132(a) (4)(B); except that any modification to existing equipment or piping, unless otherwise approved in writing by the Staff shall be flange or other nonthread connected.
(F) All wellhead equipment, valves and flow lines on any well to be redrilled, recompleted or converted to fluid injection shall comply with the provisions of Sections 2132(a) (4)(A)-(E) above.
(G) All pressure test results shall be recorded on the daily well work report.
(5) Blowout Preventer Removal. If a well is capable of flowing oil or gas, a back-pressure valve or suitable tubing plug shall be installed in the tubing string(s) to seal the bore of the tubing while removing the blowout preventer stack and installing the Christmas tree.
(6) Sealing of Casing--Tubing Annulus. All wells capable of flowing oil or gas shall be equipped with a tubing packer(s) to effectively seal the casing-tubing annulus. All production packers shall be properly tested upon installation.
(7) Perforation and Wireline Operations Under Pressure. All perforation and wireline operations conducted under pressure shall be performed through a lubricator installed on appropriate wireline blowout-prevention equipment. The pressure rating of the lubricator shall be equal to or greater than the maximum possible surface shut-in pressure of the well.
The well shall not be left unattended unless all wellhead flow valves and the wireline blowout preventer are closed in or unless the tools are pulled up into the lubricator and the master valve closed.
(8) Subsurface Safety Valves.
(A) All wells capable of flowing oil or gas shall be equipped with a surface-controlled subsurface safety valve installed in the tubing string(s) at a depth of 100 feet or more below the ocean floor, or ground level for upland wells. Such valve shall be installed in artificial lift wells, unless proof is provided to the Staff that such wells are incapable of flowing. Wells which are presently equipped with direct-controlled subsurface safety valves shall have surface-controlled subsurface safety valves installed the first time the tubing is pulled. The control system for the surface-controlled subsurface safety valves shall be connected to the facility integrated safety-control system, where applicable.
(B) Subsurface safety valves at the time of installation shall conform to the “American Petroleum Institute (API) Specification for Subsurface Safety Valves,” API Spec 14 A, Third Edition, November 1978, or subsequent revisions thereto that are approved by the Staff.
(C) Subsurface safety valves shall be installed, adjusted and maintained in accordance with the “American Petroleum Institute (API) Recommended Practice for Design, Installation and Operation of Subsurface Safety Valve Systems,” API RP 14B, First Edition, October 1973, or subsequent revisions thereto that are approved by the Staff.
(D) Each subsurface safety valve installed in a well shall be tested by the lessee for proper operation each month. The Staff may adjust the testing frequency based upon the performance record of the valve. Permission to increase the testing frequency shall require substantiation by the lessee and written approval by the Staff. The tests may be witnessed and approved by the Staff. If the valve does not operate properly, it shall be repaired or replaced and again tested for proper operation.
(E) When a subsurface safety valve is removed from a well for repair or replacement it shall be replaced immediately or a tubing plug shall be installed before the well is left unattended.
(F) The well history and any subsequent report of workover shall state the type and depth of the subsurface safety valve or tubing plug installed in the well.
(G) Records shall be maintained at the facility or at the nearest onshore office of the lessee. The records shall contain a description and show the present status and past history of each subsurface safety valve or tubing plug, including dates and details of any inspection, testing, repairing, and reinstallation or replacement. The lessee shall submit a copy of such records semiannually to the Staff.
(9) Wellhead Surface Safety Valves.
(A) All wells capable of flowing oil or gas and all artificial lift wells capable of afterflow when the source of power is shut off shall be equipped with an automatic, fail-close, wellhead surface safety valve. High-low pressure sensors shall be located in the flowline close to the wellhead and shall be set to cause shut-in of the valve in the event of abnormally high or low flowline pressures. In addition, each valve shall be connected to the integrated safety control system on the facility.
(B) Wellhead surface safety valves shall be employed in the safety control system on the facility and shall be tested in accordance with the provisions of the “American Petroleum Institute (API) Recommended Practice for Analysis, Design, Installation, and Testing of Basic Surface-Safety Systems on Offshore Production Platforms,” API RP 14C, Second Edition, January 1978, or subsequent revisions thereto that are approved by the Staff.
(C) Wellhead surface safety valves at the time of installation shall conform to the “American Petroleum Institute (API) Specification for Wellhead Surface Safety Valves for Offshore Service,” API Spec. 14D, Second Edition, November 1977, as amended by supplement 2, November 1978, or subsequent revisions thereto that are approved by the Staff.
(D) All wellhead surface safety valves shall be tested by the lessee for operation and holding pressure monthly. If the valve fails to test properly, it shall be repaired or replaced and again tested for proper operation. Pressure sensors shall be operated and tested by the lessee for proper pressure settings monthly. The monthly tests may be witnessed and approved by the Staff. Results of all tests shall be recorded and maintained at the facility or at the nearest onshore office of the lessee.
(10) Wells on Artificial Lift.
(A) Artificial lift wells not equipped with a wellhead surface safety valve shall have safety devices installed to shut off the source of power in the event of abnormally high or low flowline pressures. The source of power shall be controllable by the integrated safety system.
(B) The safety devices shall be actuated and tested monthly by the lessee. If the device fails to test properly, it shall be repaired or replaced and again tested for proper operation. The monthly tests may be witnessed and approved by the Staff. The results of all tests shall be recorded and maintained at the facility or at the nearest onshore office of the lessee.
(11) Production Headers.
(A) All well flowlines shall be equipped with a check valve located downstream at the production header. All check and header valves, as well as any piping that might be subjected to wellhead pressure, shall be of sufficient strength to withstand any possible shut-in wellhead pressure.
(B) The flowline check valve shall be tested for holding pressure monthly by the lessee. If the valve fails to test properly, it shall be repaired or replaced and again tested for proper operation. The monthly tests may be witnessed and approved by the Staff. The results of all tests shall be recorded and maintained at the facility or at the nearest onshore office of the lessee.
(b) Remedial and Well-Maintenance Work.
(1) The lessee shall obtain written approval from the Staff prior to performing remedial work on any well that involves the alteration of its casing or that will result in changing its producing interval. Such work includes, but is not necessarily limited to, casing and liner repair or replacement, squeeze cementing, plugging, perforating, and the installation or removal of bridge plugs and packers.
(A) Each proposal for remedial work shall be accompanied by a statement reflecting the reason for the work and a detailed work and blowout prevention equipment program. The work program also shall include the static formation pore pressure of all zones exposed or to be exposed in the well, the type and densities of circulating fluids to be used, and any other data that is pertinent to well control.
(2) The lessee shall provide written notification to the Staff of its intention to perform nonroutine well-maintenance work on any well. Such work may include, but may not be limited to, formation fracturing, acidization or solvent stimulation, snubbing operations, wireline work resulting in a change of producing interval, any work on a subsea completed well that involves entry of the well, and any other well work that involves a higher than normal degree of risk.
(A) The written notification shall include a description of the work to be performed, the type of blowout prevention equipment and safety equipment to be used, and the anticipated date that the work will commence.
(3) Routine well-maintenance work such as pump changes and wireline work not resulting in a change in the producing interval shall not require advance Staff notification or approval. However, routine well-maintenance work shall be recorded on the lessee's daily operations report and copies of the report shall be provided to the Staff at its request.
(4) Minimum blowout prevention equipment requirements for remedial and well-maintenance work shall be in accordance with the Division of Oil and Gas Manual No. M07 entitled “Oil and Gas Well Blowout Prevention in California,” Second Edition, 1978, or subsequent revisions thereof that are approved by the Staff.
(5) On wells capable of flowing oil or gas, the bore of the tubing string(s) shall be sealed with a back-pressure valve, safety valve or suitable tubing plug during the removal or installation of the Christmas tree.
(6) All perforating and wireline operations conducted under pressure shall be performed through a lubricator installed on appropriate wireline-blowout-prevention equipment. The pressure rating of the lubricator shall be equal to or greater than the maximum possible surface shut-in pressure of the well. The well shall not be left unattended unless all wellhead flow valves and the wireline blowout preventer are closed in, or tools are pulled up into the lubricator and the master valve closed.
(7) Within 60 days after the completion of remedial and nonroutine well-maintenance work, the lessee shall file a history with the Staff that describes the work performed and final condition of the well.
(c) Supervision and Training.
(1) The lessee shall provide full-time onsite company supervision of well completion and other production well work which is performed on any well that may be capable of flowing oil, gas or water. This also includes wireline perforating and any well work performed under pressure.
(2) At least one member of the production well work crew or the production supervisor shall maintain surveillance of the well at all times, unless the well is secured with blowout preventers, bridge plugs, tubing plugs or appropriate valving.
(3) Lessee and contractor supervisory personnel and crew chiefs who are engaged in production well work operations on State leases shall be trained and qualified in well-control equipment, operations and techniques. These persons shall successfully complete a basic well-control course every four years and take a refresher course in well-control each year. The basic and refresher course curriculums shall be submitted to and be approved by the Staff. Written certification shall be filed with the Staff on compliance with these training requirements.
(4) A well control drill plan shall be prepared by the lessee for each well production facility for the training of crews engaged in production well work. The plan shall be submitted to and approved by the Staff.
(5) Well control drills shall be held for each crew on a daily basis until each crew member demonstrates the ability to satisfactorily perform his well control assignment. Thereafter, drills shall be held at least once a week for each crew. All drills shall be recorded on the daily well work report.
(d) Anomalous Casing Annulus Pressure.
(1) The casing annulus pressure(s) on each well shall be checked monthly and a record of the pressure readings shall be maintained at the facility or at the nearest onshore office of the lessee if the facility is notmanned. The lessee shall give immediate written notification to the Staff of the occurrence of an anomalous pressure between casing strings in any well.
(2) The lessee shall investigate to determine the source of any anomalous pressure and, if appropriate, shall seal off the source in a manner approved by the Staff.
(3) Any attempt by the lessee to reduce the surface pressure by producing the fluid from the casing annulus, must include a monthly production test of each annulus.
(e) Subsurface Injection Projects.
(1) All subsurface injection projects proposed on State leases, whether injection is for the purpose of reservoir stimulation or waste disposal, shall require prior approval of the Staff. A lessee requesting approval of an injection project shall provide the Staff with all pertinent geological, engineering, and well data that is requested for the evaluation of the project. The lessee shall also file with the Staff copies of all relevant information furnished to the Division of Oil and Gas.
(2) Recompletion or conversion of a well to fluid injection shall require the prior approval of the Staff.
(3) Within 90 days after the start of injection and annually thereafter, the lessee shall file with the Staff information to confirm that injection is limited to the objective zone. This information shall include, but shall not be limited to, dynamic injection profile surveys, daily injection volume and pressure data. In the event that injection is determined not to be restricted to the objective zone, then the lessee shall take corrective action as soon as possible. The well-work program shall be approved in writing by the Staff prior to commencement of the work.
(f) Waste Disposal.
(1) All waste discharged into the ocean from production operations shall be treated so as to comply with the discharge requirements of the appropriate Regional Water Quality Control Board. Oil, tar, or other residuary products of oil, or refuse of any kind from any well or facility, such as circulating fluids that contain substances which are toxic to fish life, and chemicals shall be disposed of on shore in a dumping area in conformance with local regulatory requirements. The lessee shall inform the Staff of the method of waste disposal and any changes that are required to comply with the discharge requirements of the Regional Water Quality Control Board. Refer to Article 3.4, Section 2138, for requirements concerning the disposal of drill cuttings and drilling muds.
(g) Production Facility Safety Equipment and Procedures. Unless otherwise provided for in this Section 2132(g), safety equipment, systems and procedures on offshore production facilities shall be based upon the “American Petroleum Institute (API) Recommend Practice for Analysis, Design, Installation and Testing of Basic Surface Safety Systems on Offshore Production Platforms,” API RP 14C, Second Edition, January 1978, or subsequent revisions thereto that are approved by the Staff.
(1) Integrated Safety-Control System. Each offshore production facility shall be equipped with an approved integrated safety-control system that will cause shut-in of all wells and shut-down of the complete production facility in the event of fire, pipeline failure or other catastrophe. A complete testing of the safety-control system to the satisfaction of the Staff shall be conducted by the lessee every six months and may be witnessed and approved by the Staff.
The integrated safety-control system shall be actuated by the following devices which shall be installed and maintained in an operating condition at all times. The devices shall be tested monthly by the lessee, which tests shall be witnessed and approved by the Staff. The lessee shall maintain records at the production facility or at its nearest onshore office showing the present status and past history of each such device, including dates and details of inspection, testing, repairing, adjustment, and reinstallation or replacement.
(A) Emergency manually operated controls to actuate the integrated safety system shall be located on the helicopter deck and on all exit stairway landings leading to the helicopter deck and to all boat landings.
(B) All oil and gas pipelines receiving production from offshore production facilities shall be equipped with high-low-pressure shut-in sensors. The low-pressure sensor shall be set so as to actuate the integrated safety-control system in the event of pipeline failure. The pressure settings shall be determined by pipeline operating characteristics, and shall be set as close as practicable to the normal operating pressure of the pipeline.
(C) All pneumatic, hydraulic, and other shut-in control lines shall be equipped with fusible material at strategic points. Fire-detector systems shall be equipped with devices to actuate the integrated safety-control system.
(D) The automatic gas-detector system shall be so equipped as to actuate the integrated safety-control system at a point not higher than 80% of the lower explosive limit.
(2) Safety Devices on Vessels and Tanks. All production vessels and tanks shall be equipped with safety devices as listed below that will cause shut-in of the wells connected to the vessel or tank. The devices shall be tested monthly by the lessee, which tests shall be witnessed and approved by the Staff. The lessee shall maintain records on the production facility showing the present status and past history of each such device, including dates and details of inspection, testing, repairing, adjustment, and reinstallation or replacement.
(A) All separators shall be equipped with high-low-pressure shut-in sensors and high-low-level shut-in controls.
(B) All pressure surge tanks shall be equipped with a high- and low-pressure shut-in sensor and high-low-level shut-in controls.
(C) Atmospheric surge tanks shall be equipped with a high-level shut-in sensor.
(D) All other hydrocarbon-handling pressure vessels shall be equipped with high-low-pressure shut-in sensors and high-level shut-in controls unless they are determined by the Staff to be otherwise protected.
High-pressure shut-in sensors shall be set no higher than 5% below the rated or designed working pressure, and low-pressure shut-in sensors shall be set no lower than 10% below the lowest pressure in the operating pressure range on all vessels with a rated or designed working pressure of more than 400 psi. On lower pressure vessels, the above percentages shall be used as guidelines for sensor settings considering pressure and operating conditions involved, except that sensor settings shall not be within 5 psi of the rated or designed working pressure or the lowest pressure in the operating pressure range.
All pressure-operated sensors shall be equipped to permit testing with an external pressure source.
(3) Pressure Relief Valves.
(A) All pressure vessels shall be equipped with relief valves connected into a gas vent line. All gas vent line systems shall be equipped with a scrubber or similar separation equipment.
(B) A relief valve shall be set no higher than the safe working pressure of the vessel to which it is attached.
(C) Pilot-operated pressure-relief valves shall be equipped to permit testing with an external pressure source. Spring-loaded pressure relief valves shall either be bench-tested or equipped to permit testing with an external pressure source.
(D) Relief valves shall be tested by the lessee every six months. The lessee shall maintain records on the production facility showing the present status and past history of each relief valve, including dates and details of inspection, testing, repairing, adjustment and reinstallation or replacement.
(4) Firefighting System. A firefighting system shall be installed and maintained in operating condition in accordance with the applicable standards of the National Fire Protection Association.
(A) A fixed automatic water spray system or other system approved by the Staff shall be installed in all wellhead areas and in areas where production handling equipment is located.
(B) A firewater system of rigid pipe with fire-hose stations shall be installed on all levels of the facility.
(C) A system employing chemicals or chemical additives may be used in appropriate areas in lieu of or in addition to a firewater system to provide more effective fire protection and control.
(D) An auxiliary connection to the firewater piping shall be installed at a remote location to supply the firefighting system in case of need.
(E) The firefighting system shall be equipped with reserve water pumps to provide for the operating of the system during routine pump maintenance work and in the event of pump failure. The firewater pumps shall be test-operated weekly and the automatic water spray systems shall be test-operated monthly by the lessee. Testing methods other than the use of water shall be approved by the Staff. Monthly tests of the firewater pumps and of the automatic water spray systems may be witnessed and approved by the Staff. The lessee shall maintain a record of the tests at the production facility or at its nearest onshore office.
(F) Portable fire extinguishers shall be located in the living quarters and in other strategic areas. A record showing the date when fire extinguishers were last inspected, tested, or recharged shall be maintained on the production facility.
(G) A diagram of the firefighting system showing the location of all equipment shall be posted in a prominent place on the production facility.
(H) Fire drills shall be conducted weekly by the supervisor in charge of the production facility. A record showing the date that fire drills were conducted shall be maintained on the production facility for at least one year.
(5) Combustible Gas Detector and Alarm System. An automatic hydrocarbon/combustible gas detector and alarm system shall be installed and maintained, on each offshore production facility, in accordance with the following:
(A) Gas-detection systems shall be installed in all areas containing gas-handling facilities or equipment and in enclosed areas which are classified as hazardous areas as defined in the California Administrative Code, Title 24, Part 3.
(B) All gas-detection systems shall be capable of continuously monitoring for the presence of combustible gas in the areas in which the detection devices are located.
(C) The central control shall be capable of giving an audible alarm at a point not higher that 60 percent of the lower explosive limit.
(D) The central control shall automatically activate the shut-in sequences of the integrated safety control system and emergency equipment at a point not higher than 80 percent of the lower explosive limit.
(E) A diagram of the gas-detection systems showing the location of all gas-detection points shall be posted in a prominent place on the production facility.
(F) The gas detection systems shall be tested monthly by the lessee, which tests may be witnessed and approved by the Staff. The lessee shall maintain a record of the tests at the production facility or at its nearest onshore office.
(6) Hydrogen Sulfide Gas Detection and Precaution. Any offshore production facility that handles production known to contain hydrogen sulfide (H2S) gas shall be equipped and maintained in accordance with following requirements to provide for the safety of personnel:
(A) Hydrogen Sulfide Gas Detection and Alarm System.
1. A separate automatic hydrogen sulfide (H2S) gas detector and alarm system. This equipment shall be capable of sensing a minimum of five parts per million H2S in air, with sensing points located at all enclosed and hazardous areas where gas handling facilities are located, as well as any living quarters and other areas where H2S might accumulate in hazardous quantities. The H2S detection devices shall activate audible and visible alarms when the concentration of H2S reaches 20 parts per million in air.
2. H2S detector ampules or other approved devices shall be available for use by all working personnel. After H2S has been initially detected by any device, frequent inspections of all area of poor ventilation shall be made with a portable H2S-detector instrument.
(B) Contingency Plan. A contingency plan shall be developed for each production facility that handles production known to contain hydrogen sulfide (H2S). The plan shall include the following:
1. General information and physiological responses to H2S and SO2 exposure.
2. Safety procedures, equipment, training, and smoking rules.
3. Procedures for normal operating conditions and for H2S emergency conditions.
4. Responsibilities and duties of personnel for the emergency operating condition.
5. Designation of briefing areas as locations for assembly of personnel during an emergency condition. At least two briefing areas shall be established on each facility. Of these two areas, the one upwind at any given time is the safe briefing area.
6. Evacuation plan.
7. Agencies to be notified in case of an emergency.
8. A list of medical personnel and facilities, including addresses and telephone numbers.
(C) Personnel Training Program.
1. To promote efficient safety procedures, an on-site H2S safety program, which includes a monthly drill and training session, shall be established. Records of attendance shall be maintained on the production facility.
2. Supervisory personnel shall have completed a recognized basic first-aid course and shall be responsible for training of work crews and facility operators. All personnel in the working crew shall have been indoctrinated in basic first-aid procedures applicable to victims of H2S exposure. During on-site training sessions and drills, emphasis shall be placed upon rescue and first aid for H2S victims.
3. Each production facility shall have the following equipment, and the facility operator and each crew member shall be thoroughly familiar with the location and use of these items:
- A first-aid kit sized for the normal working number of personnel.
- Resuscitators, complete with face masks, oxygen bottles, and spare oxygen bottles.
- A Strokes litter or equivalent.
4. All personnel, whether regularly assigned, contracted, or employed on an unscheduled basis, shall be informed as to the hazards of H2S and SO2. They shall also be instructed in the proper use of personnel safety equipment which they may be required to use, informed of H2S detectors and alarms, ventilation equipment, prevailing winds, briefing areas, warning systems, and evacuation procedures.
(D) Personnel Protective Equipment.
1. All personnel on a production facility or aboard marine vessels serving the production facility shall be equipped with proper personnel protective-breathing apparatus. The protective-breathing apparatus used in an H2S environment shall conform to all applicable Occupational Safety and Health Administration regulations as set forth in the Code of Federal Register 29 CFR 1910.134 and American National Standards Institute standards. Optional equipment, such as nose cups and spectacle kits, shall be available for use as needed.
2. A system of breathing-air manifolds, hoses, and masks shall be provided in the briefing areas. A cascade air-bottle system shall be provided to refill individual protective-breathing-apparatus bottles. The cascade air-bottle system may be recharged by a high-pressure compressor suitable for providing breathing-quality air, provided the compressor suction is located in an uncontaminated atmosphere. All breathing-air bottles shall be labeled as containing breathing-quality air fit for human usage. The compressor and compressed air system shall comply with 29 CFR 1910.134 (OSHA).
3. The storage locations of protective-breathing apparatus shall be such that they are quickly and easily available to all personnel. Storage locations shall include the following:
- Facility operator's office.
- Each working deck.
- Crew quarters.
- Equipment storage room.
- Designated briefing areas.
- Heliport.
4. Workboats attendant to facility operations shall be equipped with a protective-breathing apparatus for all workboat crew members. Additional protective-breathing apparatus shall be available for evacuees. Whenever possible, boats shall be stationed upwind.
5. Helicopters attendant to facility operations shall be equipped with a protective-breathing apparatus for the pilot.
6. The following additional personnel safety equipment shall be available for use as needed:
- Portable H2S detectors.
- Retrieval ropes with safety harnesses to retrieve incapacitated personnel from contaminated areas.
- Chalkboards and note pads at convenient locations for communication purposes.
- Bull horns and flashing lights.
- Resuscitators.
(E) Visible Warning System.
1. Wind-direction equipment shall be installed at prominent locations to indicate to all personnel, on or in the immediate vicinity of the production facility, the wind direction at all times for determining safe upwind areas in the event that H2S or SO2 is present in the atmosphere.
2. Operational danger signs shall be displayed from each side of the facility, and a number of rectangular red flags shall be hoisted in a manner visible to watercraft and aircraft.
The signs shall have a minimum width of eight feet and a minimum height of four feet, and shall be painted a high-visibility yellow color with black lettering of a minimum of 12 inches in height, indicating:
“DANGER--HYDROGEN SULFIDE--H2S”
Each flag shall be of a minimum width of three feet and a minimum height of two feet. All signs and flags shall be illuminated under conditions of poor visibility and at night when in use. These signs shall indicate the following operational conditions and requirements:
- When H2S is present, signs shall be displayed.
- When H2S is determined to have reached or exceeded a level of 20 parts per million in environmental areas, protective equipment shall be worn by all personnel in those areas and red flags shall be hoisted. Nonworking personnel and nonessential personnel shall be removed to a safe location, or evacuated as appropriate. Radio communications shall be used to alert all known air-and-watercraft in the immediate vicinity of this condition.
(F) Ventilation Equipment. All ventilation devices shall be explosion-proof when used in areas where H2S may accumulate. Movable ventilation devices shall be provided in work areas and be multidirectional and capable of dispersing H2S or SO2 vapors away from working personnel.
(G) Flare System. The flare system shall be designed to safely gather and burn H2S gas. Flare lines shall be located as far from the other facilities as feasible, in a manner to compensate for wind changes. The flare system shall be equipped with a pilot and an automatic igniter. Backup ignition for each flare shall be provided.
(H) Drilling Operations. Any well drilling operation conducted from a production facility and which will penetrate reservoirs known or expected to contain hydrogen sulfide (H2S) shall follow whatever additional requirements as are set forth in USGS Outer Continental Shelf Standard “Safety Requirements for Drilling Operations in a Hydrogen Sulfide Environment,” No. 1 (GSS-OCS) Second Edition, June 1979, or subsequent revisions thereto approved by the Staff.
(I) Remedial and Well Maintenance Operations. Any well remedial or well maintenance operation conducted from a production facility, where the subject well has penetrated reservoirs known to contain hydrogen sulfide, shall follow whatever additional requirements, as may be applicable to that particular job, as are set forth in aforementioned USGS “Safety Requirements for Drilling Operations in a Hydrogen Sulfide Environment.”
(J) Notification of Regulatory Agencies. The following agencies shall be notified immediately if H2S has been determined to have reached or exceeded a level of 20 ppm in the environmental area:
1. State Lands Commission.
2. U. S. Coast Guard.
(7) Electrical Equipment and Systems.
(A) An auxiliary electrical power supply shall be installed to provide sufficient emergency power for all electrical equipment required to maintain safety of operation in the event the primary electrical power supply fails. The auxiliary electrical power-supply system shall be tested monthly by the lessee and may be witnessed and approved by the Staff. The lessee shall maintain a record of the tests at the production facility or at its nearest onshore office.
(B) All electrical generators, motors, electric power, control, lighting systems shall be installed, protected, and maintained in accordance with the California Administrative Code, Title 24, Part 3.
(8) Welding Practices and Procedures. The following requirements shall apply to all production facilities during any time in which drilling or producing operations are taking place. The term “welding and burning” is defined to include arc or acetylene welding and arc or acetylene cutting.
(A) All welding and burning shall be minimized by fabrication ashore.
(B) If possible, all welding and burning shall be done in an approved, properly functioning welding room.
(C) If welding or burning is necessary outside the weldingroom it shall be conducted in accordance with welding procedures approved by the Staff, which shall include the following minimum requirements:
1. The lessee's supervisor in charge at the installation shall issue written authorization for the work after he has inspected the area in which the work is to be done. If both drilling and producing operations are taking place, the drilling supervisor and the production supervisor shall both sign this authorization.
2. During all welding and burning operations, a man designated as a “fire watch” shall operate a portable gas detector and shall have in his possession a portable fire extinguisher. In addition, a fire hose shall be laid out to the welding area and it shall remain pressurized to the nozzle during the entire period of welding and burning. He shall inspect the area with the gas detector prior to commencement of the welding or burning. He shall continuously monitor the area and shall cause the welding or burning to cease at any time that conditions become unsafe.
3. If welding or burning must be done on a vessel which has contained a flammable substance, all connections to the vessel shall be broken and displaced or slip blanked, and the vessel shall be thoroughly cleaned and rendered free of such flammable substance and tested for gas before the work begins. Prior to performing hot work on the outside of a vessel, the vessel shall be completely flooded with water.
4. If welding or burning must be done on in-service or connected-up piping that section of pipe shall be isolated by the installation of slip blanks or blind flanges, thoroughly purged and cleaned to render it free of any flammable substance, and tested for gas before the work begins. When welding or burning on an isolated, clean and gas-free piping section, one end must remain open.
5. If welding or burning must be done in confined spaces, the space shall be adequately vented and a continuous source of fresh air shall be supplied while work is in progress. If fresh air is supplied by blowers, they shall be so positioned that the intakes will not pick up exhausted gases, fumes, or vapors.
6. If any welding or burning is done on bulkheads, decks, or overheads, the adjacent, overlying or underlying spaces shall be examined to determine that it is safe for the work to proceed. If deemed advisable, a second “fire watch” shall be employed in the contiguous area.
7. If any welding or burning must be done on structural members, it shall be determined by a competent authority that such welding or burning does not endanger the integrity of the structure.
(h) Pipeline Operations and Maintenance. All oil and gas pipelines on State tide and submerged lands shall be operated and maintained in accordance with the following minimum requirements:
(1) General Requirements.
(A) Each lessee shall establish and maintain current written procedures:
1. To insure the safe operation and maintenance of its pipeline system, in accordance with this Section 2132(h), during normal operations.
2. To be followed during abnormal operations and emergencies.
(B) A lessee shall not operate or maintain its pipeline system at a level of safety lower than that required by Section 2132(h) and the procedures that the lessee is directed to establish under Section 2132(h)(1)(A) above.
(C) Whenever a lessee discovers any conditions that present any immediate hazard to persons, property, or the environment, the lessee shall not operate the affected part of the system until the unsafe condition has been corrected.
(2) Maximum Operating Pressures.
(A) Except for surge pressures and other variations from normal operations, a lessee shall not operate a pipeline at a pressure which exceeds any of the following:
1. The internal design pressure of the pipe as determined in accordance with ANSI Code B31.4 for Liquid Petroleum Transportation Piping Systems and ANSI Code B31.8 for Gas Transmission and Distribution Piping Systems.
2. The design pressure of any other component of the pipeline.
3. Eighty percent of hydrostatic test pressure to which the pipeline has been hydrostatically tested.
(B) A lessee shall not permit the pressure in a pipeline during surges or other variation from normal operations to exceed 110 percent of the maximum allowable operating pressure limit established under Section 2132 (h)(2)(A) above. The lessee shall provide adequate controls and protective equipment to control the pressure within this limit.
(3) Communications. Each lessee shall have a communications system for the transmission of the information required for the safe operation of its pipeline system.
(4) External Corrosion Control. All pipelines shall be cathodically protected to prevent external corrosion. The lessee shall conduct tests annually on all cathodically protected pipelines to assure an adequate level of protection. Cathodic protection rectifiers shall be inspected by a qualified electrical inspector every three months. The output of the rectifiers shall be checked daily. The lessee shall maintain records on the production facility showing the daily output readings and the dates, details of inspection, and repairs to each rectifier.
(5) Internal Corrosion Control. Where corrosion inhibitors are necessary to mitigate internal corrosion, they shall be used in sufficient quantities to protect the entire pipeline. The lessee shall use coupons or other monitoring equipment to determine the effectiveness of the inhibitors. The lessee shall, at intervals not exceeding six months, examine coupons or other corrosion-monitoring equipment to assure effectiveness of any inhibitors used.
(6) Pipeline Inspections.
(A) All unburied oil and gas pipelines shall be visually inspected annually by the lessee for damage, evidence of corrosion, and conditions that may be hazardous to the pipelines.
(B) Where mechanically possible, all oil and gas pipelines shall be inspected annually by the lessee using an electronic survey tool. Upon request of the lessee, the frequency of inspection may be reduced depending upon the degree of corrosion observed.
(C) If it is not mechanically possible to run an electronic survey tool, the lessee shall hydrostatically pressure test each oil and gas pipeline to at least 1.5 times its maximum operating pressure. The test procedure shall be approved by the Staff.
(D) The ocean surface above all pipelines that service offshore facilities shall be inspected a minimum of once each week for indication of leakage, using aircraft or boats. Records of these inspections, including the date, methods, and results of each inspection, shall be maintained by the lessee at its nearest onshore office.
(7) Reports of Inspection. The lessee shall file a report with the Staff describing the testing procedure and results of (1) the annual test of the cathodic protection system on each pipeline and (2) the annual visual and electronic inspection of hydrostatic test of each oil and gas pipeline. The reports shall be filed within 60 days following completion of the work.
(8) Safety Equipment and Procedures.
(A) All oil and gas pipelines receiving production from offshore production facilities shall be equipped with high-low-pressure shut-in sensors and with an automatic shut-in valve located at the offshore facility. The pressure sensors shall be connected so as to actuate the automatic shut-in valves on the pipelines as well as all shut-in devices on input sources to the pipelines. The pressure settings shall be determined by pipeline operating characteristics, and shall be set as close as practicable to the normal operating pressure of the pipeline. The automatic shut-in valves also shall be actuated by the integrated safety-control system of the production facility.
(B) All oil and gas pipelines that deliver production to an onshore production facility shall be equipped with a remote-controlled shut-in valve or check valve at or near the receiving facility.
(C) All oil and gas pipelines that cross an offshore facility which do not deliver production to the facility, and may or may not receive production from the facility, shall be equipped with an automatic shut-in valve to be located in the upstream portion of the pipeline at the facility, so as to prevent uncontrolled flow at the facility. This automatic shut-in valve shall be controllable by the integrated safety-control system of the facility.
(D) Any pipeline that delivers gas to an offshore facility for the purpose of gas lift or other operations shall be equipped with an automatic shut-in valve to be located in the upstream portion of the pipeline at the facility, so as to prevent uncontrolled flow at the facility. This automatic shut-in valve shall be controllable by the integrated safety-control system of the facility.
(E) All oil pumps and gas compressors shall be equipped with high-low-pressure shut-in devices.
(F) All pressure sensors, pressure shut-in devices, and automatic shut-in valves shall be tested monthly by the lessee, and shall be witnessed and approved by the Staff. The lessee shall maintain records on the production facility showing the present status and past history of each device, including dates and details of inspection, testing and repairing, adjustment, and reinstallation or replacement.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Article 3.4. Oil and Gas Drilling and Production Operations: Pollution Control
Note • History
(a) This Article 3.4 pertains to oil and gas drilling and production operations on State oil and gas leases located on State tide and submerged lands under the jurisdiction of the State Lands Commission, and is applicable to operations conducted from mobile rigs, fixed offshore structures and upland locations serving these leases.
(b) In addition to complying with Division 6 of the California Public Resources Code and with Title 2, Division 3, Chapter 1 of the California Administrative Code, the lessee shall comply with all applicable laws, rules and regulations now or hereafter promulgated of the United States of the State of California and of any respective political subdivision thereof, including, but not limited to, those of the Division of Oil and Gas, the Department of Fish and Game, the Division of Industrial Safety, the State Water Resources Control Board, and the Regional Water Quality Control Board, the California Coastal Commission, and any respective successors thereto.
(c) All operations conducted on State oil and gas leases shall be carried on in a proper and workmanlike manner in accordance with accepted good oilfield practice.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
HISTORY
1. New Article 3.4 (Sections 2133-2142) filed 6-13-80; effective thirtieth day thereafter (Register 80, No. 24).
Note
For purposes of this Article 3.4 the following definition shall apply:
(a) “Staff” shall mean the Executive Officer or other duly authorized member of the Staff of the State Lands Commission.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Note
(a) The Staff shall administer this Article 3.4 and shall thereby seek to provide for the prevention and elimination of any contamination or pollution of the ocean and tidelands, for the prevention of waste and for the conservation of natural resources, and for the protection of human health and safety and of property.
(b) The Commission has designed these regulations in as great detail as possible. However, the Commission recognizes that situations may arise which are not specifically covered by this Article 3.4 and that emergency situations may arise which will require immediate decisions by the Staff. In such situations, the Executive Officer or his designee may authorize appropriate procedures to be followed.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2136. Prohibition of Pollution.
Note
(a) Pollution and contamination of the ocean and tidelands and any impairment of or interference with recreation, fishing, or navigation in the waters of the ocean or any bay or any inlet thereof is prohibited; and no oil, tar, residuary product of oil or any refuse of any kind from any well or facility that is deleterious to marine life shall be permitted to be deposited on or pass into the waters of the ocean or any bay or any inlet thereof.
(b) All drilling and production operations shall be conducted in a manner that will eliminate, insofar as is practical, any dust, noise, vibration, or noxious odors.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2137. Suspension of Operations and Corrective Action.
Note
A lessee shall suspend immediately any drilling and production operations, except those which are corrective, protective, or mitigative, in the event of any disaster of or contamination or pollution caused in any manner or resulting from drilling and/or production operations under its lease. Such drilling and/or production operations shall not be resumed until adequate corrective measures have been taken and authorization for resumption of such operations has been made by the Staff. Corrective measures shall be taken immediately whenever pollution has occurred.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2138. Disposal of Drill Cuttings and Drilling Muds.
Note
The lessee shall dispose of those drill cuttings and drilling muds associated with drilling and production well work, in accordance with regulations promulgated by the appropriate Regional Water Quality Control Board. The method employed to dispose of the drill cuttings and drilling muds shall be submitted to the Staff for approval along with the drilling mud program that is required in Section 2128(d)(1).
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2139. Oil Spill Contingency Plan.
Note
Each lessee shall prepare and maintain a current oil spill contingency plan for initiating corrective action to control and recover oil spilled in or on the ocean. The plan shall cover both minor and major oil spills associated with lease drilling and production operations. The plan and any subsequent revisions thereto shall be submitted for approval by the Staff.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2140. Pollution Control and Removal Equipment.
Note
(a) Pollution control equipment and material shall be available immediately to each lessee for use in oil pollution control and removal operations on its lease. The equipment and material shall include, but need not be limited to, containment booms, skimming apparatus, licensed chemicals, and absorbents, and shall be the most effective available given the current state of pollution control and removal research and development at the time of acquisition. The lessee shall, however, update such equipment whenever any significant technological improvements are developed.
(b) Emergency equipment shall be maintained on each mobile drilling rig and fixed offshore drilling or production facility for immediate cleanup of small oil spills. Each mobile drilling rig shall be equipped with a minimum of 1500 feet of oil containment boom, an oil skimming or recovery device that is capable of open ocean use, and an amount of absorbent material sufficient to remove 15 barrels of spilled oil. In addition, a boat that is capable of deploying this equipment shall be maintained onsite or available to the rig within 15 minutes. The equipment and material required on each fixed offshore drilling or production facility shall be determined and approved by the staff on an individual basis considering the type of structure, location, current activity, oil production capability, method of well production and other factors peculiar to the facility.
Equipment for the control and removal of larger oil spills shall be maintained at an offshore or onshore location near the area of lease operations where deployment and response to the spill would provide the most feasible protection of coastal resources. All equipment shall be inspected regularly and shall be maintained in good condition for immediate use.
(c) The lessee shall conduct training classes and periodic drills in the deployment and use of pollution control and removal equipment, to ensure that designated personnel can carry out the assignments which are necessary for effective control and removal of oil spilled in or on the ocean.
(d) The lessee shall maintain an inventory of the emergency equipment that is stored on each mobile drilling rig and offshore drilling or production facility as well as an inventory showing the description, application, and location of all pollution control and removal equipment that is immediately available for a major oil spill. In addition, the lessee shall maintain a listing of equipment, material, services, and labor forces that are immediately available for beach cleanup and restoration operations. The inventories shall be updated as changes occur and current copies shall be filed with the Staff annually.
(e) All mobile drilling rigs and offshore drilling or production facilities shall be equipped in a manner that will prevent spilling of contaminants in the ocean. Any fluids spilled shall be collected in a sump(s) that is provided with appropriate pumping equipment, liquid level controls, and alarms to prevent accidental discharge of contaminants into the ocean waters.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
§2141. Critical Operations and Curtailment Plans.
The primary purpose of a Critical Operations and Curtailment Plan is to provide additional precautionary measures to minimize the likelihood of an oil spill incident occurring from offshore drilling and production well work during (1) adverse weather and sea conditions when oil spill containment and recovery equipment, material and techniques are not effective and marine transportation is severely hampered; and (2) the time that oil spill containment and recovery equipment, material, manpower, and transportation thereof are not readily available to the site of operation.
Certain operations performed in drilling and production well work are more critical than others with respect to well control and accidental discharge of oil and gas. This is particularly so when subsurface forations are exposed in the well that are capable of flowing oil and gas to the surface or when the well has been pressured by outside means. It is these critical operations that should be ceased, limited or not commenced in order to minimize the likelihood of an oil spill occurring during adverse weather and sea conditions which could seriously impede both well control and oil cleanup efforts.
The lessee shall file with the Staff, for its approval, a Critical Operations and Curtailment Plan to be followed while conducting drilling and/or production well work on the lease. A plan shall be filed for each exploratory well as required in Section 2128(d)(2) in order to accommodate different drilling rigs, circumstances and conditions. A separate plan shall be filed for development drilling and production well work on the lease. These plans shall contain the following:
(a) A descriptive list of the critical drilling and production well work that is likely to be conducted on the lease, such as:
(1) Drilling in close proximity to another well.
(2) Drilling into a known lost circulation zone or into a zone capable of flowing oil and/or gas.
(3) Continuation of drilling into zones that are suspected to be capable of flowing oil and/or gas or into zones suspected to be abnormally pressured.
(4) If zones capable of flowing oil and/or gas are exposed or suspected to be exposed in the well then the following are considered to be critical operations:
(A) Pulling out of the hole.
(B) Fishing operations.
(C) Drill-Stem testing.
(D) Wireline logging in open hole.
(E) Running casing.
(F) Cutting and recovering casing.
(G) Perforating casing.
(H) Well completion work.
(I) Remedial well work.
(J) Well stimulation.
(b) A descriptive list of circumstances or conditions under which the critical drilling and production well work shall be ceased, limited, or not commenced. This list shall be developed from all the factors and conditions relating to the lease and shall take into account but may not to be limited to the following:
(1) Whether or not well operations are being conducted from a mobile rig or a fixed structure.
(2) Adverse meteorological or oceanographical conditions exist or are anticipated soon.
(3) Limited availability and capability of oil containment and cleanup equipment.
(4) Significant increase in oil spill control system response time for any reason.
(5) Personnel or equipment for conducting a particular critical operation are not available.
(6) Insufficient supply of drilling mud materials on the drill site for emergency well control purposes.
(7) Transportation equipment for personnel, supplies and oil spill containment and cleanup equipment is not readily available.
(8) Construction and maintenance work involving welding, moving heavy equipment, etc. is being performed.
(9) Other factors peculiar to the particular lease under consideration.
(c) When any circumstance or condition listed or described in the plan occurs or other operational limits are encountered, the lessee shall cease, limit, or not commence the affected critical operation(s) as set forth in Section 2141(a).
(d) Any deviation from the approved plan shall require prior written approval by the Staff. If emergency action requires deviation from the plan, and there is inadequate time to seek the Staff's approval, the Staff shall be notified immediately after said deviation occurs.
(e) The plan shall be reviewed at least annually and any changes thereto shall be submitted to the Staff for approval.
Note
(a) All spills or leakage of oil and liquid pollutants originating from operations on State oil and gas leases shall be reported orally without delay to the United States Coast Guard and to the State Office of Emergency Services in Sacramento. Subsequent to oral notification, a written report shall be filed with the State Lands Commission, stating the source, cause, size of spill and the action taken.
(b) Lessees shall report orally to the three authorities indicated in Section 2142(a) any pollution of unknown source or pollution unassociated with lease operations that is observed on or in State waters.
(c) Lessees shall notify one another of information regarding equipment malfunction or of information regarding pollution resulting from another's operation.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301 and 6873(d), Public Resources Code; and Section 11152, Government Code. Reference: Sections 6005, 6216, 6301, 6871, 6871.1, 6873(d), Public Resources Code.
Article 3.5. Disposal of Royalty Oil, Gas or Other Hydrocarbons
Note • History
Whenever the Commission determines that it is in the best interests of the State to take its royalty share of oil, gas, or other hydrocarbons in kind, the Commission shall enter into agreements for the disposition and sale of such oil, gas, or other hydrocarbons in accordance with procedures set forth in this Article.
NOTE
Authority cited: Sections 6108 and 6815.1, Public Resources Code.
HISTORY
1. New Article 3.5 (Sections 2150-2163) filed 7-5-73; effective thirtieth day thereafter (Register 73, No. 27).
As used in this article unless otherwise specified:
(a) The term “royalty oil” includes oil, gas, natural gasoline, other products extracted from gas, and all other hydrocarbons.
(b) The term “purchaser” means any person or corporation that has entered into a contract to purchase royalty oil from the State.
(c) The term “lease” means oil and gas lease, easement, or other agreement for the extraction of oil, gas, or other hydrocarbons from lands owned by the State.
(d) The term “lessee” means holder of a lease.
(e) The term “base price” means, in relation to royalty oil, a price to be determined in accordance with a standard to be adopted by the Commission for each contract to purchase royalty oil and to be included in each such contract when it is adopted pursuant to Section 2153. The standard to be adopted shall relate, to the extent practical, to objective criteria and to data easily ascertainable, such as posted prices or prices paid for products of like quality, taking into account location, so that both the State and a purchaser will be able to establish the base price with reasonable ease and accuracy. Prices paid under any contract to purchase royalty oil pursuant to these rules and regulations shall not, under any circumstances, be used in determining such base price.
§2152. Eligibility to Hold Sales Contracts.
A sales contract for royalty oil shall be issued only to and held by:
(a) Persons or associations of persons who are citizens of the United States or who have declared their intention of becoming such, or who are citizens of any country, dependency, colony, or province, the laws, customs, and regulations of which permit the grant of similar or like privileges to citizens of the United States.
(b) Any corporation or corporations organized and existing under and by virtue of the laws of the United States or of any state or territory thereof; or any corporation or corporations 90 per cent or more of the shares of which are owned by persons eligible to hold a lease or permit under subdivision (a) or (c) of this section; or any corporation or corporations 90 per cent or more of the shares of which are owned either by a corporation eligible to hold a lease or permit hereunder, or by any combination of such eligible persons or corporations, or both.
(c) Any alien person entitled thereto by virtue of any treaty between the United States and the nation or country of which the alien person is a citizen or subject.
§2153. Selection of Royalty Oil.
The Commission shall, in advance, select the lease or leases from which royalty oil will be taken in kind and the particular hydrocarbons to be taken, determine the increments, if any, in which such oil will be sold, and adopt the bid-form, notice inviting bids, bid-proposal, and the sales contract. The proposal shall remain on file in the Commissions' Offices and shall contain the notice, bid-form, contract, copies of the lease or leases involved, and pertinent production and lease data.
The Commission shall select for each sales contract, prior to offering royalty oil for bid, one of the bid factors listed below:
(a) $________ per barrel plus the base price.
(b) ________% plus 100% of the base price.
(c) $________ per barrel, provided that the purchaser shall at all times pay the bid price or the base price plus a specified percent of the base price as determined by the Commission, whichever is higher.
(d) $________ bonus plus the base price.
(e) $________ per barrel for a specified gravity with a gravity differential schedule as specified in advance by the Commission, provided that the purchaser shall at all times pay the bid price or the base price plus a specified percent of the base price as determined by the Commission, whichever is higher.
The Commission may, in offering a sales contract, require a minimum bid.
Any sales contract issued under the provisions of this article shall contain such other covenants, conditions, requirements, and reservations as may be deemed advisable by the Commission to protect the interests of the State.
Whenever the Commission elects to dispose of royalty oil by competitive public bid, the Commission shall cause notice of intention to receive bids to be published.
(a) The notice shall identify the lease from which the oil is to be offered, the proposed point of delivery, the time for receiving and opening bids, and indicate that forms for bidding may be obtained at an office of the Commission. Such notice shall be published at least once in a newspaper of general circulation in the county in which the point of delivery is situated, and may be published at least once in a newspaper of general circulation in the City of Los Angeles, or San Francisco, or Sacramento.
(b) At the time and place specified in the notice, not earlier than fourteen (14) days after the last date of publication the sealed bids shall be opened publicly and an award shall be made to the highest responsible bidder unless, in the opinion o the Commission, the acceptance of the highest qualified bid is not in the best interests of the State, in which event the Commission may reject all bids. Thereupon new bids may be called for or the Commission may refuse to call for new bids, or the Commission may negotiate and enter into agreements for sale under terms and conditions deemed to be in the best interests of the State. The Commission reserves the right at any time to reject any and all bids or to cancel the invitation to bid.
(c) At the time of the bid award, the Commission shall direct the Executive Officer or his agent to notify the lessee that the State intends to take royalty oil in kind commencing on the date specified in the sales contract.
Bids submitted pursuant to a published notice shall contain the following documents:
(a) Two copies of the bid-form completed, and executed. In the event of a joint bid, or a bid by a partnership, each bidder shall execute the bid-form. The insertion of any additional condition, qualification, or provision on said bid-form will invalidate the bid. In the case of joint bidding, or bidding by a partnership, bid data shall be submitted as required by Section 1913, and Section 1914, Title 2 of the California Administrative Code. Corporations executing a bid shall submit with the bid evidence of the authority of the officer or officers executing the bid on behalf of the corporation and shall affix the corporate seal upon the signature page of the bid-form.
(b) Each bidder must submit with his bid evidence of qualification to enter a contract as specified in this Section.
(c) Each bid submitted pursuant to this notice shall be accompanied by a certified or cashier's check or checks of a responsible bank in California and made payable to the State of California in an amount to be determined by the Commission before the offering as a deposit as evidence of the bidder's good faith.
(d) Each bidder shall submit with the bid a certified financial statement establishing to the satisfaction of the Commission such bidder's financial ability to undertake and fulfill all obligations under the prospective contract. Said financial statements shall be certified as to their truth and accuracy by each bidder, as a bidder, or by the person by whom or under whose direction the statements were prepared. Said financial statements shall be accurate as of the date of certification, which date shall be not earlier than the date the Notice of Intention herein was first published. Previously prepared financial statements and/or annual reports may be used by bidders provided that (a) such statements and/or reports are certified, as aforesaid, and (b) the bidder submits a certified statement by the bidder or a responsible financial officer of the bidder that there has been no material change in the financial or other condition of the bidder since the date of preparation of said statement and/or report that would impair the bidder's financial ability to undertake and fulfill all obligations of the bidder under the prospective contract. The certification of such financial statement must be signed by the individual or firm by whom the statement was prepared, as well as by the bidder.
(e) Each bidder shall submit with the bid evidence establishing to the satisfaction of the Commission such bidder's ability to take oil at the point of delivery. An agreement providing for the exchange of royalty oil for their oil or hydrocarbons may be submitted as evidence to establish bidder's ability to take royalty oil at the point of delivery.
(f) Each bidder shall also submit with the bid information concerning installation and maintenance of metering facilities, shipping pumps, pipelines, storage, loading facilities, or any other facilities that may be required to facilitate said royalty oil deliveries. The installation of any such facilities shall be only with the prior approval of the State.
(g) Each bidder shall nominate by letter of authority the name and address of a person authorized to give or receive any notice to or from the State Lands Commission with respect to such bidding and to receive refund of sums accompanying an unsuccessful bid. Said letter shall be submitted with the bid and shall be signed by the bidder, and in the case of joint bids shall be signed by each person or other entity joining in said bid. Unless otherwise expressly provided, the person so authorized to receive notice shall, in the case of the successful bidder, be deemed to be the person duly authorized to give and receive notices on behalf of the bidder.
Sales contracts for the disposition of royalty oil shall be entered into for a term as determined y the Commission not to exceed five years.
Lessee may make deliveries of royalty oil to purchaser on a regular basis, and adjustments to deliveries, overages, or underages, including quality considerations, will be made up by the last day of the following calendar month.
§2160. Delivery and Dehydration Costs.
The lessee, where so provided in the lease, shall be reimbursed for the actual allowable cost of dehydration of the royalty share of crude oil and, in the case of offshore leases, for the actual cost of delivery of the royalty share of crude oil to onshore storage and transportation facilities. Only those costs approved by the State in writing shall be allowed. The Commission shall select, prior to the bid offer, one of the methods listed below:
(a) The State shall reimburse the lessee monthly for such costs upon submission of an invoice by the lessee.
(b) The purchaser shall monthly, or as designated by the State, reimburse the lessee for such costs. Such costs may be deducted by the purchaser from the amounts to be submitted to the State pursuant to the sales contract.
Purchaser shall, at the time of the execution of the contract, furnish and thereafter maintain in favor of the State a good and sufficient bond or other such security in such sum as may be specified by the State Lands Commission, guaranteeing faithful performance by the purchaser of the terms, covenants, and conditions of the contract. Such bond or other such security will be used to indemnify the State for all costs and damages, including, but not limited to, damages caused by default of the purchaser of royalty oil. The cost of the bond or other security shall be paid for by the purchaser. The Commission may in its discretion reduce, eliminate, or reinstate the security requirement during the term of the sales contract.
§2162. Disposition of Royalty Oil in the Event of Default.
In the event purchaser fails to take the royalty oil as provided by the contract, the Executive Officer or his designee is authorized to dispose of the royalty oil in the most expeditious manner possible. All cost incurred therein shall be deemed as a charge against the purchaser. Purchaser shall be responsible to the State for the difference, if any, between the amount of money received by the State in such disposition and the amount due the State pursuant to the sales contract.
§2163. Assignment of Contract.
Any sales contract issued under the provisions of this article may be assigned, subject to approval by the Commission, to any person, association of persons, or corporation who, at the time of the proposed assignment, possesses the qualifications provided in this article. Any assignment shall take effect as of the first day of the month following the approval by the Commission and filing with the Commission of an executed counterpart thereof, together with any bond and proof of qualification of the assignee to take or hold such sales contract. Unless approved by the Commission, no assignment shall be of any effect. Such assignment shall be made upon the express condition that such assignment does not and shall not release or relieve the Assignor from any obligation to the State under the terms of said sales contract, and that the State may hold the Assignor liable for the faithful performance of any and all obligation of the Purchaser under said sales contract; and, further, that the Assignee shall be bound by the terms of said sales contract to the same extent as if such Assignee were the original Purchaser, any conditions in the assignment agreement to the contrary notwithstanding.
Article 3.6. Operation Manual & Emergency Planning
Note • History
This Article 3.6 pertains to all exploration and production oil and gas facilities on tide and submerged lands under the jurisdiction of the State Lands Commission. For the purposes of this Article only, the term “marine facility” shall not include terminals used exclusively for transferring oil to or from vessels.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, 6873, 8755, 8756, and 8758, Public Resources Code. Reference: Sections 6005, 6216, 6871, 6871.1, 6873, 8755, 8756 and 8758, Public Resources Code.
HISTORY
1. New article 3.6 (sections 2170-2175) and new section filed 9-8-93; operative 10-8-93 (Register 93, No. 37).
Note • History
(a) “Commission” means the California State Lands Commission.
(b) “Staff” means the Executive Officer or other duly authorized member of the staff of the State Lands Commission.
(c) “Oil” means any kind of petroleum, liquid, hydrocarbons, or petroleum products or any fraction or residues therefrom, including, but not limited to, crude oil, bunker fuel, gasoline, diesel fuel, aviation fuel, oil sludge, oil refuse, oil mixed with waste, and liquid distillates from unprocessed natural gas.
(d) “Spill” or “discharge” means any release or discharge of oil or other refuse of any kind from any well or facility into marine waters not authorized by any federal, state, or local government entity.
(e) “Marine waters” means those waters subject to tidal influence, except for waters in the Sacramento-San Joaquin Rivers and Delta upstream from a line running north and south through the point where Contra Costa, Sacramento, and Solano Counties meet.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, 6873, 8755, 8756, and 8758, Public Resources Code. Reference: Sections 6005, 6216, 6871, 6871.1, 6873, 8755, 8756 and 8758, Public Resources Code.
HISTORY
1. New section filed 9-8-93; operative 10-8-93 (Register 93, No. 37).
Note • History
The Staff shall administer this Article 3.6 and shall thereby seek to provide for the prevention and elimination of any contamination or pollution of the ocean and tidelands, and marine waters for the prevention of waste, for the conservation of natural resources, and for the protection of human health and safety, and the environment.
NOTE
Authority cited: Sections 6103, 6108, 6216, 6301, 6873, 8755, 8756, and 8758, Public Resources Code. Reference: Sections 6005, 6216, 6871, 6871.1, 6873, 8755, 8756 and 8758, Public Resources Code.
HISTORY
1. New section filed 9-8-93; operative 10-8-93 (Register 93, No. 37).
Note • History
(a) Each operator of a marine facility shall prepare an operations manual describing equipment and procedures which the operator employs or will employ to protect the public health and safety and the environment and to prevent oil spills.
(b) The operation manual shall demonstrate compliance with all applicable marine facility operating rules and regulations of the State Lands Commission and the lease terms (if applicable).
(c) Copies of the manual shall be available and accessible to every employee at the field facility and at the next supervising level location. Two current approved copies shall be filed with the State Lands Commission Mineral Resources Management Division Staff.
NOTE
Authority cited: Sections 6108, 6216, 8755, and 8758, Public Resources Code. Reference: Sections 6108, 6216, 6873(b), 8755 and 8758, Public Resources Code.
HISTORY
1. New section filed 9-8-93; operative 10-8-93 (Register 93, No. 37).
Note • History
(a) Submission of Manual.
(1) The operations manual for any existing facility shall be submitted to Staff for review and approval within one year of the effective date of these regulations.
(2) For any facilities not presently is existence, and operations manual shall be submitted to Staff for review and approval as part of the application for approval of the facility.
(3) Staff shall review and respond to the operator within 90 days after a complete application for review has been submitted and acknowledged.
(b) Updates and Changes to Approved Manual
(1) The operations manual shall be kept current at all times.
(2) Whenever any routine changes (administrative or clerical) is made in the operation, an update amendment reflecting that change shall be sent to Staff within 30 days.
(3) Any substantial changes to the manual or its content shall require prior approval by Staff. A substantial change is one which is non-routine, or which would increase or decrease the ability of the operator to respond to a spill, to provide for personnel safety, or to protect the environment.
(4) Subsequent reviews will be required as necessary when facility operations or technology changes, or when the Commission finds that the manual of any operator is no longer consistent with the provisions of this article or other rules, regulations, or guidelines of the Commission. Staff shall review and respond to the operator within 90 days after a complete application for review has been submitted and acknowledged.
(c) Denial
(1) Approval shall be denied if the Operations Manual does not comply with the conditions set forth in this article.
(2) If approval is denied, Staff shall notify the operator of the reasons for denial and provide an explanation of those actions necessary to secure approval.
(d) Appeal
(1) If Staff denies approval of the Operations Manual, the operator may appeal this decision by submission of a written appeal to the Commission. Any appeal must be submitted within 10 calendar days from the date the operator receives notice that approval of the manual has been denied. The request must contain the basis for the appeal and provide evidence which rebuts the basis for the Staff's denial of the manual.
(2) Upon receipt of an appeal, the Staff shall place the appeal on the calendar for the next Commission meeting taking place at least thirty (30) days after the appeal is received. The Commission may consider the appeal at that meeting or may delay consideration until a later meeting. Within 15 days after the Commission makes a decision on the appeal, the Staff shall send the operator written notice as to the Commission's decision.
(e) Proof of Approval
The operator shall keep the Letter of Approval filed in the front of the approved operations manual that is kept on the facility. The approval letter shall be presented upon request to any official representing the Commission or Administrator.
NOTE
Authority cited: Sections 6108, 6216, 8755, 8756, and 8758, Public Resources Code. Reference: Sections 6108, 6216, 6873(b), 8755 and 8758, Public Resources Code.
HISTORY
1. New section filed 9-8-93; operative 10-8-93 (Register 93, No. 37).
Note • History
(a) The manual shall be arranged in a logical order and with clearly defined tabs for quick reference to emergency plans and procedures, a comprehensive table of contents and numbered pages.
(b) Each manual shall as a minimum include the following:
(1) Location: Appropriate maps, charts and geographic descriptions shall be included, indicating clearly the location of the facility and its relationship to nearby geographic features.
(2) Ownership and Responsibility: Information shall be included identifying the owner or owners of the facility and all those who may be responsible for the operation of the facility or for implementation of operation or contingency plans. Addresses and telephone numbers shall be included and kept current for each person or entity listed.
(3) Purpose: The manual shall include general explanations of the purposes of the facility and its various components.
(4) Personnel: A listing of operating staff positions shall be provided, showing the chain of command and the responsibility of each position. Employee qualifications for responsible positions must be outlined and staffing levels of the facility must be justified. On any facility which does not maintain 24-hour surveillance, justification and description of safety and security systems shall be discussed.
(5) Description of Operations:
(A) The manual shall include plot plans of the facility and flow diagrams for each of the production flow streams, including oil, gas, and water injection. Each major component and associated equipment including, but not limited to, wells, piping, process vessels, tanks compressors, pumps, and alarm, control and safety systems shall be narratively described, including function, capacity, physical size and pressure rating.
(B) Detailed information regarding preventives maintenance programs and procedures shall be provided.
(6) Personnel Safety: Detailed information shall be provided regarding equipment and procedures employed for the purpose of ensuring personnel safety, including, but not limited to, information concerning the following:
(A) Personnel safety;
(B) Safety responsibilities of each personnel position;
(C) Training;
(D) Safety Drills;
(E) Inspection of Personnel Safety Equipment; and
(F) Compliance with applicable provisions of Division 5 of the Labor Code and regulations adopted pursuant thereto.
(7) Systems Safety: Detailed information shall be provided regarding equipment and procedures employed for the purpose of preventing oil discharges or other accidents which may harm or threaten public health and safety or the environment, including, but not limited to, information concerning the following:
(A) Systems Safety Equipment;
(B) Systems Safety Training;
(C) All operations and procedures employed for the prevention of oil discharges or other pollution; and
(D) Inspection and testing of system safety equipment and operations.
(8) Automatic Control Systems and Equipment: Subsection (b)(7) shall include information concerning the identification, use and operation of any safety equipment that can be operated remotely, automatically, or by pre-program and any appropriate manual override information. The following information should be included:
(A) Normal process and operation;
(B) Safety shut-down; and
(C) Emergency shut-down
(9) Production Processing: All production streams must be identified, with the minimum following information included for each fluid:
(A) Chemical makeup;
(B) Fluid volumes;
(C) Pressures;
(D) Flow rates;
(E) Temperatures;
(F) Appearance;
(G) Odor;
(H) Instructions for safe emergency handling; and
(I) Any hazards which might be encountered in dealing with the fluid.
(10) Oil Spill Contingency and Hazardous Materials Plans: The manual shall include or have attached (or otherwise incorporate by reference) copies of the following:
(A) Any oil spill contingency plan required under the lease issued by the Commission or under Chapter 7.4 of Division 1 of Title 2 (§§8670.1 et seq.) of the Government Code; and
(B) For each fluid identified under subsection (b)(9) of this section, any business plan for responding to hazardous materials releases required under Chapter 6.95 of Division 20 of the Health and Safety Code.
(11) Fire Fighting Response: The manual shall also include information regarding response to fire, including at minimum the following:
(A) Information regarding primary response, including, but not limited to, detailed descriptions of response equipment and their use and operation, personnel, training, drills, communications equipment and procedures, and evacuation plans; and
(B) Information regarding secondary response, including, but not limited to, detailed descriptions of response equipment and their use and operation, use of mutual aid organization or cooperatives for fire suppression, interagency agreements or memoranda of understanding, and communications equipment and procedures.
(12) Other Emergency Response Plans.
(A) In addition to the plans set forth in subsections (b)(10) and (b)(11) of this section, any other emergency response plans shall also be included in or attached (or otherwise incorporate by reference) to the manual.
(B) Every plan submitted shall have included or attached the names and telephone and facsimile numbers of all relevant contact personnel with the facility operator, State and Federal response agencies, local fire, police, and medical responders, security personnel, and mutual aid cooperatives or organizations.
(C) Among the additional plans to be submitted shall be at minimum the following:
1. A Well Control Plan (Drilling and Workover);
2. A Critical Operations and Curtailment Plan (Drilling & Production, or substantial construction project);
3. An H2S Contingency Plan (if applicable);
4. A Facility Emergency Evacuation Plan;
5. Natural Disaster Response Plans; and
6. Security Plans
(13) Communication System: The manual shall describe in detail how communications systems employed at the facility provide for redundancy and interface with other area facilities, emergency responders, and agencies.
(14) Operational Support: The manual shall also include a description of normal and emergency operational support, including, but not limited to, the type and use of helicopters and vessels.
(A) Helicopters
(B) Boats & Vessels
(C) Other
(15) Other Information: The manual shall also include any other information necessary or appropriate for the Commission and for those working at the facility to know and understand the equipment, operations and systems employed at the facility both for ordinary operations, generally, and for the specific purpose of preventing harm to public health and safety or to the environment.
NOTE
Authority cited: Sections 6108, 6216, 8755, 8756, and 8758, Public Resources Code. Reference: Sections 6108, 6216, 6873(b), 8755 and 8758, Public Resources Code.
HISTORY
1. New section filed 9-8-93; operative 10-8-93 (Register 93, No. 37).
Article 4. Leases and Prospecting Permits for Minerals Other Than Oil and Gas
§2200. Character and Extent of Lands.
(a) Lands subject to lease include:
(1) Those containing known deposits of minerals;
(2) Those embraced in a prospecting permit not subject to preferential lease.
(b) For tide and submerged lands and those underlying navigable streams and lakes the commission may determine the extent thereof subject to lease under any application. For all other lands the application shall be for a compact area and may include any number of acres not in excess of 160.
(c) The commission may include in its lease offer, areas adjacent to that for which application has been made, should it determine that such additional areas contain commercially valuable mineral deposits.
(d) Lands subject to prospecting permits are those not classified by the commission as containing commercially valuable mineral deposits.
§2201. Duration of Leases and Permits.
(a) Leases (both preferential and bid) may be issued for a term of 20 years, with option of renewal for successive periods of 10 years upon such terms and conditions as may be prescribed by the commission at the time of renewal.
(b) Prospecting permits are limited to a period not exceeding two years, extendable for a period of an additional one year at the discretion of the commission.
§2202. Prospecting Permit Procedures.
History
(a) Applications. Any person desiring to apply for a prospecting permit on any land under the jurisdiction of the commission, shall file with the State Lands Division, 100 Oceangate, Suite 300, Long Beach, California 90802, a written application containing:
(1) Name, address, and status of citizenship of applicant; if applicant is a corporation, the corporate name and name of president, secretary, and officer authorized to execute contracts and leases.
(2) A description of the state lands involved.
(3) A statement of the use proposed.
(4) A statement of the character and use of adjoining lands.
(5) A statement of the nature of the deposits proposed to be developed.
(b) If the applicant has posted a notice on the lands and recorded a copy thereof, as provided by Section 6892 of the Public Resources Code, the application shall so state, describing the monument erected on the lands, giving the location thereof, and stating the dates of posting and recording. The recorded copy of the notice shall be attached to the application.
(c) The application shall be accompanied by:
(1) a filing fee, as provided in Section 1903(a)
(2) a permit fee deposit equal to the amount of $1 per acre for each acre within the desired permit area.
(3) an expense deposit as provided in Section 1903.2.
(d) Upon the acceptance of an application, the commission shall determine the royalty rate to be paid under any ensuing preferential lease.
(e) Upon authorization by the commission, permit forms shall be submitted for the applicant's acknowledged or witnessed execution.
HISTORY
1. Amendment filed 8-17-55 as an emergency; designated effective 9-7-55 (Register 55, No. 12).
2. Amendment of subsection (c) filed 4-10-69; effective thirtieth day thereafter (Register 69, No. 15).
3. Amendment of subsection (a) filed 3-2-73 as procedural and organizational; effective upon filing (Register 73, No. 9).
4. Amendment of subsection (c) filed 2-2-77; designated effective 3-1-77 (Register 77, No. 6).
§2203. Preferential Lease Procedures.
History
(a) At any time during the life of a permit, the permittee may apply for a preferential lease upon discovery of a commercially valuable deposit of minerals within the permit area.
(b) An application under this section shall contain, in addition to the data required in Section 2202(a), an affidavit of some responsible person having knowledge of the facts averring that a commercially valuable mineral deposit has been discovered within the permit area.
(c) No lease shall be issued for unsurveyed lands. Upon request of the applicant, accompanied by a deposit of an amount sufficient to cover the costs of a survey, surveying services will be rendered by the Division of State Lands.
(d) Upon determination by the Division of State Lands that a commercially valuable mineral deposit has been discovered and that the applicant is entitled to a preferential lease, the commission may, subject to the payment of the rental for the first year, authorize the execution and delivery of an appropriate lease.
HISTORY
1. Amendment filed 8-17-55 as an emergency; designated effective 9-7-55 (Register 55, No. 12).
§2204. Procedures for Nonpreferential Leases.
History
Lands known to contain commercially valuable deposits of minerals not subject to a preferential lease under a prospecting permit, may be leased pursuant to a published notice of intention to receive bids. (See Section 1908). The minimum expense deposit required shall be determined by the Commission under the provisions of Section 1903.2.
HISTORY
1. Amendment filed 4-10-69; effective thirtieth day thereafter (Register 69, No. 15).
2. Amendment filed 2-2-77; designated effective 3-1-77 (Register 77, No. 6).
§2205. Statements and Reports.
On or before the fifteenth day of each month, a lessee or permittee shall deliver to the Division of State Lands statements in the form prescribed, showing the work performed upon the leased or permitted area and the amount, quality, and value of all minerals produced, shipped or sold during the preceding calendar month. Longer intervals for such reports may be authorized but such authorization shall be granted only in writing and may be revoked or changed at any time upon written notice to the lessee or permittee.
Article 4.1. Leases for Exploration and Development of Geothermal Resources
§2249. Competitive Lease Sales.
Note • History
Upon nomination, the Commission may designate State lands for lease by competitive bidding to the highest responsible qualified bidder. Such nominations may be made by holders of exploration permits or any other party qualified to hold a lease, pursuant to Public Resources Code Section 6801. Any State lands may be nominated and designated for competitive lease sale; provided that lands included within a valid and effective prospecting permit may be nominated and designated but may not be leased prior to the termination of that permit.
NOTE
Authority cited: Section 6108, Public Resources Code. Reference: Sections 6910 and 6911, Public Resources Code.
HISTORY
1. Repealer of Article 4.1 (Sections 2248-2267) and new Article 4.1 (Sections 2249 and 2250) filed 11-5-82; effective thirtieth day thereafter (Register 82, No. 45). For prior history, see Registers 81, No. 15 and 79, No. 28.
§2250. Surface Owner Notification.
Note
When a competitive bid has been held for lands described in subdivision (a) of Public Resources Code Section 6912, and the Commission has determined the highest qualified bid, the Commission shall notify the surface owner of such bid. The notice shall be deemed to be effective when received by the surface owner or five days after being sent, whichever occurs first.
NOTE
Authority cited: Section 6108, Public Resources Code. Reference: Sections 6911 and 6912(b), Public Resources Code.
Article 4.5. Marine Invasive Species Control Fund Fee
§2270. Marine Invasive Species Control Act; Definitions.
Note • History
For purposes of this Article, the following definitions apply.
(a) “Voyage” means any transit by a vessel destined for any California port from a port or place outside of the coastal waters of the state.
(b) “Waters of the state” means any surface waters, including saline waters that are within the boundaries of the state.
NOTE
Authority cited: Section 71215(b), Public Resources Code. Reference: Sections 71200(o), 71200(q) and 71215, Public Resources Code.
HISTORY
1. New article 4.5 (sections 2270-2271) and section filed 12-28-99 as an emergency; operative 1-1-2000 (Register 99, No. 53). A Certificate of Compliance must be transmitted to OAL by 5-1-2000 or emergency language will be repealed by operation of law on the following day.
2. New article 4.5 (sections 2270-2271) and section refiled 3-6-2000 as an emergency; operative 4-30-2000 (Register 2000, No. 10). A Certificate of Compliance must be transmitted to OAL by 8-28-2000 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-6-2000 order transmitted to OAL 7-10-2000 and filed 8-15-2000 (Register 2000, No. 33).
4. Amendment of article heading, section heading, section and Note filed 1-15-2004 as an emergency; operative 2-1-2004 (Register 2004, No. 3). A Certificate of Compliance must be transmitted to OAL by 6-1-2004 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 1-15-2004 order transmitted to OAL 4-21-2004 and filed 6-3-2004 (Register 2004, No. 23).
6. Amendment of Note filed 9-17-2009; operative 11-1-2009 (Register 2009, No. 38).
§2271. Fee Schedule for Marine Invasive Species Control Fund.
Note • History
(a) The Fee required under Public Resources Code Section 71215 is eight hundred fifty dollars ($850) per vessel voyage.
(b) The Commission may establish lower levels of fees and the maximum amount of fees for individual shipping companies or vessels. Any fee schedule established, including the level of the fees and the maximum amount of fees, shall take into account the impact of the fees on vessels operating from California in the Hawaii or Alaska trades, the frequency of calls by particular vessels to California ports within a year, the ballast water practices of the vessels, and other relevant considerations.
(c) The fee shall be collected from the owner or operator of each vessel that arrives at a California port or place from a port or place outside of California. That fee may not be assessed on any vessel arriving at a California port or place if that vessel comes directly from another California port or place and during that transit has not first arrived at a port or place outside California or moved outside the EEZ prior to arrival at the subsequent California port or place.
(d)(1) The Executive Officer of the California State Lands Commission shall invite representatives of persons and entities who must pay the fee required under Public Resource Code Section 71215 to participate in a technical advisory group to make recommendations regarding the amount of the fee, taking into account the provisions of Public Resources Code Sections 71200 through 71216.
(2) The technical advisory group shall meet on a regular basis after July 1, 2000, as determined by the group.
NOTE
Authority cited: Section 71215(b), Public Resources Code. Reference: Sections 71200 and 71215, Public Resources Code.
HISTORY
1. New section filed 12-28-99 as an emergency; operative 1-1-2000 (Register 99, No. 53). A Certificate of Compliance must be transmitted to OAL by 5-1-2000 or emergency language will be repealed by operation of law on the following day.
2. Repealer and new section filed 3-6-2000 as an emergency; operative 4-30-2000 (Register 2000, No. 10). A Certificate of Compliance must be transmitted to OAL by 8-28-2000 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 3-6-2000 order transmitted to OAL 7-10-2000 and filed 8-15-2000 (Register 2000, No. 33).
4. Amendment of subsection (a) filed 5-2-2002 as an emergency; operative 7-1-2002 (Register 2002, No. 18). A Certificate of Compliance must be transmitted to OAL by 10-29-2002 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 5-2-2002 order transmitted to OAL 10-16-2002 and filed 11-14-2002 (Register 2002, No. 46).
6. Amendment of section heading and subsection (a), new subsections (b) and (c) and subsection relettering filed 1-15-2004 as an emergency; operative 2-1-2004 (Register 2004, No. 3). A Certificate of Compliance must be transmitted to OAL by 6-1-2004 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 1-15-2004 order transmitted to OAL 4-21-2004 and filed 6-3-2004 (Register 2004, No. 23).
8. Amendment of subsection (a) filed 8-4-2005; operative 9-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 31).
9. Amendment of subsection (a), new subsections (b)-(b)(4) and subsection relettering filed 7-8-2008; operative 8-1-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 28).
10. Amendment of subsection (a), repealer of subsections (b)(1)-(4) and subsection relettering filed 9-17-2009; operative 11-1-2009 (Register 2009, No. 38).
Article 4.6. Ballast Water Regulations for Vessels Arriving at California Ports or Places After Departing from Ports or Places Within the Pacific Coast Region
§2280. Purpose, Applicability, and Date of Implementation.
Note • History
(a) The purpose of the regulations in Title 2, Division 3, Chapter 1, Article 4.6 of the California Code of Regulations is to move the state expeditiously toward elimination of the discharge of nonindigenous species into the waters of the state or into waters that may impact the waters of the state, based on the best available technology economically achievable.
(b) The provisions of Article 4.6 apply to all vessels arriving at a California port or place carrying ballast water from another port or place within the Pacific Coast Region. For the purposes of Article 4.6 all ports and places in the San Francisco Bay area east of the Golden Gate bridge including the Ports of Stockton and Sacramento, shall be construed as the same California port or place; and the Ports of Los Angeles, Long Beach and the El Segundo marine terminal shall be construed as the same California port or place.
(c) The provisions of Article 4.6 do not apply to vessels that arrive at a California port or place after departing from ports or places outside of the Pacific Coast Region.
(d) The provisions of these regulations become effective 180 days after they have been filed with the Secretary of State.
NOTE
Authority cited: Sections 71201.7 and 71204.5, Public Resources Code. Reference: Sections 71201 and 71204.5, Public Resources Code.
HISTORY
1. New article 4.6 (sections 2280-2284) and section filed 9-23-2005; operative 3-22-2006 (Register 2005, No. 38).
§2281. Safety of Ballasting Operations.
Note • History
(a) The master, operator, or person in charge of a vessel is responsible for the safety of the vessel, its crew, and its passengers.
(b)(1) The master, operator, or person in charge of a vessel is not required by this provision to conduct a ballast water management practice, including exchange, if the master determines that the practice would threaten the safety of the vessel, its crew, or its passengers because of adverse weather, vessel design limitations, equipment failure, or any other extraordinary conditions.
(2) If a determination described in subsection (b)(1) is made, the master, operator, or person in charge of the vessel shall take all feasible measures, based on the best available technologies economically achievable, that do not compromise the safety of the vessel to minimize the discharge of ballast water containing nonindigenous species into the waters of the state, or waters that may impact the waters of the state.
(c) Nothing in this provision relieves the master, operator, or person in charge of a vessel of the responsibility for ensuring the safety and stability of the vessel or the safety of the crew and passengers, or any other responsibility.
NOTE
Authority cited: Sections 71201.7 and 71204.5, Public Resources Code. Reference: Sections 71203 and 71204.5, Public Resources Code.
HISTORY
1. New section filed 9-23-2005; operative 3-22-2006 (Register 2005, No. 38).
Note • History
Unless the context otherwise requires, the following definitions shall govern the construction of this Article:
(a) “Coastal waters” means estuarine and ocean waters within 200 nautical miles of land or less than 2,000 meters (6,560 feet, 1,093 fathoms) deep, and rivers, lakes, or other water bodies navigably connected to the ocean.
(b) “Commission” means the California State Lands Commission.
(c) “Exchange” means to replace the water in a ballast tank using either of the following methods:
(1) “Flow through exchange,” which means to flush out ballast water by pumping three full volumes of near-coastal water through the tank, continuously displacing water from the tank, to minimize the number of original coastal organisms remaining in the tank.
(2) “Empty/refill exchange,” which means to pump out, until the tank is empty or as close to 100 percent empty as is safe to do so, the ballast water taken on in ports, or estuarine or territorial waters, then to refill the tank with near-coastal waters.
(f) “Near-coastal waters” means waters that are more than 50 nautical miles from land and at least 200 meters (656 feet, 109 fathoms) deep.
(g) “Pacific Coast Region” means all coastal waters on the Pacific Coast of North America east of 154 degrees W longitude and north of 25 degrees N latitude, exclusive of the Gulf of California.
(h) “Vessel” means a vessel of 300 gross registered tons or more.
NOTE
Authority cited: Sections 71201.7 and 71204.5, Public Resources Code. Reference: Sections 71200(e), (j) and (n), 71201, 71204 and 71204.5, Public Resources Code.
HISTORY
1. New section filed 9-23-2005; operative 3-22-2006 (Register 2005, No. 38).
Note • History
(a) Petitions for Alternatives.
(1) Any person subject to these regulations may submit a petition to the Commission for alternatives to the requirements of Article 4.6 as applied to the petitioner.
(2) All petitions for alternatives must be submitted in writing. A petition may be in any form, but it must contain all data and information necessary to evaluate its merits in order to fulfill the purposes of these regulations.
(b) Approval of Alternatives.
(1) The Commission may approve any proposed alternatives to the requirements of Article 4.6 if it determines that the proposed alternatives will fulfill the purpose of these regulations as outlined in subsection (a) of Section 2280 of this Article.
(2) If the Commission approves any proposed alternatives under this section, a letter of approval shall be issued to the petitioner setting forth the findings upon which the approval is based.
(3) The Commission may withdraw the letter of approval of any alternative requirements at any time if it finds that the person or persons subject to these regulations have not complied with the approved alternative requirements.
(4) Withdrawal of a letter of approval under this section shall be effective upon receipt by the petitioner of written notification of the withdrawal from the Commission.
NOTE
Authority cited: Sections 71201.7 and 71204.5, Public Resources Code. Reference: Sections 71201 and 71204.5, Public Resources Code.
HISTORY
1. New section filed 9-23-2005; operative 3-22-2006 (Register 2005, No. 38).
§2284. Ballast Water Management Requirements.
Note • History
(a) The master, operator, or person in charge of a vessel that arrives at a California port or place from another port or place within the Pacific Coast Region shall employ at least one of the following ballast water management practices:
(1) Exchange the vessel's ballast water in near-coastal waters, before entering the waters of the state, if that ballast water has been taken on in a port or place within the Pacific Coast region.
(2) Retain all ballast water on board the vessel.
(3) Use an alternative, environmentally sound method of ballast water management that, before the vessel begins the voyage, has been approved by the commission or the United States Coast Guard as being at least as effective as exchange, using mid-ocean waters, in removing or killing nonindigenous species.
(4) Discharge the ballast water to a reception facility approved by the commission.
(5) Under extraordinary circumstances where compliance with subsections (a)(1) through (a)(4) of this section is not practicable, perform a ballast water exchange within an area agreed to by the commission in consultation with the United States Coast Guard at or before the time of the request.
NOTE
Authority cited: Sections 71201.7 and 71204.5, Public Resources Code. Reference: Sections 71200, 71204 and 71204.5, Public Resources Code.
HISTORY
1. New section filed 9-23-2005; operative 3-22-2006 (Register 2005, No. 38).
Article 4.7. Performance Standards for the Discharge of Ballast Water for Vessels Operating in California Waters
§2291. Purpose, Applicability, and Date of Implementation.
Note • History
(a) The purpose of the regulations in Title 2, Division 3, Chapter 1, Article 4.7 of the California Code of Regulations is to move the state expeditiously toward elimination of the discharge of nonindigenous species into the waters of the state or into waters that may impact the waters of the state, based on the best available technology economically achievable.
(b) The provisions of Article 4.7 apply to all vessels that discharge ballast water in California waters except those that are exempt under Section 71202, Public Resources Code.
NOTE
Authority cited: Sections 71201.7, 71202 and 71205.3, Public Resources Code. Reference: Sections 71201.7, 71202 and 71205.3, Public Resources Code.
HISTORY
1. New article 4.7 (sections 2291-2296) and section filed 10-15-2007; operative 1-1-2008 (Register 2007, No. 42).
2. Repealer of subsection (c) and amendment of Note filed 10-1-2009; operative 10-31-2009 (Register 2009, No. 40).
Note • History
Unless the context otherwise requires, the following definitions shall govern the construction of this Article:
(a) “Ballast Water Capacity” means the total volumetric capacity of any tanks, spaces, or compartments on a vessel used for carrying, loading or discharging ballast water, including any multi-use tank, space or compartment designed to allow carriage of ballast water.
(b) “Ballast Water Sample” means a unit of ballast water that may be collected and assessed for compliance verification purposes.
(c) “Board” means the State Water Resources Control Board
(d) “Colony Forming Unit” means a measure of viable bacterial numbers.
(e) “Commission” means the California State Lands Commission.
(f) “Constructed” means a stage of vessel construction where:
(1) the keel is laid; or
(2) construction identifiable with a specific vessel begins; or
(3) assembly of the vessel has commenced comprising at least 50 tonnes or 1 percent of the estimated mass of all structural material, whichever is less; or
(4) the vessel undergoes a major conversion.
(g) “Isokinetic Sampling Facility” means a sampling apparatus in which the velocity (or speed) of the sample stream does not change from the pipe being sampled to the sample pipe itself.
(h) “Isokinetic Diameter” assumes a circular main flow pipe and circular sampling pipe of which the diameter is designed to maintain the fluid velocity from the main flow to the sample flow.
(i) “Major Conversion” means a conversion of a vessel;
(1) which changes its ballast water carrying capacity by 15 percent or greater; or
(2) which changes the vessel type; or
(3) which, in the opinion of the Commission, is projected to prolong its life by ten years or more; or
(4) which results in modifications to its ballast water system other than component replacement-in-kind. Conversion of a vessel to meet the provisions of this Article shall not be deemed to constitute a major conversion for the purposes of this Section.
(j) “Sampling Facilities” means the equipment installed to take the ballast water sample.
(k) “Sampling Point” means that place in the ballast water piping where the sample is taken.
(l) “Vessel” means a vessel of 300 gross registered tons or more.
NOTE
Authority cited: Sections 71201.7 and 71205.3, Public Resources Code. Reference: Sections 71200, 71201.7 and 71205.3, Public Resources Code.
HISTORY
1. New section filed 10-15-2007; operative 1-1-2008 (Register 2007, No. 42).
2. New subsections (b), (g), (h), (j) and (k) and subsection relettering filed 10-1-2009; operative 10-31-2009 (Register 2009, No. 40).
§2293. Interim Performance Standards for Ballast Water Discharges.
Note • History
Subject to the Implementation Schedule in Section 2294, before discharging ballast water in waters subject to the jurisdiction of California, the master, owner, operator, or person in charge of a vessel to which this section applies shall conduct ballast water treatment so that ballast water discharged will contain:
(a) No detectable living organisms that are greater than 50 micrometers in minimum dimension;
(b) Less than 0.01 living organisms per milliliter that are less than 50 micrometers in minimum dimension and more than 10 micrometers in minimum dimension;
(c) For living organisms that are less than 10 micrometers in minimum dimension:
(1) less than 1,000 bacteria per 100 milliliter;
(2) less than 10,000 viruses per 100 milliliter;
(3) concentrations of microbes that are less than:
(A) 126 colony forming units per 100 milliliters of Escherichia coli;
(B) 33 colony forming units per 100 milliliters of Intestinal enterococci ; and
(C) 1 colony forming unit per 100 milliliters or 1 colony forming unit per gram of wet weight of zoological samples of Toxicogenic Vibrio cholerae (serotypes 01 and 0139)
NOTE
Authority cited: Sections 71201.7 and 71205.3, Public Resources Code. Reference: Sections 71201.7 and 71205.3, Public Resources Code.
HISTORY
1. New section filed 10-15-2007; operative 1-1-2008 (Register 2007, No. 42).
§2294. Implementation Schedule for Interim Performance Standards for Ballast Water Discharges.
Note • History
Sections 2293 and 2297 apply to vessels in accordance with the following schedule:
(a) Beginning January 1, 2010, for vessels constructed on or after that date with a ballast water capacity of less than or equal to 5,000 metric tons.
(b) Beginning January 1, 2012, for vessels constructed on or after that date with a ballast water capacity greater than 5,000 metric tons.
(c) Beginning January 1, 2014, for vessels constructed before January 1, 2010, with a ballast water capacity of 1,500 metric tons or more but not more than 5,000 metric tons.
(d) Beginning January 1, 2016, for vessels constructed before January 1, 2010, with a ballast water capacity of less than 1,500 metric tons, and for vessels constructed before January 1, 2012, with a ballast water capacity greater than 5,000 metric tons.
NOTE
Authority cited: Sections 71201.7 and 71205.3, Public Resources Code. Reference: Sections 71201.7 and 71205.3, Public Resources Code.
HISTORY
1. New section filed 10-15-2007; operative 1-1-2008 (Register 2007, No. 42).
2. Change without regulatory effect amending subsection (a) filed 1-27-2009 pursuant to section 100, title 1, California Code of Regulations (Register 2009, No. 5).
3. Amendment of first paragraph and subsections (c) and (d) filed 10-1-2009; operative 10-31-2009 (Register 2009, No. 40).
§2295. Implementation Schedule for Final Performance Standards for Ballast Water Discharges.
Note • History
Beginning January 1, 2020, before discharging ballast water in waters subject to the jurisdiction of California, the master, owner, operator, or person in charge of a vessel to which this section applies shall conduct ballast water treatment so that ballast water discharged will contain zero detectable living organisms for all organism size classes.
NOTE
Authority cited: Sections 71201.7 and 71205.3, Public Resources Code. Reference: Sections 71201.7 and 71205.3, Public Resources Code.
HISTORY
1. New section filed 10-15-2007; operative 1-1-2008 (Register 2007, No. 42).
§2296. Delay of Application for Vessels Participating in Promising Technology Evaluations.
Note • History
If an owner or operator of a vessel applies to install an experimental ballast water treatment system, and the Commission approves that application on or before January 1, 2008, the Commission shall deem the system to be in compliance with any future treatment standard adopted, for a period not to exceed five years from the date that the interim performance standards would apply to that vessel.
(a) The Commission may rescind its approval of the system at any time if the Commission, in consultation with the Board and the United States Coast Guard, and after an opportunity for administrative appeal with the executive officer of the Commission, determines that the system has not been operated in accordance with conditions in the agreed upon application package, or that there exists a serious deficiency in performance, human safety, or environmental soundness relative to anticipated performance, or that the applicant has failed to provide the Commission with required test results and evaluations.
NOTE
Authority cited: Sections 71201.7, 71204.7 and 71205.3, Public Resources Code. Reference: Sections 71201.7, 71204.7 and 71205.3, Public Resources Code.
HISTORY
1. New section filed 10-15-2007; operative 1-1-2008 (Register 2007, No. 42).
§2297. Collection of Ballast Water Samples.
Note • History
Subject to the implementation schedule in Section 2294 and taking into account the following considerations, a vessel to which this section applies shall install sampling facilities to enable collection of ballast water samples in order to assess compliance with Section 2293.
(a) Technical specifications for design of in-line sampling facilities:
(1) The sampling facility shall not damage and/or induce substantial incidental mortality to organisms to be collected in ballast water.
(2) The isokinetic sample port diameter shall be determined according to the equation:
Embedded Graphic 02.0037
where Diso and Dm are the diameters of the sample port opening and the main flow in the discharge line, respectively; and Qiso and Qm represent the respective volumetric flow rates through the two pipes.
Sample port size shall be based on the combination of maximum sample flow rate and minimum ballast flow rate that yields the largest isokinetic diameter.
(3) The opening of the sampling pipe shall be chamfered to provide a smooth and gradual transition between the inside and outside pipe diameters.
(4) The length of the straight sample pipe facing into the flow can vary, but shall not be less than one diameter of the sampling pipe. The sampling port shall be oriented such that the opening is facing upstream and its lead length is parallel to the direction of flow and concentric to the discharge pipe, which may require sampling pipes to be “L” shaped with an upstream facing leg if installed along a straight section of discharge pipe.
(5) The design of the sample facility shall allow for the servicing and/or cleaning of the sampling facility without impacting the safety of the vessel. The sampling pipe should be retrievable either manually or mechanically, or it should be in a system which can be isolated.
(6) The sample facility and all associated parts of the sampler that come into contact or near proximity with the ballast piping shall be constructed of galvanically compatible materials and generally corrosion resistant.
(7) When control of the sample flow rate is required, appropriate valves shall be used that do not result in organism mortality due to sharp velocity transitions. Ball, gate or butterfly valves shall not be used.
(8) If a pump must be used to sample the discharge side of a tank, an appropriate sampling pump shall be used to minimize organism mortality.
(9) The Master of the vessel must maintain positive control (e.g. tamper evident lockout seals) over the ballast water sampling facility when compliance verification or scientific sampling is not being conducted.
(b) Technical specifications for installation of a sample point in the ballast water discharge line:
(1) The sampling point shall be safely accessible to Commission staff, and shall not be in a confined space.
(2) The sampling point shall be installed in a straight part of the discharge line, downstream of the last treatment process, as near to the ballast water overboard discharge as practicable.
(3) The sample shall be removed from the main pipeline at a location where the flowing stream at the sample point is representative of the contents of the stream. The sample facility should be placed at a point where the flow in the main pipe is fully mixed and fully developed.
(4) As many sample points shall be provided as necessary to draw a ballast water sample during typical deballasting of the vessel.
(5) In cases where the ballast system design does not enable sampling from the discharge line, other arrangements for a sampling point may be made on a vessel-specific basis with prior approval of Commission staff.
(c) Existing sampling facilities
Vessels may use existing sampling facilities, installed prior to January 1, 2010, to fulfill the requirements of this Section with prior approval of Commission staff.
NOTE
Authority cited: Sections 71201.7, 71205.3 and 71206, Public Resources Code. Reference: Sections 71201.7, 71205.3 and 71206, Public Resources Code.
HISTORY
1. New section filed 10-1-2009; operative 10-31-2009 (Register 2009, No. 40).
§2297.1. Ballast Water Treatment Technology Reporting Requirements.
Note • History
(a) Ballast Water Treatment Technology Annual Reporting Form
(1) The following form “Ballast Water Treatment Technology Annual Reporting Form (Revised July 1, 2010)” is hereby incorporated by reference, and shall be used to comply with the provisions of Public Resources Code Section 71205(g) by the master, owner, operator, agent, or person in charge of a vessel that has a ballast water treatment system installed on board and has discharged treated ballast in waters of the state.
(2) The “Ballast Water Treatment Technology Annual Reporting Form” shall be submitted to the Commission in written or electronic form within 60 days of receiving a written or electronic request from the Commission.
(b) Ballast Water Treatment Supplemental Reporting Form
(1) The following form “Ballast Water Treatment Supplemental Reporting Form (Revised July 1, 2010)” is hereby incorporated by reference, and shall be used to comply with the provisions of Public Resources Code Section 71205(g) by the master, owner, operator, agent, or person in charge of a vessel that has a ballast water treatment system installed on board and has discharged treated ballast in waters of the state.
(2) The “Ballast Water Treatment Supplemental Reporting Form” shall be submitted to the Commission in written or electronic form upon departure of that vessel from a California port or place of call if that vessel discharged treated ballast water into the waters of the state.
NOTE
Authority cited: Sections 71201.7 and 71205, Public Resources Code. Reference: Sections 71201.7 and 71205(g), Public Resources Code.
HISTORY
1. New section filed 10-26-2010; operative 11-25-2010 (Register 2010, No. 44).
Article 4.8. The Collection of Information Relating to Hull Husbandry Practices of Vessels for Control of Marine Invasive Species in Waters of California
§2298. Hull Husbandry Reporting Form.
Note • History
(a) Section 71205(e) of the Public Resources Code requires the master, owner, operator, agent, or person in charge of a vessel carrying, or capable of carrying, ballast water into the coastal waters of the State to file the “Hull Husbandry Reporting Form” developed by the California State Lands Commission providing information regarding the hull husbandry practices relating to the vessel, within 60 days of receiving a written or electronic request from the Commission.
(b) The “Hull Husbandry Reporting Form” (revised June 6, 2008) is hereby incorporated by reference and shall be used by the master, owner, operator, agent, or person in charge of a vessel carrying, or capable of carrying, ballast water into the coastal waters of the State to comply with the provisions of Section 71205(e) of the Public Resources Code.
NOTE
Authority cited: Sections 71201.7, 71204.6 and 71205(e), Public Resources Code. Reference: Sections 71204.6, 71205(e) and 71205(f), Public Resources Code.
HISTORY
1. New article 4.8 (section 2298) and section filed 12-29-2008; operative 1-1-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 1).
Article 5. Marine Terminals Inspection and Monitoring
§2300. The Marine Facilities Division.
Note • History
(a) There is in the Staff of the California State Lands Commission the Marine Facilities Division, which has the primary responsibility for carrying out the provisions of the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act of 1990 within the Commission's jurisdiction.
(b) The primary office of the Division is at 200 Oceangate, Suite 900, Long Beach, California 90802-4335, telephone (562) 499-6312.
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 6-10-91 as an emergency; operative 6-10-91 (Register 91, No. 33). A Certificate of Compliance must be transmitted to OAL by 10-8-91 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-23-91 as an emergency; operative 8-23-91 (Register 92, No. 3). A Certificate of Compliance must be transmitted to OAL 12-23-91 or emergency language will be repealed by operation of law on the following day.
3. New section filed 12-5-91; operative 12-5-91 pursuant to Government Code section 11346.2(d) (Register 92, No. 12).
4. Repealer and new section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
5. Editorial correction amending article and section headings (Register 93, No. 10).
6. Amendment of article 5 heading, section heading and section filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
7. Change without regulatory effect amending subsection (b) filed 12-20-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 51).
§2301. The Marine Facilities Inspection and Management Division. [Repealed]
Note • History
NOTE
Authority cited: Sections 6005, 6105, 6108, 6216, 6301, 6321, 6501, 6501.1, 6501.2, 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 6-10-91 as an emergency; operative 6-10-91 (Register 91, No. 33). A Certificate of Compliance must be transmitted to OAL by 10-8-91 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-23-91 as an emergency; operative 8-23-91 (Register 92, No. 3). A Certificate of Compliance must be transmitted to OAL 12-23-91 or emergency language will be repealed by operation of law on the following day.
3. New section filed 12-5-91; operative 12-5-91 pursuant to Government Code section 11346.2(d) (Register 92, No. 12).
4. Repealer filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
§2302. Compliance with Federal, State and Local Regulations. [Repealed]
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 6-10-91 as an emergency; operative 6-10-91 (Register 91, No. 33). A Certificate of Compliance must be transmitted to OAL by 10-8-91 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-23-91 as an emergency; operative 8-23-91 (Register 92, No. 3). A Certificate of Compliance must be transmitted to OAL 12-23-91 or emergency language will be repealed by operation of law on the following day.
3. New section filed 12-5-91; operative 12-5-91 pursuant to Government Code section 11346.2(d) (Register 92, No. 12).
4. Repealer filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
§2303. Inspections and Monitoring. [Repealed]
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8670.25 through 8670.37.5, Government Code; Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 6-10-91 as an emergency; operative 6-10-91 (Register 91, No. 33). A Certificate of Compliance must be transmitted to OAL by 10-8-91 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-23-91 as an emergency; operative 8-23-91 (Register 92, No. 3). A Certificate of Compliance must be transmitted to OAL 12-23-91 or emergency language will be repealed by operation of law on the following day.
3. New section filed 12-5-91; operative 12-5-91 pursuant to Government Code section 11346.2(d) (Register 92, No. 12).
4. Repealer filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
§2304. Prior Notice of Transfer Operation. [Repealed]
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 6-10-91 as an emergency; operative 6-10-91 (Register 91, No. 33). A Certificate of Compliance must be transmitted to OAL by 10-8-91 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-23-91 as an emergency; operative 8-23-91 (Register 92, No. 3). A Certificate of Compliance must be transmitted to OAL 12-23-91 or emergency language will be repealed by operation of law on the following day.
3. New section filed 12-5-91; operative 12-5-91 pursuant to Government Code section 11346.2(d) (Register 92, No. 12).
4. Repealer filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
§2305. Purpose, Applicability and Date of Implementation.
Note • History
(a) The purpose of the regulations in Title 2, Division 3, Chapter 1, Article 5 of the California Code of Regulations is to provide the best achievable protection of the public health and safety and of the environment by using the best achievable technology.
(b) The provisions of this article shall not apply to:
(1) Oil transfer operations conducted at offshore drilling and production platforms.
(2) Tank cleaning operations which begin after the removal of cargo or fuel from any tank vessel or barge.
(3) Oil transfer operations to or from vessels other than tank vessels or barges if such vessels have oil carrying capacities of less than 250 barrels.
(c) Unless otherwise specified in these regulations any new sections or modifications to existing sections shall become effective 30 days after they have been filed with the Secretary of State.
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. New subsection (b)(3) and amendment of subsection (c) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of subsection (c) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2310. Alternative Requirements or Exemptions.
Note • History
(a) Petitions for Alternative Requirements or Exemptions.
(1) Any person subject to these regulations may submit a petition to the Division Chief for alternative requirements or exemptions to the requirements of Article 5.
(2) All petitions for alternative requirements or exemptions must be submitted in writing. A petition may be in any form, but it must contain all data and information necessary to evaluate its merits.
(b) Review and Response to Petitions.
(1) Upon receipt, the Division shall review a petition for an alternative to or an exemption from any provision of this Article 5 to ensure that it contains all necessary information to support the petition.
(2) If the Division Chief determines that the proposed alternatives to or exemptions from the requirements of Article 5 will ensure an equivalent or greater level of protection of the public health and safety and the environment, he or she shall notify the petitioner that the petition is complete and proceed under the provisions of subsection (c)(3) of this section for approval of the petition.
(3) If the Division Chief determines that the proposed alternatives to or exemptions from the requirements of Article 5 will not ensure an equivalent or greater level of protection of the public health and safety and the environment, he or she shall notify the petitioner, in writing, giving specific reasons for such determination.
(4) In all cases, whether a petition is approved or not, the Division Chief shall respond in writing to the petitioner within 30 working days of receipt of a completed petition.
(5) A petitioner who is in receipt of written notification from the Division Chief under subsection (b)(3) of this section shall not be precluded from resubmitting petition for alternatives to or exemptions from similar provisions of this Article 5.
(c) Approval of Alternative Requirements or Exemptions.
(1) Any person subject to these regulations may depart from the requirements of Article 5 if the Division Chief finds that the person subject to these regulations can and will comply with alternative measures which will ensure an equivalent or greater level of protection of the public health and safety and the environment were the person to comply with the provisions of Article 5.
(2) Any person subject to these regulations may be exempt from one or more of the requirements of Article 5 if the Division Chief finds that compliance with a requirement or requirements cannot be achieved at that terminal because of unusual circumstances or conditions at that terminal because of unusual circumstances or conditions at that terminal or because materials or personnel needed for compliance are unavailable.
(3) If the Division Chief approves an alternative requirement or an exemption under this section, a letter of approval shall be issued to the petitioner setting forth the findings upon which the approval is based, and a copy of that letter shall be maintained at all times at the terminal with the terminal's operations manual required under Section 2385.
(4)(A) The Division Chief may withdraw the letter of approval of an alternative requirement at any time if he or she finds that the person or persons subject to these regulations have not regularly and consistently complied with the approved alternative requirement.
(B) The Division Chief may withdraw the letter of approval of an exemption at any time if he or she determines that compliance with the requirement or requirements of Article 5 can be achieved.
(C) Withdrawal of a letter of approval under this section shall be effective upon the receipt by the petitioner of written notification of the withdrawal.
NOTE
Authority cited: Sections 8751, 8755, 8756 and 8758, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8756 and 8758, Public Resources Code; and Sections 15375, 15376 and 15378, Government Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of section and Note filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
Note • History
Unless the context otherwise requires, the following definitions shall govern the construction of this article:
(a) “Administrator” means the administrator for oil spill response, as referenced in Public Resources Code Section 8750, subsection (a).
(b) “Apparent violation” means an act, course of action or omission which, in the opinion of an agent or employee of the Division authorized to make such a determination, appears to be in violation of one or more of the provisions of Article 5.
(c) “Barge” means any vessel that carries oil in commercial quantities as cargo, but is not equipped with a means of self-propulsion.
(d) “Bunkers” or “bunker fuel” means fuel oil or lubrication oil supplied to any vessel for operating its propulsion and auxiliary machinery.
(e) “CFR” means the currently effective edition of the United States Code of Federal Regulations.
(f) “Commission” means the California State Lands Commission.
(g) “Division” means the Marine Facilities Division of the California State Lands Commission.
(h) “Division Chief” means the Chief of the Marine Facilities Division or any employee of the Division authorized by the Chief to act on his behalf.
(i) “HOSE TECHNICAL INFORMATION BULLETIN: No. IP-11-4” means the 1995 edition of the “Hose Technical Information Bulletin: No. IP-11-4; Oil Suction and Discharge Hose; Manual for Maintenance, Testing and Inspection”, published by the Rubber Manufacturers Association (RMA), 1400 K Street, N.W., Washington, D.C. 20005.
(j) “Hot work” means work involving sources of ignition or temperatures sufficiently high to cause the ignition of a flammable gas mixture. This includes any work requiring the use of welding, burning or soldering equipment; blow torches; permitted power driven tools; portable electrical equipment which is not intrinsically safe or contained within an approved explosion proof housing; sand blasting equipment; or internal combustion engines.
(k) “ISGOTT” means the Fourth Edition of the International Safety Guide for Oil Tankers and Terminals, published in 1996 by the International Chamber of Shipping (ICS), 30/32 St. Mary Axe, London EC3A 8ET, England.
(l) “International Safety Management (ISM) Code” or “ISM Code” means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organization (IMO) by resolution A.741(18), as an amendment to the Annex to the International Convention for the Safety of Life at Sea, 1974 (SOLAS), (new Chapter IX) at the IMO's May 1994 SOLAS Conference.
(m) “Marine terminal” means a facility, including a mobile transfer unit, other than a vessel, located on or adjacent to marine waters in California, used for transferring oil to or from tank vessels or barges. The term references all parts of the facility including, but not limited to, structures, equipment and appurtenances thereto used or capable of being used to transfer oil to or from tank vessels or barges. For the purpose of these regulations, a marine terminal includes all piping not integrally connected to a tank facility. A tank facility means any one or combination of above ground storage tanks, including any piping which is integral to the tank, which contains crude oil or its fractions and which is used by a single business entity at a single location or site. A pipe is integrally related to an above ground storage tank if the pipe is connected to the tank and meets any of the following:
(1) The pipe is within the dike or containment area;
(2) The pipe is connected to the first flange or valve after the piping exits the containment area; or
(3) The pipe is connected to the first flange or valve on the exterior of the tank, if state or federal law does not require a containment area.
(n) “MARPOL 73/78” means the final act of the International Conference on Marine Pollution, 1973, including the International Convention for the Prevention of Pollution from Ships, 1973 and of the Protocol of 1978, published in MARPOL 73/78, Consolidated Edition, 1991, IMO Publications, International Maritime Organization (IMO), 4 Albert Embankment, London SE1 7SR, England.
(o) “Mobile transfer unit” means a marine fueling facility that is a vehicle, truck, trailer, tank car, or land based transportable tank, including all connecting hoses and piping, used for the transferring of oil at a location where a discharge could impact marine waters.
(p) “Offshore marine terminal” means any marine terminal at which tank vessels or barges are made fast to a buoy or buoys.
(q) “Oil” means any kind of petroleum, liquid hydrocarbons, or petroleum products or any fraction or residues therefrom, including, but not limited to, crude oil, bunker fuel, gasoline, diesel fuel, aviation fuel, oil sludge, oil refuse, oil mixed with waste, and liquid distillates from unprocessed natural gas.
(r) “Onshore marine terminal” means any marine terminal at which tank vessels or barges are made fast to land structures or substantially land structures.
(s) “Operator” when used in connection with vessels, marine terminals, pipelines, or facilities, means any person or entity which owns, has an ownership interest in, charters, leases, rents, operates, participates in the operation of or uses that vessel, terminal, pipeline, or facility. “Operator” does not include any entity which owns the land underlying the terminal or the terminal itself, where the entity is not involved in the operations of the terminal.
(t) “Spill” or “discharge” means any release of oil into marine waters which is not authorized by any federal, state, or local government entity.
(u) “Tank vessel” or “tanker” means any self-propelled, waterborne vessel, constructed or adapted for the carriage of oil in bulk or in commercial quantities as cargo.
(v) “Terminal” means marine terminal.
(w) “Terminal person in charge” or “TPIC” means an individual designated by the terminal operator as the person in charge of a particular oil transfer operation at a particular terminal.
(x) “Threatened violation” means any threatened act, course of action or omission which, if carried out, in the opinion of an agent or employee of the Division authorized to make such a determination, would appear to be in violation of one or more of the provisions of Article 5.
(y) “Transfer” means any movement of oil, including movements of bunker fuel, between the terminal and the vessel by means of pumping, gravitation or displacement. The term “transfer” also includes those movements of oil to, from or within any part of the terminal or vessel that are directly associated with the movement of oil or bunker fuel between the terminal and the vessel.
(z) “Transfer area” means that part of a terminal through which oil product moves between a vessel and the first manifold or shut-off valve outside the terminal area as described in the terminal operations manual.
(aa) “Transfer operations” means the following:
(1) For all terminals, all activities carried out with regard to a transfer, including, but not limited to:
(A) Preparation for transfer;
(B) Hookup and disconnect of hoses, mechanical loading arms and any other equipment used for transferring oil; and
(C) Steady pumping.
(2) For offshore terminals:
(A) All activities set forth in subsection (aa)(1) of this section; and
(B) The procedures and maneuvers for mooring and unmooring of the tank vessel or barge to and from the buoy or buoys as described in the terminal operations manual.
(bb) “Vessel” means every description of watercraft or other artificial contrivance, used or capable of being used, as a means of transportation on water and includes, but is not limited to, tank vessels and barges.
(cc) “Vessel person in charge” or “VPIC” means the person in charge of the vessel's oil transfer operations.
NOTE
Authority cited: Sections 8750, 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Editorial correction inserting inadvertently omitted first paragraph (Register 93, No. 10).
3. Amendment filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2320. Inspections and Monitoring.
Note • History
(a) The Division shall carry out an inspection program which shall include the following:
(1) At least once a year, the Division shall cause to be carried out an inspection of each marine terminal in the state to determine whether all parts of the terminal are being maintained and operated in such a manner to ensure the public health and safety and the protection of the environment and in accordance with the operations manual required, and approved under Section 2385 of these regulations and 33 CFR Part 154.
(2) On a continuing basis in accordance with Chapter 31F of Divisions 1 through 11, Title 24, Part 2, Volume 1 of the California Code of Regulations, the Division shall carry out or cause to be carried out inspections and investigations of each onshore marine terminal in the state to determine whether the structural integrity of the terminal, the oil transfer operations system and the safety equipment are designed and being maintained in a safe working condition.
(3) On a continuing basis, the Division shall monitor transfer operations at all terminals.
(b) Every agent or employee of the Division shall, prior to the inspection of a marine terminal or monitoring of an oil transfer operation, or at the time the agent or employee arrives at the terminal or vessel to carry out inspection or monitoring activities, make every reasonable attempt to notify the TPIC or VPIC, as appropriate, of the intended activity.
(c)(1) Every terminal operator shall provide to the Division access at any time to any and all parts of the operator's terminal.
(2)(A) Every terminal operator shall provide to the Division access at any time to any and all documents, records, policies, guidelines and reports relating to terminal personnel training, testing, inspections, maintenance and operation of the terminal, including but not limited to, the following:
1. A copy of the terminal operator's letter of intent;
2. A copy of the state approved terminal operations manual with its letter of adequacy;
3. The name of each person currently designated as a TPIC at that terminal;
4. The date and result of the most recent test or examination of each item tested or examined as required by 33 CFR 156.170;
5. The hose information required by Section 2380, subsections (a)(1)(E), (F) and (G), including that marked on the hose;
6. The record of all inspections and examinations of the terminal by the U.S. Coast Guard and the Division within the last 3 years;
7. The record of all safety related inspections and examinations of the terminal by the State Fire Marshal local fire department or any port police within the last 3 years;
8. Any current permits to perform work of a hazardous nature issued pursuant to Section 2360; and
9. The Declaration of Inspection required by Section 2335.
(B) If policies, guidelines and reports described in subsection (A) of this section for a particular terminal are not available at the terminal except in an office or other location which is open and reasonably accessible only during reasonable business hours, the terminal operator shall not be required to provide the Division access to those policies, guidelines and reports except during reasonable business hours.
(C) No terminal operator shall be required to provide access to policies, guidelines and reports except during reasonable business hours, during transfer operations or during investigations resulting from emergency situations, including, but not limited to, oil discharge events or situations where an oil discharge involving the terminal may be imminent.
(3) Each operator of any vessel shall provide to the Division access on board the vessel at any and all times the vessel is engaged in oil transfer operations at any terminal. Access shall be provided to any and all parts of the vessel necessary, as deemed by the employee or agent of the Division, to monitor any and all phases, aspects and parts of transfer operations for compliance with regulations of the State of California.
(4) Access under subsections (c)(1), (2) and (3) of this section shall be provided without warrant or prior notification by the Division.
(5)(A) If any duly authorized employee or agent of the Division is denied access, as specified in this section, to any part of the terminal or to any vessels at the terminal, the employee or agent shall immediately make every reasonable attempt to notify the TPIC or VPIC, whichever is appropriate, that access has been denied.
(B) No terminal may be used in transfer operations with any vessel during any period where any duly authorized employee or agent of the Division is denied access to that vessel.
(6) If any duly authorized employee or agent of the Division is denied access as specified under this section, the Division shall do all of the following:
(A) Provide notification of the denial of access to the Coast Guard Marine Safety Office having jurisdiction;
(B) Provide notification of the denial of access to the Administrator; and
(C) Take whatever legal action is necessary or appropriate to obtain access.
(d) In the event of an oil spill, the presence of any employee or agent of the Commission shall in no way relieve or alter any responsibility any operator of a terminal or vessel may have to report the discharge to the Office of Emergency Services, as required under Government Code Section 8670.25.5, and to comply with all applicable contingency plans and all requirements under the Government Code regarding response to oil spills.
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8670.1 through 8670.70, Government Code; and Sections 8750, 8751, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsections (c)(2)(A) and (c)(2)(A)8. filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
3. Amendment of subsection (a)(2) filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
Note • History
(a) Unless the Division and a terminal operator agree otherwise, at least four (4) hours, but not more than twenty four (24) hours, prior to the initiation of any transfer operation, the operator of the terminal where the transfer is to take place shall provide notice of the transfer to the Division. For barge operations, where the terminal operator has less than four (4) hours advance notice of the transfer, the terminal operator shall provide the Division with notice of the transfer as soon as possible after receiving notice of the anticipated transfer, but in any case prior to the initiation of transfer operations.
(b) Notifications shall be made in person, by telephone or by facsimile machine to the local area Division field office. For terminals located north of the boundary between Monterey and San Luis Obispo Counties, notifications are to be made to the Division field office in Hercules, (510) 741-4950; facsimile number (510) 741-4975. For terminals located south of the boundary between Monterey and San Luis Obispo Counties, notifications are to be made to the Division field office in Long Beach, (562) 499-6348; facsimile number (562) 499-6355.
(c) The notification shall include the following:
(1) The location of the transfer;
(2) The expected time of arrival of the vessel;
(3) Time anticipated for initiation of the transfer operations;
(4) The name of the tank vessel or barge involved,; and
(5) The type or types of oil, oil products, or mixtures containing oil expected to be transferred, including, but not limited to, cargo, bunker fuel, slops and dirty ballast.
(6) The approximate quantity of material being transferred under the categories of feedstock, product or slops.
(d) The terminal operator or TPIC shall promptly notify the local area Division field office of any report or notification received from the VPIC, that the tank vessel berthed at the terminal for the purpose of conducting a transfer operation does not have the ability to move away from the berth, under its own power, within 30 minutes, as described in Section 2340, subsection (c)(28)(A).
(e) The terminal operator or TPIC shall promptly notify the local area Division field office of any damage to structure or equipment at the terminal that is likely to impact public health and safety and the environment adversely, or is damage in excess of $50,000 in value. Examples of incidents which may cause reportable damage shall include, but not be limited to, impact from vessel, heavy weather, fire, explosion, equipment failure, acts of terrorism or seismic activity.
NOTE
Authority cited: Sections 8751, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Change without regulatory effect amending subsection (b) filed 8-16-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 33).
3. Amendment of subsection (d) and new subsection (e) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
4. Amendment of subsections (b) and (c)(5), new subsection (c)(6) and amendment of subsection (e) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2330. Exchange of Information.
Note • History
(a) Exchange of Information Prior to a Vessel's Arrival at a Terminal.
(1) Prior to arrival of a tank vessel or barge at the terminal, the terminal operator shall acquire from the tank vessel or barge or its owners, operators or agents, and the vessel's owner, operator or agent shall provide, all of the following items of information which are applicable:
(A) Draft on arrival;
(B) Maximum draft and trim expected during transfer operation;
(C) Whether tank cleaning or crude oil washing will be undertaken;
(D) Any repairs that could delay commencement of cargo transfer;
(E) Manifold details, including type and size;
(F) Quantity and nature of slops, dirty ballast to be transferred at the terminal and any contamination thereof by chemical additives;
(G) Any defect of hull, machinery, piping, valves or other equipment which may:
1. Affect the safe maneuverability of the tank vessel or barge; or
2. Constitute a hazard to public health and safety and the environment; and
(H) Any other information pertinent to mooring, transfer of vessel's stores and cargo transfer operations.
(2) Prior to arrival at the terminal, the terminal operator shall provide, as applicable to the operator of the tank vessel or barge, information which shall include but not be limited to:
(A) Least depth of water expected at the berth while the vessel will be at the berth;
(B) The minimum number, length, size and material of mooring lines and emergency towing wires and accessories which the vessel should have available for mooring operations;
(C) Manifold, hose and mechanical loading arm details, including, but not limited to, type and size, used for oil transfer;
(D) Details and requirements concerning any vapor control system;
(E) Terminal requirements for crude oil washing and tank cleaning procedures;
(F) Any arrangements for the reception of slop or oil ballast residues;
(G) Any particular features of a dock or mooring or any significant damage which is considered essential to bring to the notice of the Master of the tank vessel, crew of the barge, Pilot or Mooring Master;
(H) At offshore terminals, the number of tugs required and the number of mooring support vessels that will be provided for mooring and unmooring operations;
(I) At offshore terminals information on wind, sea, swell, current, tide, visibility and load limitations and terminal restrictions including conditions under which mooring will not be permitted and conditions requiring cessation of transfer operations and departure from the moorings; and
(J) Any other information pertinent to available port services, mooring and cargo transfer operations.
(b) Exchange of Information upon Arrival (Pre-transfer Conference).
(1) Transfer operations shall not commence until both persons in charge are present and mutually agree to commence transfer operations after having conducted a pre-transfer conference and completed the declaration of inspection.
(2) The TPIC and VPIC shall hold a pre-transfer conference, to ensure that each person in charge clearly understands all information and agrees to all procedures necessary for a safe and pollution-free transfer operation.
(3) Those matters to be addressed in the pre-transfer conference shall include, but not be limited to, detailed information concerning the following:
(A) The quantities and temperatures of the products to be transferred;
(B) The cargo information listed in Section 2385, subsection (d)(2)(E) for the products to be transferred;
(C) The transferring and receiving systems, including, but not limited to, the following:
1. The sequence of transfer operations;
2. Maximum allowable working pressure;
3. Maximum allowable product temperature;
4. The control of line pressures;
5. The location of pressure gauges;
6. Settings of relief valves and the direction of their discharge;
7. Communications between vessel and terminal to compare and confirm quantities transferred and received;
8. Limitations on the movement of loading hoses and mechanical loading arms;
9. The initial, maximum and topping off transfer rates;
10. Tank changeover procedures;
11. Topping off procedures;
12. Transfer shutdown procedures; and
13. Signals to be used for standby, slowdown transfer rate, stop transfer, and emergency shutdown in case of a breakdown of communications systems;
14. If any part of the transfer is to be by gravity, the maximum marine terminal transfer rate possible using gravity; and
15. If the transfer is expected to take less than an hour, the approximate anticipated length of time needed for the transfer.
(D) Critical stages of the transfer operation;
(E) Federal, state, and local rules that apply to the transfer of oil;
(F) Emergency procedures;
(G) Discharge containment procedures;
(H) Discharge reporting procedures and requirements;
(I) Watch or shift arrangement;
(J) Frequency and means of checking that communications systems are operating effectively; and
(K) Minimum underkeel clearance required by the terminal operator.
(4) In addition to the requirements of subsection (b)(3) of this section, the TPIC and VPIC shall verify the following during the pre-transfer conference:
(A) The name or title and location of each person participating in the transfer operation;
(B) That vessel's cargo tanks which are required by the Coast Guard to be inerted have an oxygen content in the vapor space of cargo tanks of 8 percent by volume or less;
(C) That inerted tanks will remain inerted throughout the transfer operation or, if not, that Coast Guard approved alternate safety procedures will be employed;
(D) Whether tank cleaning or crude oil washing will be conducted during the transfer operation;
(E) The number and sizes of hose connections or loading arms to be used;
(F) Arrangements for the transfer of slops and oily ballast residues; and
(G) The maximum transfer rate of vapor control systems used during the transfer operation.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsections (a)(1)(H), (a)(2)(G), (b)(2), designation and amendment of subsection (b)(3) and subsection redesignation, amendment of subsection (b)(3)(C)12-13, new subsections (b)(3)(C)14-15 and amendment of subsection (b)(4) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of subsections (a)(2)(C)-(D), (b)(3)(C)13. and (b)(3)(I)-(J), new subsection (b)(3)(K) and amendment of subsections (b)(4)(F)-(G) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2335. Declaration of Inspection.
Note • History
(a) No person may transfer oil to or from a vessel unless both the TPIC and VPIC have filled out and signed a declaration of inspection described in subsection (c) of this section.
(b) No person in charge may sign the declaration of inspection unless he or she has determined by visual inspection, unless visual inspection is precluded, and indicated by initialling in the appropriate space on the declaration of inspection form, that the terminal, vessel, or both, as appropriate, meets the requirements of Section 2340.
(c) The declaration of inspection may be in any form, but must contain at least the following:
(1) The name or other identification of the transferring vessel and the terminal;
(2) The address of the terminal;
(3) A list of the requirements in Section 2340, subsection (c), with each requirement set forth separately and with spaces on the form following each requirement for the person in charge of the vessel, terminal, or both, as appropriate, to indicate by initialling that the requirement is met for the transfer operation; and
(4) A space for the date, time of signing, signature, and title of each person in charge during transfer operations on the transferring vessel or terminal and space for the date, time of signing, signature, and title of each person in charge during transfer operations on the receiving terminal or vessel.
(d) On completion of the transfer operation the TPIC and VPIC shall annotate the declaration of inspection with:
(1) The date and time of hookup for the transfer operation; and
(2) The date and time of disconnection upon completion of the cargo transfer;
(e) The VPIC and TPIC shall each have a signed copy of the declaration of inspection available for inspection by any employee or agent of the Division during the transfer operation.
(f) Each TPIC and VPIC who is different from the person who originally signed the declaration of inspection shall sign the declaration of inspection before assuming or re-assuming the duties of a person in charge. Prior to their signing or re-signing the declaration of inspection, each person in charge shall inspect the terminal or vessel, as appropriate, to ensure that the requirements of Section 2340, are being maintained.
(g) The terminal operator shall retain a signed copy of the declaration of inspection for at least three (3) years from the date of signature.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsection (c)(3) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of subsections (b) and (c)(3) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2340. Requirements for all Transfer Operations.
Note • History
(a) No operator, crew member or personnel of a vessel or terminal shall carry out or perform any willful or negligent act or omission which causes the entry of any amount of oil into marine waters during any transfer operation.
(b)(1) Unless, because of emergencies or unanticipated circumstances, doing so would harm public health or safety or the environment, all transfer operations shall be conducted in accordance with the terminal operations manual approved under § 2385 of these regulations or vessel transfer procedures required by 33 CFR 155.720, as appropriate, and with the mutual agreements and understanding established during the pre-transfer conference.
(2) Notwithstanding the provisions of subsection (b)(1) of this section, in circumstances where for operational or safety reasons the sequence of transfer operations or any other conditions or procedures agreed to in the pre-transfer conference are to be changed, the TPIC and VPIC shall, prior to continuation of the transfer operation, confer with each other to ensure that each person in charge clearly understands all information regarding the changes and agrees to all procedures necessary for continuation of a safe and pollution free transfer operation.
(c) The respective requirements with which the terminal and vessel must comply and which must be set forth on the declaration of inspection and initialled separately by both the TPIC and VPIC or both, as appropriate, as required by Section 2335, shall include, but not be limited to, the following:
(1) The vessel's moorings are strong enough to hold during all expected conditions of surge, current, and weather that are long enough to allow adjustment for changes in draft, drift, and tide during the transfer operation.
(2) Transfer hoses and loading arms are long enough to allow movement of the vessel while secured at the berth without placing strain on the hose, loading arm, or transfer piping system.
(3) To prevent kinking or other damage to the hose and strain on its coupling, each hose is supported in accordance with the operational recommendations of the “HOSE TECHNICAL INFORMATION BULLETIN: No. IP-11-4.”
(4) Each party of the transfer system is aligned to allow the flow of oil.
(5) Each part of the transfer system not necessary for the transfer operation is securely blanked off. Each test cock, sampling or bleeder valve is closed and securely capped.
(6) The end of each hose, loading arm and manifold that is not connected for the transfer of oil is blanked off with a bolt in at least every other hole and in no case less than four (4) bolts.
(7) The transfer system is attached to a fixed connection on the vessel and the terminal.
(8) Except when used to receive ballast as agreed within the pre-transfer conference, each overboard discharge or sea suction valve that is connected to the vessel's transfer or cargo tank system is sealed or lashed in the closed position.
(9) Each transfer hose has no unrepaired loose covers, kinks, bulges, soft spots, or other defect which would permit the discharge of oil through the hose material and no gouges, cuts, or slashes that penetrate any layer of hose reinforcement. “Reinforcement” means the strength members of the hose, consisting of fabric, cord or metal.
(10) Each hose or loading arm in use meets the requirements of Section 2380, subsections (a) and (b), respectively.
(11) Each connection meets the requirements of Section 2380, subsection (d).
(12) Any monitoring devices used to detect or limit the size of a discharge of oil, if installed, are operating properly.
(13) The small discharge containment equipment for the terminal, required by Section 2380, subsection (f), is readily accessible or deployed as applicable and will be periodically drained as required by subsection (g) of Section 2380.
(14) The discharge containment equipment for the vessel is in place and will be periodically drained to provide the required capacity.
(15) Each drain and scupper is securely closed by mechanical means.
(16) All connections in the transfer system are leak free, except that a component in the transfer system, such as the packing glands of a pump which cannot be made leak free, shall not leak at a rate that exceeds the capacity of the discharge containment provided during the transfer operation.
(17) The communications required by Section 2370 are operable for the transfer operation.
(18) The emergency means of shutdown for the terminal, required by Section 2380, subsection (h) and the emergency means of shutdown for the vessel required by 33 CFR 155.780 are in position and operable.
(19) There is a TPIC and a VPIC, and each:
(A) Meets the appropriate requirements of Section 2375 for persons in charge;
(B) Is at the site of the transfer operation and immediately available to the transfer personnel;
(C) Has ready access to a copy of the terminal operations manual or vessel transfer procedures, as appropriate; and
(D) Conducts the transfer operation in accordance with the terminal operations manual or vessel transfer procedures, as appropriate.
(20) The personnel required, under the terminal operations manual and the vessel transfer procedures, to conduct the transfer operation:
(A) Are on duty; and
(B) Conduct the transfer operation in accordance with the terminal operations manual or vessel transfer procedures, as appropriate.
(21) At least one person is at the site of the transfer operation who fluently speaks the language or languages spoken by both persons in charge.
(22) The TPIC and VPIC of transfer operations have held a pre-transfer conference as required by Section 2330, subsection (b).
(23) The TPIC and VPIC of transfer operations agree when the transfer operation is to begin.
(24) If any part of the transfer operation may take place between sunset and sunrise or during periods of reduced visibility, the lighting required by Section 2365 will be provided.
(25) A transfer operation which includes collection of vapor emitted from a vessel's cargo tanks through a vapor control system not located on the vessel must have the following verified by the TPIC:
(A) Each manual valve in the vapor collection system is correctly positioned to allow the collection of cargo vapor.
(B) A vapor collection hose or arm is connected to the vessel's vapor connection.
(C) The electrical insulating device required under subsections (b) and (c) of Section 2341, is fitted between the terminal vapor connection and the vessel vapor connection.
(D) The initial loading rate and the maximum transfer rate are confirmed by the TPIC and VPIC.
(E) The maximum and minimum operating pressures at the terminal vapor connection are confirmed by the TPIC and VPIC.
(F) The barge overfill control system, if compatible with the connection to the terminal, is connected to the terminal, is tested, and is operational.
(G) The following have been performed not more than 24 hours prior to the start of the transfer operation:
1. Each alarm and automatic shutdown system has been tested and found to be operating properly; and
2. Hydrocarbon gas and oxygen analyzers have been checked for calibration by use of a span gas.
(H) Each vapor control hose has no unrepaired loose covers, kinks, bulges, soft spots, or any other defect which would permit the discharge of vapor through the hose material, and no external gouges, cuts, or slashes that penetrate any layer of hose reinforcement.
(I) The oxygen content of the tank vessel's cargo tanks, if inerted, is at or below 8 percent by volume.
(26) Fire fighting equipment required in Section 2345 is in readiness.
(27) Where required, the spill containment provisions of sections 2395 and 2396 are being complied with.
(28) The tank vessel has either of the following capabilities:
(A) The tank vessel's boilers, main engines, steering machinery and other equipment essential for maneuvering are maintained in a condition so that the tank vessel has the capability to move away from the berth within 30 minutes under its own power; or
(B) Where the tank vessel does not have the capability specified in Section 2340, subsection (c)(28)(A), appropriate tug assistance is available so that the tank vessel can be moved away from the berth within 30 minutes.
(29) Operations and practices are carried out in compliance with the following recommendations in ISGOTT:
(A) Emergency towing wires are rigged forward and aft and the ends maintained not greater than 5 feet above the water (chapter 3).
(B) Precautions regarding openings in superstructures are being observed (chapter 6).
(C) Precautions regarding flame screens are being observed (chapter 6).
(D) Precautions regarding unauthorized craft alongside a tank vessel or barge are being observed (chapter 6).
(E) Precautions regarding entry to pumprooms, pumproom ventilation and bilges, are being observed (chapter 2).
(30) The requirements of § 2341 to prevent electrical arcing at onshore terminals are being complied with.
(31) The tank vessel is in compliance with the ISM Code and has on board a Document of Compliance and a Safety Management Certificate. A tank vessel of a country not party to Chapter IX of SOLAS has on board current valid documentation showing that the vessel's company has a safety management system which has been audited and assessed consistent with the ISM Code.
The requirement to be certified under the ISM Code does not apply to barges.
(d) No person shall conduct an oil transfer operation unless the TPIC and VPIC have:
(1) Conducted the pre-transfer conference required under Section 2330, subsection (b);
(2) Ensured that transfer connections have been made as specified in Section 2380, subsection (d);
(3) Ensured that discharge containment equipment on the terminal and on or around the tank vessel or barge required under Sections 2380 and 2395 are in position or on stand-by, as appropriate; and
(4) Filled out and signed the Declaration of Inspection as required by Section 2335, subsection (a).
(e) No TPIC shall conduct a transfer operation with a tank vessel unless the tank vessel has either one of the capabilities of moving away from the berth within 30 minutes, as specified in Section 2340, subsection (c)(28).
(f) During all transfer operations, the TPIC shall be in attendance at the terminal.
(g) Each TPIC shall ensure that the means of operating the emergency shutdown is continually manned so that it can be activated in 30 seconds or less, as required in Section 2380, subsection (h)(5), while oil is being transferred between the terminal and the vessel.
(h) Each person conducting an oil transfer shall stop the transfer operation whenever oil from any source is discharged into the water or upon the adjoining shoreline. The transfer operation shall not resume unless authorized by the U.S. Coast Guard and the operator has complied with, or is complying with, the contingency plan approved by the Administrator for the terminal where the transfer is taking place.
(i)(1) Each person conducting a transfer operation shall stop the transfer operation whenever oil from any source is leaked onto the transfer operation work area, but not in the water, and shall not resume the transfer operation until after both of the following are completed:
(A) The oil leaked into the oil transfer work area has been cleaned up; and
(B) All necessary preventive measures have been taken to ensure that a similar leak of oil does not recur.
(2) Transfer operations need not be stopped under subsection (i) of this section if all of the following occur:
(A) The leak is directly into the small discharge containment of the terminal or the discharge containment aboard the vessel;
(B) No oil is displaced outside of the small discharge containment of the terminal or the discharge containment of the vessel; and
(C) Immediate corrective action is taken to stop the leakage of oil.
(j) Notwithstanding the provisions of subsections (h) and (i) of this section, the transfer operation may resume or may continue without interruption if both of the following occur:
(1) Continuation or resumption of the transfer operation is necessary to avoid further discharge of oil; and
(2) Both the TPIC and VPIC agree that continuation or resumption is necessary to avoid further discharge of oil.
(k) The provisions of subsections (h), (i) and (j) of this section are subject to any direction by the Administrator issued directly in response to the discharge into the water.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. New subsections (a)-(b)(2), subsection redesignation, amendment of subsections (c)(19)(C) and (c)(27), new subsection (c)(30), repealer of subsection (f) and amendment of subsections (i)(2), (j) and (k) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of subsections (c)(3), (c)(9), (c)(13), (c)(25), (c)(25)(C), (c)(25)(H) and (c)(30) and new subsection (c)(31) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2341. Requirements to Prevent Electrical Arcing at Onshore Terminals.
Note • History
(a) Insulating Flange Joint.
For the purpose of this section, an “insulating flange joint” means a typical insulating flange joint as described in Appendix D of ISGOTT or any other insulating flange that meets the electrical resistance requirements of subsection (e) of this section.
(b) Insulating Flange Joints on Metallic Cargo or Vapor Control Arms.
Each metallic cargo or vapor control arm used during a transfer operation shall be fitted with an insulating flange joint to ensure electrical discontinuity between the terminal and vessel. All metal on the vessel's side of the insulating flange joint shall be electrically continuous to the vessel and that on the terminal's side shall be electrically continuous to the terminal's grounding system.
(c) Cargo and Vapor Control Hose Connections.
Each cargo hose string or vapor control hose used during a transfer operation shall have either an insulating flange joint or a single length of non-conducting hose to ensure electrical discontinuity between the terminal and vessel. All metal on the vessel's side of the non-conducting length of hose shall be electrically continuous to the vessel and that on the terminal's side shall be electrically continuous to the terminal's grounding system.
(d) Testing of Insulating Flange Joints.
(1) The terminal operator shall test or cause to be tested each insulating flange joint by measuring the electrical resistance between the metal pipe on the terminal side of the flange joint and the end of the hose or metal arm when freely suspended. Such tests shall be conducted at intervals not exceeding three months.
(2) At terminals which conduct infrequent transfers of oil and the interval between transfers exceeds three months, the test specified in subsection (d)(1) of this section need not be conducted at intervals not exceeding three months. However, such test shall be conducted no more than 7 days prior to the connection of any metallic loading or vapor recovery arm or hose string for the purpose of transferring oil.
(3) The terminal operator shall maintain records of test dates, measured electrical resistance and name and designation of person conducting the test at the terminal for a period of at least one year from the date of testing.
(e) Insulating Flange Joints: Minimum Resistance.
No insulating flange joint whose measured electrical resistance is less than 1000 ohms shall be used in any metallic cargo or vapor recovery arm or hose string connection between the terminal and a vessel.
(f) Vessel-to-shore Electrical Bonding Cables.
No vessel-to-shore electrical bonding cables or wires shall be used for a transfer operation.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
2. Repealer of subsection (a), subsection relettering, and amendment of newly designated subsections (a)-(c), (d)(2) and (f) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2345. Fire Prevention for Transfer Operations.
Note • History
(a) Immediately before or on arrival at a terminal at which it is intended to conduct an oil transfer operation, fire hoses shall be connected to the tank vessel's fire main, one forward and one aft of the tank vessel's manifold. Where monitors are provided, they shall be pointed towards the manifold and be ready for immediate use.
(b) At least two type B-II portable fire extinguishers shall be placed near the manifold, one forward and one aft of the manifold.
(c) When oil is being transferred, pressure shall be maintained on the tank vessel's fire main from the tank vessel's fire pump. Where this is impracticable, the tank vessel's fire pump shall be in a standby condition and ready for immediate use. Fire mains shall be pressurized or be capable of being pressurized within 2 minutes.
(d) The vessel's fire extinguishing equipment shall be operational and ready for immediate use.
(e) No packaged cargo or vessel's stores may be transferred between the terminal and the vessel during a transfer operation unless authorized by both the TPIC and VPIC. When authorizing transfers under this subsection, the TPIC and VPIC shall consider any potential risk of fire or explosion.
(f) Blending of two or more oil products in any tank or tanks of a tank vessel or barge alongside a terminal by the introduction of pressurized air shall not be permitted.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. New subsection (e) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. New subsection (f) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
Note • History
(a) Except for authorized agents or employees of federal, state or local governmental entities, anyone who does not have the TPIC's permission shall not be allowed access to the terminal.
(b) Except for authorized agents or employees of federal, state or local governmental entities, anyone who does not have the VPIC's permission shall not be allowed access to the vessel.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752 and 8755, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
§2351. Marine Terminal Physical Security Program.
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 3-7-2002 as an emergency; operative 3-7-2002 (Register 2002, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-5-2002 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-27-2002 as an emergency; operative 6-27-2002 (Register 2002, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-25-2002 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 10-24-2002 as an emergency; operative 10-24-2002 (Register 2002, No. 43). A Certificate of Compliance must be transmitted to OAL by 2-21-2003 or emergency language will be repealed by operation of law on the following day.
4. Repealed by operation of Government Code section 11346.1(g) (Register 2004, No. 33).
Note • History
(a) Vessel Warning Signs.
Any vessel berthed at a terminal for the purpose of conducting a transfer operation shall display warning signs and notices indicating emergency escape routes as recommended in chapter 4 of ISGOTT.
(b) Terminal Warning Signs.
The terminal operator shall ensure that:
(1) Permanent notices and signs indicating that smoking and naked lights are prohibited are conspicuously displayed in the terminal and on the berth and similar permanent notices and signs are displayed at the entrance to the terminal area or shore approaches to the berth;
(2) In buildings and other shore locations where smoking is allowed, appropriate notices are conspicuously displayed; and
(3) Emergency escape routes from the tank vessel berth to a safe place on the shore are clearly indicated.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752 and 8755, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
§2360. Precautions for Performing Hot Work.
Note • History
(a) Hot Work on Terminal.
No construction, repair, maintenance, dismantling or modifications of facilities which include hotwork shall be carried out at a terminal without the written permission of the terminal operator. If a tank vessel or barge is moored at the terminal, the written agreement of the Master or the VPIC, as appropriate, shall also be obtained if the work is on the berth. The person or entity performing such work shall ensure that work does not commence until written permission is obtained.
(b) Hot Work on Tank Vessel or Barge.
(1) When any repair or maintenance is to be done on board a tank vessel or barge alongside a terminal, the Master or VPIC shall inform the terminal operator. Agreement shall be reached on the safety precautions to be taken, with due regard to the nature of the work.
(2) Hot work on board a tank vessel or barge shall be prohibited unless all applicable regulations and safety requirements of the National Fire Protection Association's Standard for Fire Prevention in Use of Cutting and Welding Processes - NFPA 51B, 1994, NFPA, 1 Batterymarch Park, Quincy, MA 02269-9101 have been met.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752 and 8755, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of section heading and section filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
Note • History
(a) Except as provided in subsection (c) of this section, for all transfer operations between sunset and sunrise and during times of reduced visibility, a terminal shall have fixed lighting that adequately illuminates the following:
(1) Each transfer connection point on the terminal;
(2) Each transfer connection point in use on any barge moored at the terminal to or from which oil is being transferred;
(3) Each transfer operations work area on the terminal; and
(4) Each transfer operations work area on any barge moored at the terminal to or from which oil is being transferred.
(b) Where the illumination appears to the Division to be inadequate, the Division may require verification by instrument of the levels of illumination. On a horizontal plane 3 feet above the barge deck or walking surface, illumination must measure at least:
(1) 5.0 foot candles at transfer connection points; and
(2) 1.0 foot candle in transfer operations work areas.
(c) For small remote facilities, the Division may authorize operations with an adequate level of illumination provided by the vessel or by portable means.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752 and 8755, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
Note • History
(a) Each terminal shall have a means that enables continuous two-way voice communication between the TPIC and the VPIC.
(b) The means required by subsection (a) of this section shall be usable and effective in all phases of the transfer operation and all conditions of weather at the terminal.
(c) A terminal may use the voice communications system for emergency shutdown specified in Section 2380, subsection (h)(6)(B), to meet the requirement of subsection (a) of this section.
(d) An alternate continuous two-way voice communication system shall be available in the event that the primary communications system is disabled.
(e) Portable radio devices used in compliance with this section shall be intrinsically safe, as defined in the Institute of Electrical and Electronics Engineers Standard Dictionary, 1984 edition, published by the Institute of Electrical and Electronics Engineers, available from the American Society of Mechanical Engineers, 22 Law Drive, Box 2300, Fairfield, New Jersey, and meet Class I, Division I, Group D requirements as defined in the National Electric Code, Article 500, 1996 edition, published by NFPA, 1 Batterymarch Park, P.O. Box 9101, Quincy, Massachusetts 02269-9101.
(f) The means of communication shall be continuously manned during a transfer operation by a person or persons who can immediately contact the TPIC and VPIC.
(g) If the means of communications has not been used within a period of 60 minutes during a transfer operation, the means of communications shall be checked to ensure that it is operative.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsection (e) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of subsection (e) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2375. Requirements for Persons in Charge.
Note • History
(a) Terminal Person in Charge (TPIC).
(1) The TPIC of oil transfer operations shall have successfully complied with all of the following:
(A) A program of operations and supervisory personnel training as prescribed in 2 CCR § 2542(e);
(B) A testing and evaluation procedure to qualify for certification as prescribed in 2 CCR § 2545(f);
(C) Recertification as prescribed in 2 CCR § 2545(g), as appropriate;
(D) At least 48 hours of experience in oil transfer operations, including a minimum of 6 connections and transfers and 6 transfers and disconnects; and
(E) Sufficient experience at the terminal for the terminal operator to determine that this experience is adequate for being in charge of oil transfer equipment and procedures.
(2) The terminal operator shall ensure that each TPIC has valid documentation to authenticate that the requirements of subsections (a)(1)(A) through (E) of this section have been met.
(3) The terminal operator shall designate in writing each person authorized to serve as a TPIC and advise the Division, in writing, of his or her designation.
(4) Each TPIC shall carry evidence of their authorization to serve as a TPIC when they are engaged in transfer operations, unless such evidence is immediately available at the terminal.
(b) Vessel Person in Charge (VPIC).
(1) For the purpose of this subsection, a “PIC” means Person in Charge.
(2) The operator of a tank vessel or barge with a capacity of 250 or more barrels of oil, shall designate, in writing, a person in charge of each transfer operation.
(3) The VPIC of oil transfer operations shall have sufficient training and experience with respect to the cargo to be transferred and the relevant characteristics of the vessel or barge on which he or she is engaged, including, but not limited to, the cargo system, cargo containment system, transfer procedures, shipboard emergency equipment and procedures, control and monitoring systems, procedures for reporting pollution incidents, and, if installed, Crude Oil Washing (COW), inert gas, and vapor control systems, to conduct a transfer of oil safely. The minimum qualifications necessary to be designated as VPIC are those set forth in this Article 5 and 33 CFR 155.710.
(4) Each designated VPIC of a tank vessel documented under the laws of the United States shall:
(A) Hold a license issued under 46 CFR Part 10 authorizing service aboard a vessel certified for voyages beyond any Boundary Line described in 46 CFR Part 7, except on tank vessels not certified for voyages beyond the Boundary Line; and
(B) Hold a Tankerman-PIC endorsement issued under 46 CFR Part 13 that authorizes the holder to supervise the transfer of oil or liquid cargo in bulk.
(5) Each designated VPIC of a tank barge required to be inspected under Title 46, of the United States Code, Section 3703, shall hold a Tankerman-PIC or Tankerman-PIC (Barge) endorsement issued under 46 CFR Part 13 that authorizes the holder to supervise the transfer of oil or liquid cargo in bulk.
(6) Each designated VPIC of a foreign tank vessel shall:
(A) Hold a license or other document issued by the flag state or its authorized agent authorizing service as master, mate, pilot, engineer, or operator on that vessel;
(B) Hold a Dangerous-Cargo Endorsement or Certificate issued by a flag state party to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW), or other form of evidence attesting that the VPIC meets the requirements of Chapter V of STCW as a PIC of the transfer of oil or liquid cargo in bulk;
(C) Be capable of reading, speaking, and understanding in English, or a language mutually agreed upon with the TPIC, all instructions needed to commence, conduct, and complete a transfer of oil, or a liquid cargo in bulk, except that the use of an interpreter meets this requirement if the interpreter:
1. Fluently speaks the language spoken by each PIC;
2. Is immediately available to the VPIC on the tank vessel at all times during the transfer; and
3. Is knowledgeable about, and conversant with terminology of tank vessels and transfers; and
(D) Be capable of effectively communicating with all crew members involved in the transfer, with or without an interpreter.
(7) Each designated VPIC of foreign tank barge shall:
(A) Hold a Dangerous-Cargo Endorsement or Certificate issued by a flag state party to STCW, or other form of evidence attesting that the VPIC meets the requirements of Chapter V of STCW as a PIC of the transfer of oil;
(B) Be capable of reading, speaking, and understanding in English, or a language mutually agreed upon with the TPIC of the transfer, all instructions needed to commence, conduct, and complete a transfer of oil or liquid cargo in bulk, except that the use of an interpreter meets this requirement if the interpreter:
1. Fluently speaks the language spoken by each PIC;
2. Is immediately available to the VPIC on the tank barge at all times during the cargo transfer; and
3. Is knowledgeable about, and conversant with terminology of, tank vessels, barges and transfers; and
(C) Be capable of effectively communicating with all crew members involved in the transfer, with or without an interpreter.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752 and 8755, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2376. Limitations on Hours of Work for Terminal Personnel.
Note • History
(a) For the purpose of this section, the term “work” includes any operational or administrative duties associated with a marine terminal.
(b) Except in an emergency or a drill, no TPIC or terminal personnel engaged in transfer operations shall be permitted to work more than 16 hours in any 24 hour period, or more than 40 hours in any 72 hour period, or more than 72 hours in any period of seven consecutive days.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Sections 8750, 8751, 8752 and 8755, Public Resources Code.
HISTORY
1. New section filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
§2380. Equipment Requirements: Testing and Inspections.
Note • History
(a) Hose Assemblies.
(1) Each hose assembly used for transferring oil shall meet the following requirements:
(A) The minimum design burst pressure for each hose assembly shall be:
1. At least 600 pounds per square inch; and
2. At least four times the sum of the pressure of the relief valve setting (or four times the maximum pump pressure when no relief valve is installed) plus the static head pressure of the transfer system at the point where the hose is installed.
(B) The maximum allowable working pressure (MAWP) for each hose assembly shall be more than the sum of the pressure of the relief valve setting (or the maximum pump pressure when no valve is installed) plus the static head pressure of the transfer system at the point where the hose is installed.
(C) Each nonmetallic hose shall be usable for oil service.
(D) Each hose assembly shall have one of the following:
1. Full threaded connections;
2. Flanges that meet standard B16.5, Steel Pipe Flanges and Flange Fittings, 1988, or standard B16.24, Brass or Bronze Pipe Flanges, 1979, of the American National Standards Institute (ANSI), available from the American Society of Mechanical Engineers (ASME), 22 Law Drive, Box 2300, Fairfield, New Jersey 07007-2300; or
3. Quick disconnect couplings that either meet ASTM F-1122, Standard Specifications for Quick Disconnect Couplings, published in 1987 by the American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103-1187 or have been accepted by the U.S. Coast Guard.
(E) Except as provided in subsection (F) of this section, each hose shall be marked near the two ends in the vicinity of the flanges, where it can best be seen, with the following:
1. Any of the following:
a. The name of each product for which the hose may be used;
b. For oil products, the words “OIL SERVICE”; or
c. For hazardous materials, the words “HAZMAT SERVICE -- SEE LIST” followed immediately by a letter, number or other symbol that corresponds to a list or chart contained in the terminal's operations manual or the vessel's transfer procedure documents which identifies the products that may be transferred through a hose bearing that symbol;
2. Maximum allowable working pressure;
3. Date of manufacture; and
4. Date of the latest annual test required by either 33 CFR 156.170 or subsection (a)(2) of this section, whichever is later. Dates of previous tests shall be obliterated.
(F) The information required by subsections (a)(1)(E)3. and (a)(1)(E)4. of this section need not be marked on the hose if it is recorded in the hose records of the terminal or vessel and the hose is marked to identify it with that information.
(G) The hose burst pressure and the pressure used for the test required by 33 CFR 156.170 shall not be marked on the hose and shall be recorded elsewhere at the terminal.
(H) Each non-conducting length of hose used for transferring oil or for vapor control at onshore terminals shall be clearly marked “NON-CONDUCTING” where it can best be seen.
(2) Each hose used for transferring oil shall be inspected, maintained, handled, stored and tested in accordance with the recommended practices in “HOSE TECHNICAL INFORMATION BULLETIN: No. IP-11-4,” except that the frequency of periodic hose testing shall be in accordance with 33 CFR 156.170 and subsections (A), (B) and (C) of this section.
(A) All new hose and hose which has undergone a coupling repair shall be tested before it is placed in service.
(B) Hose assemblies subjected to severe end pull, flattening, crushing or sharp kinking shall be immediately inspected and subjected to a pressure test, and if applicable, an electrical continuity test.
(C) The following tests shall be conducted at intervals not to exceed twelve months:
1. A hydrostatic pressure test;
2. A vacuum test for hoses which have an inner tube liner; and
3. For electrically continuous lengths of hoses, an electrical continuity test which may be performed at the same time as the tests in subsection (d) of § 2341 of this Article 5.
(b) Loading Arms.
(1) Each mechanical loading arm used for transferring oil and placed into service after June 30, 1973, shall meet the design, fabrication, material, inspection, and testing requirements in American National Standards Institute (ANSI) B31.3, published in 1990 and available from the American Society of Mechanical Engineers (ASME), 22 Law Drive, Box 2300, Fairfield, New Jersey 07007-2300.
(2) The manufacturer's certification that the standard American National Standards Institute (ANSI) B31.3 has been met shall be permanently marked on the loading arm or recorded elsewhere at the terminal with the loading arm marked to identify it with that information.
(3) Each mechanical loading arm used for transferring oil shall have a means of being drained or closed before being disconnected.
(4) Each mechanical loading arm shall be marked where it can best be seen, with the following:
(A) Maximum allowable working pressure; and
(B) Date of the latest annual test required by 33 CFR 156.170; dates of previous tests shall be obliterated.
(5) Each mechanical loading arm shall have its maximum allowable lateral movement envelope limits conspicuously marked on the terminal at the position of the loading arm. The allowable extension limits of the loading arm shall also be indicated visibly.
(c) Closure Devices.
The terminal shall have sufficient blank flanges or other means acceptable to the Division to blank off the ends of each hose or loading arm that is not connected for the transfer of oil. New, unused hose is exempt from this requirement.
(d) Connection.
(1) Each person who makes a bolted connection for transfer operations shall:
(A) Use suitable material in joints and couplings to ensure a leak-free seal;
(B) Use a bolt in every hole;
(C) Use bolts of the correct size in each bolted connection; and
(D) Tighten each bolt and nut uniformly to distribute the load sufficiently and to ensure a leak free seal.
(2) A person who makes a connection for transfer operations shall not use any bolt that shows signs of strain or is elongated or deteriorated.
(3) Except as provided in subsection (4) of this section, no person may use a connection for transfer operations unless it is:
(A) A bolted or full threaded connection; or
(B) A quick disconnect coupling that either meets American Society for Testing and Materials (ASTM) F-1122, Standard Specifications for Quick Disconnect Couplings, published in 1987 by the American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103-1187 or has been accepted by the U.S. Coast Guard.
(4) No person may transfer oil to a vessel that has a fill pipe for which containment cannot practically be provided unless an automatic back pressure shutoff nozzle is used.
(e) Monitoring Devices.
Monitoring devices shall be installed and maintained at the terminal if required by the U.S. Coast Guard Captain of the Port.
(f) Small Discharge Containment.
(1) Except as provided in subsections (3) and (4) of this section, an onshore terminal shall have fixed catchments, curbing, or other fixed means to contain oil discharged at the following locations:
(A) Each hose handling and loading arm area (that area on the terminal that is within the area traversed by the free end of the hose or loading arm when moved from its normal stowed or idle position into a position for connection); and
(B) Each hose connection manifold area.
(2) The discharge containment means required by subsection (f)(1) of this section shall have a capacity of at least:
(A) Two barrels if it serves one or more hoses of 6-inch inside diameter or smaller or one or more loading arms of 6-inch nominal pipe size diameter or smaller;
(B) Three barrels if it serves one or more hoses with an inside diameter of more than 6 inches, but less than 12 inches, or one or more loading arms with a nominal pipe size diameter of more than 6 inches, but less than 12 inches; or
(C) Four barrels if it serves one or more hoses of 12-inch inside diameter or larger or one or more loading arms of 12-inch nominal pipe size diameter or larger.
(3) The terminal may use portable means of not less than 1/2 barrel capacity each to meet the requirements of subsection (f)(1) of this section for part or all of the terminal if the Division finds that fixed means to contain oil discharges are not feasible.
(4) A mobile transfer unit, may use portable means of not less than five gallons capacity to meet the requirements of subsection (f)(1) of this section, when conducting transfer operations to or from tank vessels or barges.
(g) Discharge Removal.
(1) Each onshore terminal and each mobile transfer unit shall have a means to remove discharged oil from the containment system required by subsection (f)(1) of this section safely and quickly without discharging the oil into the water.
(2) Each onshore terminal and each mobile transfer unit shall safely remove discharged oil from the containment system within one hour of the completion of any transfer.
(h) Emergency Shutdown.
(1) The terminal shall have an emergency means to shutdown and stop the flow of oil from the terminal to the tank vessel or barge.
(2) A point in the transfer system at which the emergency means stops the flow of oil on the terminal shall be located near the dock manifold connection to minimize the loss of oil in the event of the rupture or failure of the hose, loading arm, or manifold valve.
(3) For oil transfers, the means used to stop the flow under the subsection (h)(1) of this section shall stop that flow within:
(A) 60 seconds on any terminal or portion of a terminal that first transferred oil on or before November 1, 1980; and
(B) 30 seconds on any terminal that first transfers oil after November 1, 1980.
(4) The VPIC and TPIC shall each be capable of ordering or activating the emergency shutdown.
(5) If the VPIC or TPIC orders an emergency shutdown, the shutdown shall be capable of being activated and shall be activated within 30 seconds of the order.
(6) To meet the requirements of subsections (h)(4) and (5) of this section, the means to stop the flow of oil shall be either of the following:
(A) An electrical, pneumatic or mechanical linkage to the terminal; or
(B) A voice communications system continuously operated by a person on the terminal who at all times during the transfer can hear the communications and can, at any time, activate the emergency shutdown.
(i) Vapor Control Systems.
Any vapor control system at any marine terminal shall meet the following requirements of:
(A) 2 CCR §§ 2550 through 2556;
(B) 33 CFR Part 154, Subpart E; and
(C) Any other state and federal regulations governing vapor control systems.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsection (a)(1)(D)3, new subsections (a)(1)(E)1-1c, amendment of subsection (a)(1)(F), new subsection (a)(1)(H), amendment of subsection (d)(3)(B) and new subsection (j) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of section heading and section filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
Note • History
NOTE
Authority cited: Sections 8755, 8756 and 8758, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8756, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 3-7-96 as an emergency; operative 3-7-96 (Register 96, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-5-96 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 96, No. 35).
Note • History
(a) Operations Manual Requirements.
(1) No terminal may conduct transfer operations except in accordance with an operations manual approved by the Division.
(2) Operators of terminals shall maintain their operations manual so that it is:
(A) Current; and
(B) Readily available for examination by the Division.
(3) Operators of terminals shall ensure that a sufficient number of copies of their operations manual are readily available for each TPIC and VPIC while conducting a transfer operation.
(b) Letter of Intent.
(1) Any person who proposes to install a new marine terminal or proposes to assume control over the operation of an existing marine terminal shall, not less than 60 days prior to the intended assumption of operations, submit a letter of intent to operate the terminal to the Division.
(2) The letter of intent required by subsection (b)(1) of this section may be in any form, but shall at least include the following:
(A) The name, address, telephone number and facsimile number of the terminal operator;
(B) The name, address, berth number, telephone number and facsimile number (if any) of the terminal;
(C) The proposed operations manual for the terminal; and
(D) The proposed oil spill prevention training and certification programs required by 2 CCR §§ 2540 through 2548.
(3) The operator of any terminal for which a letter of intent has been submitted shall, within five (5) days of any change in operations or information or a termination of use of the terminal, advise the Division in writing of the changes and shall cancel, in writing, the letter for any terminal at which transfer operations can no longer be conducted.
(c) Operations Manual: Approval.
(1) The Division shall review and, within 30 working days of receipt at the Division, approve any operations manual which meets the requirements of this section. If the Division finds that the manual does not meet the requirements of this section, then it shall notify the submitting party within 30 working days of the manual's receipt.
(2) The approval by the Division is voided if the terminal operator:
(A) Amends the operations manual without following the procedures in subsection (f) of this section; or
(B) Fails to amend the operations manual when required by the Division.
(3) Any terminal operator whose operations manual has been disapproved by the Division may appeal the disapproval to the Commission, provided that the appeal is submitted in writing to the Commission Executive Officer within 30 days after the operator receives notice of the disapproval.
(d) Operations Manuals: Contents.
(1) Each operations manual required by this section shall:
(A) Describe how the applicant meets the operating rules and equipment requirements specified in this article and in 33 CFR Parts 154 and 156, Subpart A; and
(B) Describe the responsibilities of personnel under this section and under 33 CFR Parts 154 and 156, Subpart A, in conducting oil transfer operations.
(2) Each operations manual required by this section shall contain all of the following:
(A) Maps and diagrams showing the location and configuration of the terminal, including, at minimum, the following:
1. Scale and direction;
2. A point on the map with its latitude and longitude taken with a geographic positioning system, with differential correction;
3. A site plan of the major structural components of the current facility, including, but not limited to, piers, mooring structures, buoys, manifolds, mechanical loading arms, pipelines, and pipeline end manifolds (PLEMs);
4. The location of the general and emergency shutdown system controls;
5. Locations of any environmental and discharge monitoring devices;
6. Storage locations for pollution containment equipment including those deployed during transfer operations;
7. Configuration of boom containment and arrangements for boom stand-off for each type of transfer operation that takes place at the terminal;
8. Location and type of fire extinguishing, first aid and other safety equipment;
9. Location of facilities used for personnel shelter, if any;
10. Locations of environmentally sensitive areas in the immediate vicinity of the terminal, if any;
11. Where applicable the locations of special shut-off valves and other safety equipment to be used in cases of earthquakes;
12. Locations of sump wells, if any, at or in the vicinity of the terminal;
13. Emergency exit routes for personnel; and
14. Bathymetry and sea floor characteristics;
(B) A physical description of the terminal including a plan of the terminal showing mooring areas, transfer locations, control stations, and locations of safety equipment;
(C) The hours of operation of the terminal;
(D) The sizes, including the maximum size of tank vessel or barge that can be accommodated at the terminal, types, and number of tank vessels and barges to and from which the terminal can transfer oil at any time. The maximum tank vessel size shall be specified by its:
1. Length Overall;
2. Maximum or Loaded Draft; and
3. Deadweight Tonnage (DWT).
(E) For each product transferred at the terminal:
1. Generic or chemical name; and
2. The following cargo information:
a. The name of the cargo, as listed under Appendix II of Annex II of MARPOL 73/78, Table 30.25-1 of 46 CFR 30.25-1, Table 151.05 of 46 CFR 151.05-1, or Table 1 of 46 CFR 153;
b. A description of the appearance of the cargo;
c. A description of the odor of the cargo;
d. The hazards involved in handling the cargo;
e. Instructions for safe handling of the cargo;
f. The procedures to be followed if the cargo spills or leaks or if a person is exposed to the cargo; and
g. A list of fire fighting procedures and extinguishing agents effective with fires involving the cargo.
(F) The minimum number of persons on duty during transfer operations and their duties;
(G) The names and telephone numbers of the terminal operator or operators, U.S. Coast Guard, California State Office of Emergency Services, and other personnel who may be called by the employees of the terminal in an emergency;
(H) A description of each communication system required by Section 2370 of these regulations;
(I) A description of the facilities and the location of each personnel shelter, if any;
(J) A description and instructions for the use of drip and discharge collection, and vessel slop reception facilities, if any;
(K) A description of and instructions for seep monitoring from sump wells, if any;
(L) A description of the operation of and the component location of each emergency shutdown system;
(M) Quantity, types, locations, and instructions for use of oil discharge monitoring devices, if any;
(N) Quantity, type, location, instructions for use, and time required for gaining access to and deployment of initial response containment equipment;
(O) A description of the spill containment for transfer operations required under Section 2395 and, if applicable, the basis used for determining that the onshore marine terminal is subject to high velocity currents as defined in Section 2395, subsection (b)(3);
(P) Quantity, type, location and instructions for uses of fire extinguishing equipment required by federal, state and local fire prevention regulations;
(Q) The maximum relief valve setting or, where relief valves are not provided, maximum system pressure for each transfer system and the method used to determine that pressure;
(R) Procedures for:
1. Operating each mechanical loading arm including the limitations of each loading arm;
2. Transferring oil;
3. Completion of pumping;
4. Emergencies; and
5. Notifying the Division of damage as required by subsection (e) of § 2325 of this Article 5.
(S) Procedures for reporting and initially containing oil discharges;
(T) A brief summary of applicable federal, state, and local oil pollution laws and regulations;
(U) Procedures for shielding portable lighting authorized by the Division under Section 2365;
(V) A description of the training and qualification program for TPIC's;
(W) A list of all designated TPIC's for the terminal;
(X) Statements explaining that each oil or hazardous materials transfer hose is marked either with the name of each product which may be transferred through the hose; with the words, “OIL SERVICE”; or with letters, number or other symbols representing all such products and the location in the operations manual where a chart or list of the symbols used and a list of the compatible products which may be transferred through the hose can be found for consultation before each transfer; and
(Y) A list and brief description of all operating restrictions placed upon the terminal by federal, state or local authorities with proper jurisdiction.
(3) If a terminal collects vapors emitted from vessel cargo tanks for recovery, destruction, or dispersion, the operations manual shall contain a description of the vapor control system at the terminal which includes the following:
(A) A line diagram or simplified piping and instrumentation diagram (P&ID) of the terminal's vapor control system piping, including the location of each valve, control device, pressure-vacuum relief valve, pressure indicator, flame arrester and detonation arrester; and
(B) A description of the vapor control system's design and operation, including:
1. The vapor line connection;
2. Startup and shutdown procedures;
3. Steady state operating procedures;
4. Provisions for dealing with pyrophoric sulfide (for facilities which handle inerted vapors of cargos containing sulfur);
5. Alarms, shutdown devices and Safety Analysis Function Evaluation (SAFE) chart as prescribed in Recommended Practice 14C, Fourth Edition, published on September 1, 1986, by the American Petroleum Institute (API), Publications and Distribution Section, 1220 L Street, NW, Washington, DC 20005; and;
6. Pre-transfer equipment inspection requirements.
(4) Each operations manual shall also contain an electrical hazardous (classified) area diagram of the current terminal, as described in National Fire Protection Association (NFPA) No. 70, National Electrical Code, Articles 500 and 515, 1996 edition, published by NFPA, 1 Batterymarch Park, P.O. Box 9101, Quincy, Massachusetts 02269-9101. This diagram need not be bound with the operations manual, but must be located at the terminal. Copies of the operations manual submitted to the Division under subsection (a)(3)(B) of section 2385 need not contain the diagram.
(5) For ease of amendment, the terminal's operations manual shall be contained in a binder which allows easy replacement of pages. The terminal operator shall incorporate a dated copy of each amendment to the operations manual under subsection (f) of this section in each copy of the manual with the related existing requirement or add the amendment at the end of each manual if not related to an existing requirement. Language in the manual which no longer applies shall be removed from the manual.
(6) The operations manual shall be written in the order specified in subsections (d)(2) and (d)(3) of this section or contain a cross-referenced index page in that order.
(e) Operations Manual; Offshore Terminals.
(1) Each operations manual for an offshore marine terminal shall contain all applicable provisions of subsection (d) of this section and shall also include at least the following:
(A) Calculations with supporting data and other documentation to show that the charted water depth at each berth of the terminal is sufficient to provide at least a 6-foot net underkeel clearance at all times and under all conditions for each tank vessel or barge that the terminal expects to be moored at the terminal.
(B) A description of prevailing currents, tides, winds and other weather conditions most commonly experienced at the terminal and a description of the monitoring equipment, if any, employed at the terminal which relays information about wind, wave and current conditions at the terminal.
(C) A description of specific limiting wind, wave, current and meteorological conditions under which each of the following will occur:
1. Oil transfer operations will be shut down;
2. Departure of the tank vessel or barge from the mooring will be required; and
3. Mooring operations will be prohibited.
(D) A description of the navigational aids, if any, provide for approach to the berth and times of operation;
(E) A description of mooring support vessels duties and services;
(F) A detailed description of mooring and unmooring maneuvers with supporting graphical illustrations for each berth of the terminal;
(G) A description of the duties and responsibilities of mooring masters and assistant mooring masters including the numbers of such personnel that will be in attendance at mooring, unmooring or cargo transfer operations; and
(H) A description of each of the tugs available in compliance with Section 2390, subsection (b), including, at least, the following:
1. Bollard pull; and
2. Towing and pushing arrangements.
(2) The additional provisions required by subsection (e)(1) of this section may be incorporated under appropriate existing headings of the operations manual or may be added to the end of the manual.
(f) Operations Manual: Amendment.
(1) Using the following proceedings, the Division may require the terminal operator to amend the operations manual if the Division finds that the operations manual does not meet the requirements of this section:
(A) The Division shall notify the terminal operator in writing of any inadequacies in the operations manual within 30 days of receipt of the manual.
(B) The terminal operator may submit written information, views, and arguments on and proposals for amending the manual within 30 days from the date of the Division notice.
(C) After considering all relevant materials presented, the Division shall, within 30 days of receipt of the material submitted under subsection (f)(1)(B) of this section, notify the terminal operator of any amendment required or adopted, or rescind the notice.
(2) The amendment becomes effective 30 days after the terminal operator receives the Division's notice, unless the terminal operator petitions the Division Chief to review the Division's notice, in which case its effective date is delayed pending a decision by the Division Chief. Petitions to the Division shall be submitted in writing.
(3) If the Division finds that there is a condition requiring immediate action to prevent the discharge or risk of discharge of oil that makes the procedure in subsection (f)(1) of this section impractical or contrary to the public interest, the Division may issue an amendment effective on the date the terminal operator receives notice of it. In such a case, the Division shall include a brief statement of the reasons for the findings in the notice. The owner or operator may petition the Division Chief to review the amendment, but the petition shall not delay the amendment.
(4) The terminal operator may propose amendments to the operations manual by submitting any proposed amendments in writing to the Division.
(5) The proposed amendment shall take effect upon approval by the Division or, if the Division takes no action within 30 days of its receipt, then at the end of that period. If the operator requests that immediate action be taken, the Division may provide immediate approval if it determines that circumstances warrant it, provided that such approval is conditioned upon subsequent review within 30 days of receipt of the proposed amendment.
(6) The Division shall respond to proposed amendments submitted under subsection (f)(4) of this section by:
(A) Approving or disapproving the proposed amendments;
(B) Advising the terminal operator whether the request is approved, in writing;
(C) Including any reasons in the written response if the request is disapproved; and
(D) If the request is made under subsection (f)(5) of this section, immediately approving or rejecting the request.
(7) Amendments which do not affect compliance with the requirements of this article, such as amendments to personnel and telephone number lists required by subsection (d)(2)(G) of this section do not require prior Division approval, but the Division shall be advised of such amendments as they occur.
NOTE
Authority cited: Sections 8750, 8751, 8755, and 8758, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8757, and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsections (d)(2)(V)-(W), new subsections (d)(2)(X), (Y) and (d)(4) and subsection redesignation filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2390. Additional Requirements at Offshore Terminals.
Note • History
(a) Applicability.
The provisions of Section 2390, shall apply only at offshore terminals.
(b) Tug Requirements.
(1) During every mooring and unmooring operation, a tug or tugs shall be available and standing by in readiness to assist the tank vessel. The tug or tugs shall have bollard pull sufficient to assist the tank vessel.
(2) At all times during a transfer operation a tug or tugs shall be available to the barge. The tug or tugs shall have bollard pull sufficient to assist the barge.
(c) Mooring Masters.
(1) For the purpose of this section, a “mooring master” means a person who holds a valid U.S. Coast Guard issued license as Master or Mate and an endorsement as First Class Pilot for the area at which the terminal is located.
(2) A mooring master shall be aboard every tank vessel or barge for every mooring and unmooring operation at that terminal.
(d) Assistant Mooring Master.
(1) For the purpose of this section, an “assistant mooring master” means a person who holds a valid U.S. Coast Guard issued license as Master or Mate and has experience in mooring and unmooring operations at that terminal. This person shall not be a member of the vessel's crew.
(2) In addition to the requirement in subsection (c)(2) of this section, an assistant mooring master shall be aboard the tank vessel for every mooring and unmooring operation at that terminal.
(e) Diver Inspection of Submarine Hose.
Each terminal operator shall ensure that a diver inspection of any submerged hose string to be used has been conducted prior to every hookup if:
(1) The submarine hose has not been lifted within 15 days of the last previous transfers; or
(2) There has been a passage of a storm or seismic event affecting the area which may have damaged or covered the submarine hose.
(f) Pipeline Requirements.
(1) At all times, offshore terminals shall have the capability of drawing and maintaining a vacuum on all submarine pipelines containing oil.
(2) At all times during mooring and unmooring operations at offshore terminals, a vacuum shall be maintained on all submarine pipelines containing oil which do not lead to a berth where another vessel is already moored and which:
(A) Serve the berth where the vessel is being moored or unmoored; or
(B) Are in or near the approach path of the vessel being moored or unmoored.
(g) Underkeel Clearance.
Each tank vessel or barge that conducts or is intending to conduct a transfer operation at an offshore terminal shall at all times during the transfer operation and under all conditions have a net underkeel clearance of at least six (6) feet from the sea-floor and any known obstructions.
(h) Bathymetric Surveys.
Offshore terminals shall conduct annual bathymetric surveys of the berth and maneuvering areas adjacent to the berth.
NOTE
Authority cited: Sections 8750, 8751 and 8755, Public Resources Code. Reference: Section 8670.17, Government Code; Sections 8750, 8751, and 8755, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. New subsection (h) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
§2395. Spill Containment for Transfer Operations.
Note • History
(a) Applicability.
The provisions of this section apply to:
(1) All transfer operations where the oil transferred is a persistent oil; and
(2) All transfer operations into vessel's tanks containing persisent oil or residues of persistent oil.
(b) General.
(1) For the purpose of this section and section 2396, “persistent oil” means a petroleum-based oil that does not meet the distillation criteria for a non-persistent oil. “Non-persistent oil” means a petroleum-based oil, such as gasoline, diesel or jet fuel, which evaporates relatively quickly; specifically, an oil with hydrocarbon fractions, at least 50 percent of which, by volume, distills at a temperature of 645 degrees Fahrenheit and at least 95 percent of which, by volume, distills at a temperature of 700 degrees Fahrenheit.
(2) For the purpose of this section and section 2396, the term “boom” means flotation boom or other effective barrier containment material suitable for containment of oil that is discharged onto the surface of the water.
(3) For the purpose of this section and section 2396, an “offshore marine terminal subject to high velocity currents” means an onshore terminal at which the maximum current velocities are 1.5 knots or greater for the majority of the days in the calendar year.
(c) Vessel Loading Operations at Onshore Terminals.
(1) Prior to commencement of each transfer operation from the terminal to the vessel at an onshore terminal, the terminal operator shall deploy boom to enclose the water surface surrounding the vessel so as to provide common containment area for:
(A) The entire vessel at the waterline; and
(B) Either of the following:
1. The entire dock; or
2. Portions of the dock where oil may spill into the water.
(2) To meet the requirements of subsection (c)(1)(B) of this section, where the face of the dock is capable of acting as an effective barrier on the inboard side of the vessel, the boom on that side may be deployed so that it provides containment between the vessel and the dock.
(3) The boom shall be deployed so that it provides a stand-off of not less than 4 feet from the outboard side of the vessel.
(4) For onshore marine terminals subject to high velocity currents, the terminal operator may provide sufficient boom appropriate to the conditions at the terminal, trained personnel and equipment, maintained in a standby condition at the berth for the duration of the entire transfer operation, so that a length of at least 600 feet of boom will be deployed for effective containment within 30 minutes of a spill as an alternative to the requirements set forth in subsections (c)(1) and (c)(2) of this section.
(d) Vessel Offloading Operations at Onshore Terminals.
(1) Prior to commencement of each transfer operation from the vessel to the terminal at an onshore terminal, the terminal operator shall deploy boom to enclose the water surface on the inboard side of the vessel, so as to provide common containment area for:
(A) The vessel's entire inboard length, at the waterline; and
(B) Either of the following:
1. The entire dock; or
2. Portions of the dock where oil may spill into the water.
(2) Where the face of the dock is capable of acting as an effective barrier, the boom shall be deployed so that it provides containment between the vessel and the dock.
(3) For onshore marine terminals subject to high velocity currents, the terminal operator may provide sufficient boom appropriate to the conditions at the terminal, trained personnel and equipment, maintained in a standby condition at the berth for the duration of the entire transfer operation, so that a length of at least 600 feet of boom will be deployed for effective containment within 30 minutes of a spill as an alternative to the requirements set forth in subsections (d)(1) and (d)(2) of this section.
(e) Transfer Operations at Offshore Terminals.
Prior to commencement of each transfer operation at offshore terminals, the terminal operator shall provide sufficient boom appropriate to the conditions at the terminal, trained personnel and equipment, maintained in a stand-by condition at the berth, so that a length of at least 600 feet of boom will be deployed for effective containment within 30 minutes of a spill.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code. Reference: Section 8670.28, Government Code; and Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of subsections (b)(1)-(3), (c)(4), (d)(3) and (e)(1)-(2) filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
3. Amendment of subsection (a), repealer and new subsections (a)(1)-(2), amendment of subsection (e), and repealer of subsections (e)(1)-(2) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2396. Spill Containment for Ballasting or Deballasting Operations for Tank Vessels at Marine Terminals.
Note • History
(a) Applicability.
The provisions of § 2396 apply to tank vessels conducting ballasting or deballasting operations at terminals where any part of the cargo on board or any part of the cargo last carried is a persistent oil. These provisions do not apply to ballasting operations to a tank vessel's segregated ballast tanks.
(b) Tank Vessel Ballasting or Deballasting Alongside Onshore Terminals.
(1) Prior to commencement of any ballasting or deballasting operation at an onshore terminal, the terminal operator shall ensure that boom is deployed or maintained in a standby condition, as appropriate, as specified in subsections (c) or (d) of section 2395.
(2) At onshore terminals not subject to high velocity currents, where the tank vessel uses the sea valves on the outboard side of the vessel, the booming shall conform to the requirements of subsections (c)(1), (c)(2) and (c)(3) of section 2395. Where the sea valves on the terminal side of the vessel are used, the booming shall conform to the requirements of subsections (d)(1) and (d)(2) of section 2395.
(c) Tank Vessel Ballasting or Deballasting at Offshore Terminals.
Prior to commencement of any ballasting or deballasting operation at an offshore terminal, the terminal operator shall ensure that the provisions of subsection (e)(2) of section 2395, have been complied with.
NOTE
Authority cited: Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code. Reference: Section 8670.28, Government Code; and Sections 8750, 8751, 8752, 8755, 8757 and 8758, Public Resources Code.
HISTORY
1. New section filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
§2400. Mitigation Monitoring Requirements.
Note • History
If an environmental review is or has been conducted for all or any part of a terminal or for terminal operations pursuant to Sections 21002 through 21082.2 of the Public Resources Code and Title 14, California Code of Regulations, Sections 15000 et seq., and a lead or responsible agency requires compliance with mitigation measures as a condition for installation or operation of that terminal, then:
(a) The terminal operator shall comply with the required mitigation measures; and
(b) If the mitigation measures relate to operation of the terminal, both the mitigation measures and monitoring program required shall be incorporated into the terminal operations manual.
NOTE
Authority cited: Sections 8750, 8751, 8755 and 8758, Public Resources Code. Reference: Sections 21002, 21004, 21067, 21069, 21081 and 21082.2, Public Resources Code; Sections 15051, 15052, 15386, Title 14, California Code of Regulations.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Subsection redesignation filed 10-5-94; operative 11-4-94 (Register 94, No. 40).
§2405. Notifications Regarding Apparent or Threatened Violations.
Note • History
(a) Authorized Agents or Employees.
(1) For the purposes of Sections 2405 and 2406, each of the following shall be referenced as an “authorized agent or employee” of the Division:
(A) The Executive Officer of the Commission;
(B) The Assistant Executive Officer of the Commission;
(C) The Division Chief;
(D) The Assistant Chief of the Division;
(E) The Marine Terminal Safety Field Operations Supervisor of the Division;
(F) Any Marine Terminal Safety Supervisor of the Division;
(G) Any Marine Terminal Safety Specialist of the Division;
(H) Any Marine Terminal Safety Inspector of the Division; or
(I) Any other staff as designated by the Executive Officer or Division Chief.
(2) Any and all of the referenced agents or employees listed in subsection (a)(1) of this section are authorized to make a determination as to apparent or threatened violations, as defined in Section 2315, subsection (b) and subsection (x) of Article 5.
(b) Apparent or Threatened Violations: Reporting and Records.
(1) In the event that an authorized agent or employee of the Division determines that there is an apparent or threatened violation, he or she shall notify the TPIC or VPIC, as appropriate, of the apparent or threatened violation as soon as he or she has an opportunity to do so.
(2) Each and every authorized agent or employee of the Division shall report to the Division any and all apparent or threatened violations.
(3) The Division shall maintain records of all reported violations for a period of not less than five (5) years.
(4) The Division shall, upon request, make available to the Administrator or the U.S. Coast Guard copies of records of violations.
NOTE
Authority cited: Sections 8750, 8751, 8755 and 8760, Public Resources Code. Reference: Sections 8670.66, 8670.67 and 8670.69.4, Government Code; and Sections 8750, 8751, 8755 and 8760, Public Resources Code.
HISTORY
1. New section filed 11-20-92; operative 12-21-92 (Register 92, No. 47).
2. Amendment of section heading and text filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
3. Amendment of subsection (a)(2) filed 3-9-99; operative 4-8-99 (Register 99, No. 11).
§2406. Notifications Regarding Discharge Threat.
Note • History
(a) For the purpose of this section only, the term “discharge threat” means an apparent or threatened violation of regulations which, if unabated, would directly cause or substantially increase the risk of an unauthorized discharge of oil into marine waters at a terminal.
(b)(1) In the event that an authorized agent or employee of the Division determines that there is a discharge threat, the agent or employee shall immediately notify the TPIC or VPIC, as appropriate, of the discharge threat.
(2) Upon receiving notification of a discharge threat, the TPIC or VPIC, as appropriate, shall take immediate action to eliminate the threat, either by correcting the apparent or threatened violation or by suspending transfer operations until the apparent or threatened violation is corrected.
(c) If the TPIC or VPIC does not take immediate action to eliminate the discharge threat, either by correcting the apparent or threatened violation or by suspending transfer operations until the apparent or threatened violation is corrected, then:
(1) The authorized agent or employee shall notify the Division of the immediate threat; and
(2) The Division shall then immediately notify:
1. The U.S. Coast Guard;
2. The Administrator; and
3. The District Attorney of the County in which the terminal is located.
(3) The Division or the Executive Officer may also take whatever legal action is necessary and appropriate to obtain an order from the superior court having jurisdiction over the terminal to abate the discharge threat without first complying with the provisions of § 2407 of this Article 5.
NOTE
Authority cited: Sections 8750, 8751, 8755 and 8760, Public Resources Code. Reference: Sections 8670.66, 8670.67 and 8670.69.4, Government Code; and Sections 8750, 8751, 8755 and 8760, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
§2407. Enforcement Procedures.
Note • History
(a) For purposes of this section, the term, “cited party,” means the person or entity which appears to have committed a violation of a provision or provisions of this Article 5 or Article 5.3.
(b) Classifications of violations:
(1) All violations of provisions of this article 5 and Article 5.3 shall be considered within one of three classes:
(A) Class 1: Violations each of which could not directly result in a discharge of oil or pose a threat to public health and safety and the environment
(B) Class 2: Violations each of which could result in a discharge of oil or pose a threat to public health and safety and the environment under certain circumstances, in combination with other violations or over time.
(C) Class 3:
1. Violations each of which could, by itself, directly result in a discharge of oil or pose a threat to public health and safety and the environment; or
2. Violations of Section 2320, sub. (c), concerning access by the Division to the terminal, terminal records, or vessels at the terminal.
(2) If a single person or entity has committed a number of Class 2 violations at the same time which, taken together, could directly result in discharge of oil or pose a threat to public health and safety and the environment, then each violation shall be considered a separate Class 2 violation and the total combination of violations may be considered a separate Class 3 violation.
(3) If a single person or entity has committed three (3) Class 1 violations in any twelve-month period, five (5) in any 24-month period, or seven (7) in any 36-month period, that series of violations may be considered a single Class 2 violation.
(4) If a single person or entity has committed three (3) Class 2 violations in any twelve-month period, five (5) in any 24-month period, or seven (7) in any 36-month period, that series of violations may be considered a single Class 3 violation.
(c) When it appears to the Division Chief that a cited party has committed a Class 3 violation, the Division Chief shall report the apparent violation to the Executive Officer.
(d) Prior to pursuing any enforcement action under the provisions of Government Code Sections 8670.65 through 8670.67, the following preliminary procedures shall be followed:
(1) The Division Chief shall provide written notice to the cited party containing the following:
(A) A description of the Class 3 violation or the lesser violations making up the Class 3 violation;
(B) A statement that enforcement proceedings may be initiated; and
(C) Notification that the cited party may, within ten working days after receipt of the notice, submit a request in writing to the Chief for a preliminary meeting.
(2) If the cited party requests a preliminary meeting with the Chief, that meeting shall be held prior to any further enforcement actions and may include any discussions relating to the apparent violation or violations in question, including, but not limited to, the question as to whether a violation had in fact occurred, what evidence there was for the apparent violation, and what classification should apply for each violation.
(3) If the cited party so requests and agrees to pay for all costs, the preliminary meeting shall be recorded and a transcript shall be prepared.
(4) The preliminary meeting shall be scheduled at the Division Chief's discretion, but shall in no event be scheduled more than thirty (30) calendar days after the request for the meeting is received by the Division Chief.
(5) Within ten (10) working days after the preliminary meeting, the Division Chief shall provide written notice to the cited party of the decision as to whether enforcement action is to proceed.
(6)(A) Within ten working days after receipt of the notice regarding the decision of the Division Chief following the preliminary meeting, the cited party may appeal the decision to the Executive Officer of the Commission.
(B) Any appeal to the Executive Officer shall be submitted in writing.
(C) If the decision of the Division Chief is appealed to the Executive Officer, no enforcement action shall be taken unless and until the Executive Officer directs the Division Chief to proceed.
(e) If, after the preliminary procedures under subsection (d) of this section are followed, it appears to the Executive Officer that the cited party has committed a Class 3 violation of any provision or provisions of this Article 5 or 5.3 the Executive Officer may take any or all of the following actions:
(1) The Executive Officer may request that the Administrator do one or more of the following where appropriate:
(A) Issue an order under Government Code § 8670.69.4 requiring that person to cease and desist;
(B) Take whatever legal action that is necessary and appropriate, to obtain an order from the court enjoining the apparent and threatened violation; or
(C) Initiate and pursue proceedings under Government Code § 8670.66 or 8670.67 to subject the cited party to statutory penalties.
(2) The Executive Officer may do one or more of the following:
(A) Take whatever legal action is necessary and appropriate to obtain an order from the court enjoining the apparent or threatened violation; or
(B) If appropriate, take whatever action is necessary and appropriate to initiate and pursue proceedings under Government Code § 8670.66 to subject the cited party to statutory penalties.
(f)(1) The Executive Officer shall notify the U.S. Coast Guard of any apparent violation which may also constitute violation of federal law or regulation.
(2) The Executive Officer shall keep the Administrator fully apprised if any action is taken under subsection (e)(2).
NOTE
Authority cited: Sections 8750, 8751, 8755 and 8760, Public Resource Code. Reference: Sections 8670.66, 8670.67 and 8670.69.4, Government Code; and Sections 8750, 8751, 8755 and 8760, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
2. Editorial correction adding omitted subsections (e)(2)(A)-(f)(2) and Note (Register 94, No. 12).
Article 5.1. Marine Terminal Physical Security
§2430. The Marine Facilities Division.
Note • History
(a) There is in the Staff of the California State Lands Commission the Marine Facilities Division, which has the primary responsibility for carrying out the provisions of the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act of 1990 within the Commission's jurisdiction.
(b) The primary office of the Division is at 200 Oceangate, Suite 900, Long Beach, California 90802-4335, telephone (562) 499-6312.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755 and 8757, Public Resources Code.
HISTORY
1. New article 5.1 (sections 2430-2445) and section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2431. Purpose and Applicability.
Note • History
(a) The purpose of the regulations in Title 2, Division 3, Chapter 1, Article 5.1 of the California Code of Regulations is to provide a physical security program which ensures the best achievable protection of the public health and safety and of the environment at marine terminals.
(b) The provisions of this article shall apply to all marine terminals in the State of California.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
Note • History
Unless the context otherwise requires, the following definitions shall govern the construction of this article:
(a) “Division” means the Marine Facilities Division of the California State Lands Commission.
(b) “Division Chief” means the Chief of the Marine Facilities Division or any employee of the Division authorized by the Chief to act on his behalf.
(c) “Marine terminal” means a facility other than a vessel, located on or adjacent to marine waters in California, used for transferring oil to or from tank vessels or barges. The term references all parts of the facility including, but not limited to, structures, equipment and appurtenances thereto used or capable of being used to transfer oil to or from tank vessels or barges. For the purpose of these regulations, a marine oil terminal includes all piping not integrally connected to a tank facility. A tank facility means any one or combination of above ground storage tanks, including any piping which is integral to the tank, which contains crude oil or its fractions and which is used by a single business entity at a single location or site. A pipe is integrally related to an above ground storage tank if the pipe is connected to the tank and meets any of the following:
(1) The pipe is within the dike or containment area;
(2) The pipe is connected to the first flange or valve after the piping exits the containment area; or
(3) The pipe is connected to the first flange or valve on the exterior of the tank, if state or federal law does not require a containment area.
(d) “Marine Terminal Security Officer” or “MTSO” means a person employed by the terminal operator designated to be responsible for terminal security.
(e) “Marine Terminal Physical Security Plan” means a written document describing the practices, procedures, responsibilities, equipment and structures that provide for the security of the terminal.
(f) “Physical Security Survey and Assessment” means the terminal operator's identification and evaluation of weaknesses in physical security of important assets, infrastructures, appurtenances and procedures that are critical to the marine terminal, that, if damaged, could cause harm to people or to the environment.
(g) “Terminal Operator” means any person or entity which owns, has an ownership interest in, charters, leases, rents, operates, participates in the operation of or uses a terminal, pipeline, or facility. “Terminal Operator” does not include any entity which owns the land underlying the terminal or the terminal itself, where the entity is not involved in the operations of the terminal.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8756 and 8757, Public Resources Code; and Section 25270.2, Health and Safety Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2433. Requirements for Marine Terminal Security Program.
Note • History
Each marine terminal operator must implement a marine terminal security program that, at a minimum:
(a) Provides for the safety and security of persons, property and equipment on the terminal and along the dockside of vessels moored at the terminal;
(b) Prevents or deters the carrying of any unauthorized weapon, incendiary, or explosive on or about any person inside the terminal, including within his or her personal articles;
(c) Prevents or deters the introduction of any weapon, incendiary, or explosive in stores or carried by persons onto the terminal or onto the dockside of vessels moored at the terminal; and
(d) Prevents or deters unauthorized access onto the terminal and onto the dockside of vessels moored at the terminal.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2434. Designation of MTSO and Alternates.
Note • History
Each terminal operator shall designate an MTSO by name with 24-hour contact information, and an alternate or alternates when the MTSO is unavailable.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2435. Responsibilities of the MTSO.
Note • History
Each MTSO must, at a minimum, ensure that all of the following are undertaken and completed:
(a) An initial comprehensive physical security survey and assessment has been conducted, documented and maintained in a location determined by the MTSO;
(b) Ongoing security surveys are conducted at least annually and whenever a security incident or circumstances warrant changes;
(c) The comprehensive physical security survey and assessment are used to formulate a security plan;
(d) The Marine Terminal Physical Security Plan is implemented, maintained and periodically updated;
(e) Personnel responsible for security are trained in all aspects of the Marine Terminal Physical Security Plan;
(f) Employees, visitors and contractors requiring access to the terminal are provided with security awareness information;
(g) Vehicle access controls with designated parking areas and no-parking zones are established;
(h) Periodic security drills and exercises are conducted;
(i) The terminal has an identification and verification process for all employees, vendors and other persons whose duties require them to have access to the terminal and a tracking process for all vehicles allowed entry to the terminal;
(j) All occurrences or suspected occurrences of terrorist acts and related activities are reported to National Response Center, telephone (800) 424-8802, and local law enforcement agencies having jurisdiction at the marine terminal. Such occurrences include bombings, bomb threats, suspicious letters or packages and incidents related to the intentional release of chemical, biological or radio active agents. Records of such occurrences shall be maintained at the marine terminal for three (3) years; and
(k) Procedures for notification of security incidents or threats to terminal and vessel personnel are established.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2436. Marine Terminal Physical Security Plan.
Note • History
(a) The MTSO shall develop and maintain a Marine Terminal Physical Security Plan, in writing, for countering risks and threats. The plan shall, at a minimum, document the practices, procedures, responsibilities, equipment, and structures utilized in complying with all of the provisions of Section 2433.
(b) The Marine Terminal Physical Security Plan shall, at a minimum, contain all of the following:
(1) A map, diagram or site plan of the layout of the terminal showing:
(A) Perimeter fencing;
(B) Main access to the terminal;
(C) Other accesses to the terminal;
(D) Exit and entry routes for vessel crew members;
(E) Waterfront areas and vessel berths;
(F) Designated vehicle parking areas;
(G) Emergency exit routes for personnel and vehicles from the terminal;
(H) Location of lighting, motion detectors, cameras and other surveillance equipment;
(I) Fixed security posts and mobile routes; and
(J) Restricted areas.
(2) The names and contact telephone numbers of the Terminal Manager, the MTSO and alternates, and all terminal security personnel;
(3) The duties of the MTSO, alternates and terminal security personnel;
(4) The minimum number of terminal security personnel on duty and their responsibilities when oil transfer operations are being conducted;
(5) A description of the physical security arrangements for the terminal including the minimum number of security personnel on duty, if any, when no transfer operations are being conducted;
(6) A description of the procedures and arrangements for elevated security in compliance with the U.S. Coast Guard Captain of the Port's directives regarding threat escalation;
(7) Procedures for reporting security threats or breaches of security;
(8) The telephone numbers of the National Response Center, (800) 424-8802 and other local agencies having jurisdiction at the marine oil terminal;
(9) Findings of the initial comprehensive physical security survey and assessment;
(10) Equipment, measures and procedures at the terminal that are used to prevent the introduction of unauthorized weapons, incendiaries or explosive devices or any other unauthorized dangerous devices that may be used to cause harm or damage to people, vessels or terminals by any means onto the terminal from the shore side;
(11) Measures to prevent unauthorized persons gaining access onto the terminal, onto vessels moored at the terminal and to restricted areas of the terminal;
(12) Measures or procedures to permit entry of persons without valid identification;
(13) Procedures for verification of identity of terminal employees, vendors, contractors, vessel agents, truck drivers, government agents and other visitors to the terminal to ensure that they have legitimate business at the terminal;
(14) Measures and procedures to permit entry for scheduled and unscheduled deliveries including hazardous materials to the terminal or vessel moored at the terminal in advance;
(15) Procedures and measures for the terminal's security personnel's response to security threats or breaches of security;
(16) Duties of terminal personnel other than security personnel in the event of a security threat or breach of security;
(17) Procedures to be followed when unauthorized persons are discovered on the terminal;
(18) Any standing agreements with local police and fire departments regarding terminal security;
(19) Security procedures in the event of a loss of electrical power and other emergencies;
(20) A description of the communications system that is used for maintaining security; and
(21) A description of the procedures, equipment and operations used for compliance with the requirements of Sections 2437, 2438, 2439, 2440, 2441, 2442 and 2444.
(c) The MTSO must restrict the distribution, disclosure, and availability of information contained in the Marine Terminal Physical Security Plan to those who have been determined by the terminal operator to have a need-to-know. The information required by subsection (b)(9) of this Section may be maintained at a separate location.
(d) The Marine Terminal Physical Security Plan shall be reviewed and updated at least annually and whenever a security incident or circumstances warrants changes.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2437. Requirements for Identification of Terminal Employees, Contractors and Visitors to the Terminal.
Note • History
(a) All persons entering or leaving a terminal must possess and show a valid identification card or document as prescribed in subsection (b) of this Section to gain access to the terminal. All passengers in vehicles must have valid identification. Identification must be presented to security personnel or government agents upon request. In the event that an individual seeking access to the terminal does not have an identification card that meets the requirements of subsection (b) of this section, an alternative means of identification as prescribed in subsection (b)(13) of Section 2436, must be used.
(b) Valid identification cards or documents must be tamper resistant and at a minimum include the holders name and a recent photograph of the holder. Any of the following may constitute a valid form of identification:
(1) Employer issued employee identification cards;
(2) Identification card issued by a government agency;
(3) State issued drivers license;
(4) Pacific Maritime Association card;
(5) Labor Organization identity card; or
(6) Passport.
(c) Security personnel or competent authority shall verify that identification documents and applicable licenses or credentials match the person presenting them. Persons arriving by motorcycle shall be required to remove helmets to assist in identification.
(d) Security personnel shall randomly verify the identity and identification of persons encountered during roving patrols.
(e) The MTSO shall develop a verification process as prescribed in subsection (b)(14) of Section 2436, to ensure that all persons requiring access to the terminal have valid business on the terminal. Vendors, contractors, truck drivers and visitors arrivals shall be scheduled in advance. If their arrival is not prearranged, entry shall be prohibited until their need to enter is verified.
(f) The MTSO shall require contractors and vendors who require access to the terminal or vessels at the terminal, to provide the terminal with a current pre-authorized list of persons requiring access. This requirement does not preclude such persons from having valid identification.
(g) Vessel's crew members, agents, contractors and vendors on board vessels moored at terminal, shall not be permitted to exit or enter the terminal unless their names are provided and verified in advance.
(h) The terminal shall have a process to account for all persons within the terminal at any given time.
(i) All persons requiring access to the terminal shall be subject to search before being permitted to proceed beyond a terminal's access points. Signs shall be posted at access points being utilized to advise persons of this requirement.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2438. Requirements for Access Control.
Note • History
(a) Gates.
All entry gates shall be locked and secured or guarded at all times or shall have an effective entry detection alert system.
(b) Restricted Areas.
The terminal shall establish and post restricted areas within the terminal to control unauthorized access to critical operating areas such as storage tanks, hazardous materials storage areas, communications and control centers.
(c) Vehicle Control.
Vehicle access controls shall, at a minimum, include the following:
(1) Parking within the terminal shall be restricted to only those designated spaces indicated in the Marine Terminal Physical Security Plan.
(2) Vehicle entry and exit routes on the terminal shall be clearly marked.
(3) All vehicles entering or leaving the terminals shall be subject to search by terminal security personnel. Signs shall be posted to advise persons of this requirement.
(4) Terminals shall have procedures for controlling vehicle access and parking.
(d) Deliveries.
(1) All packages entering or leaving the terminals are subject to search by terminal security personnel. Delivery orders shall be verified prior to being allowed access to restricted areas. Signs shall be posted at each access point being utilized by the terminal to advise persons of this requirement.
(2) Bills of lading and shipping documents for cargo and stores deliveries shall be checked for accuracy and cargo and stores should be adequately described on documentation, including piece count if applicable.
(e) Security Patrols.
(1) Designated personnel shall conduct roving safety and security patrols when the terminal is manned at random intervals not exceeding four (4) hours.
(2) Security patrols shall, at a minimum, cover restricted areas, main power supply switch gear, lighting controls, perimeter access points, vehicle parking areas, communications and operations control centers and waterside access areas.
(3) Designated personnel must be able to respond immediately to a security signal in accordance with established procedures in the security plan.
(4) Records of unusual occurrences encountered during security patrols shall be maintained in a log. Such records shall be maintained for a period of three years. Records must be available for inspection by the Division.
(f) Tank Vessels, Barges and other Vessels Moored at the Terminal.
(1) Vessel's crewmembers shall depart or arrive as prescribed in subsection (b)(1)(D) of Section 2436.
(2) Arrival and departure routes for vessel's crewmembers must be posted or visually indicated to avoid their access to restricted areas within the terminal.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2439. Key Control Systems and Locking Devices.
Note • History
(1) Locks, locking devices, and key control systems shall be inspected by the MTSO regularly and malfunctioning equipment repaired or replaced.
(2) Chains used in conjunction with locks shall be permanently attached to fence posts or gates. Locks shall be of case hardened construction.
(3) Access to keys including duplicate keys shall be restricted to those terminal personnel as determined by the MTSO.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2440. Perimeter Fencing or Barriers.
Note • History
(a) Perimeter fences and other barriers shall be located and constructed so as to prevent the introduction of persons, dangerous substances or devices, and shall be of sufficient height and durability to deter unauthorized passage.
(b) Fencing shall have barbed or razor wire tops and be constructed of 9 gauge or heavier wire and shall be no less than 8 feet or sufficient height and durability to deter unauthorized passage. The bottom of the fence shall be within 2 inches of the ground.
(c) Areas adjacent to fences and barriers shall be cleared of vegetation and debris that could be used to breach them.
NOTE
Authority: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
Note • History
(a) Security lighting shall provide a minimum illumination standard of one foot candle at one meter above the ground. Security lighting shall, at a minimum, illuminate access points to the terminal, the waterfront and dock areas.
(b) Lighting control and switches shall be protected to prevent unauthorized access or tampering.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2442. Warning Systems, Signals and Communications.
Note • History
(a) Warning Systems or Signals.
The terminal shall have a signal or system for warning terminal personnel of a security breach or incident.
(b) Communications.
In addition to the requirements of 2 CCR §2370, the terminal shall provide a means of communication for vessel's crews to contact terminal personnel.
NOTE
Authority: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2443. Video and Electronic Surveillance.
Note • History
The MTSO shall determine whether or where video or other electronic surveillance and detection systems can be used to augment or replace, as appropriate, the following:
(a) Detection and warning of breaches of security at perimeter fences and barriers;
(b) Roving security patrols;
(c) Control of entry points to the terminal; and
(d) Surveillance of waterfront areas.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2444. Terminal Security Training and Security Awareness.
Note • History
(a) The MTSO shall develop a security training program for terminal security personnel and a security awareness program for all terminal employees.
(b) The training program shall include initial and periodic refresher training.
(c) Terminal security personnel shall complete security training programs established by the MTSO.
(d) All terminal employees, contractors, vendors and visitors to the terminal shall undergo security training or security awareness training as deemed appropriate by the MTSO. The MTSO shall determine each individual's training requirements from those prescribed in subsection (e) of this Section.
(e) The security training program shall, at a minimum, include all of the provisions of Section 2433, Section 2436 and the following elements:
(1) The terminal's policies, practices and procedures for implementing the security program;
(2) Coordination with local law enforcement agencies;
(3) Coordination with federal, state and other local agencies having jurisdiction;
(4) Procedures and duties for security personnel when a security signal is received;
(5) Procedures and duties of terminal employees when a security signal is received;
(6) Procedures for notifying all terminal personnel and vessel's crew when increased security threat levels are imposed by the U.S. Coast Guard Captain of the Port;
(7) Procedures and arrangements for elevating security in compliance with the U.S. Coast Guard Captain of the Port's directives;
(8) Procedures, actions and reporting of incidents involving breaches of security;
(9) Procedures for notifying the National Response Center and local agencies having jurisdiction;
(10) Communications, warning systems and signals operations;
(11) Terminal security drills and exercises which must include periodic drills for implementing elevated security levels;
(12) Awareness training for terminal employees to ensure that they have working knowledge of the terminal's security and emergency plans and procedures; and
(13) Awareness training for contractors, vendors and visitors to the terminal.
(f) Security training must emphasize vigilance and security awareness of all terminal employees.
(g) The training program shall be reviewed at least annually. The program should be updated to include lessons learned from any breach of security occurrences.
(h) Security drills and exercises may be either specific to the marine terminal or as part of a cooperative program with vessel, port or local agencies' security plans. Drills and exercises must be conducted at intervals not exceeding twelve (12) months.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§2445. Marine Terminal Physical Security Plan: Approval Procedure.
Note • History
(a) The terminal operator must ensure completion of a Marine Terminal Physical Security Plan and notify the Division Chief of its completion in writing, within 90 days of the effective date of these regulations.
(b) After the initial 90-day compliance period, the Division staff shall conduct an on-site inspection of the terminal's security arrangements to determine if the Marine Terminal Physical Security Plan meets the requirements of these regulations.
(c) If the Marine Terminal Physical Security Plan meets the requirements of these regulations, the Division Chief shall approve the plan, in writing, within 30 days of the on-site inspection.
(d) If the Marine Terminal Physical Security Plan does not meet the requirements of these regulations, the Division Chief shall notify the terminal operator, in writing, of any deficiencies within 30 days of the on-site inspection. Terminal operators shall correct any deficiencies within 30 days or a period agreed upon by the terminal operator and the Division Chief. When corrections have been made, the terminal operator shall notify the Division.
(e) Upon receipt of such notification, the Division Chief shall, within 30 days, inspect and approve or disapprove the Marine Terminal Physical Security Plan as appropriate.
(f) Terminal operators shall notify the Division Chief, of any proposed amendments to an approved Marine Terminal Physical Security Plan. Any such proposed amendments shall be communicated to the Division Chief for approval at least 30 days prior to the date that changes are to be adopted. The Division Chief shall approve or disapprove proposed amendments, in writing, within 30 days of receipt as set forth in subsections (c) and (d) of this section.
(g)(1) Any information or documents relating to security at any marine terminal, where the information or document is identified by the terminal operator as confidential or as containing proprietary information, shall be treated as confidential information by the State Lands Commission and its Staff.
(2) For purposes of subsection (g)(1), a document shall be considered identified as confidential or as containing proprietary information only if the document is designated as confidential or as containing proprietary information in writing either on the document so identified or in an accompanying document signed by the terminal operator.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755 and 8756, Public Resources Code; Sections 6254.15 and 15376, Government Code.
HISTORY
1. New section filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
Article 5.3. Marine Terminal Personnel Training and Certification
§2540. Purpose, Applicability and Date of Implementation.
Note • History
(a) The purpose of the regulations in Title 2, Division 3, Chapter 1, Article 5.3, of the California Code of Regulations is to establish onshore and offshore marine terminal personnel oil-handling training and certification requirements which, when followed, will:
(1) Provide improved protection of California waters and natural resources by preventing oil spills caused by human factors;
(2) Ensure that marine terminal personnel involved in oil-handling operations are adequately trained and have demonstrated competency; and
(3) Establish certification that personnel are in compliance with training requirements.
(b) The provisions of this article shall not apply to:
(1) Operations conducted at offshore drilling and production facilities.
(2) Tank cleaning operations which begin after the removal of cargo or fuel from any tank vessel or barge.
(c) Unless otherwise specified in this article, all of the provisions of this article become effective 30 days after they have been filed with the Secretary of State.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New article 5.3 and section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
Note • History
Unless the context otherwise requires, the following definitions shall govern the construction of this article:
(a) “Barge” means any vessel that carries oil in commercial quantities as cargo, but is not equipped with a means of self-propulsion.
(b) “Certification” means the documentation that a terminal employee has met all of the requirements of an oil spill prevention training and job competency program that meets the requirements of this article.
(c) “Division” means the Marine Facilities Division of the California State Lands Commission.
(d) “Division Chief” means the Chief of the Marine Facilities Division or any employee of the Division authorized by the Chief to act on his behalf.
(e) “Human factors” means human conditions, such as inadequate knowledge or fatigue, which can lead to operator error or poor judgement.
(f) “Human factor risks” means risks of causing an oil spill due to the effects of human factors on competency and judgement.
(g) “Indirect operations” means involvement in on-site activities, such as new construction, in a capacity that indirectly involves the risk of an oil spill to waters of the state due to potential impacts to nearby oil-handling operations (e.g., operating digging equipment next to an active oil transfer pipeline).
(h) “Maintenance” means direct involvement in maintaining and repairing the equipment used for the transfer, storage, handling, or monitoring of oil at a marine terminal in a capacity that involves the risk of an oil spill to marine waters.
(i) “Management” means the first line supervision with direct involvement in managing the transfer, storage, handling, or monitoring of oil at a marine terminal by administering operations policies and procedures that involve the risk of an oil spill to marine waters.
(j) “Marine terminal” means a facility other than a vessel, located on or adjacent to marine waters in California, used for transferring oil to or from tank vessels or barges. The term references all parts of the facility including, but not limited to, structures, equipment and appurtenances thereto used or capable of being used to transfer oil to or from tank vessels or barges. For the purpose of these regulations, a marine terminal includes all piping not integrally connected to a tank facility.
(k) “Maximum extent practicable” means the highest level of effectiveness that can be achieved through the use of terminal personnel and best achievable technology. In determining what is the maximum extent practicable, the Division shall consider, at a minimum, the effectiveness, engineering feasibility, commercial availability, safety, and the cost of the measures.
(l) “Offshore marine terminal” means any marine terminal at which tank vessels or barges are made fast to a buoy or buoys.
(m) “Oil” means any kind of petroleum, liquid hydrocarbons, or petroleum products or any fraction or residues therefrom, including, but not limited to, crude oil, bunker fuel, gasoline, diesel fuel, aviation fuel, oil sludge, oil refuse, oil mixed with waste, and liquid distillates from unprocessed natural gas.
(n) “Onshore marine terminal” means any marine terminal at which tank vessels or barges are made fast to land structures or substantially land structures.
(o) “On-the-job training” means learning procedures and equipment use through observation of experienced and competent personnel, and supervised hands-on practice.
(p) “Operations” means direct involvement in the transfer, storage, handling, or monitoring of oil at a terminal in a capacity that involves the risk of an oil spill to waters of the state. This functional group includes but is not limited to the Terminal person in charge, storage tank operators, pipeline operators, and oil transfer monitors.
(q) “Operator” when used in connection with vessels, marine terminals, pipelines, or facilities, means any person or entity which owns, has an ownership interest in, charters, leases, rents, operates, participates in the operation of or uses that vessel, terminal, pipeline, or facility. “Operator” does not include any entity which owns the land underlying the terminal or the terminal itself, where the entity is not involved in the operations of the terminal.
(r) “Personnel” means individuals employed by, or under contract with, a terminal.
(s) “Spill” or “discharge” means any release of oil into marine waters which is not authorized by any federal, state, or local government entity.
(t) “Supervisory” means involvement in directly supervising any transfer, storage, handling, or monitoring of oil at a marine terminal by implementing operations policies and procedures that involve risk of an oil spill to marine waters.
(u) “Tank facility” means any one or combination of above ground storage tanks, including any piping which is integral to the tank, which contains crude oil or its fractions and which is used by a single business entity at a single location or site. A pipe is integrally related to an above ground storage tank if the pipe is connected to the tank and meets any of the following:
(1) The pipe is within the dike or containment area;
(2) The pipe is connected to the first flange or valve after the piping exists the containment area; or
(3) The pipe is connected to the first flange or valve on the exterior of the tank, if state of federal law does not require a containment area.
(v) “Tank vessel” or “tanker” means any self-propelled, water borne vessel, constructed or adapted for the carriage of oil in bulk or in commercial quantities as cargo.
(w) “Terminal” means marine terminal.
(x) “Terminal person in charge” or “TPIC” means an individual designated by the terminal operator as the person in charge of a particular oil transfer operation at a particular terminal.
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
2. Change without regulatory effect amending subsections (c) and (d) filed 12-18-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 51).
Note • History
(a) Each onshore and offshore terminal shall develop and implement oil spill prevention training for supervisory, operations, maintenance, management, and indirect operations personnel identified pursuant to subsection (c) of this section. Training shall be designed to promote job competency and environmental awareness for the purpose of preventing oil spills. Non-English-speaking personnel subject to the terminal's training requirements shall be trained in a manner that allows comprehension by such personnel.
(b) Oil spill prevention training programs must be approved by the Division.
(c) The terminal operator shall identify, in writing, the specific position titles which the terminal has identified to be subject to its oil spill prevention training requirements. In making this determination, the terminal shall evaluate the functions of terminal personnel positions using the definitions of “Supervisory,” “Operations,” “Maintenance,” “Management,” and “Indirect Operations” as defined in section 2541. For cases where certain job titles associated with maintenance and indirect operations can not be identified in advance, the terminal operator shall identify the types of job orders or work sites which may involve the need for maintenance or indirect operations oil spill prevention training.
(d) The terminal operator shall identify, in writing, the specific initial classroom and on-the-job oil spill prevention training requirements for each position, including minimum hours, that are appropriate for each position given the terminal's training needs and human factor risks.
(e) Requirements for training of operations and supervisory personnel shall focus on building personnel competency in operating procedures and spill prevention systems specific to the terminal. Oil spill prevention training requirements shall incorporate, at a minimum, the following training topics:
(1) Overview of all oil handling, transfer, storage, and monitoring/leak detection operations at the terminal;
(2) Operating procedures and checklists specific to trainee's job function;
(3) Problem assessment including recognition of human factor risks and how they can be minimized;
(4) Awareness of preventative maintenance procedures;
(5) Awareness of local environmental sensitivity and oil spill impacts;
(6) Major components of the terminal's operations manual;
(7) Major components of the terminal's oil spill contingency plan including notification procedures for oil spills;
(8) Decision-making for abnormal operating events and emergencies, including emergency spill prevention and safe shut down conditions, responsibilities and procedures;
(9) Routine and emergency communications procedures;
(10) Overview of applicable oil spill prevention and response laws and regulations; and
(11) Drug and alcohol use awareness.
(f) Requirements for initial oil spill prevention training of management personnel shall incorporate, at a minimum, the following training topics:
(1) Overview of all oil handling, transfer, storage, and monitoring/leak detection operations at the terminal;
(2) Management role in operations and oil spill prevention;
(3) Recognition of human factor risks and how they can be minimized;
(4) Awareness of local environmental sensitivity and oil spill impacts;
(5) Major components of the terminal's operations manual;
(6) Major components of the terminal's oil spill contingency plan including notification procedures for oil spills and incident command systems;
(7) Decision-making for abnormal operating events and emergencies, including emergency spill prevention and safe shut down conditions, responsibilities and procedures;
(8) Overview of applicable oil spill prevention and response laws and regulations; and
(9) Drug and alcohol use awareness.
(g) Requirements for initial oil spill prevention training of maintenance or indirect operations personnel shall incorporate, at a minimum, the following training topics:
(1) Overview of equipment, operations and hazards at specific maintenance and indirect operations work site(s) within the facility;
(2) Awareness of local environmental sensitivity and oil spill impacts;
(3) Notification procedures for oil spills; and
(4) For terminal employees, drug and alcohol use awareness.
(h) Training topics identified in subsections (e) to (g) of this section do not prescribe fixed subject titles for class outlines or training organization. Terminals may combine or integrate these topics, as appropriate, but must ensure that information on each topic is presented in the applicable personnel training program.
(i) The terminal operator shall identify, in writing, the specific oil spill prevention continuing education requirements for each affected position, including minimum hours, that are appropriate given the terminal's training needs and human factor risks. Ongoing training shall occur at least annually and, at a minimum, address:
(1) Any changes in the topics identified in subsections (e) to (g) of this section.
(2) Refresher awareness training on environmental sensitivity and oil spill impacts;
(3) Review and analysis of oil spills which have occurred during the past year;
(4) Refresher training on oil spill prevention procedures; and
(5) For supervisory, operations, and management personnel, a practice exercise of the terminal's procedures for preventing a spill during a particular abnormal operations event.
(j) Terminal operators are encouraged to combine existing training programs required under federal Process Safety Management requirements (29 CFR 1910), Coast Guard Persons in charge requirements (33 CFR 154.710), and other federal and state training requirements in order to meet the above oil spill prevention training requirements.
(k) Existing personnel that have entered their current positions prior to these regulations becoming effective can be regarded as having met the terminal's initial oil spill prevention training requirements if the terminal operator has documented that those personnel have received the required training in initial oil spill prevention within the previous five years. Existing personnel shall be recertified at least once every three years in accordance with subsection (g) of section 2545.
(l) Terminal operators shall develop follow up remedial training for personnel clearly responsible for causing an oil spill while functioning in their position, unless such personnel no longer occupy a position identified under subsection (c).
(m) Contractors hired by the terminal operator to perform supervisory, operations, maintenance, management, or indirect operations functions, as identified by the terminal under subsection (c) of this section, are considered “personnel” for the purposes of these regulations, and shall be subject to the same oil spill prevention training requirements as terminal employees. The terminal operator is responsible to validate that such contractors have met the terminal's oil spill prevention training requirements before they perform a supervisory, operations, maintenance, management, or indirect operations function.
(n) Terminal operators shall develop minimum training and experience qualifications for trainers who will demonstrate terminal specific procedures, equipment use, supervise practice sessions, and provide other on-the-job training to new personnel.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
Note • History
Terminal operators shall develop and maintain written oil spill prevention training materials, such as training manuals, checklists and curricula.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
Note • History
(a) Each onshore and offshore terminal operator shall develop and implement a program to certify that supervisory and operations personnel identified pursuant to subsection (c) of section 2542 of these regulations, have met the terminal's oil spill prevention training program requirements, and are competent to perform the functions associated with their positions. The certification program shall be designed, to the maximum extent practicable, to ensure job competency and environmental awareness for the purpose of preventing oil spills.
(b) Certification programs must meet the minimum criteria set forth in section 2545 of these regulations.
(c) All certification programs for supervisory and operations personnel must be approved by the Division as required by section 2546 of these regulations.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
§2545. Minimum Criteria for Certification.
Note • History
(a) The terminal oil spill prevention certification program shall address all supervisory and operations personnel identified pursuant to subsection (c) of section 2542.
(b) The terminal operator shall develop and maintain written certification procedures, including:
(1) Minimum competency requirements to achieve certification;
(2) The process to develop and test competency in supervisory and operations personnel; and
(3) The process of issuing and tracking certificates, including replacement of lost certificates.
(c) The terminal operator shall maintain a written certificate or other record for supervisory and operations personnel which have met the terminal's certification requirements. This record shall document:
(1) The certified individual's name and position;
(2) Types and hours of training completed;
(3) Name of trainer;
(4) Results of performance tests and evaluations;
(5) Signatures of the trainee and trainer; and
(6) Date of certification.
(d) Copies of certification records shall be kept at the terminal or in a location such as an office, so that they are readily accessible to Division staff, for at least five years from the date of certification.
(e) A terminal's certification program shall incorporate methods to evaluate and confirm job competency, including:
(1) A written examination, or oral examination documented in writing, which tests general knowledge about training topics identified under subsection (e) of section 2542, with an appropriate minimum passing score established by the terminal operator.
(2) A practical evaluation of understanding and performance of routine and emergency operations specific to position's job function, including observation of performance of each oil handling, transfer, storage, and monitoring duties assigned to a position prior to unsupervised performance of those duties.
(f) The terminal's program shall only provide for certification of an individual who has:
(1) Met the terminal's oil spill prevention initial training requirements relevant to the individual's position, as developed pursuant to subsection (d) of section 2542; and
(2) Passed a competency evaluation developed under subsection (e) of this section.
(g) Recertification shall occur at least once every three years based on:
(1) Successful completion of annual refresher training; and
(2) Satisfactory performance in a reevaluation of competency as developed under subsection (e) of this section.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
Note • History
(a) Terminal operators shall develop or modify their training and certification program to meet the requirements of Article 5.3, begin implementing the program, and, if necessary, update the description of this program within twelve months of the effective date of these regulations.
(b) Within eighteen months of the effective date of these regulations the terminal operator shall have conducted certification procedures, as developed pursuant to subsection (b) of section 2545, for all existing personnel that are subject to the terminal's certification requirements and have entered their current position prior to these regulations becoming effective.
(c) The Division shall review a terminal's training and certification program after the date determined by subsection (a) of this section. This review shall be accomplished by a general on-site inspection by the Division through evaluation of the terminal's training materials, testing and certification records, and consultation with terminal personnel.
(d) The Division shall notify terminal operators regarding approval status within 30 calendar days of completing inspections under subsection (c) of this section.
(e) Terminal operators who do not receive approval will have 90 days to address deficiencies in their training and certification program, with options for time extension at the discretion of the Division. For those personnel that were trained or certified after the dates established by subsection (a) of this section but prior to training program disapproval, retraining or recertification of such personnel due to changes required by the Division's approval process may be postponed until the next retraining or recertification cycle as established by the terminal pursuant to this Article.
(f) Training and certification program approval is valid for five years. Significant changes to the terminal's program must be documented through an update of the terminal's training and certification program and submitted to the Division for approval. Minor upgrades in training programs, such as expansion of training hours or updates to training materials, are not required to be submitted. The Division may perform announced and unannounced inspections at terminals to verify compliance.
(g) A training and certification program shall be approved if, in addition to meeting the requirements of sections 2544 and 2545 it demonstrates that, when implemented, it can, to the maximum extent practicable:
(1) Provide protection from human factor oil spill risks identified in the risk analysis required by the terminal's oil spill contingency plan;
(2) Minimize the likelihood that terminal oil spills will occur and minimize the size and impacts of those terminal oil spills which do occur;
(3) Provide effective oil spill prevention training to supervisory, operations, maintenance, management, and indirect operations personnel;
(4) Ensure proper evaluation of job competency; and
(5) Provide an effective system to clearly document and track personnel training and certification.
(h) The Division may approve a training and certification program with an expedited review as set out in this section if that program has been approved by a federal agency which the Division has deemed to apply approval criteria which equal or exceed those of the Division.
(i) If the training and certification program receives approval, the terminal operator shall receive a letter of approval from the Division, describing the terms of approval, including expiration dates pursuant to subsection (f) of this section.
(j) If approval is denied or revoked, the terminal operator shall receive, in writing, an explanation of the factors for disapproval and a list of deficiencies. The terminal operator may be subject to enforcement actions prescribed under sections 8670.57, 8670.58 8670.59 and 8670.61 of the Government Code.
(k) Approval of a training and certification program by the Division does not constitute an express assurance regarding the adequacy of the program nor constitute a defense to liability imposed under state law.
(1) The Division may review a program following any spill at the terminal.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8670.57, 8670.58, 8670.59 and 8670.61, Government Code; and Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
Note • History
(a) The Division may verify compliance with this article by announced and unannounced inspections in accordance with section 8757 of the Public Resources Code and section 2320 of Title 2, Division 3, Chapter 1, Article 5, of the California Code of Regulations.
(b) During inspections, Division staff may require terminal operators to demonstrate proof of training and certification of supervisory and operations personnel.
(c) The Division shall provide a copy of an inspection report to the terminal operator within thirty calendar days from the inspection date.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Section 8670.2, Government Code; and Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
§2548. Modifications or Alternatives.
Note • History
(a) Petitions for Modifications or Alternatives.
(1) Any person subject to these regulations may submit a petition to the Division Chief for modifications or alternatives to the requirements of Article 5.3.
(2) All petitions for modifications or alternatives must be submitted in writing. A petition may be in any form, but it must contain all data and information necessary to evaluate its merits.
(b) Response to Petitions.
The Division Chief shall respond in writing to any petition for modifications or alternatives within 30 days of receipt of the petition.
(c) Approval of Modifications or Alternatives.
(1) The Division Chief may approve any proposed modifications or alternatives to the requirements of Article 5.3 if he or she determines that the proposed modifications or alternatives will fulfill the purpose of these regulations as outlined in subsection (a) of section 2540 of this article.
(2) If the Division Chief approves any proposed modification or alternatives under this section, a letter of approval shall be issued to the petitioner setting forth the findings upon which the approval is based, and a copy of that letter shall be maintained with the terminal's training manual or training records required by section 2543 of these regulations.
(3) The Division Chief may withdraw the letter of approval of any modifications or alternative requirements at any time if he or she finds that the person or persons subject to these regulations have not regularly and consistently complied with the approved modified or alternative requirements.
(4) Withdrawal of a letter of approval under this section shall be effective upon receipt by the petitioner of written notification of the withdrawal from the Division Chief.
NOTE
Authority cited: Sections 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 3-7-94; operative 4-6-94 (Register 94, No. 10).
Article 5.4. Structural Requirements for Vapor Control Systems at Marine Terminals
§2550. Purpose, Applicability and Date of Implementation.
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New article 5.4 (sections 2550-2556) and section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Repealer of article 5.4 (sections 2550-2556) and section filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
§2551. Review of Engineering Practice, Structural Calculations, Drawings and Petitions.
Note • History
NOTE
Authority cited: Sections 8751, 8755, 8756, 8757 and 8758, Public Resources Code. Reference: Sections 8751, 8755, 8756, 8757 and 8758, Public Resources Code; Sections 15375, 15376 and 15378, Government Code.
HISTORY
1. New section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Repealer filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8750, 8751, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Repealer filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
§2553. Structures Supporting NVCS or New VCS Equipment to Be Installed as Part of a Marine Terminal but Not on the Wharf or Pier.
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code; Sections 15375, 15376 and 15378, Government Code.
HISTORY
1. New section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Repealer filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
§2554. Structures Supporting New VCS Equipment to Be Installed on Areas of Existing Wharves or Piers Overhanging the Water or Wetlands.
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code; Sections 15375, 15376 and 15378, Government Code.
HISTORY
1. New section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Change without regulatory effect amending subsection (b)(4) filed 12-26-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 52).
3. Repealer filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
§2555. Inspection and Reassessment of EVCS Structural Installations.
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code; Sections 15375, 15376 and 15378, Government Code.
HISTORY
1. New section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Change without regulatory effect amending subsection (a)(1) filed 12-26-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 52).
3. Repealer filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
Note • History
NOTE
Authority cited: Sections 8751, 8755 and 8756, Public Resources Code. Reference: Sections 8751, 8755, 8756 and 8757, Public Resources Code; Sections 15375, 15376 and 15378, Government Code.
HISTORY
1. New section filed 9-10-97; operative 10-10-97 (Register 97, No. 37).
2. Repealer filed 2-21-2006; operative 3-23-2006 (Register 2006, No. 8).
Article 5.5. Marine Terminal Oil Pipelines
§2560. Purpose, Applicability, and Date of Implementation.
Note • History
(a) Unless otherwise specified in these regulations, all of the provisions of these regulations become effective on September 1, 1998.
(b) The purpose of the regulations in Title 2, Division 3, Chapter 1, Article 5.5 of the California Code of Regulations is to provide the best achievable protection of the public health and safety and of the environment by using the best achievable technology in providing for marine terminal oil pipeline integrity.
(c) The provisions of Article 5.5 apply only to pipelines that are within or a part of marine terminals and are used to transfer oil either:
(1) Within the marine terminal; or
(2) To or from tank vessels or barges.
(d) The provisions of Article 5.5 do not apply to any pipelines:
(1) That are within or part of marine terminals and are isolated and disconnected from any pipeline or manifold which can be used to transfer oil within the marine terminal or to and from tank vessels and barges; or
(2) That are used exclusively to transport oil that are subject to the jurisdiction of the State Fire Marshal; or
(3) That are part of a tank vessel or barge.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New article 5.5 (sections 2560-2571) and section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
Note • History
Unless the context otherwise requires, the following definitions shall govern the construction of this Article:
(a) “Class I pipeline” means any pipeline or portion thereof which does not meet the criteria specified for a Class II pipeline.
(b)(1) “Class II pipeline” means either of the following:
(A) Any pipeline or portion thereof which has experienced two or more reportable leaks due to corrosion or defect in the prior three years. Leaks experienced during an SLPT shall not be counted as a leak for the purpose of classification of pipelines as Class II pipelines. For purposes of this definition, a leak which is taceable to an external force, but for which corrosion is partly responsible, shall be deemed caused by corrosion.
(B) Any pipeline or pipeline system a part of which extends over marine waters or wetlands and does not have any form of permanently installed effective containment located between the pipeline and the water surface or wetland over its entire exposed length over the water or wetlands.
(2) Each pipeline which has been classified as a Class II pipeline under subsection (b)(1)(A) of this section shall retain its classification as a Class II pipeline, until five years pass without a reportable leak due to corrosion or defect on that pipeline. After five years pass without a reportable leak, such Class II pipeline may be reclassified as a Class I pipeline following its next scheduled SLPT required by 2 CCR Section 2564(c)(3).
(3) For the purpose of classification of pipelines as Class II pipelines under subsection (b)(1)(A) of this section, all reportable leaks that have occurred due to corrosion or defect in the three years prior to the effective date of these regulations shall be taken into account in making that determination.
(4) For the purpose of reclassification of Class II pipelines as Class I pipelines under subsection (b)(2) of this section, any period of time without having a reportable leak shall commence from a date five years prior to the effective date of this regulation.
(c) “Component” means any part of a pipeline or pipeline system which may be subjected to pump pressure or liquid gravitational pressure including, but not limited to, pipe, valves, elbows, tees, flanges, and closures.
(d) “Defect” means manufacturing or construction defects.
(e) “Division” means the Marine Facilities Division of the California State Lands Commission.
(f) “Division Chief” means the Chief of the Marine Facilities Division or any employee of the Division authorized by the Chief to act on his behalf.
(g) “Leak” or “reportable leak” means every unintentional liquid leak. A “reportable leak” does not include an unintentional leak from a gasket, gland or sealing material at a pump, valve, elbow, tee, flange or closure, which has been stopped by immediate tightening of bolts or any similar prompt corrective action.
(h) “Marine terminal” means a facility, other than a vessel, located on or adjacent to marine waters in California and used for transferring oil to or from tank vessels or barges. The term references all parts of the facility, but not limited to, structures, equipment and appurtenances thereto used or capable of being used to transfer oil to or from tank vessels or barges. For the purpose of this article, a marine terminal includes all piping not integrally connected to a tank facility.
(i) “Maximum allowable operating pressure” or “MAOP” means the highest safe operating pressure at any point in a pipeline system during normal flow or static conditions.
(j) “Oil” means any kind of petroleum, liquid hydrocarbons, or petroleum products or any fraction or residues therefrom, including, but not limited to, crude oil, bunker fuel, gasoline, diesel fuel, aviation fuel, oil sludge, oil refuse, oil mixed with waste, and liquid distillates from unprocessed natural gas.
(k) “Operator” when used in connection with marine terminals, pipelines, or facilities, means any person or entity which owns, has an ownership interest in, leases, rents, operates, participates in the operation of or uses that terminal, pipeline, or facility. “Operator” does not include any entity which owns the land underlying the terminal or the terminal itself, where the entity is not involved in the operations of the terminal.
(l) “Person” means any individual, firm, joint venture, partnership, corporation, association, state, municipality, cooperative association, or joint stock association, and includes any trustee, receiver, assignee, or personal representative thereof.
(m) “Pipe” or “line pipe” means a tube, usually cylindrical, through which oil flows from one point to another.
(n) “Pipeline or pipeline system” means a marine terminal pipeline through which oil moves within a marine terminal or between a marine terminal and a tank vessel or barge, including, but not limited to, line pipe, valves, other appurtenances connected to line pipe, fabricated assemblies associated with pumping units, and delivery stations and fabricated assemblies therein.
(o) “Standard Cathodic Protection System” or “SCPS” means an external corrosion control system used on underground or submerged metallic piping systems that is in conformance with and meets the criteria of the National Association of Corrosion Engineers (NACE) Standard RP0169-2002, Item No. 21001, reaffirmed 2002-04-11; published by NACE, 1440 South Creek Drive, Houston, Texas 77084-4906.
(p) “State Fire Marshal” means the person, and any representative of the person, appointed by the Governor pursuant to Section 13101 of the Health and Safety Code.
(q) “Static Liquid Pressure Test” or “SLPT” means the application of internal pressure above the normal or maximum operating pressure to a pipeline or a segment of pipeline, under no-flow conditions, for a fixed period of time, utilizing a liquid test medium. For the purpose of these regulations, the liquid test medium used may be either water or a liquid hydrocarbon with a flash point greater than 140o Fahrenheit. In circumstances where any other liquid medium is to be used for a SLPT, the operator shall petition the Division Chief using the procedures outlined in 2 CCR Section 2564(h).
(r) “Tank facility” means any one or combination of above ground storage tanks, including any piping which is integral to the tank, which contains crude oil or its fractions and which is used by a single business entity at a single location or site. A pipe is integrally related to an above ground storage tank if the pipe is connected to the tank and meets any of the following:
(1) The pipe is within the dike or containment area;
(2) The pipe is connected to the first flange or valve after the piping exits the containment area; or
(3) The pipe is connected to the first flange or valve on the exterior of the tank, if state or federal law does not require a containment area.
(s) “Transfer pipeline” or “transfer pipeline system” means a pipeline that is within or a part of a marine terminal. A transfer pipeline does not include a pipeline that is subject to the jurisdiction of the State Fire Marshal.
(t) “Wetlands” means streams, channels, lakes, reservoirs, bays, estuaries, lagoons, marshes, and the lands underlying and adjoining such waters, whether permanently or intermittently submerged, to the extent that such waters support and contain significant fish, wildlife, recreational, aesthetic, or scientific resources.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8750, 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
2. Amendment of subsection (o) filed 2-2-2007; operative 3-4-2007 (Register 2007, No. 5).
§2562. Notification and Reporting of Pipeline Incidents.
Note • History
(a) The operator of any marine terminal at which there occurs a rupture, explosion or fire involving a transfer pipeline, including, but not limited to, a transfer pipeline system undergoing testing, shall notify the California Office of Emergency Services of the incident as soon as possible, but in no event later than twenty-four (24) hours after the incident.
(b) Within 30 days following any pipeline incident specified in subsection (a) of this section, the operator shall forward an incident report to the local area Division field office. The report shall include at a minimum;
(1) The date and time of the pipeline incident;
(2) The location and identity of the pipeline;
(3) The product in the pipeline at the time of the incident;
(4) The cause or causes of the incident; and
(5) Any remedial action taken to restore the integrity of the pipeline.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
§2563. Design, Construction and Maintenance.
Note • History
(a) Any repairs, alterations or modifications to existing transfer pipeline systems shall meet the design and construction criteria specified in Subparts C and D of Part 195 of Title 49 of the Code of Federal Regulations as in effect on October 1, 1996.
(b) Every new transfer pipeline installed after September 1, 1998, shall be designed and constructed in accordance with Subparts C and D of Part 195 of Title 49 of the Code of Federal Regulations as in effect on October 1, 1996.
(c) Each component of a pipeline which is exposed to the atmosphere shall be coated with material suitable for protecting the component from atmospheric corrosion.
(d) In addition to the requirements of subsections (a), (b) and (c) of this Section, the design, construction and maintenance of all marine terminal oil pipelines shall conform with the provisions of Divisions 9 and 10 of Title 24, Chapter 31F of the California Code of Regulations.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
2. Amendment of section heading and new subsection (d) filed 2-2-2007; operative 3-4-2007 (Register 2007, No. 5).
§2564. Schedule for Static Liquid Pressure Testing.
Note • History
(a)(1) No operator may operate any pipeline or pipeline system governed by this Article unless it has successfully completed an SLPT as specified in Section 2565, in accordance with the schedules prescribed in this section.
(2) All pipelines that do not have a valid certified SLPT certificate shall conform with and be marked in accordance with the provisions of subsections 12 and 13 of Section 3109F.2, Division 9 of Title 24, Chapter 31F of the California Code of Regulations.
(b) This subsection (b) applies only to Class I Pipelines.
(1) Every newly installed pipeline or pipeline system shall have undergone a complete and successful SLPT prior to being used for any transfer of oil. Subsequent SLPTs shall be conducted at the appropriate intervals prescribed in subsection (b)(3) of this section.
(2) Every existing pipeline or pipeline system which has any segment relocated or replaced shall undergo a complete and successful SLPT after completion of relocation or replacement and prior to being used for any transfer of oil. Subsequent SLPTs shall be conducted at the appropriate intervals prescribed in subsection (b)(3) of this section. The SLPT requirements of this subsection need not apply to cases where a component other than pipe is being replaced or added to the pipeline system and the manufacturer certifies that either:
(A) The component was successfully tested with an SLPT at the factory where it was manufactured or at the operator's facility; or
(B) The component was manufactured under a quality control system that ensures each component is at least equal in strength to a prototype that was successfully tested with an SLPT at the factory.
(3) Every pipeline or pipeline system shall be subjected to an SLPT within five (5) years of the date of its initial SLPT prescribed in subsection (b)(1) of this section. Subsequent SLPTs shall be carried out in accordance with the following schedule:
(A) For pipelines that do not have an SCPS and are buried or submerged either partially or wholly, at succeeding intervals not exceeding three year cycles from the date of test carried out under subsection (b)(3) of this section;
(B) For pipelines that have an SCPS and are buried or submerged either partially or wholly, at succeeding intervals not exceeding five year cycles from the date of test carried out under subsection (b)(3) of this section; and
(C) For pipelines or segments of pipelines situated entirely above the ground or water, at succeeding intervals not exceeding five year cycles from the date of test carried out under subsection (b)(3) of this section.
(c) This subsection (c) applies only to Class II Pipelines.
(1) Every newly installed pipeline or pipeline system shall undergo a complete and successful SLPT prior to being used for any transfer of oil. Subsequent SLPTs shall be conducted at the appropriate intervals prescribed in subsection (c)(3) of this section.
(2) Every pipeline or pipeline system which has been classified as a Class II pipeline under subsection (b)(1)(A) of Section 2561, shall undergo a complete and successful SLPT after being classified as a Class II pipeline and prior to being used for any transfer of oil. Subsequent SLPTs shall be conducted at the appropriate intervals prescribed in subsection (c)(3) of this section.
(3) In addition to the SLPTs required by either subsections (c)(1) or (2) of this section, subsequent SLPTs shall be conducted at the following intervals:
(A) For pipelines or pipeline systems that do not have an SCPS and are buried or submerged either partially or wholly, at succeeding intervals not exceeding one year cycles from the date of tests conducted under either subsections (c)(1) or (2) of this section, whichever is appropriate.
(B) For pipelines or pipeline systems that have an SCPS and are buried or submerged either partially or wholly, at intervals not exceeding three year cycles from the date of tests conducted under either subsections (c)(1) or (2) of this section, whichever is appropriate.
(C) For pipelines or segments of pipelines situated entirely above the ground or water, at succeeding intervals not exceeding three year cycles from the date of test carried out under either subsections (c)(1) or (2) of this section, whichever is appropriate.
(d) Each operator shall report any pipeline or segment thereof which meets the criteria of Class II pipeline to the local area Division field office within 30 days following the date the pipeline or portion thereof first meets the criteria as a Class II pipeline. Any pipeline determined to meet the criteria as a Class II pipeline which has not been so reported by the operator to the Division shall be deemed to have been a Class II pipeline on the date determined by the Division. The Division may determine that the period during which a Class II pipeline must have no reportable leaks in order to be reclassified as a Class I pipeline under §2561(b)(2) does not begin until the required notice is given. Any operator failing to submit such notification report as required shall, as in the case of any violation of any provision of this article, be subject to enforcement actions prescribed under §§ 8670.57 through 8670.69.6 of the Government Code.
(e) Notwithstanding the requirements of subsection (c) of this section and subject to the approval of the Division Chief, an operator may implement an alternative method to assure the integrity of a segment of pipeline classified as Class II. When this alternative method has been implemented to the satisfaction of the Division Chief, the pipeline may be classified as a Class I pipeline.
(f) Alternative test methods, including, but not limited to, inspection by instrumented internal inspection devices, may be approved by the Division Chief on an individual basis. In approving an alternative to an SLPT, the Division Chief may require that the alternative test be conducted more frequently than the testing schedules specified in subsections (b) and (c) of this section.
(g) Notwithstanding the testing schedules specified in subsections (b) through (f) of this section, and in the event that the reported test results on a particular pipeline subject to this Article do not provide sufficient information as required by 2 CCR Section 2567(b), to the Division Chief to determine whether the affected pipeline could be the source of a discharge of oil or pose a threat to public health and safety or the environment, the Division Chief may require the terminal operator either:
(1) To provide any extra information to substantiate that a successful SLPT has been conducted; or
(2) To undergo an SLPT or any other non-destructive test or inspection.
(h) An operator may request that the Division Chief authorize the use of a test medium other than water or liquid hydrocarbon with a flash point greater than 140o Fahrenheit. Such request must be submitted in writing at least 10 working days prior to beginning the SLPT. Such an alternative may be authorized where the Division Chief deems that it would provide a reasonably equivalent or better means of testing and that there will be no detriment to the public health, safety and the environment.
(i) In all cases where a liquid hydrocarbon is used as a test medium, the terminal operator shall provide the Division Chief with the liquid bulk modulus and coefficient of thermal expansion of the test medium at least three working days prior to the test.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
2. Amendment designating former subsection (a) as subsection (a)(1) and new subsections (a)(2) and (i) filed 2-2-2007; operative 3-4-2007 (Register 2007, No. 5).
§2565. Static Liquid Pressure Testing.
Note • History
(a) Each transfer pipeline system and mechanical loading arm must not leak when undergoing an SLPT of at least 125 percent of the maximum allowable operating pressure.
(b) The pressure tests required by this section shall be conducted in accordance with Part 195 of Title 49 of the Code of Federal Regulations as in effect on October 1, 1996, except that an additional four-hour leak test under Section 195.303 of Title 49 of the Code of Federal Regulations as in effect on October 1, 1996, shall not be required.
(c) A deadweight gauge capable of measuring to one-pound-per-square-inch (psi) increments shall be used during each pressure test. The deadweight gauge shall be calibrated to a standard directly traceable to the National Institute of Standards and Technology at least once every two years and shall have a valid Certificate of Traceability.
(1) Deadweight pressure readings shall be taken at least once each hour during the test.
(2) A pressure recording device shall continuously record the pipeline pressure versus time during the test. The pressure recording device shall be calibrated prior to every test.
(d) Test Temperature Data.
(1) Test temperature data shall be recorded as prescribed in the following subsections (d)(1)(A), (B) and (C):
(A) A temperature recording device shall continuously record the internal test medium temperature versus time during the test. The temperature recording device shall be calibrated prior to every test and have a resolution of plus or minus 0.1 degree Fahrenheit for a water test medium or plus or minus 0.01 degree Fahrenheit for any hydrocarbon test medium. The range of the recording device shall be suitable for anticipated temperatures.
(B) The ambient air temperature, wind speed, precipitation and cloud cover shall be recorded at the same interval the deadweight pressure readings are taken.
(C) The pipe wall temperature shall be recorded at the same interval the deadweight pressure readings are taken.
(2) In circumstances where the test temperature data cannot be recorded as required by subsection (d)(1) of this section, temperature measuring devices shall be placed so as to provide representative sample temperatures of test medium, ambient air and pipe wall. Resolution of instruments to measure temperature of pipewall or test medium shall be as specified in subsection (d)(1)(A) of this section. Pipewall temperature measuring probes shall be appropriately located, be firmly attached to the pipewall and insulated so as to minimize influence from ambient temperature and solar radiation.
(e) Where different sections of a pipeline or pipeline system are located in considerably different environments (e.g., in the open air or below ground or water), the temperature of each segment in each environment shall be monitored separately. For the purposes of pressure compensation calculations due to temperature variations, each segment's temperature in its respective environment shall be used. The total pipeline or pipeline system temperature change shall be determined by adding the temperature change of each segment and prorating the segment's length to the total pipeline length or pipeline system length. Alternatively, each segment in its respective environment may be treated as a separate pipeline under test and the compensated pressure variations due to each segment's temperature variations may be added to arrive at the system pressure variation.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
2. Amendment subsections (d)(1)-(d)(1)(B) and (d)(2) filed 2-2-2007; operative 3-4-2007 (Register 2007, No. 5).
§2566. Notification Prior to Testing; Observation of Tests.
Note • History
(a) Notwithstanding any other statutory notification requirements, each operator shall notify the local area Division field office at least three working days prior to conducting any SLPT. The notification shall include all of the following information:
(1) The name, address, and telephone number of the operator.
(2) The specific location of the pipeline section to be tested and the location of the test equipment.
(3) The date and time the test is to be conducted.
(4) The name and telephone number of the person responsible for certification of the test results.
(5) The information regarding the physical properties of the liquid hydrocarbon test medium specified in subsection (i) of section 2564.
(b) In the event that the date or time of a proposed SLPT is to be changed, the operator shall, as soon as is practicable, notify the local area Division field office of the rescheduled date and time of such SLPT.
(c) If, due to unforeseen circumstances, an unscheduled SLPT has to be conducted as soon as possible and within a period of three working days, the operator shall notify the local area Division field office as soon as it is practicable to do so, but in any case prior to commencement of the SLPT.
(d) Staff of the Division may observe any test conducted pursuant to this Article.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
2. Amendment of subsections (a)(3) and new subsection (a)(5) filed 2-2-2007; operative 3-4-2007 (Register 2007, No. 5).
§2567. Static Liquid Pressure Testing; Witnessing of Tests and Certification of Results; Test Result Reports.
Note • History
(a) Witnessing of SLPTs.
Any SLPT required by this Article shall be witnessed by either:
(1) A person or persons who are registered on the current list of persons approved to witness testing activities of the State Fire Marshal; or
(2) A person or persons who are certified by the terminal operator as having, at a minimum, the necessary experience and qualifications to witness SLPTs to ensure that they are effectively carried out.
(b) Certification of SLPT Results.
Any SLPT required by this Article shall have its test results certified by either:
(1) A person who is registered on the current list of persons approved to certify test results of the State Fire Marshal; or
(2) A person who is certified by the terminal operator as having, at a minimum, the necessary experience and qualifications to certify SLPT results and current valid Authorized Inspector certification under any one or more of the following programs:
(A) The American Petroleum Institute's API 570, Piping Inspection Code, Appendix B-Inspector Certification;
(B) The American Petroleum Institute's API 510, Pressure Vessel Inspection Code, Appendix B-API Authorized Pressure Vessel Inspector Certification;
(C) The National Board of Boiler and Pressure Vessel Inspectors National Board Commissioned Inspector program NB-215, Revised October 24, 1995, 1055 Crupper Avenue, Columbus, Ohio 43229-1183; or
(D) A California State accredited program for qualification for a Certificate of Competency as Authorized Inspector of Boiler and Pressure vessels under 8 CCR §779.
(c) Records of certified test results shall be maintained by the terminal operator for a period of at least ten (10) years following completion of testing. Each test record shall include at a minimum, all of the following information:
(1) The date of the test;
(2) A description of the pipeline or pipeline segment tested including, but not limited to, a map of suitable scale showing the route of the pipeline and the location of pressure monitoring instruments and temperature probes used during testing; and
(3) The results of the test, including, but not limited to, calculations made to adjust for changes in volume due to temperature, pressure and elevation changes.
(d) Test results of any SLPT shall be subject to review by Division staff. When requested, the terminal operator shall provide the certified test results of any SLPT to the Division.
(e) Staff of the Division shall not supervise, control, or otherwise direct the testing.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
2. Amendment of subsection (c)(2) filed 2-2-2007; operative 3-4-2007 (Register 2007, No. 5).
§2568. Leak Prevention and Detection.
Note • History
All Class II pipelines shall be provided with either a leak detection system or systems which meet the requirements of Section 2569, or be included in a preventative maintenance program which meets the requirements of Section 2570.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
§2569. Leak Detection System or Systems.
Note • History
(a) Operators may meet the requirements of providing a leak detection system or systems by any of the following:
(1) Instrumentation with the capability of detecting a transfer pipeline leak equal to two percent (2%) of the maximum design flow rate within five minutes;
(2) Completely containing the entire circumference of the pipeline provided that a leak can be detected within fifteen minutes;
(3) For transfer operations which do not involve the use of hoses, conducting a pressure test of the pipeline acceptable to the Division Chief immediately before any oil transfer; or
(4) A combination of the above strategies.
(b) The operation of any leak detection system or systems provided under this section shall be described in the terminal's operations manual required by Section 2385 of Title 2, Division 3, Chapter 1, Article 5 of the California Code of Regulations.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
§2570. Preventative Maintenance Program.
Note • History
(a) A preventative maintenance program must ensure the continued operational reliability of any pipeline or pipeline system affecting quality, safety and pollution prevention. The program shall, at a minimum, include all applicable requirements and guidelines prescribed in API 570, Piping Inspection Code--Inspection, Repair, Alteration and Rerating of In-service Piping Systems, First Edition, June 1993, published by the American Petroleum Institute, 1220 L Street, N.W., Washington, D.C. 2005.
(b) Inspection and Testing Requirements for Pipelines Included in a Preventative Maintenance Program.
(1) For pipelines which are buried or submerged either partially or wholly the following shall be carried out:
(A) Either annual SCPS inspections per API 570 guidelines and triennial SLPTs as prescribed in 2 CCR Section 2564(c)(3)(B) for pipelines fitted with SCPS, or annual SLPTs as prescribed in 2 CCR Section 2564(c)(3)(A) for pipelines not provided with SCPS, whichever is appropriate; and
(B) An inspection program for emergency shut-off and isolation valves that control the flow of oil which shall, at a minimum, include that the stems of all such valves be stroked at least once a year.
(2) For pipelines which are situated entirely above the ground or water, the following shall be carried out:
(A) Triennial SLPTs as prescribed in 2 CCR Section 2564(c)(3)(C) and triennial pipewall thickness measurement inspections per API 570 guidelines; and
(B) An inspection program for emergency shut-off and isolation valves that control the flow of oil which shall, at a minimum, include that the stems of all such valves be stroked at least once a year.
(3) For any pipeline which is above ground for substantially all of its length, but which has a relatively short portion below ground buried beneath one or more berms or roads, the operator may petition the Division Chief for the application of testing and inspection requirements for the entire pipeline as prescribed under 2 CCR Section 2570(b)(2). Such petitions shall follow the procedures outlined in § 2571.
(c) Any preventative maintenance program shall also include procedures to review proposed changes in operations, including materials transferred, to evaluate potential impacts on pipeline integrity.
(d) Terminal operators shall validate that the preventative maintenance program is being effectively carried out by maintaining documentation which includes, at a minimum, all of the following:
(1) The procedures for carrying out the preventative maintenance program in conformance with the requirements of API 570;
(2) Dates of inspections and tests;
(3) Inspections and test data evaluation including analyses, pipewall thickness measurements and remaining life calculations;
(4) The terminal management's internal audits of the program, including descriptions of controls and corrections for non-conformities;
(5) Repairs, alterations and rerating of piping systems; and
(6) Any other information pertinent to the integrity of pipelines.
(e) Every terminal operator shall provide to the Division access at any time to any documentation required under subsection (d) of this section.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
§2571. Modifications or Alternatives.
Note • History
(a) Petitions for Modifications or Alternatives.
(1) Any person subject to these regulations may submit a petition to the Division Chief for modifications or alternatives to the requirements of Article 5.5 as applied to the petitioner.
(2) All petitions for modifications or alternatives must be submitted in writing. A petition may be in any form, but is must contain all data and information necessary to evaluate its merits.
(b) Response to Petitions.
The Division Chief shall respond in writing to any petition for modifications or alternatives within 30 days of receipt of the petition.
(c) Approval of Modifications or Alternatives.
(1) The Division Chief may approve any proposed modifications or alternatives to the requirements of Article 5.5 if he or she determines that the proposed modifications or alternatives will fulfill the purpose of these regulations as outlined in subsection (b) of Section 2560 of this Article.
(2) If the Division Chief approves any proposed modification or alternatives under this section, a letter of approval shall be issued to the petitioner setting forth the findings upon which the approval is based.
(3) The Division Chief may withdraw the letter of approval of any modifications or alternative requirements at any time if he or she finds that the person or persons subject to these regulations have not complied with the approved modified or alternative requirements.
(4) Withdrawal of a letter of approval under this section shall be effective upon receipt by the petitioner of written notification of the withdrawal from the Division Chief.
NOTE
Authority cited: Sections 8755 and 8757, Public Resources Code. Reference: Sections 8751, 8752, 8755, 8756 and 8757, Public Resources Code.
HISTORY
1. New section filed 8-12-97; operative 9-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).
Article 6. Sale of Vacant United States Lands
HISTORY
1. Repealer of Article 6 (Sections 2400-2402) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49). For prior history, see Registers 77, No. 6; 69, No. 15; 64, No. 23; and 55, No. 12.
Article 6.5. Protection of the Lands and Resources Under the Jurisdiction of the State Lands Commission Within the Coastal Zone
NOTE
Authority cited: Section 6108, Public Resources Code. Division 6 (Section 6100, et seq.), Division 13 et seq.) and Division 20 (Section 30000, et seq.), Public Resources Code.
HISTORY
1. New Article 6.5 (Sections 2501-2563, not consecutive) filed 3-11-77; effective thirtieth day thereafter (Register 77, No. 11).
2. Repealer of Article 6.5 (Sections 2501-2563, not consecutive) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49).
Article 7. Procedures Under Section 126, Government Code
Note • History
A contract to reimburse the Commission for costs associated with the cession shall be executed by the United States and the Commission prior to publication of notice of hearing. The procedure for determining the reimbursement shall be as set forth in Article 1 of this Chapter at Section 1905.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 126, Government Code.
HISTORY
1. Repealer of Article 7 (Sections 2600-2604) and new Article 7 (Sections 2600-2606) filed 11-23-82; effective thirtieth day thereafter (Register 82, No. 48).
Note
Not more than 30 and not less than 15 days before the hearing, a notice of hearing shall be published one time in a newspaper of general circulation in the area in which the subject land is located. Not less than 10 days before the hearing, personal service shall be made on the clerk of the county board of supervisors and the city council if appropriate. Affidavit of publication and return of service shall be filed with the Commission before the hearing.
The notice shall be entitled “Notice of Hearing to Determine Cession of Jurisdiction by the United States Over Land Known as __________.” The notice shall contain a description of the lands and shall set forth the date, the time and place of the public hearing.
The notice shall recite that the hearing shall be had pursuant to Government Code Section 126, and amendments, if any, and shall advise that interested parties may appear personally or through counsel or by letter to present evidence on whether cession of jurisdiction is in the best interests of the State.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 6110, Public Resources Code.
Note
The hearing held pursuant to said published notice may be conducted by both oral and written presentations. The hearing may be before the Commission, or a staff member designated by the Commission to conduct the hearing.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 6110, Public Resources Code.
§2603. Procedure on Hearing Argument.
Note
Unless otherwise ordered by the Commission, the person requesting the hearing shall present material evidence in support of his application. After such person rests, any other interested person may present any material evidence in support of or in opposition to such application. The Commission may, in its discretion, limit cumulative evidence and may refuse or allow argument, and in case of allowance, may limit the same.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 126, Government Code.
Note
Oral evidence shall be taken only on oath or affirmation. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Hearsay evidence may be received upon a showing satisfactory to the Commission of the difficulty of obtaining direct evidence.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 126, Government Code.
Note
After all of the evidence has been received, the Commission shall make its decision at the next regularly scheduled public meeting.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 6110, Public Resources Code.
§2606. Extension of Jurisdiction.
Note
Where concurrent criminal jurisdiction has been granted under Government Code Section 126 for five years, any application for renewal and extension of such jurisdiction shall be considered as a new application.
The above regulations governing cessions of jurisdiction shall apply in all cases.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 126, Government Code.
Article 8. Procedures Under Government Code Section 113
Note • History
A contract to reimburse the Commission for costs associated with the retrocession shall be executed by the United States and the Commission prior to publication of notice of hearing. The procedure for determining the reimbursement shall be as set forth in Article 1 of this Chapter at Section 1905.
NOTE
Authority cited: Section 113, Government Code. Reference: Section 113, Government Code.
HISTORY
1. New Article 8 (Sections 2700 through 2710) filed 7-8-71; effective thirtieth day thereafter (Register 71, No. 28).
2. Repealer of Article 8 (Sections 2700-2710) and new Article 8 (Sections 2700-2705) filed 11-23-82; effective thirtieth day thereafter (Register 82, No. 48).
Note
Not more than thirty (30) and not less than fifteen (15) days before the hearing, a notice of hearing shall be published one time in a newspaper of general circulation in the area in which the subject land is located. Not less than ten (10) days before the hearing, personal service shall be made on the clerk of the county board of supervisors and the city council if appropriate. Affidavit of publication and return of service shall be filed with the Commission before the hearing.
The notice shall be entitled “Notice of Hearing to Determine Retrocession of Jurisdiction by the United States Over Land Known as ____________.” The notice shall contain a description of the land and shall set forth the date, time, and place of the public hearing.
The notice shall recite that the hearing shall be had pursuant to Government Code Section 113, and amendments, if any, and shall advise that interested parties may appear personally or through counsel or by letter to present evidence on whether retrocession of jurisdiction is in the best interest of the State.
NOTE
Authority cited: Section 113, Government Code. Reference: Section 113, Government Code.
Note
The hearing held pursuant to said published notice may be conducted by both oral and written presentations. The hearing may be before the Commission, or a staff member designated by the Commission to conduct the hearing.
NOTE
Authority cited: Section 113, Government Code. Reference: Section 6110, Public Resources Code.
§2703. Procedure on Hearing Argument.
Note
Unless otherwise ordered by the Commission, the person requesting hearing shall present material evidence in support of his application. After such person rests, any other interested person may present any material evidence in support of or in opposition to such application. The Commission may, in its discretion, limit cumulative evidence and may refuse or allow argument, and in case of allowance, may limit the same.
NOTE
Authority cited: Section 113, Government Code. Reference: Section 113, Government Code.
Note
Oral evidence shall be taken only on oath or affirmation. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Hearsay evidence may be received upon a showing satisfactory to the Commission of the difficulty of obtaining direct evidence.
NOTE
Authority cited: Section 113, Government Code. Reference: Section 113, Government Code.
Note
After all of the evidence has been received, the Commission shall make its decision at the next regularly scheduled public meeting.
NOTE
Authority cited: Section 126, Government Code. Reference: Section 6110, Public Resources Code.
Article 9. Lease Involving Granted Tide and Submerged Lands
Note • History
The provisions of this Article shall apply only to those lessees, lenders, or contract holders who wish to secure Commission findings specified in Public Resources Code Section 6702(b) regarding leases, contracts or other instrument involving granted tide and submerged lands.
NOTE
Authority cited: Sections 6105, 6108, 6701, 6702, and 6703, Public Resources Code. Reference: Section 6702, Public Resources Code.
HISTORY
1. New Article 9 (Sections 2800 through 2807) filed 9-27-72; effective thirtieth day thereafter (Register 72, No. 40).
2. Repealer of Article 9 (Sections 2800-2807) and new Article 9 (Sections 2800-2803) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49). For prior history, see Register 81, No. 6.
Note
(a) Applicants desiring Commission findings under Public Resources Code 6702(b) shall:
(1) Complete in full and submit to the Commission, an application approved in form and content by the Commission; and
(2) Cause a grantee report, approved in form and content by the Commission to be completed in full and submitted directly by the legislative grantee; and
(3) Submit additional information as required if the application or grantee report are in any manner inadequate or incomplete.
(b) An inadequate or incomplete application or grantee report for which required additional information is not forthcoming shall be rejected.
(c) The 90-day time limitation specified in Public Resources Code Section 6704 shall commence to run when the application and grantee report, complete in all respects, have been received by the Commission.
(d) Approved application and grantee report forms referred to in this Article are available from and shall be submitted to the principal office of the Commission.
NOTE
Authority cited: Sections 6105, 6108, 6701, 6703, and 6704, Public Resources Code. Reference: Section 6704, Public Resources Code.
Note
The Commission in determining pursuant to Public Resources Code Section 6702(b)(3) whether a lease, contract or other instrument is in the best interest of the State will consider whether the use, project or activity permitted by such instrument is:
(a) Consistent with current Commission policies, practices and procedures used for administering lands within its jurisdiction;
(b) economically viable, necessary and desirable;
(c) appropriate for developmental mix;
(d) conducive to public access;
(e) consistent with environmental protection;
(f) otherwise in the best interests of the state.
NOTE
Authority cited: Sections 6005, 6105, 6108, 6701, and 6702, Public Resources Code. Reference: Sections 6005, 6701, and 6702, Public Resources Code.
Note
Approval by the Commission of any lease, contract or other instrument pursuant to this Article shall not constitute approval of any modification or amendment of such instrument made pursuant to the provisions of such instrument or otherwise. Separate approval shall be required for such modifications or amendments.
NOTE
Authority cited: Sections 6105, 6108, 6701, and 6706, Public Resources Code. Reference: Section 6706, Public Resources Code.
Article 10. Regulations for the Implementation of the California Environmental Quality Act
Note • History
These regulations are promulgated pursuant to the requirements of Section 21082 of the Public Resources Code and Section 15050 of the California Administrative Code to provide the State Lands Commission with definitions and procedures for orderly and consistent evaluations of projects that are subject to the requirements of the California Environmental Quality Act (CEQA). (Public Resources Code Section 21000, et seq.)
NOTE
Authority cited: Section 21082, Public Resources Code. Reference: Title 14, Section 15050, California Administrative Code.
HISTORY
1. Repealer of Article 10 (Sections 2901-2915) and new Article 10 (Sections 2901-2911) filed 4-3-75; effective thirtieth day thereafter (Register 75, No. 14). For prior history, see Register 73, Nos. 30 and 52 and Register 74, Nos. 13 and 19.
2. Repealer of Article 10 (Sections 2901-2910) and new Article 10 (Sections 2901-2909) filed 4-8-77; effective thirtieth day thereafter (Register 77, No. 15). For prior history, see Register 76, No. 2.
3. Repealer of Article 10 (Sections 2901-2909) and new Article 10 (Sections 2901-2909) filed 3-1-78; designated effective 4-1-78 (Register 78, No. 9).
4. Repealer of Article 10 (Sections 2901-2909) and new Article 10 (Sections 2901-2906, not consecutive) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49). For prior history, see Registers 78, Nos. 23 and 29.
§2902. Applicability of the State EIR Guidelines.
Note
The State EIR Guidelines (14 California Administrative Code Sections 15000, et seq.) are hereby incorporated by reference as though set forth herein in full.
NOTE
Authority cited: Sections 21082 and 21083, Public Resources Code. Reference: Section 15050(e), Title 14, California Administrative Code.
Note
The following Commission activity shall be considered ministerial:
The issuance of a patent upon presentation of a valid Certificate of Purchase.
NOTE
Authority cited: Section 21082, Public Resources Code; and Section 15073(a), Title 14, California Administrative Code. Reference: Section 7729, Public Resources Code; and Sections 15050(c)(1)(B) and 15073(a), Title 14, California Administrative Code.
§2905. Categorical Exemptions.
Note
The following Commission activities are categorically exempted:
(a) Class 1: Existing Facilities
(1) Remedial, maintenance and abandonment work on oil and gas and geothermal wells involving the alteration of well casings, such as perforating, cementing, casing repair or replacement, installation or removal of down-hold production equipment, cement plugs, bridge plugs, and permanent packers or packers set to isolate producing intervals.
(2) Commission action involving existing structure or facility that is in an acceptable state of repair. This is intended to cover actions of the Commission which in effect authorize continued operation, repair, maintenance or minor alteration of any existing public or private structure or facility, land fill or equipment which meets the above criteria. The Commission may exclude from this class any structure that has been erected without written authorization in the form of a lease or permit from the State Lands Commission.
(b) Class 2: Replacement or Reconstruction
Replacement or reconstruction of deteriorated or damaged structures on State Lands.
(c) Class 3: New Construction of Small Structures
(1) A pier, floating dock, or boathouse, that will occupy no more than 3,000 square feet of State land.
(2) A pier, floating dock, or boathouse, for non-commercial use by more than applicant, applying jointly, where all the applicants are littoral (next to the shore) landowners, such as homeowner's associations, and the littoral parcels are next to one another, that will occupy the following areas of State lands:
Number of Adjacent and
Littoral Landowners Area of Use
2 4,000 sq. ft. or less
3 4,750 sq. ft. or less
4 5,250 sq. ft. or less
5 or more 6,000 sq. ft. or less
(3) Small boat mooring buoys.
(4) A floating platform used solely for swimming.
(5) Buoys for delineating a safety area or designated speed zones, provided that public navigational and fishing rights are not affected.
(d) Class 4: Minor Alteration to Land
(1) Grazing of livestock where disturbance of soil does not occur.
(2) Rebuilding or repair of levees or other protective structure. Minor dredging of material for above purposes.
(3) Removal of derelict or hazardous structures on State waterways or school lands.
(4) Minor periodic maintenance dredging for existing docks and marinas.
(5) Replanting of timber on previously harvested, burned, or barren areas of school lands where extensive site preparation is not permitted.
(e) Class 6: Information Collection
(1) Core hole drilling, operations to obtain foundation design data, to gather data and information for environmental documentation where minimal or no disturbance of the land surface results.
(2) Core hole drilling for the purposes of mineral evaluation pursuant to Public Resources Code Section 6401(b) where minimal or no disturbance of the land surface results.
(3) Surface or underwater biological, geological, geophysical, cultural (archeological/historical), and geochemical surveys where minimal or no disturbance of the land surface results.
(4) Temperature survey holes where minimal disturbance of the surface results.
(5) Wind or water current, temperature, or other monitoring devices.
(6) Salvage exploration where no disturbance of the environment is contemplated.
(f) Class 7: Actions by Regulatory Agencies for Protection of Natural Resources
(1) Lease or permits to public agencies or conservation organizations for wildlife preservation activities, or to the State Department of Parks and Recreation for historical or other cultural activities. Construction activities are not included in this exemption.
(2) Timber harvesting of burned or diseased timber on school lands in accordance with the Forest Practices Act (Public Resources Code, Sections 4511, et seq.).
(g) Class 16: Transfer of Ownership of Land in Order to Create Parks
Lease and permits to person and public agencies for the development of public parks including alterations to the land for such purposes.
NOTE
Authority cited: Section 21084, Public Resources Code; and Sections 15100 et seq., Title 14, California Administrative Code. Reference: Sections 15100, 15100.2(c), 15100.4, 15101 (Class 1), 15102 (Class 2), 15103 (Class 3), 15104 (Class 4), 15106 (Class 6), 15107 (Class 7), 15116 (Class 16), Title 14, California Administrative Code.
§2906. Adequate Time for Review and Comment.
Note
The review period for the final EIR shall be 15 days.
NOTE
Authority cited: Section 21104, Public Resources Code; and Section 15160(a), Title 14, California Administrative Code. Reference: Section 15160(a), Title 14, California Administrative Code.
Article 11. Regulations Protecting Environmentally Significant Lands
Note • History
These regulations are adopted pursuant to Public Resources Code Section 6370 in order to provide for the permanent protection of lands within Commission jurisdiction which possess significant environmental values.
NOTE
Authority cited: Sections 6370 and 6370.1, Public Resources Code. Reference: Sections 6370 and 6370.1, Public Resources Code.
HISTORY
1. New Article 11 (§§2951-2967) filed 1-9-76; effective thirtieth day thereafter (Register 76, No. 2). For history of former Article 11, see Register 74, No. 19.
2. Repealer of Article 11 (Sections 2951-2967) and new Article 11 (Sections 2951-2954) filed 12-2-81; effective thirtieth day thereafter (Register 81, No. 49).
§2952. Significant Lands Inventory.
Note
Pursuant to Public Resources Code Section 6370.2, the Commission prepared a report entitled “Inventory of Unconveyed State School Lands and Tide and Submerged Lands Possessing Significant Environmental Values,” approved December 1, 1975. This report shall be available to the public and shall herein be referred to as the “Significant Lands Inventory.”
NOTE
Authority cited: Section 6370 and 6370.2, Public Resources Code. Reference: Sections 6370 and 6370.2, Public Resources Code.
Note
(a) Environmentally significant lands: Lands within the jurisdiction of the Commission within which environmentally significant values have been identified pursuant to Public Resources Code Section 6370.1.
(b) Significant environmental values: Those features or characteristics which have been identified pursuant to Public Resources Code Section 6370.1, the criteria for which are set forth in the Significant Lands Inventory.
(c) Use Classification: A classification system designed to provide permanent protection to identify significant environmental values, more particularly described in the Significant Lands Inventory.
NOTE
Authority cited: Sections 6370 and 6370.1, Public Resources Code. Reference: Sections 6370 and 6370.1, Public Resources Code.
§2954. Permanent Protection of Environmentally Significant Lands Through CEQA.
Note
Projects which will affect environmentally significant lands will be subject to review by the use of the CEQA process under the California Environmental Quality Act (Public Resources Code Sections 21000, et seq.); the State EIR Guidelines (14 California Administrative Code Sections 15000, et seq.); and the Commission's Regulations for the Implementation of the California Environmental Quality Act (Article 10 of this Chapter).
In order to provide permanent protection to environmentally significant values, projects must be designed to be consistent with the use classifications assigned under the Significant Lands Inventory or pursuant to Public Resources Code Section 6219. If such consistency cannot be accomplished through mitigation or alteration of the project, the project must be denied. The Commission may not apply Section 15089 of the State EIR Guidelines, regarding a Statement of Overriding Considerations, to approve a project which cannot be made consistent with the use classification assigned to the subject parcel.
NOTE
Authority cited: Sections 6219 and 6370, Public Resources Code. Reference: Sections 6219 and 6370, Public Resources Code.
Article 12. Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE LANDS COMMISSION
1807 13TH STREET, ROOM 101
SACRAMENTO, CALIFORNIA 95814
FAIR POLITICAL PRACTICES COMMISSION
1100 K STREET
SACRAMENTO, CALIFORNIA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict of Interest Code is designated as Article 12 of Chapter 1 of Division 3, Title 2, California Code of Regulations, and consists of sections numbered and titled as follows:
Article 12. Conflict of Interest Code
Section
2970. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New article 12 (sections 2970-2979, not consecutive) filed 3-11-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-16-71 (Register 77, No. 11).
2. Repealer of article 12 (sections 2970-2978) and new article 12 (section 2970 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment filed 3-30-92; operative 4-29-92. Approved by Fair Political Practices Commission 1-21-92 (Register 92, No. 14).
4. Amendment filed 12-26-95; operative 1-25-96. Approved by Fair Political Practices Commission 10-23-95. Submitted to OAL for printing only pursuant to Government Code section 87303 (Register 95, No. 52).
5. Amendment of Appendix filed 4-1-98; operative 5-1-98. Approved by Fair Political Practices Commission 10-31-97 (Register 98, No. 14).
6. Amendment of Appendix filed 7-25-2002; operative 8-24-2002. Approved by Fair Political Practices Commission 5-24-2002 (Register 2002, No. 30).
7. Amendment of Appendix filed 5-8-2003; operative 6-7-2003. Approved by Fair Political Practices Commission 3-12-2003 (Register 2003, No. 19).
8. Amendment filed 10-17-2007; operative 11-16-2007. Approved by Fair Political Practices Commission 8-22-2007 (Register 2007, No. 42).
Article 13. Contracts Securing Architectural, Landscape Architecture, Engineering, Environmental, Land Surveying, and Construction Project Management Services
Note • History
The purpose of this article is to establish, as authorized and required by Government Code Sections 4525 et seq., procedures for securing architectural, landscape architecture, engineering, environmental, land surveying, and construction project management services.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Sections 4525-4529.5, Government Code.
HISTORY
1. New article 13 (sections 2990-2980.9) and section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
Note • History
As used in these regulations, the following terms have the following meaning:
(a) “Firm” means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the profession of architecture, landscape architecture, engineering, environmental services, land surveying, or construction project management.
(b) “Small business” firm is one that meets the definition of small business firm set forth in Title 2, California Code of Regulations, Section 1896(n).
(c) “Commission” is the State Lands Commission.
(d) “Executive Officer” is the Executive Officer of the State Lands Commission or any person designated by the Executive Officer to act on behalf of the Executive Officer.
(e) “Architectural, landscape architectural, engineering, environmental, and land surveying services” includes those professional services of an architectural, landscape architectural, engineering, environmental, or land surveying nature as well as incidental services that members of these professions and those in their employ may logically and justifiably perform.
(f) “Construction project management” means those services provided by a licensed architect, registered engineer, or licensed general contractor which meet the requirements of Government Code Section 4529.5 for management and supervision of work performed on state construction projects.
(g) “Environmental services” means those services performed in connection with project development and permit processing in order to comply with federal and state environmental laws. “Environmental services” also includes the processing and awarding of claims pursuant to Chapter 6.75 (commencing with Section 25299.10) of Division 20 of the Health and Safety Code.
(h) “Publish” shall mean publication of notices describing projects for which architectural, landscape architecture, engineering, environmental, land surveying, or construction project management services will be required in the publications of the respective professional societies and in the State Contracts Register. “Publish” shall also include publication of such notices in electronic form through the Internet.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Section 4525, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.2. Conflict of Interest/Unlawful Activity Prohibited.
Note • History
Any practice which might result in unlawful activity, including, but not limited to, rebates, kickbacks, or other unlawful consideration, is strictly prohibited, and each Commission employee is specifically prohibited from participating in the negotiation or selection process when that employee has an interest in, or has a personal or business relationship with a person affiliated with, any person or business entity seeking a contract with the Commission or solicited by the Commission for such a contract which would subject that employee to the prohibition of Section 87100 of the Government Code.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Sections 4526 and 87100, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.3. Establishment of General Criteria and Establishment of List of Pre-Qualified Contractors.
Note • History
(a) The Executive Officer shall publish at least annually a notice that solicits statements of qualification and performance data from firms that provide the services defined in Section 2980.1.
(b) The Executive Officer shall establish and publish a list of relevant general criteria which will form the basis for adding such firms to a list of pre-qualified contractors maintained by the Commission. The general criteria shall include such factors as professional excellence, demonstrated competence, specialized experience of the firm, education and experience of key personnel to be assigned, staff capability, workload, ability to meet schedules, nature and quality of completed work, reliability and continuity of the firm, location, familiarity with pertinent regulatory processes, familiarity with project locale, previous experience with a specific type of project, and other considerations deemed relevant.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Section 4527, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.4. Construction Project Management Expertise.
Note • History
Any individual or firm proposing to provide construction project management services pursuant to these regulations shall provide evidence that the individual or firm and its personnel carrying out onsite responsibilities have expertise and experience in construction project design review and evaluation, construction mobilization and supervision, bid evaluation, project scheduling, cost-benefit analysis, claims review and negotiation, and general management and administration of a construction project.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Section 4529.5, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.5. Notice and Publication for Specific Projects
Note • History
(a) The Executive Officer shall publish a statewide announcement of any project or projects requiring architectural, landscape architectural, engineering, environmental, land surveying, or construction management services. Such announcement shall contain, at a minimum, the type of services required, a description of the project, a projected schedule for the project, a description of responsive material that must be submitted by firms not on the Commission's list of pre-qualified firms, and a date before which that responsive material must be submitted to the Commission.
(b) The Executive Officer may, prior to engaging a firm for a specific project, develop and include in the published statewide announcement for the project a list of relevant factors, if any, that may be considered in selecting a contractor for that particular project. Such factors may be considered by the Executive Officer according to the nature of the project, the needs of the State and the complexity and special requirements of that specific project.
(c) The Executive Officer shall endeavor to provide to all small business firms which have indicated an interest in receiving such announcements a copy of each project announcement. Failure of the Executive Officer to send a copy of an announcement to any firm or failure of such firm or firms to receive an announcement sent by the Executive Officer shall not operate to preclude any contract.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Sections 4527 and 4528, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.6. Estimate of Value of Services.
Note • History
Before any discussion with any firm concerning fees for services provided in connection with a particular project, the Executive Officer shall cause an estimate of the value of such services to be prepared. This estimate shall serve as a guide in determining fair and reasonable compensation for the services rendered. Such estimate shall be, and remain, confidential until award of contract or abandonment of any further procedure for the services to which it relates. At any time the Executive Officer determines the State's estimates to be unrealistic due to rising costs, special conditions, or for other relevant considerations, the estimate shall be reevaluated and modified if necessary.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Section 4528, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.7. Negotiation of Contract.
Note • History
(a) After expiration of the notice/compliance period stated in an announcement, the Executive Officer shall evaluate current statements of qualifications and performance data on file with the Commission, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with no less than three firms regarding the Commission's need for services, and the ability of each firm to provide those services to the Commission for the proposed project in a timely manner. The Executive Officer shall then select therefrom, in order of preference, based upon criteria established pursuant to section 2980.3, no less than three of the firms deemed to be the most highly qualified to provide the services required.
(b) The Executive Officer shall, in accordance with section 6106 of the Public Contracts Code, negotiate a contract with the best-qualified firm for services at compensation that the Executive Officer determines is fair and reasonable to the State of California. Should the Executive Officer be unable to negotiate a satisfactory contract with the firm considered to be the best-qualified at a price the Executive Officer determines to be fair and reasonable to the State of California, negotiations with that firm shall be formally terminated. The Executive Officer shall then undertake negotiations with the second best-qualified firm. Failing accord with the second most qualified firm, the Executive Officer shall terminate negotiations. The Executive Officer shall then undertake negotiations with the third most qualified firm.
(c) Should the Executive Officer be unable to negotiate a satisfactory contract with any of the selected firms, the Executive Officer shall select additional firms in order of their competence and qualifications and continue negotiations in the same manner until a satisfactory agreement is reached.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Sections 4527 and 4528, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
§2980.8. Contracting in Phases.
Note • History
Should the Commission determine that it is necessary or desirable to have a given project performed in phases, it will not be necessary to negotiate the total contract price or compensation provisions at the time the initial phase is negotiated, provided that the Executive Officer shall have determined that the firm is the best qualified to perform the whole project at a fair and reasonable cost and that the contract contains provisions that the State, at its option, may utilize the firm for other phases and that the firm will accept a fair and reasonable price for subsequent phases to be later negotiated and reflected in a subsequent written instrument.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Section 4528, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
Note • History
In instances where the Commission or the Executive Officer orders a necessary change in the character or scope of work to be performed in the course of performance of the contract, the firm's compensation may, by written agreement between the Commission and the firm, be adjusted in an amount which reasonably reflects the value of the change from that character and scope of work which existed prior to the change.
NOTE
Authority cited: Section 4526, Government Code; and Section 6108, Public Resources Code. Reference: Section 4528, Government Code.
HISTORY
1. New section filed 5-1-2001 as an emergency; operative 5-1-2001 (Register 2001, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-2001 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-1-2001 order transmitted to OAL 5-1-2001 and filed 5-29-2001 (Register 2001, No. 22).
Chapter 2. California Arts Council
Subchapter 1. The Conflict of Interest Code of the California Arts Council
NOTE
Authority cited: Section 8750, Government Code. Reference: Sections 8750-8756 and 81000, Government Code.
HISTORY
1. Repealer of Chapter 2, Article 1 (Sections 3000-3007) filed 4-20-77; effective thirtieth day thereafter (Register 77, No. 17).
2. New Subchapter 1 of Chapter 2 (Sections 3500-3517 and Exhibit A) filed 3-6-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 79, No. 10).
3. Redesignation and amendment of Title 2, Division 3, Chapter 2, Subchapter 1 (Sections 3500-3517 and Exhibit A) to Title 2, Division 8, Chapter 6 (Sections 27000-27017, Exhibits A and B) filed 3-6-80; effective thirtieth day thereafter (Register 80, No. 10).
Subchapter 2. Grant Application Criteria and Procedure of the California Arts Council
Article 1. Statement of Purpose
Note • History
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. New subchapter 2 (articles 1-11, sections 3600-3644, not consecutive) filed 4-24-79 as procedural and organizational; effective upon filing (Register 79, No. 17).
2. Repealer filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 2. Eligibility
Note • History
(a) To be eligible for funding, an applicant shall meet the following eligibility requirements.
(1) Organizations shall be required to meet the following:
(A) have proof of non-profit status under section 501(c)(3) of the Internal Revenue Code, or under section 23701(d) of the California Revenue and Taxation Code, or be a unit of government.
(B) be consistently engaged in arts programming for a specific number of years prior to time of application;
(C) must comply with the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973 (as amended), the Age Discrimination Act of 1975, observe provision of the Drug Free Workplace Act, and Government Code sections 11135-11139.5;
(D) must comply with Fair Labor Standards Act; as defined by the Secretary of Labor in part 505 of title 29 of the Code of Federal Regulations.
(E) must have principal place of business in California;
(F) must have completed prior contract evaluations, if applicable;
(G) must have approval of the applicant organization's board of directors or other governing body.
(2) Individuals shall be required to meet the following:
(A) must be a working artist/and show professional competence in an artistic discipline;
(B) must be a resident of California, except for artist applying in the Arts in Public Building Program.
(C) must comply with the Personal Responsibility and Work Opportunity Act of 1996.
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code; and 8 U.S.C. Sections 1621, 1641 and 1642.
HISTORY
1. Repealer and new section filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
2. New subsection (a)(2)(C) and amendment of Note filed 3-20-98 as an emergency; operative 3-20-98 (Register 98, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-20-98 or emergency language will be repealed by operation of law on the following day.
3. New subsection (a)(2)(C) and amendment of Note refiled 6-15-98 as an emergency; operative 7-21-98 (Register 98, No. 25). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 6-15-98 order transmitted to OAL 10-6-98 and filed 11-17-98 (Register 98, No. 47).
Article 3. Grants
Note • History
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Repealer filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 4. Grant Categories
Note • History
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Repealer filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 5. Funding Criteria
Note • History
(a) The California Arts Council shall predetermine which program categories shall be awarded contracts for services and which shall be awarded grants. Grants and/or contracts shall be awarded only to those individuals and/or organizations which demonstrate high artistic merit, high standards of performance and administration, promote cross-cultural exchange, serve unique needs created by geographic or other special factors, encourage the development and assimilation of new art forms, and/or demonstrate the problem solving capacities of arts and artists for the general public and the various agencies and institutions that serve them. The California Arts Council shall also consider the effect of the program or project on the artist and/or the organization as well as the community, the capacity to carry out the project, and the need that is demonstrated for the support requested.
(b) The California Arts Council shall not fund with local assistance monies for profit organizations, capital investments, out-of-state travel or expenditures for equipment, except as recommended by the Executive Director, with the approval of the Council and relevant Control agencies.
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Amendment filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 6. Matching Grants, or Contracts
§3620. Matching Grants, or Contracts.
Note • History
The California Arts Council may require grants or contracts to be matched. A match is constituted in dollars or in goods or services (in-kind match) from the local organization, school or agency.
(a) The following criteria shall guide the California Arts Council in determining which program, grants or contracts will be matched and the amount of the match:
(1) The ability of the applicants to raise matching dollars.
(2) The extent to which matching dollars addresses program goals and objectives.
(3) The need for the California Arts Council to provide a match for federal dollars awarded to the state and re-granted to local organizations or individuals.
(b) The following match designs shall be considered in Arts Council programs:
(1) Cash match: the applicant must provide for some of the cost of the project and match the California Arts Council dollars. The ratio of the match will vary from program to program for the reasons described in (a) above.
(2) Progressive match: this is a multi-year commitment requiring different match responsibilities each year.
(3) No match: grants or contracts are awarded with no matching requirements.
(4) No-cash match: goods and/or services can be provided in place of cash.
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Amendment filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 7. Program Development Procedures
§3624. Program Development Procedures.
Note • History
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Repealer filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 8. Application Review and Awards Process
§3628. Application Review and Awards Process.
Note • History
(a) Applicants shall apply under a specific funding category and are required to complete the application forms contained in the relevant publications when applying for a specific grant. The California Arts Council hereby incorporates by reference the specific applications and specific instructions contained within these publications for each program.
(1) Art in Public Buildings Program Instructions and Application 1990-91
(2) Artist Fellowship Program Instructions and Application 1990-91
(3) Artists in Residence
Individual Artist Instructions and Application 1991-92
Multi-Residency Instructions and Application 1990-91
(4) California Challenge Program Instructions and Application 1990-91
(5) Multi-Cultural
Advancement Grant Application and Instructions 1990-91
Entry Grant Instructions and Application 1990-93
(6) Organizational Support Program
Mid-Size and Large Organizations Instructions and Application 1990-91
Small Organizations Instructions and Application 1990-91
Large Budget Organizations Instructions and Application 1990-91
(7) State-Local Partnership Instructions and Application 1990-91
(8) Touring Artist Directory 1990-91
(9) Touring/Presenting Program Instructions and Application 1991-92 and 1992-93
(10) Traditional Folk Arts Program Instructions and Applications 1990-91
(b) The application forms are intended to provide the California Arts Council with information and shall include, but not necessarily be limited to:
(1) Name, mailing address, telephone and social security number.
(2) A description of the project, including a budget, if applicable.
(3) A brief statement of the applicant's objectives and how the proposed project will achieve the objective.
(4) An annual income and expenditure report and if applicable, source of match (Applicants for fellowships, apprenticeships, and commissions are exempted from reporting this information.)
(5) Documentation and support materials. Some examples are videotapes, audio cassettes, slides, catalogs, publicity photos, books and manuscripts.
(c) Upon receipt of an application each application, shall be reviewed by the California Arts Council or its designee for compliance with instructions and completeness and then forward to the peer review panel. Incomplete applications or those not in compliance will not be reviewed by the peer review panel.
(1) Members of the peer review panels shall be approved by the Council. These members shall be from the arts community and provide their expertise in evaluating all aspects of applications. Panels shall be selected by the California Arts Council to represent the diversity of California in terms of geography, gender, ethnicity and arts discipline.
(2) One or more Council Members may be present at peer review panels which meet and discuss each application. After discussion and evaluation of applications according to criteria outlined in each program's instructions, (section 3628(a) above) the panel shall rank each application in accordance with the highest priority for funding. The list of recommendations shall then be presented to the full Council which shall make the final decisions on funding and awards at a public meeting.
(d) Notification of applicant status.
(1) All applicants, those receiving and those denied grant awards, shall be notified by the California Arts Council staff of the Council's decision by mail within ten working days after the public meeting.
(2) Applicants approved for funding shall receive information from the California Arts Council outlining the award agreement, mutual responsibilities and safeguards for the agency and the recipient.
(3) Grant award letters or contract for services agreements shall be signed by the grantee and returned to the agency within 60 days of the date postmarked.
(e) Payment on direct grants.
Grant award payments shall be allocated by either a lump sum award or a partial advance payment with the final payment of the grant award, to be made after evaluation of the project.
(f) Payment on contracts for services.
(1) The California Arts Council shall make payment in arrears on contracts for services, meaning that grantees shall be reimbursed for expenses already incurred. Payment will be made within thirty days after receipt of invoices.
(2) The California Arts Council shall determine when advance payments may be made to recipients of contracts for services. These advance payments shall not exceed 25% of the contract amount at any one time. Those applicants that receive advance payments shall submit invoices for actual expenditures prior to the receipt of any additional funds.
(3) The final 10% of a contract will be withheld until the recipient has submitted the final evaluation report.
(g) The California Arts Council shall not claim ownership, copyright rights, royalties or any other claims to artwork produced as a result of a California Arts Council grant or contract. The California Arts Council may request documentation or copies of artwork for purposes of the California Arts Council record.
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Amendment filed 12-31-85; effective thirtieth day thereafter (Register 86, No. 1).
2. Repealer and new section filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
§3629. Limitations on Individual Contract Grants for Aliens.
Note • History
(a) All eligibility requirements contained herein shall be applied without regard to the race, creed, color, gender, religion, or national origin of the individual applying for the public benefit.
(b) Pursuant to Section 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193 (PRWORA)), (8 U.S.C. § 1621), and notwithstanding any other provision of this division, aliens who are not qualified aliens, nonimmigrant aliens under the Immigration and Nationality Act (INA) (8 U.S.C. § 1101 et seq.), or aliens paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)) for less than one year, are not eligible to receive individual contract grants as set forth in Section 8753, Government Code, except as provided in 8 U.S.C. § 1621(c)(2).
(c) A qualified alien is an alien who, at the time he or she applies for, receives, or attempts to receive a public benefit, is, under Section 431(b) and (c) of the PRWORA (8 U.S.C. § 1641(b) and (c)), any of the following:
(1) An alien who is lawfully admitted for permanent residence under the INA (8 U.S.C. § 1101 et seq.).
(2) An alien who is granted asylum under Section 208 of the INA (8 U.S.C. § 1158).
(3) A refugee who is admitted to the United States under Section 207 of the INA (8 U.S.C. § 1157).
(4) An alien who is paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)) for a period of at least one year.
(5) An alien whose deportation is being withheld under Section 243(h) of the INA (8 U.S.C. § 1253(h)) (as in effect immediately before the effective date of Section 307 of division C of Public Law 104-208) or Section 241(b)(3) of such Act (8 U.S.C. § 1251(b)(3)) (as amended by Section 305(a) of division C of Public Law 104-208).
(6) An alien who is granted conditional entry pursuant to Section 203(a)(7) of the INA as in effect prior to April 1, 1980. (8 U.S.C. § 1153(a)(7)) (See editorial note under 8 U.S.C. § 1101, “Effective Date of 1980 Amendment.”)
(7) An alien who is a Cuban or Haitian entrant (as defined in Section 501(e) of the Refugee Education Assistance Act of 1980 (8 U.S.C. § 1522 note)).
(8) An alien who meets all of the conditions of subparagraphs (A), (B), (C), and (D) below:
(A) The alien has been battered or subjected to extreme cruelty in the United States by a spouse or a parent, or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent of the alien consented to, or acquiesced in, such battery or cruelty. For purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.
(B) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided in the opinion of the California Arts Council. For purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:
1. The benefits are needed to enable the alien to become self-sufficient following separation from the abuser.
2. The benefits are needed to enable the alien to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien from the abuser.
3. The benefits are needed due to a loss of financial support resulting from the alien's separation from the abuser.
4. The benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien to lose his or her job or to earn less or to require the alien to leave his or her job for safety reasons.
5. The benefits are needed because the alien requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty.
6. The benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into a day care for fear of being found by the abuser).
7. The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.
8. The benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien and/or to care for any resulting children.
9. Where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien had when living with the abuser.
(C) The alien has a petition that has been approved or has a petition pending which sets forth a prima facie case for:
1. status as a spouse or child of a United States citizen pursuant to clause (ii), (iii), or (iv) of Section 204(a)(1)(A) of the INA (8 U.S.C. § 1154(a)(1)(A)(ii), (iii) or (iv)),
2. classification pursuant to clause (ii) or (iii) of Section 204(a)(1)(B) of the INA (8 U.S.C. § 1154(a)(1)(B)(ii) or (iii)),
3. suspension of deportation and adjustment of status pursuant to section 244(a)(3) of the INA (8 U.S.C. § 1254) as in effect prior to April 1, 1997 [Pub. L. 104-208. § 501 (effective September 30, 1996, pursuant to sec. 591); Pub. L. 104-208. Sec. 304 (effective April 1, 1997, pursuant to sec. 309); Pub. L. 105-33, sec. 5581 (effective pursuant to sec. 5582)] (incorrectly codified as “cancellation of removal under section 240A of such Act [8 U.S.C.S. sec. 1229b] (as in effect prior to April 1, 1997)”,
4. status as a spouse or child of a United States citizen pursuant to clause (i) of Section 204(a)(1)(A) of the INA (8 U.S.C. § 1154(a)(1)(A)(i)) or classification pursuant to clause (i) of Section 204(a)(1)(B) of the INA (8 U.S.C. § 1154(a)(1)(B)(i)), or
5. cancellation of removal pursuant to section 240A(b)(2) of the INA (8 U.S.C. § 1229b(b)(2)).
(D) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.
(9) An alien who meets all of the conditions of subparagraphs (A), (B), (C), (D) and (E) below:
(A) The alien has a child who has been battered or subjected to extreme cruelty in the United States by a spouse or a parent of the alien (without the active participation of the alien in the battery or cruelty), or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent consented or acquiesced to such battery or cruelty. For purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.
(B) The alien did not actively participate in such battery or cruelty.
(C) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided in the opinion of the California Arts Council. For purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:
1. The benefits are needed to enable the alien's child to become self-sufficient following separation from the abuser.
2. The benefits are needed to enable the alien's child to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien's child from the abuser.
3. The benefits are needed due to a loss of financial support resulting from the alien's child's separation from the abuser.
4. The benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien's child to lose his or her job or to earn less or to require the alien's child to leave his or her job for safety reasons.
5. The benefits are needed because the alien's child requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty.
6. The benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien's child's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into day care for fear of being found by the abuser).
7. The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.
8. The benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien's child and/or to care for any resulting children.
9. Where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien's child had when living with the abuser.
(D) The alien meets the requirements of subsection (c)(8)(C) above.
(E) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.
(10) An alien child who meets all of the conditions of subparagraphs (A), (B), and (C) below:
(A) The alien child resides in the same household as a parent who has been battered or subjected to extreme cruelty in the United States by that parent's spouse or by a member of the spouse's family residing in the same household as the parent and the spouse consented or acquiesced to such battery or cruelty. For purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.
(B) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided in the opinion of the California Arts Council. For purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:
1. The benefits are needed to enable the alien child's parent to become self-sufficient following separation from the abuser.
2. The benefits are needed to enable the alien child's parent to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien child's parent from the abuser.
3. The benefits are needed due to a loss of financial support resulting from the alien child's parent's separation from the abuser.
4. The benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien child's parent to lose his or her job or to earn less or to require the alien child's parent to leave his or her job for safety reasons.
5. The benefits are needed because the alien child's parent requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty.
6. The benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien child's parent's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into day care for fear of being found by the abuser).
7. The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.
8. The benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien child's parent and/or to care for any resulting children.
9. Where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien child's parent had when living with the abuser.
(C) The alien child meets the requirements of subsection (c)(8)(C) above.
(d) For purposes of this section, “nonimmigrant” is defined the same as in Section 101(a)(15) of the INA (8 U.S.C. § 1101(a)(15)).
(e) For purposes of establishing eligibility for individual contract grants pursuant to Section 8753, Government Code, all of the following must be met:
(1) The applicant must declare himself or herself to be a citizen of the United States, a qualified alien under subsection (c), a nonimmigrant alien under subsection (d), or an alien paroled into the United States for less than one year under Section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)). The applicant shall declare that status through use of the “Statement of Citizenship, Alienage, and Immigration Status for State Public Benefits,” Form CAC 272 (Edition 3/98), which is hereby incorporated by reference.
(2) The applicant must present documents of a type acceptable to the Immigration and Naturalization Services (INS) which serve as reasonable evidence of the applicant's declared status.
(3) The applicant must complete and sign Form CAC 272 (Edition 3/98).
(4) Where authorized by the INS, the documentation presented by an alien as reasonable evidence of the alien's declared immigration status must be submitted to the INS for verification through the Systematic Alien Verification for Entitlements (SAVE) system procedures as follows:
(A) Unless the primary SAVE system is unavailable for use, the primary SAVE system verification must be used to access the biographical/immigration status computer record contained in the Alien Status Verification Index maintained by the INS. Subject to subparagraph (B), this procedure must be used to verify the status of all aliens who claim to be qualified aliens and who present an INS-issued document that contains an alien registration or alien admission number.
(B) In any of the following cases, the secondary SAVE system verification procedure may be used to forward copies of original INS documents evidencing an alien's status as a qualified alien, as a nonimmigrant alien under the INA, or as an alien paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)) for less than one year:
1. The primary SAVE system is unavailable for verification.
2. A primary check of the Alien Status Verification Index instructs the California Arts Council to “institute secondary verification.”
3. The document presented indicates immigration status but does not include an alien registration or alien admission number.
4. The Alien Status Verification Index record includes the alien registration or admission number on the document presented by the alien but does not match other information contained in the document.
5. The document is suspected to be counterfeit or to have been altered.
6. The document includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series.
7. The document is a fee receipt from INS for replacement of a lost, stolen, or unreadable INS document.
8. The document is one of the following: an INS Form I-181b notification letter issued in connection with an INS Form I-181 Memorandum of Creation of Record of Permanent Residence, an Arrival-Departure Record (INS Form I-94) or a foreign passport stamped “PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE” that INS issued more than one year before the date of application for individual contract grants.
(5) Where verification through the SAVE system is not available, if the documents presented do not on their face reasonably appear to be genuine or to relate to the individual presenting them, the government entity that originally issued the document shall be contacted for verification. With regard to naturalized citizens and derivative citizens presenting certificates of citizenship and aliens, the INS is the appropriate government entity to contact for verification. The California Arts Council shall request verification by the INS by filing INS Form G-845 with copies of the pertinent documents provided by the applicant with the local INS office. If the applicant has lost his or her original documents, or presents expired documents or is unable to present any documentation evidencing his or her immigration status, the applicant shall be referred to the local INS office to obtain documentation.
(6) If the INS advises that the applicant has citizenship status or immigration status which makes him or her a qualified alien, a nonimmigrant or alien paroled for less than one year under section 212(d)(5) of the INA, the INS verification shall be accepted. If the INS advises that it cannot verify that the applicant has citizenship status or an immigration status that makes him or her a qualified alien, a nonimmigrant or an alien paroled for less than one year under section 212(d)(5) of the INA, benefits shall be denied and the applicant notified pursuant to the individual contract grants regular procedures of his or her rights to appeal the denial of benefits.
(7) Provided that the alien has completed and signed Form CAC 272 (Edition 3/98) under penalty of perjury, eligibility for individual contract grants shall not be delayed, denied, reduced or terminated while the status of the alien is verified.
(f) Pursuant to Section 432(d) of the PRWORA (8 U.S.C. § 1642(d)), a nonprofit charitable organization that provides federal, state, or local public benefits shall not be required to determine, verify, or otherwise require proof of eligibility of any applicant or beneficiary with respect to his or her immigration status or alienage.
(g) Nothing in this section shall be construed to withdraw eligibility for any applicable exception, under section 411(b) of the PRWORA, 8 U.S.C. § 1621(b).
(h) Pursuant to Section 434 of the PRWORA (8 U.S.C. § 1644), where the California Arts Council reasonably believes that an alien is unlawfully in the State based on the failure of the alien to provide reasonable evidence of the alien's declared status, after an opportunity to do so, said alien shall be reported to the Immigration and Naturalization Service.
(i) Any applicant who is determined to be ineligible pursuant to subsection (b) and (e) or who was made eligible for individual contract grants whose services are terminated, suspended, or reduced pursuant to subsections (b) and (e), is entitled to a hearing, pursuant to appropriate authority for administrative review of decision on eligibility for state public benefit.
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code; 8 U.S.C. Sections 1621, 1641 and 1642.
HISTORY
1. New section filed 3-20-98 as an emergency; operative 3-20-98 (Register 98, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-20-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled, including amendment of Note, 6-15-98 as an emergency; operative 7-21-98 (Register 98, No. 25). A Certificate of Compliance must be transmitted to OAL by 11-18-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 6-15-98 order transmitted to OAL 10-6-98 and filed 11-17-98 (Register 98, No. 47).
Article 9. Funding Amounts
Note • History
For those organizations or individual artists whose grant or contract has been approved, the California Arts Council shall notify the applicant of the funding amount recommended by the peer review panel or allowed within the program instructions. (Section 3628(a)). Applicants may or may not receive the full amount requested. The California Arts Council shall set funding amounts for grants or contracts based on the following factors.
(1) Annual state budget.
(2) Total dollars requested by recommended fundable applications.
(3) Number of fundable projects.
NOTE
Authority cited: Section 8753, Government Code. Reference: Sections 8753 and 8753.5, Government Code.
HISTORY
1. Repealer and new section filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 10. California Arts Council Goals
§3636. California Arts Council Goals.
Note • History
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Repealer filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Article 11. General State Requirements
§3640. General State Requirements.
Note • History
(a) The following requirements, in addition to any special conditions incorporated in the California Arts Council Funding Criteria shall be applicable to and binding upon recipients of awards from the California Arts Council.
(1) Those awards which consist in whole or in part of Federal funds shall be made only to organizations which do not use Federal funds as part of their match.
(2) Applicants shall not use Federal funds to match Federal funds.
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Amendment filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Note • History
NOTE
Authority cited: Section 8753, Government Code. Reference: Section 8753, Government Code.
HISTORY
1. Repealer filed 3-4-91; operative 4-3-91 (Register 91, No. 14).
Chapter 3. California Museum of Science and Industry
Article 1. General
Note • History
For the purpose of these regulations, the following words and phrases are defined and shall be construed as hereinafter set out unless it shall be apparent from the context that they have a different meaning.
(a) “Directors of board” shall name the Board of Directors of the California Museum of Science and Industry.
(b) “Association” means the Sixth District Agricultural Association, a state institution, now known as the California Museum of Science and Industry.
(c) “Park” shall include all driveways, paths or any of the grounds of the California Museum of Science and Industry; including that area leased to the Coliseum Commission, the City of Los Angeles, the County of Los Angeles or any department or part of the government of the State of California.
(d) “Park” is synonymous with Exposition Park and includes area owned by the California Museum of Science and Industry bounded on the north by Exposition Boulevard, on the east by Figueroa, on the south by Santa Barbara and on the west by Vermont Avenue and excepting therefrom any areas not owned by the California Museum of Science and Industry.
(e) “Police officer” shall mean every officer of the California State Police and the Museum Security Officers of the California Museum of Science and Industry.
(f) “Shall” is mandatory and “may” is permissive.
NOTE
Authority cited for Article 1 (Sections 4000 through 4012): Section 3965, Food and Agricultural Code.
HISTORY
1. New Sections 4000 through 4012 filed 3-28-60 as an emergency; effective upon filing (Register 60, No. 7.) For history of Chapter 3, see Register 60, No. 2.
2. Certificate of Compliance--Section 11422.1, Gov. Code, filed 7-5-60 (Register 60, No. 15).
3. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§4002. Lingering or Loitering.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§4003. Lingering or Loitering After Ordered to Leave.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
3. Editorial correction of History 1 (Register 2008, No. 37).
The riding of bicycles in the park is prohibited except in and upon that portion of the park used by vehicular traffic.
§4008. Flower Beds, Lawns, Terraces and Other Structures.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§4009. Handbills and Circulars.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§4012. Deposit of Offensive Matter, Rocks or Dirt.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
Article 2. Traffic
Note • History
NOTE
Authority cited: Section 3965, Food and Agricultural Code. Reference: Sections 21113 and 22659, Vehicle Code.
HISTORY
1. New Chapter 3 ( §§ 5000 through 5064) filed 1-18-60; effective thirtieth day thereafter (Register 60, No. 2).
2. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
3. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5001. Driving and Parking Vehicles in the Park--General.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5002. Boulevard Stops in the Park.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5003. Speed of Vehicles in the Park.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5004. Standing or Parking of Vehicles in the Park.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5005. Crosswalks in the Park.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26.)
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5007. Driving in the Parking Area.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5009. Driving over a Double Line.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5010. Driving Under the Influence of Liquor or Narcotics.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5012. Removal of Debris from Accidents.
Note • History
The driver of any vehicle which is involved in any collision shall remove or cause to be removed all glass and other debris which may have fallen on any roadway as a result of such collision from such roadway or parking area before leaving the place of the collision, and every person hired or employed to move or remove any such vehicle shall remove all glass and other debris which may have fallen upon the roadway or parking area as a result of the collision in which the vehicle was involved before removing the vehicle.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5013. Authorized Emergency Vehicles.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5015. Presumption of Validity of Signs, Devices, Signals and Markings.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5017. Passing a Stopped Car at a Crosswalk.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5018. Driving in a Parking Area.
Note • History
No person shall enter any parking area except at places marked “entrance” nor leave such area except at the places marked “exit,” unless the contrary shall be established by competent evidence. The Museum may, when it is necessary, determine if the movement of traffic will be expedited and thereby designate:
(a) Places where vehicles may or may not be parked.
(b) Period of time for which vehicles may be parked at any place and display appropriate signs giving notice thereof.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5019. Parking Time Limitations.
Note • History
(a) Stopping or Standing Prohibited.
(1) Whenever authorized signs are in place giving notice that stopping or standing is prohibited during such hours or on such days as are indicated on such signs, it shall be unlawful for any person to stop or stand or park any vehicle at any time and during such hours or such days.
(b) Parking Prohibited.
(1) Whenever authorized signs are in place giving notice that parking is prohibited at any time or during certain hours, it shall be unlawful for any person to park any vehicle during such prohibited times.
(c) Parking Time Limits.
(1) Whenever authorized signs are in place giving notice thereof, it shall be unlawful for any person to stop or stand or park any vehicle for a period of time in excess of the parking time limit indicated by such signs.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5020. All Night Parking Prohibited.
Note • History
No persons shall stop, stand or park a vehicle overnight on any driveway, path, road, or any grounds of the Museum.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5021. Unlawful Parking, Peddlers, Vendors.
Note • History
(a) No persons shall stop, stand or park any vehicle, wagon, or push cart for the purpose of peddling, hocking, displaying or offering for sale therefrom any goods, wares, merchandise, or any fruit, vegetables, drinks or food stuffs on any path, driveway, roadway or any grounds of the park without the express written permission of the board. Said permit must designate the specific location at which such vehicle, wagon or push cart may stand and shall be conspicuously displayed at all times.
(b) No person shall park or stand any vehicle or wagon used for any or intended to be used in the transportation of property for hire on any street, path, driveway, roadway or on any grounds in the park while awaiting patronage for such vehicle or wagon without first obtaining a written permit to do so from the board, which permit shall designate the specific location where such vehicle may stand.
(c) No person shall stand or park a vehicle upon any pass or roadway or public parking area for the purpose of displaying such vehicle for sale by sign or otherwise.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5023. Authorization to Place Curb Marks for Signs, No Stopping, Standing or Parking.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5024. Establishment of Passenger, Commercial, Short Time Limit and No Stopping Curb Zone.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5025. Marking and Parking for Zones.
Note • History
(a) No stopping zones when designated by painted curbs and signs shall be red and stenciled bus zones. No person shall park any vehicle at any time adjacent to a curb marked in red Bus zones shall be red and stenciled bus zones.
(b) Short time parking zones when designated by painted curbs shall be green and stenciled with the time limit allowed for parking. No person shall park any vehicle adjacent to a curb marked in green for any period in excess of the posted time limit.
(c) Commercial loading zones when designated by painted curbs shall be yellow and stenciled loading only. No persons shall park any vehicle other than a commercial vehicle adjacent to any yellow curb nor any commercial vehicle adjacent to such curb for any greater length of time than is actually necessary for the loading or unloading of materials. A curb marked in yellow should indicate a loading zone for commercial vehicles only.
(d) Passenger loading zones when designated by painted curb shall be white and stenciled passenger loading zone only. No person shall park any vehicle other than a private passenger automobile adjacent to any white curb and shall not park any vehicle for any greater period of time than is actually necessary for the loading or unloading of passengers and personal baggage.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5026. Parking in the Parking Area.
Note • History
No persons shall park any vehicle in the public parking area except between the painted lines indicating where such vehicle shall be parked. No persons shall so park a vehicle as to occupy or use more than one such marked parking space. No person shall remove a vehicle from any public parking area without first paying all fees or charges due for the use of such parking space.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5027. Parallel and/or Angle Parking.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5028. Designated Parking Area.
Note • History
Unless otherwise directed by the Museum or the California State Police, no person shall stop, park or leave standing any vehicle on any road, path or driveway or any parking area unless this vehicle is parked, stopped, or left standing in areas designated for parking and in conformance with such signs as may be posted on said grounds from time to time.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
Note • History
Parking permits shall be issued by the Museum under such conditions as may be described by the board. Said parking permits shall be subject to revocation or suspension at any time. No persons hall stop, park or leave standing any vehicle on the authority of said parking permit unless such vehicle is parked, stopped or left standing in the area designated for such parking by permit and in conformance with such signs as may be posted on said parking area from time to time. Said parking permits shall expire as indicated on said permit.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5030. Installation of Parking Meters Authorized.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13)
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5031. Parking Meter Spaces to Be Indicated and Maintained.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5032. Time of Parking in Parking Meter Zones.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5033. Parking Meters, Times for Operations.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5034. Operation of the Parking Meter.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5035. Parking Meters, Deposit of Coins.
Note • History
When the operator of a vehicle parks this vehicle within a parking meter space on path, roadways or grounds of the park, the operator shall immediately deposit or cause to be deposited in the parking meter adjacent to such space lawful money of the United States of the rates determined by the Museum from time to time and indicated by signs around the parking meter.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5036. Parking Meters and Parking Meter Standards Not to Be Used for Certain Purposes.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5037. Improper Use or Misuse of Meters.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5038. Extending Parking Time.
Note • History
It shall be unlawful for any person to deposit or cause to be deposited in a parking meter any coins for the purpose of increasing or extending the parking time of any vehicle beyond the legal parking time which has been established by the board for the parking space adjacent to which the meter is placed.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5039. Failure to Deposit Coins.
Note • History
It shall be unlawful for any person to park or to cause, allow, permit or suffer to be parked a vehicle in any parking meter space without immediately depositing or causing to be deposited a coin or coins in the parking meter as hereinbefore provided. It shall be unlawful for any person to cause, allow, permit or suffer any vehicle to remain in any parking meter space for more than the time indicated by proper signs placed on such parking meters indicating the maximum parking time allowed in such parking meter space or during any time the parking meter is indicating that time has elapsed for which coins of the United States of America may have been deposited in said parking meter provided, however, that the provisions of this section shall not apply to any vehicle described in Section 21055, emergency vehicles exempt herefrom.
NOTE
Authority cited: Section 3965(c), Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5040. Installation of Off-Street Parking Meters.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5041. Off-Street Parking Meter Spaces to Be Indicated and Maintained.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5042. Time of Parking in Off-Street Parking Meter Zones.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5043. Off-Street Parking Meters. Times for Operation.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5044. Operation of Off-Street Parking Meters.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5045. Off-Street Parking Meters, Deposit of Coins.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5046. Off-Street Parking Meters and Off-Street Parking Meter Standards Not to Be Used for Certain Purposes.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5047. Improper Use of Off-Street Parking Meters.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5048. Extending Parking Time.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5049. Failure to Deposit Coins.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5050. Manner of Direction of Traffic.
Police officers are authorized to direct all traffic by voice, hand or signal in conformance with traffic laws of the City of Los Angeles and the State of California provided that in the event of a fire or other emergency they may direct traffic as conditions may require notwithstanding the provisions of these regulations. No persons shall willfully fail or refuse to comply with any lawful order, direction or signal of a police officer.
§5051. Application to Public Employees.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5052. Exemption to Certain Vehicles.
Provisions of these regulations governing the operation, parking or standing of vehicles in the park and the adjacent parking facilities shall not apply to any vehicle of the police or fire department, any public ambulance, or any public utility vehicle, or any private ambulance which public utility vehicle or ambulance has qualified as an authorized emergency, when any vehicle mentioned in this section is operated in the manner specified in the Vehicle Code in response to an emergency call. The foregoing exemptions shall not, however, protect the driver of any vehicle of the consequences of his willful disregard of the safety of others. The provisions of these regulations governing the parking or standing of vehicles shall not apply to any vehicles of the city, county, state or federal government or public utility while necessary and used for construction or repair work or while engaged in the collection of garbage or noncombustible rubbish where compliance therewith would obstruct such operation or any vehicle owned by United States while in use for the collection, transportation or delivery of United States mail or to any vehicle owned or operated by the Department of Army, Department of Navy or Department of Air Force during periods of proclaimed national emergency.
§5053. Barriers, Fences or Posts.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5054. Driving in Unauthorized Areas.
History
No vehicle shall be driven or parked in any area which has been landscaped or designated for landscaping or any cement walk or unpaved pathway for pedestrian use except for maintenance by an appropriate Museum employee or in an emergency.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
§5055. Sound Vehicles and Advertising Vehicles Prohibited.
History
No persons shall drive, operate or propel any sound or advertising vehicle with a soundmaking device or loud speaker thereof in use or operation upon any path, street, roadway or any grounds of the park without the express written permission issued by the Museum.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
§5056. Installation of Automatic Parking Equipment.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5057. Automatic Parking Gates, Times for Operation.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5058. Operation of the Automatic Parking Gates.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5059. Automatic Parking Gates Not to Be Used for Certain Purposes.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5060. Improper Use or Misuse of the Automatic Parking Gate.
History
HISTORY
1. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5061. Failure to Deposit Coins in the Automatic Parking Gates.
Note • History
It shall be unlawful for any person to park or to cause, permit or suffer to be parked a vehicle in any parking lot where ingress to said parking lot is governed by the operation of automatic parking gates without immediately depositing or causing to be deposited a coin or coins in the automatic parking gates.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§5062. Emergency Rules and Signs.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Amendment filed 8-4-60; effective thirtieth day thereafter (Register 60, No. 17).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5064. “21113” Vehicles on Certain Property.
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§5065. Removal of Vehicles at Owner's Expense.
History
HISTORY
1. New section filed 9-26-60; effective thirtieth day thereafter (Register 60, No. 21).
2. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
3. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
Note • History
No person shall operate or move a vehicle upon the driveways, paths or grounds of the park designated and sign posted for one-way traffic in a direction opposed to that indicated by the designation or signpost.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 21113, Vehicle Code.
HISTORY
1. New section filed 9-20-60 as an emergency; effective upon filing (Register 60, No. 20).
2. Certificate of Compliance--Section 11422.1, Government Code, filed 1-17-61 (Register 61, No. 2).
3. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
Article 3. Admission Ticket Selling
Note • History
For the purpose of these regulations, the following words and phrases are defined and shall be construed as hereinafter set forth unless it shall be apparent from the context that they have a different meaning:
(a) “Museum” means the California Museum of Science and Industry, a State institution.
(b) “Directors or Board” means the Board of Directors of the California Museum of Science and Industry.
(c) “Park” shall include all driveways, paths, parking lots or any of the grounds owned by the California Museum of Science and Industry, bounded on the north by Exposition Boulevard, on the east by Figueroa Street, on the south by Santa Barbara Avenue and on the west by Vermont Avenue, City and County of Los Angeles, State of California, excepting therefrom any area not owned by the California Museum of Science and Industry, but including that area leased to the Los Angeles Memorial Coliseum Commission, the City of Los Angeles, the County of Los Angeles or any department or part of the government of the State of California.
(d) “Police Officer” shall mean every officer of the California State Police, as defined in Section 14613 of the Government Code, or the Los Angeles Police Department or any other peace officer, as defined in Section 830 et seq., of the Penal Code; and the Museum Security Officers of the California Museum of Science and Industry.
(e) “Agent” shall mean a representative of the Intelligence Division, Internal Revenue Service, United States Treasury Department.
(f) “Ticket Speculator” shall mean any person who engages in, manages, conducts, or carries on in or upon the grounds of the Park the sale of tickets of admission or other evidence of the right of entry to designated activities as defined in Section 4301 of the Food and Agricultural Code.
(g) “Ticket Scalping” shall mean the sale of tickets to designated activities as defined in Section 4301 of the Agricultural Code, at any premium or price in excess of the maximum price printed or endorsed on said tickets, plus lawful taxes.
(h) “Permit” shall mean a permit issued by the Board under Sections 3965 and 4301 of the Food and Agricultural Code.
(i) “Permittee” shall mean any person licensed by the Board under Sections 3965 and 4301 of the Food and Agricultural Code.
(j) “Person” shall mean a natural person, firm, corporation, association or partnership.
(k) “Identification Card” shall mean a card issued by the Board containing, but not limited to, name of permittee, address of permittee, age, height, weight, permit number, effective date of permit, expiration date of permit, photograph of permittee, signatures of permittee and authorized representative of the Museum.
(l) The provisions of this Article shall not be deemed to apply to a person, firm, corporation, association or partnership engaged in the business of selling tickets at a fixed and duly authorized ticket office and/or booth in the Park under jurisdiction and management of the Los Angeles Memorial Coliseum Commission, the City of Los Angeles, the County of Los Angeles or any department or part of the government of the State of California.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 4301, Food and Agricultural Code.
HISTORY
1. New Sections 6000 through 6006 filed 4-14-61 as an emergency; effective upon filing (Register 61, No. 8).
2. Certificate of Compliance--Sec. 11422.1, Gov. Code, filed 6-28-61 (Register 61, No. 13).
3. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
4. Amendment of NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§6001. Matters of Public Interest.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§6003. Requirements for Permit.
Note • History
(a) Applicant must file written application with Museum setting forth such information as Board may require in order to enable Museum to carry into effect the provisions of Section 4301 of the Food and Agricultural Code and regulations promulgated thereunder.
(b) Said application shall be accompanied by evidence and proof satisfactory to Museum of the moral character of the applicant.
(c) Applicant must secure, at his own expense, and file within 30 days after issuance of said permit, a bond in due form, approved by the Museum, payable to the people of the State of California and to the Museum, in the penal sum of $2,500.00, with two or more sufficient sureties or a duly authorized surety company. Said bond shall be conditioned that the obligor will not be guilty of any fraud or extortion, will not violate directly or indirectly any of the provisions of Section 4301 of the Food and Agricultural Code or regulations promulgated thereunder, will comply with said statute and regulations and will pay any and all damages occasioned to any person by reason of any misstatement, misrepresentation, fraud or deceit, or any unlawful act or omission of such obligor, his agents or employees, while acting within the scope of their employment in carrying on the sale of tickets for which such permit is granted. Failure to file said bond, as approved, within 30 day period, shall nullify, void, revoke and invalidate any permit issued under these regulations.
(d) Applicant must secure, at his own expense, and file with the application therefor, evidence and proof satisfactory to the Museum, that applicant obtained from District Director of Internal Revenue, any and all necessary permits required under the provisions of Section 4234 of the United States Internal Revenue Code. Any such violator of said Code is subject to criminal prosecution in the United States District Court.
(e) Each application for a permit shall be accompanied by two copies of the applicant's fingerprints made on forms provided by Museum. Fingerprints may be obtained through the Office of the California State Police, 1525 S. Broadway, Room 413, Los Angeles, CA 90015, or through any other law enforcement agency upon payment of prevailing cost therefor. Permit will not be issued until State Bureau of Criminal Identification and Investigation, Department of Justice, has reviewed said fingerprints and the findings thereof are satisfactory to the Museum.
(f) Permit Fees. Each application must be accompanied by a fee of $150.00 and shall be renewed upon the payment of a fee of $75.00 annually. Payment must be made by cash, cashier's check, certified check or money order made payable to the Museum. No personal checks accepted. Since fee has been established to cover administrative costs and expenses including, but not limited to, character investigation, fingerprint check, inspection service, printing costs, material and supplies, labor costs, etc., refunds will not be made, in the event permit is not issued or permit is suspended, revoked or otherwise declared void.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 4301, Food and Agricultural Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
Note • History
(a) Each permittee while acting as a “ticket speculator” engaged in “ticket scalping” shall have in his possession at all times an Identification Card. Said Card shall be made available, upon request, to any Police Officer, Agent, authorized representative of the Museum or to any person purchasing a ticket from said permittee.
(b) Each permittee while acting as a “ticket speculator” engaged in “ticket scalping” or at any other reasonable time, shall maintain and keep a book of record and account containing the name, address, and telephone number, if any, of each person, firm, corporation, association, or partnership from whom any ticket is purchased, with respect to each ticket purchased, together with the full purchase price of each ticket, names and dates for performance of designated activities, seat location, date of purchase, and shall, upon request, make such book of record and account available to any Police Officer, Agent, authorized representative of the Museum or to the person purchasing such a ticket.
(c) Each permittee while acting as a “ticket speculator” engaged in “ticket scalping” or at any other reasonable time, shall maintain and keep a book of record and account with respect to the sale of any ticket containing the name, address and telephone number, if any, of such person, firm, corporation, association or partnership purchasing said ticket, together with the price paid by said purchaser. Said book of record and account shall also include name and dates for performances of designated activities, seat location, date of sale and shall, upon request, make such book of record and account available to any Police Officer, Agent, authorized representative of the Museum for inspection and audit.
(d) Each permittee shall furnish each purchaser of a ticket with a receipt showing, but not limited to, name and address of permittee, date of sale, description, location and quantity of tickets sold, price paid, name of purchaser, permit number and duly signed by permittee. A copy of each receipt issued shall be retained by permittee and upon request or a reasonable time thereafter, not to exceed 24 hours after request made, shall be made available for inspection and audit by authorized representatives of the Museum, Agents and Police Officers.
(e) No permittee shall engage in “ticket scalping” nor permit any person in his employ to engage in “ticket scalping” in or upon the grounds of the Park other than the premises approved and permitted to be used for such purpose by such permittee and subject to the following further restrictions:
(1) At no time shall permittee or any person in his employ engage in “ticket scalping” in or upon any grounds of the Park where a person may drive, stop, park or leave standing any vehicle so as to hinder or obstruct free and orderly flow of traffic.
(2) At no time shall permittee or any person in his employ engage in “ticket scalping” within five hundred (500) feet of the nearest fixed and duly authorized ticket office and/or booth in the Park under jurisdiction and management of the Los Angeles Memorial Coliseum Commission, the City of Los Angeles, the County of Los Angeles or any department or part of the government of the State of California.
(3) No permittee shall stand or sit in or upon the grounds of the Park in any manner so as to hinder or obstruct the free passage of pedestrians thereon, or to annoy or molest such pedestrians.
(f) No permittee shall employ any person to engage in “ticket scalping” unless such person has been properly permitted to engage in such “ticket scalping” in accordance with the provisions of Section 4301 of the Food and Agricultural Code and these regulations.
(g) Notwithstanding anything herein contained to the contrary, no permittee shall engage in the practice of directing, guiding, influencing or engage others to direct, guide, influence or solicit prospective patrons of said sports stadia, arena, pavilion, places of public exhibitions and other designated activities, or induce or solicit or attempt to induce or solicit the purchase of tickets from them by said prospective patrons in or upon the grounds within the Park.
(h) Each permittee while engaged in “ticket scalping” shall comply with any order or resolution as may be adopted from time to time by the Board of the Museum or any other public agency or commission that may have jurisdiction over location where said “ticket scalping” is requested to take place.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 4301, Food and Agricultural Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§6005. Misstatement in Application.
Note • History
No person shall make any false, misleading or fraudulent statement or misrepresent any fact in any application for a permit or in any notice of record required to be filed with the Museum, City, County, State or Federal Government; such conduct shall be grounds for suspension or revocation of any permit issued to such person.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 4301, Food and Agricultural Code.
HISTORY
1. Amendment filed 3-30-78 as procedural and organizational; effective upon filing (Register 78, No. 13).
2. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
§6006. Suspension and Revocation.
Note • History
In the event that any permittee shall be guilty of any fraud or misrepresentation or otherwise violate any of the provisions of these rules and regulations, such violations shall be deemed sufficient cause for suspension or revocation of the offender's permit on giving five (5) days' notice by mail to such permittee. This Section shall not be deemed or construed as prohibiting such permittee from answering the charges made against him.
NOTE
Authority cited: Sections 3965(c) and 4051, Food and Agricultural Code. Reference: Section 4301, Food and Agricultural Code.
HISTORY
1. New NOTE filed 10-8-85; effective thirtieth day thereafter (Register 85, No. 41).
Division 4. Fair Employment and Housing Commission
Chapter 1. Administration
Subchapter 1. Administration
Note • History
The authority for the rules and regulations set forth in this chapter is briefly described at the beginning of each chapter below and in some cases is set out with more particularity at the beginning of a constituent subchapter within a chapter. Special definitions or rules of construction which only apply to a particular chapter or subchapter are set forth at the beginning of the chapter or subchapter to which they pertain.
NOTE
Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health and Safety Code; and Section 12935(a), Government Code. Reference: Part 4.5 of Division 2, Labor Code; and Part 2.8 of Division 3 of Title 2, Government Code.
HISTORY
1. New Division 4, Chapter 1 (Subchapters 1 and 2, Sections 7285.0-7285.7, not consecutive) and Chapter 2 (Subchapters 1-9, Sections 7286.3-7294.2, not consecutive) filed 4-1-80; effective thirtieth day thereafter (Register 80, No. 14). For prior history, see Registers 76, No. 44 and 61, No. 26.
Note
(a) These rules and regulations are to be construed liberally so as to further the policy and purposes of the statutes which they interpret and implement.
(b) Except as required by the Supremacy Clause of the United States Constitution, federal laws and their interpretations regarding discrimination in employment and housing are not determinative of the construction of these rules and regulations and the California statutes which they interpret and implement but, in the spirit of comity, shall be considered to the extent practical and appropriate.
(c) Unless the context dictates otherwise, terms used herein which are in the singular include the plural and which are in the plural include the singular.
(d) If any rule or regulation, or portion thereof, in this chapter is adjudged by a court of competent jurisdiction to be invalid, or if any such rule or regulation, or portion thereof, loses its force and effect by legislative action, that judgment or action does not affect the remainder of the rules and regulations.
(e) Pursuant to the Governor's Reorganization Plan No. 1 (1980), the Fair Employment Practice Act is to be renamed the Fair Employment and Housing Act and renumbered in Part 2.8 of Division 3 of Title 2 of the Government Code. Authorities and references cited herein to the Labor Code are parenthetically cited to sections of the Government Code which will become applicable when legislation is enacted.
NOTE
Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Government Code. Reference: Part 4.5 of Division 2, Labor Code; and Part 2.8 of Division 3 of Title 2 of the Government Code.
Note
Unless a different meaning clearly applies from the context, the meaning of the words and phrases as defined in this section shall apply throughout this chapter:
(a) “Commission or FEHC” means the State Fair Employment and Housing Commission created by section 1414 of the Labor Code and Section 12903 of the Government Code pursuant to the Governor's Reorganization Plan No. 1 (1980).
(b) “Department or DFEH” means the Department of Fair Employment and Housing created by section 1413.1 of the Labor Code and Sections 12901 and 12925 of the Government Code pursuant to the Governor's Reorganization Plan No. 1 (1980).
(c) “Person” includes one or more individuals, partnerships, associations or corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.
(d) “Complainant” means the person who files a timely, verified complaint with the DFEH alleging aggrievement by an unlawful practice.
(e) “Respondent” means the person who is alleged to have committed an unlawful practice in a complaint filed with the DFEH, or against whom an accusation has been issued.
(f) “Act” means the California Fair Employment and Housing Act created by section 1410 seq. of the Labor Code, sections 35700 et seq. of the Health and Safety Code and Government Code section 12900.
NOTE
Authority cited: Section 1418 (a), Labor Code; and Section 12935(a), Government Code. Reference: Sections 1413, 1413.1 and 1414, Labor Code; and Sections 12903 and 12925, Government Code.
Subchapter 2. Powers and Duties of the Commission
Note • History
(a) Responsible to the Fair Employment and Housing Commission there shall be an Executive and Legal Affairs Secretary and such legal, professional, administrative and support staff as are necessary to carry out the day-to-day responsibilities of the Commission.
NOTE
Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health and Safety Code; and Section 12935(a), Government Code. Reference: Section 1418(b), (c), (d), (e), and (f), Labor Code; and Section 12935(b), (c), (d), (e), and (f), Government Code.
HISTORY
1. Amendment filed 5-16-85; effective thirtieth day thereafter (Register 85, No. 20).
§7285.4. Rules, Regulations and Guidelines.
Note
(a) The Commission shall adopt, promulgate, amend and rescind suitable rules, regulations and guidelines as are necessary to interpret, implement and apply laws within its jurisdiction and as are necessary to carry out all of its other functions and duties.
(b) All rules and regulations shall be adopted pursuant to Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the Government Code.
NOTE
Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health and Safety Code; and Section 12935(a), Government Code. Reference: Part 4.5 of Division 2, Labor Code; and Part 2.8 of Division 3 of Title 2, Government Code.
§7285.5. Hearings and Precedential Opinions.
Note • History
(a) The Commission shall hold hearings and issue findings and orders on accusations of unlawful practices within the Commission's jurisdiction filed by the Department, including charges of discrimination in employment, housing, public accommodation, contract compliance, and licensing and testing.
(b) All hearings after accusation shall be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code (known as the California Administrative Procedure Act) and pursuant to Title 2, Division 4, Chapter 4 of the California Administrative Code (“Procedures of the Commission”).
(c) The Commission shall establish and publish a system of precedential opinions to assist in interpreting the laws under its jurisdiction.
(d) The Commission shall establish a system and procedure for Declaratory Rulings regarding any rule or statute enforceable by the Commission, and shall make such rulings available to the public.
NOTE
Authority cited: Section 1418(a), Labor Code; Section 35730.5(a), Health and Safety Code; and Section 12935(a), Government Code. Reference: Section 1418(b), (f) and (h), Labor Code; Section 35730.5(b), (f), and (h), Health and Safety Code; and Sections 12935(b), (f) and (h), 12967 and 12981, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Amendment of subsection (b) filed 12-17-82; effective thirtieth day thereafter (Register 82, No. 52).
§7285.6. Investigative Authority.
Note • History
Where necessary to carry out its duties relating to any matter under investigation or in question before the Commission, the Commission may hold hearings, subpoena witnesses, compel witnesses' attendance, order production of any books and papers relating to an investigation, administer oaths, and examine any person under oath at times and places set by the Commission, and make other related written and oral inquiries.
NOTE
Authority cited: Section 1418(a), Labor Code; Section 35730(a), Health and Safety Code; and Section 12935(a), Government Code. Reference: Section 1418(f) and 1424, Labor Code; Sections 35730.5(f) and 35732, Health and Safety Code; and Sections 12935(f), 12967 and 12981, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7285.7. Other Powers and Duties.
Note
The functions, powers and duties of the Commission shall also include, but are not limited to, the authority to:
(a) Make inquiries into general discrimination problems and issue informal and formal findings, including published reports;
(b) Establish such advisory agencies and councils as will assist in fostering goodwill, cooperation and conciliation among groups and elements of the population of the state through studies, conciliation, hearings, and recommendations to the Commission;
(c) Develop standards and policy for application and implementation by the Department of Fair Employment and Housing; and
(d) Advise and concur with the Secretary of Health and Welfare in establishing standards and guidelines determining unlawful practices of state contractors under Section 11135, et seq.
NOTE
Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Government Code. Reference: Sections 1418, 1420.4 and 1431, Labor Code; and Sections 12935, 12946 and 12990, Government Code.
Chapter 2. Discrimination in Employment
Subchapter 1. General Matters
§7286.0. Fair Employment and Housing Commission--Conflict of Interest Code.
The Political Reform Act, Government Code Sections 81000, et seq., requires state and local government agencies to adopt and promulgate Conflict of Interest Codes. The Fair Political Practices Commission has adopted a regulation, 2 Cal. Code of Regs. section 18730, which contains the terms of a standard Conflict of Interest Code, which can be incorporated by reference, and which may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act after public notice and hearings. Therefore, the terms of 2 Cal. Code of Regs. section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference and, along with the attached appendix in which officials and employees are designated and disclosure categories are set forth, constitute the Conflict of Interest Code of the Fair Employment and Housing Commission.
Designated employees shall file statements of economic interests with their agency. Upon receipt of the statements of the Commission members, the agency shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission. The statements for all other designated positions shall be retained with the agency and made available for public inspection and reproduction upon request. (Gov. Code section 81008).
Appendix A
Designated Positions Disclosure Category
Commission Members 1
Executive and Legal Affairs Secretary 1
Administrative Law Judge 1
FEH Counsel 1
Staff Services Manager 2
Consultants1 1
----------
1With respect to Consultants, the Chairperson may determine in writing that a particular consultant is hired to perform a range of duties that are limited in scope and thus is not required to comply with the disclosure requirements described in these categories. Such determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Chairperson's determination is a public record and shall be retained for public inspection at offices of the Fair Employment and Housing Commission. Nothing herein excuses any such consultant from any other provision of this Conflict of Interest Code.
Appendix B
General Provisions
When a designated employee is required to disclose investments and sources of income, he or she need only disclose investments in business entities and sources of income which do business in the jurisdiction, plan to do business in the jurisdiction or have done business in the jurisdiction within the past two years. In addition to other activities, a business entity is doing business within the jurisdiction if it owns real property within the jurisdiction. When a designated employee is required to disclose interests in real property, he/she need only disclose real property which is located in whole or in part within or not more than two miles outside the boundaries of the jurisdiction or within two miles of any land owned or used by the Fair Employment & Housing Commission.
Designated employees shall disclose their financial interests pursuant to the appropriate disclosure category as indicated in appendix A.
Disclosure Categories
Category 1
Designated officials and employees assigned to this disclosure category must report all investments and business positions in business entities, sources of income and interests in real property.
Category 2
Designated officials and employees assigned to this disclosure category must report investments and business positions in business entities and sources of income of the type which within the past two years have contracted to provide services, supplies, materials or equipment to the Department.
NOTE
Authority and reference cited: Section 81000 et seq., Government Code.
HISTORY
1. New section filed 6-6-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 4-18-83. (Register 83, No. 24).
2. Change without regulatory effect amending section and appendix filed 6-4-91 pursuant to section 100, title 1, California Code of Regulations; operative 7-4-91. Approved by Fair Political Practices Commission 5-1-91 (Register 91, No. 35).
3. Editorial correction restoring inadvertently omitted Authority and Reference cites (Register 95, No. 6).
4. Amendment of Appendix A filed 6-28-95; operative 7-28-95. Submitted to OAL for printing only pursuant to Government Code section 11346.2. Approved by Fair Political Practices Commission 5-11-95 (Register 95, No. 26).
5. Amendment of Appendix A filed 8-29-2001; operative 9-28-2001. Approved by Fair Political Practices Commission 7-16-2001 (Register 2001, No. 35).
6. Amendment of Appendix A filed 7-6-2005; operative 8-5-2005. Approved by Fair Political Practices Commission 4-25-2005 (Register 2005, No. 27).
§7286.1. Department of Fair Employment and Housing--Conflict of Interest Code.
Note • History
The Political Reform Act, (Gov. Code §81000 et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation (Cal. Code Regs., tit. 2, §18730) which contains the terms of a standard conflict of interest code, which can be incorporated by reference in an agency's code. After public notice and hearing, the standard code may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of California Code of Regulations, title, 2. section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission, are hereby incorporated by reference. This regulation, and the attached Appendices designating positions and establishing disclosure requirements, shall constitute the conflict of interest code of the Department of Fair Employment and Housing.
Individuals holding designated positions shall file their statements with the Department of Fair Employment and Housing, which will make the statements available for public inspection and reproduction. (Gov. Code, §81008). Upon receipt of the statement of the Director, the Department of Fair Employment and Housing will make and retain a copy and forward the original of the statements to the Fair Political Practices Commission.
Appendix A
Designated Positions Disclosure Category
Accountant and Accounting Officer, all levels 2
Administrator, FEH, all levels 1
Associate Information Systems Analyst (Specialist) 3
Associate Programmer Analyst (Specialist) 3
Business Service Assistant (Specialist), all types 2
CEA, all levels 1
Chief Deputy Director, DFEH 1
Consultant *
Data Processing Manager, all levels 3
Deputy Director 1
Director 1
FEH Consultant, all ranges 1
Legal Counsel, all levels and types 1
Legal Analyst 1
Legal Assistant 1
Senior Legal Analyst 1
Senior Programmer Analyst (Specialist) 3
Staff Information Systems Analyst (Supervisor) 3
Staff Programmer Analyst (Specialist) 3
Staff Services Analyst 2
Staff Services Manager, all levels and types 2
______
* Consultants shall be included in the list of designated positions and shall disclose pursuant to the Disclosure Requirements in this conflict of interest code subject to the following limitation:
The Director may determine in writing that a particular consultant, although holding a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements described in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Director's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.
Appendix B
Disclosure Requirements
Disclosure Category 1
Individuals holding positions assigned to Disclosure Category 1 must report interests in real property located within the State of California; investment and business positions in business entities, and income, including loans, gifts, and travel payments, from all sources.
Disclosure Category 2
Individuals holding designated positions in Disclosure Category 2 must report investments and business positions in business entities, and income, including gifts, loans, and travel payments, from sources, of the type to provide services, supplies, materials, or equipment to the Department. Such services include, but are not limited to, legal recording/reporting services.
Disclosure Category 3
Individuals holding designated positions in Disclosure Category 3 must report investments and business positions in business entities, and income, including gifts, loans, and travel payments, from sources, of the type to provide information technology or telecommunication services, goods, or supplies, including, but not limited to, software, hardware, or data retrieval and security services.
NOTE
Authority and reference cited: Section 81000 et seq., Government Code. (Section filed 6-6-83, operative 7-6-83; approved by Fair Political Practices Commission 4-18-83; Register 83, No. 24).
HISTORY
1. Amendment of Appendices A and B filed 10-3-86, operative 11-3-86 making the following changes:
. Appendix A, Disclosure Category 1: deleted “Assistant to the Director,” “All Legal Classes,” “Staff Services Manager I, Contract Compliance” and “Consultants”; added “Chief Deputy Director,” “Deputy Director, Administrative Services,” “Deputy Director, Legal Services,” “Manager Public Information and Legislation,” “Staff Services Managers I, II, III” and “Special Consultants”; substituted “Enforcement” for “Field Operations”;
. Appendix A, Disclosure Category 2: deleted “Staff Services Manager III,” “Staff Services Manager I, all others” and “Staff Programmer Analyst”; added “FEH Counsel I, II, III”;
. Appendix A, Disclosure Category 4: deleted “Research Analyst” and “Housing Program Specialist”; added “Compliance Services: All Professional Classifications”;
. Appendix A, Footnote 1: Added “Special” after “With respect to”;
. Appendix B, General Provisions: deleted “within the past two years” after “in the jurisdiction”;
. Appendix B, Disclosure Category 1: added “: (1)” after “must report” and “; and (2) his or her status as a director, officer, partner, trustee, employee or holder of a position of management in any business entity of the type which has contracted with DFEH to provide services, supplies, materials, machinery or equipment” after “real property”;
. Appendix B, Disclosure Category 2: deleted “within the past two years” after “of the type which”; added “: (1)” after “must report” and “; and (2) his or her status as a director, officer, partner, trustee, employee or holder of a position of management in any business entity of the type which has contracted with DFEH to provide services, supplies, materials, machinery or equipment” after “to the Department”;
. Appendix B, Disclosure Category 3: deleted “within the past two years” after “of the type which”; added “: (1)” after “must report” and “; and (2) his or her status as a director, officer, partner, trustee, employee or holder of a position of management in any business entity of the type which has contracted with DFEH to provide services, supplies, materials, machinery or equipment” after “the employees' field office”;
. Appendix B, Disclosure Category 4: added “: (1)” after “must report” and “; and (2) his or her status as a director, officer, partner, trustee, employee or holder of a position of management in any business entity of the type which has contracted with DFEH to provide services, supplies, materials, machinery or equipment” after “has been assigned”;
. Approved by Fair Political Practices Commission 8-12-86;
. (Register 86, No. 40).
2. Change without regulatory effect amending Appendix A filed 1-3-92 pursuant to section 100, title 1, California Code of Regulations; operative 2-3-92. Approved by Fair Political Practices Commission 8-12-86. (Register 92, No. 11).
3. Editorial correction restoring inadvertently omitted Authority and Reference cites (Register 95, No. 6).
4. Amendment of section and repealer and new Appendices A and B filed 5-9-2000; operative 6-8-2000. Approved by Fair Political Practices Commission 3-16-2000 (Register 2000, No. 19).
5. Amendment of Appendices A and B filed 10-23-2003; operative 11-22-2003. Approved by Fair Political Practices Commission 6-23-2003 (Register 2003, No. 43).
6. Amendment of section and Appendix A and repealer and new Appendix B filed 11-16-2010; operative 12-16-2010. Approved by Fair Political Practices Commission 9-3-2010 (Register 2010, No. 47).
§7286.3. Statement of Policy and Purpose.
Note • History
The public policy of the State of California is to protect and safeguard the civil rights of all individuals to seek, have access to, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex, and age for individuals over forty years of age. Employment practices should treat all individuals equally, evaluating each on the basis of individual skills, knowledge and abilities and not on the basis of characteristics generally attributed to a group enumerated in the Act. The objectives of the California Fair Employment and Housing Act and these regulations are to promote equal employment opportunity and to assist all persons in understanding their rights, duties and obligations, so as to facilitate achievement of voluntary compliance with the law.
NOTE
Authority cited: Section 12935(a) and 12980, Government Code. Reference: Part 4.5 of Division 2, Labor Code; Part 5 of Division 24, Health and Safety Code. (Part 2.8 of Division 3 of Title 2, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect amending section and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
Note
The FEHC issues these regulations under the authority vested in the Commission by the Fair Employment and Housing Act, specifically Labor Code Section 1418(a) Government Code Section 12935(a).
NOTE
Authority cited: Section 1418(a), Labor Code; Section 35730(a), Health and Safety Code. (Section 12935(a), Government Code.) Reference: Part 4.5 of Division 2, Labor Code, Part 5 of Division 24, Health and Safety Code. (Part 2.8 of Division 3 of Title 2, Government Code.)
Note • History
As used in this chapter, the following definitions shall apply unless the context otherwise requires:
(a) “Employer.” Any person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written.
(1) “Regularly employing” means employing five or more individuals for each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year.
(2) For purposes of “counting” the (five or more) employees, the individuals employed need not be employees as defined below; nor must any of them be full-time employees.
(3) Any person or individual acting as an agent of an employer, directly or indirectly, is also an employer.
(4) “Employer” includes the State of California, any political or civil subdivision thereof, counties, cities, city and county, local agencies, or special districts, irrespective of whether that entity employs five or more individuals.
(5) A religious association or religious corporation not organized for private profit is not an employer under the meaning of this Act; any non-profit religious organization exempt from federal and state income tax as a non-profit religious organization is presumed not to be an employer under this Act. Notwithstanding such status, any portion of such tax exempt religious association or religious corporation subject to state or federal income taxes as an unrelated business and regularly employing five or more individuals is an employer.
(6) “Employer” includes any non-profit corporation or non-profit association other than that defined in subsection (5).
(b) “Employee.” Any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.
(1) Employee does not include an independent contractor as defined in Labor Code Section 3353.
(2) Employee does not include any individual employed by his or her parents, by his or her spouse, or by his or her child.
(3) Employee does not include any individual employed under special license in a non-profit sheltered workshop or rehabilitation facility.
(4) An employment agency is not an employee of the person or individual for whom it procures employees.
(5) An individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency may be considered an employee of that employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency.
(c) “Employment Agency.” Any person undertaking for compensation to procure job applicants, employees or opportunities to work.
(d) “Labor Organization.” Any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers regarding grievances, terms or conditions of employment, or of providing other mutual aid or protection.
(e) “Employer or Other Covered Entity.” Any employer, employment agency, labor organization or apprenticeship training program as defined herein and subject to the provisions of the Act.
(f) “Employment Benefit.” Except as otherwise provided in the Act, any benefit of employment covered by the Act, including hiring, employment, promotion, selection for training programs leading to employment or promotions, freedom from disbarment or discharge from employment or a training program, compensation, provision of a discrimination-free workplace, and any other favorable term, condition or privilege of employment.
(1) For a labor organization, “employment benefit” includes all rights and privileges of membership, including freedom from exclusion, expulsion or restriction of membership, second class or segregated membership, discrimination in the election of officers or selection of staff, or any other action against a member or any employee or person employed by an employer.
(2) “Employment benefit” also includes the selection or training of any person in any apprenticeship training program or any other training program leading to employment or promotion.
(3) “Provision of a discrimination-free workplace” is a provision of a workplace free of harassment, as defined in Section 7287.6(b).
(g) “Employment Practice.” Any act, omission, policy or decision of an employer or other covered entity affecting any of an individual's employment benefits or consideration for an employment benefit.
(h) “Applicant.” Any individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment. Except for recordkeeping purposes, “Applicant” is also an individual who can prove that he or she has been deterred from applying for a job by an employer's or other covered entity's alleged discriminatory practice. “Applicant” does not include an individual who without coercion or intimidation willingly withdraws his or her application prior to being interviewed, tested or hired.
(i) “Apprenticeship Training Program.” Any apprenticeship program, including local or state joint apprenticeship committees, subject to the provision of Chapter 4 of Division 3 of the California Labor Code, Sections 3070, et seq.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1413, 1420, 1420.1, 1420.15, Labor Code. (Sections 12925, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7286.6. Principles of Employment Discrimination.
Note • History
(a) Unlawful Practices and Individual Relief. In allegations of employment discrimination, a finding that a respondent has engaged in an unlawful employment practice is not dependent upon a showing of individual back pay or other compensable liability. Upon a finding that a respondent has engaged in an unlawful employment practice and on order of appropriate relief, a severable and separate showing may be made that the complainant, complainants or class of complainants is entitled to individual or personal relief including, but not limited to, hiring, reinstatement or upgrading, back pay, restoration to membership in a respondent labor organization, or other relief in furtherance of the purpose of the Act.
(b) Liability of Employers. In view of the common law theory of respondeat superior and its codification in California Civil Code Section 2338, an employer or other covered entity shall be liable for the discriminatory actions of its supervisors, managers or agents committed within the scope of their employment or relationship with the covered entity or, as defined in Section 7287.6(b), for the discriminatory actions of its employees where it is demonstrated that, as a result of any such discriminatory action, the applicant or employee has suffered a loss of or has been denied an employment benefit.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, 1421.1, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, 12961, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7286.7. Affirmative Defenses to Employment Discrimination.
Note • History
If employment discrimination is established, this employment discrimination is nonetheless lawful where a proper, relevant affirmative defense is proved and less discriminatory alternatives are not shown to be available. Except where otherwise specifically noted, one or more of the following affirmative defenses may be appropriate in a given situation to justify the employment practice in question. The following defenses are generally referred to in the text of these regulations as “Permissible Defenses:”
(a) Bona Fide Occupational Qualification (BFOQ). Where an employer or other covered entity has a practice which on its face excludes an entire group of individuals on a basis enumerated in the Act (e.g., all women or all individuals with lower back defects), the employer or other covered entity must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.
(b) Business Necessity. Where an employer or other covered entity has a facially neutral practice which has an adverse impact (i.e., is discriminatory in effect), the employer or other covered entity must prove that there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and that the challenged practice effectively fulfills the business purpose it is supposed to serve. The practice may still be impermissible where it is shown that there exists an alternative practice which would accomplish the business purpose equally well with a lesser discriminatory impact.
(c) Job-Relatedness. See Section 7287.4(e) for the defense of job-relatedness which is permissible in employee selection cases.
(d) Security Regulations. Notwithstanding a showing of discrimination, an employment practice which conforms to applicable security regulations established by the United States or the State of California is lawful.
(e) Non-Discrimination Plans or Affirmative Action Plans. Notwithstanding a showing of discrimination, such an employment practice is lawful which conforms to:
(1) A bona fide voluntary affirmative action plan as discussed below in section 7286.8;
(2) A non-discrimination plan pursuant to Labor Code Section 1431 (Government Code Section 12990); or
(3) An order of a state or federal court or administrative agency of proper jurisdiction.
(f) Otherwise Required by Law. Notwithstanding a showing of discrimination, such an employment practice is lawful where required by state or federal law or where pursuant to an order of a state or federal court of proper jurisdiction.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, 1421.1, 1431, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, 12961, 12990, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of Reference cite (Register 95, No. 6).
§7286.8. Affirmative Action Programs.
Note
Voluntary action by employers and other covered entities is an effective means for eliminating employment discrimination. The Commission hereby adopts the Affirmative Action Guidelines of the federal Equal Employment Opportunity Commission. [(29 CFR Section 1608 (1979).)]
NOTE
Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Government Code. Reference: Sections 1411, 1412, 1418, 1420, 1420.1 and 1420.15, Labor Code; and Sections 12920, 12921, 12935, 12940, 12941 and 12942, Government Code.
Note • History
Upon proof of unlawful practices under the Act, the Commission has broad statutory authority to fashion remedies which are consistent with the purposes of the Act, including, but not limited to, those described below.
(a) Retroactive Relief. Where it has been proved that an individual has been unlawfully denied an employment benefit, the most common remedy shall be to “make whole” the individual through relief which may include, but is not limited to, any or all of the following:
(1) Back Pay. Back pay remedies shall be available to both individual and class complainants.
(A) Mitigation and Other Defenses. Mitigating circumstances, including interim earnings, may be considered in determining the amount of back pay. However, unemployment compensation or other collateral benefits recompensable to the State shall not normally be utilized in considering mitigation of back pay.
(B) Fringe Benefits. Where appropriate, fringe benefits shall normally be included in calculations of back pay. Where such benefits are no longer available or appropriate, then equivalent monetary values may be awarded.
(2) Injunctive and Other Equitable Relief. The Act makes available injunctive relief including, but not limited to, cease and desist orders, hiring, reinstatement or upgrading of employees, or restoration of membership in labor organizations.
(A) Seniority. Where appropriate, “constructive seniority” or other temporal measures of service may be awarded so as to place the individual adversely affected into the position or status he or she would have enjoyed but for the unlawful practice.
(B) Goals and Timetables. Where appropriate, relief may include the setting of goals and timetables for correcting past discriminatory actions. Alternative mandatory injunctive remedies may also be ordered where the past practices of an employer or other covered entity would justify more stringent remedies.
(b) Prospective Relief. In certain circumstances, appropriate relief requires continuing remedies to correct past unlawful practices. Such relief may include, but is not limited to:
(1) “Rightful Place” and “Front Pay.” Where previously closed positions or lines of progression are made available, an employee shall be restored to his or her “rightful place” and shall not be penalized for lacking prior status or position in that line. In such situations, “front pay” may be awarded to offset losses to an employee until such time as the employee takes his or her “rightful place,” or until such time as an offer of the appropriate position is made to the employee.
(2) “Red Circling.” Where an employee transfers to a previously closed line of progression which starts at a lower rate of compensation, the employee shall not be penalized and may be awarded the higher rate of compensation until such time as the rates of compensation are equal.
NOTE
Authority cited: Section 1418(a), Labor Code; and Section 12935(a), Government Code. Reference: Sections 1411, 1412 and 1426, Labor Code; and Sections 12920, 12921 and 12970, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Repealer of subsection (c) filed 5-16-85; effective thirtieth day thereafter (Register 85, No. 20).
Note • History
Employers and other covered entities are required to maintain certain relevant records of personnel actions. Each employer or other covered entity subject to this section shall retain at all times at each reporting unit, or at company or divisional headquarters, a copy of the most recent CEIR or appropriate substitute and applicant identification records for each such unit and shall make them available upon request to any officer, agent, or employee of the Commission or Department.
(a) California Employer Information Report. All employers regularly employing one hundred or more employees, apprenticeship programs with five or more apprentices and at least one sponsoring employer with 25 or more employees and at least one sponsoring union which operates a hiring hall or has 25 or more members, and labor organizations with 100 or more members shall prepare an annual personnel report called the “California Employer Information Report” (CEIR) in conformity with guidelines on reporting issued by the Department.
(1) Substituting Federal Reports. An employer or other covered entity may utilize an appropriate federal report in lieu of the CEIR. Appropriate federal reports include the Equal Employment Opportunity Commission's EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports and appropriate reports filed with the Office of Federal Contract Compliance Programs.
(2) Sample Forms and Guidelines. Appropriate copies of sample forms and applicable guidelines shall be available to any employer or other covered entity from the Sacramento administrative office of the Department of Fair Employment and Housing.
(3) Special Reporting. If an employer or other covered entity is engaged in activities for which the standard reporting criteria are not appropriate, special reporting procedures may be required. In such case, the employer or other covered entity should so advise the Department and submit a specific proposal for an alternative reporting system prior to the date on which the report should be prepared. If it is claimed that the preparation of the report would create undue hardship, an employer may apply to the Department for an exemption from the requirements of this section.
(4) Remedy for Failure to Prepare or Make Reports Available. Upon application by the FEHC or DFEH for judicial relief, any employer failing or refusing to prepare or to make available reports as required under this section may be compelled to do so by a Superior Court of California.
(5) Penalties for False Statements. The willful making of false statements on a CEIR or other required record is a violation of California Labor Code Section 1430.3 (Government Code Section 12976), and is punishable by fine or imprisonment as set forth therein.
(b) Applicant Identification Records. Unless otherwise prohibited by law and for recordkeeping purposes only, every employer or other covered entity shall maintain data regarding the race, sex, and national origin of each applicant and for the job for which he or she applied. If such data is to be provided on an identification form, this form shall be separate or detachable from the application form itself. Employment decisions shall not be based on whether an applicant has provided this information, nor shall the applicant identification information be used for discriminatory purposes, except pursuant to a bona fide affirmative action or non-discrimination plan.
(1) For recordkeeping purposes only, “applicant” means any individual who files a formal application or, where an employer or other covered entity does not provide application forms, any individual who otherwise indicates to the employer or other covered entity a specific desire to be considered for employment. An individual who simply appears to make an informal inquiry or who files an unsolicited resume upon which no employment action is taken is not an applicant.
(2) An employer or other covered entity shall either retain the original documents used to identify applicants, or keep statistical summaries of the collected information.
(3) Applicant records shall be preserved for the time period set forth in Section 7286.9(c) (1) and (2).
(c) Preservation of Records. Any personnel or other employment records made or kept by any employer or other covered entity dealing with any employment practice and affecting any employment benefit of any applicant or employee (including all applications, personnel, membership or employment referral records or files) shall be preserved by the employer or other covered entity for a period of two years from the date of the making of the record or the date of the personnel action involved, whichever occurs later. However, the State Personnel Board shall maintain such records and files for a period of one year.
(1) California Employment Information Report. Every employer subject to subsection (a) above shall preserve for a period of two years from the date of preparation of the CEIR such records as were necessary for completion of the CEIR.
(2) Applicant Identification Records. Every employer subject to subsection (b) above shall preserve applicant identification information for a period of two years from the date it was received.
(3) Separate Records on Sex, Race, and National Origin. Records as to the sex, race, or national origin of any individual accepted for employment shall be kept separately from the employee's main personnel file or other records available to those responsible for personnel decisions. For example, such records could be kept as part of an automatic data processing system in the payroll department.
(4) After Filing of Complaint. Upon notice of or knowledge that a complaint has been filed against it under the Act, any respondent, including the State Personnel Board, shall maintain and preserve any and all relevant records and files until such complaint is fully and finally disposed of and all appeals from related proceedings have concluded.
(A) For purposes of this subsection, “related proceedings” shall include any action brought in Superior Court pursuant to Section 1422.2 of the Labor Code (Section 12965 of the Government Code).
(B) The term “records and files relevant to the complaint” shall include, but is not limited to, personnel or employment records relating to the complaining party and to all other employees holding similar positions to that held or sought by the complainant at the facility or other relevant subdivision where the discriminatory practice allegedly occurred. The term also includes applications, forms or test papers completed by the complainant and by all other candidates for the same position at that facility or other relevant subdivision where the employment practice occurred. All relevant records made or kept pursuant to subsections (a) and (b) above shall also be preserved.
(C) The term “fully and finally disposed of and all appeals from related proceedings have concluded” refers to the expiration of the statutory period within which a complainant or respondent may bring an action in Superior Court, or an agreement has been reached by the parties whereby no further judicial review is available to any of the parties, or a final order has been entered by the Commission or a body of judicial review for which the time for filing a notice of appeal has expired.
(d) Posting of Act. Every employer or other covered entity shall post in a conspicuous place or places on its premises a notice to be prepared and distributed by the Department which sets forth excerpts of the Act and such relevant information which the Department deems necessary to explain the Act. Such employers employing significant numbers, no less than 10% of their work force, of non-English-speaking persons (e.g., Chinese or Spanish speaking) at any facility or establishment must also post in the appropriate foreign language at each such facility or establishment. Such notices may be obtained from the Department.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1420, 1420.4, Labor Code. (Sections 12940, 12946, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Subchapter 2. Particular Employment Practices
§7287.1. Statement of Purpose.
Note • History
Certain employment practices have the effect, either directly or indirectly, of discriminating against individuals on a basis enumerated in the Act. Such practices are discussed in this subchapter and the provisions are applicable to all discriminatory actions as more specifically discussed in the following subchapters.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note • History
(a) “Recruitment.” The practice of any employer or other covered entity that has the purpose or effect of informing any individual about an employment opportunity, or assisting an individual to apply for employment, an activity leading to employment, membership in a labor organization, acceptance in an apprenticeship training program, or referral by an employment agency.
(b) “Date of Determination to Hire.” The time at which an employer or other covered entity has made an offer of employment to the individual.
(c) “Pre-employment Inquiry.” Any oral or written request made by an employer or other covered entity for information concerning the qualifications of an applicant for employment or for entry into an activity leading to employment.
(d) “Application.” Except for recordkeeping purposes, any writing or other device used by an employer or other covered entity to make a pre-employment inquiry or submitted to an employer or other covered entity for the purpose of seeking consideration for employment.
(e) “Placement.” Any status, category, rank, level, location, department, division, program, duty or group of duties, or any other similar classification or position for which an employee can be selected or to which an employee can be assigned by any employment practice. Employment practices that can determine placement in this way include, but are not limited to: hiring, discharge, promotion, transfer, callback, or other change of classification or position; inclusion in membership in any group or organization; any referral assignment to any place, unit, division, status or type of work.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sections 12920, 12921, 12940, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7287.3. Pre-Employment Practices.
Note • History
(a) Recruitment.
(1) Duty Not to Discriminate. Any employer or other covered entity engaged in recruitment activity shall recruit in a non-discriminatory manner. However, nothing in these regulations shall preclude affirmative efforts to utilize recruitment practices to attract minorities, individuals of one sex or the other, individuals with disabilities, individuals over 40 years of age, and any other individual covered by the Act.
(2) Prohibited Recruitment Practices. An employer or other covered entity shall not, unless pursuant to a permissible defense, engage in any recruitment activity which:
(A) Restricts, excludes, or classifies individuals on a basis enumerated in the Act;
(B) Expresses a preference for individuals on a basis enumerated in the Act; or
(C) Communicates or uses advertising methods to communicate the availability of employment benefits in a manner intended to discriminate on a basis enumerated in the Act.
(b) Pre-Employment Inquiries.
(1) Limited Permissible Inquiries. An employer or other covered entity may make any pre-employment inquiries which do not discriminate on a basis enumerated in the Act. Inquiries which directly or indirectly identify an individual on a basis enumerated in the Act are unlawful unless pursuant to a permissible defense. Except as provided in the Americans with Disabilities Act of 1990 (Public Law 101-336) (42 U.S.C.A. §12101 et seq.) and the regulations adopted pursuant thereto, nothing in Government Code section 12940, subdivision (d), or in this subdivision, shall prohibit any employer from making, in connection with prospective employment, an inquiry as to, or a request for information regarding, the physical fitness, medical condition, physical condition, or medical history of applicants if that inquiry or request for information is directly related and pertinent to the position the applicant is applying for or directly related to a determination of whether the applicant would endanger his or her health or safety or the health or safety of others.
(2) Applicant Flow and Other Statistical Recordkeeping. Notwithstanding any prohibition in these regulations on pre-employment inquiries, it is not unlawful for an employer or other covered entity to collect applicant-flow and other recordkeeping data for statistical purposes as provided in Section 7287.0(b) of these regulations or in other provisions of state and federal law.
(c) Applications.
(1) Application Forms. When employers or other covered entities provide, accept, and consider application forms in the normal course of business, in so doing they shall not discriminate on a basis enumerated in the Act.
(2) Photographs. Photographs shall not be required as part of an application unless pursuant to a permissible defense.
(3) Separation or Coding. Application forms shall not be separated or coded or otherwise treated so as to identify individuals on a basis enumerated in the Act unless pursuant to a permissible defense or for recordkeeping or statistical purposes.
(d) Interviews. Personal interviews shall be free of discrimination. Notwithstanding any internal safeguards taken to secure a discrimination-free atmosphere in interviews, the entire interview process is subject to review for adverse impact on individuals on a basis enumerated in the Act.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940, 12941 and 12942, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect amending subsections (a)(1), (b)(1) and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
3. Editorial correction of subsection (a)(1) (Register 95, No. 38).
Note • History
(a) Selection and Testing. Any policy or practice of an employer or other covered entity which has an adverse impact on employment opportunities of individuals on a basis enumerated in the Act is unlawful unless the policy or practice is job-related, as defined in Section 7287.4(e). The Commission herein adopts the Uniform Guidelines on Employee Selection Procedures promulgated by various federal agencies, including the EEOC and Department of Labor. [29 CFR 1607 (1978)].
(b) Placement. Placements that are less desirable in terms of location, hours or other working conditions are unlawful where such assignments segregate, or otherwise discriminate against individuals on a basis enumerated in the Act, unless otherwise pursuant to a permissible defense to employment discrimination. An assignment labeled or otherwise deemed to be “protective” of a category of persons on a basis enumerated in the Act is unlawful unless pursuant to a permissible defense. (See also Section 7291.2(d)(2) regarding permissible transfers on account of pregnancy by employees not covered under Title VII of the federal Civil Rights Act of 1964.)
(c) Promotion and Transfer. An employer or other covered entity shall not restrict information on promotion and transfer opportunities to certain employees or classes of employees when the restriction has the effect of discriminating on a basis enumerated in the Act.
(1) Requests for Transfer or Promotion. An employer or other covered entity who considers bids or other requests for promotion or transfer shall do so in a manner that does not discriminate against individuals on a basis enumerated in the Act, unless pursuant to a permissible defense.
(2) Training. Where training which may make an employee eligible for promotion and/or transfer is made available, it shall be made available in a manner which does not discriminate against individuals on a basis enumerated in the Act.
(3) No-Transfer Policies. Where an employment practice has operated in the past to segregate employees on a basis enumerated in the Act, a no-transfer policy or other practice that has the effect of maintaining a continued segregated pattern is unlawful.
(d) Specific Practices.
(1) Criminal Records. Except as otherwise provided by law (e.g., 12 U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning:
(A) Any arrest or detention which did not result in conviction;
(B) Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or
(C) Any arrest for which a pretrial diversion program has been successfully completed pursuant to Penal Code Sections 1000.5 and 1001.5.
(2) Height Standards. Height standards which discriminate on a basis enumerated in the Act shall not be used by an employer or other covered entity to deny an individual an employment benefit unless pursuant to a permissible defense.
(3) Weight Standards. Weight standards which discriminate on a basis enumerated in the Act shall not be used by an employer or other covered entity to deny an individual an employment benefit unless pursuant to a permissible defense.
(e) Permissible Selection Devices. A testing device or other means of selection which is facially neutral, but which has an adverse impact (as described in the Uniform Guidelines on Employee Selection Procedures (29 CFR 1607 (1978)) upon persons on a basis enumerated in the Act, is permissible only upon a showing that the selection practice is sufficiently related to an essential function of the job in question to warrant its use. (See Section 7287.4(a).)
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940 and 12941, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of subsection (e) filed 4-23-82; designated effective 6-1-82 (Register 82. No. 17).
§7287.5. Compensation. (Reserved.)
§7287.6. Terms, Conditions and Privileges of Employment.
Note • History
(a) Fringe Benefits. (Reserved.)
(b) Harassment.
(1) Harassment includes but is not limited to:
(A) Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act;
(B) Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act;
(C) Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act; or
(D) Sexual favors, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors. [See also Section 7291.1 (f) (l).]
(E) In applying this subsection, the rights of free speech and association shall be accommodated consistently with the intent of this subsection.
(2) Harassment of an applicant or employee by an employer or other covered entity, its agents or supervisors is unlawful.
(3) Harassment of an applicant or employee by an employee other than those listed in subsection (b)(2) above is unlawful if the employer or other covered entity, its agents or supervisors knows of such conduct and fails to take immediate and appropriate corrective action. Proof of such knowledge may be direct or circumstantial. If the employer or other covered entity, its agents or supervisors did not know but should have known of the harassment, knowledge shall be imputed unless the employer or other covered entity can establish that it took reasonable steps to prevent harassment from occurring. Such steps may include affirmatively raising the subject of harassment, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under California law, and developing methods to sensitize all concerned.
(4) An employee who has been harassed on the job by a co-employee should inform the employer or other covered entity of the aggrievement; however, an employee's failure to give such notice is not an affirmative defense.
(c) Physical Appearance, Grooming, and Dress Standards. It is lawful for an employer or other covered entity to impose upon an employee physical appearance, grooming, or dress standards. However, if such a standard discriminates on a basis enumerated in the Act and if it also significantly burdens the individual in his or her employment, it is unlawful.
(d) Reasonable Discipline. Nothing in these regulations may be construed as limiting an employer's or other covered entity's right to take reasonable disciplinary measures which do not discriminate on a basis enumerated in the Act.
(e) Seniority. (Reserved.)
NOTE
Authority: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note
(a) Prohibited Practices.
(1) It is unlawful to assist any person or individual in doing any act known to constitute unlawful employment discrimination.
(2) It is unlawful to solicit or encourage any person or individual to violate the Act, whether or not the Act is in fact violated.
(3) It is unlawful to coerce any person or individual to commit unlawful employment discrimination with offers of cash, other consideration, or an employment benefit, or to impose or threaten to impose any penalty, including denial of an employment benefit.
(4) It is unlawful to conceal or destroy evidence relevant to investigations initiated by the Commission or the Department or their staffs.
(5) It is unlawful to advertise for employment on a basis prohibited in the Act.
(b) Permissible Practices.
(1) It shall not be unlawful, without more, to have been present during the commission of acts amounting to unlawful discrimination or to fail to prevent or report such acts unless it is the normal business duty of the person or individual to prevent or report such acts.
(2) It shall not be unlawful to maintain good faith lawful defenses or privileges to charges of discrimination.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
Note • History
(a) Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment which the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Commission or Department or their staffs.
(1) Opposition to practices prohibited by the Act includes, but is not limited to:
(A) Seeking the advice of the Department or Commission, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained;
(B) Assisting or advising any person in seeking the advice of the Department or Commission, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained;
(C) Opposing employment practices which an individual reasonably believes to exist and believes to be a violation of the Act;
(D) Participating in an activity which is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or
(E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.
(2) Assistance with or participation in the proceedings of the Commission or Department includes, but is not limited to:
(A) Contacting, communicating with or participating in the proceedings of the Department or Commission due to a good faith belief that the Act has been violated; or
(B) Involvement as a potential witness which an employer or other covered entity perceives as participation in an activity of the Department or the Commission.
(b) Exception for Reasonable Discipline. Nothing in these regulations shall be construed to prevent an employer or other covered entity from enforcing reasonable disciplinary policies and practices, nor from demonstrating that the actions of an applicant or employee were either disruptive or otherwise detrimental to legitimate business interests so as to justify the denial of an employment benefit.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note • History
(a) It is unlawful for an employer or other covered entity to deny employment benefits to, harass, or intimidate any applicant or employee because the employer or other covered entity disapproves generally of the applicant's or employee's association with individuals because they are in a category enumerated in the Act.
(b) It shall be unlawful for an employer or other covered entity to deny equal consideration to any applicant or employee on the basis that he or she sympathizes with, encourages or participates in groups organized for the protection or assertion of rights protected under the Act.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.1, 1420.15, Labor Code. (Sections 12920, 12921, 12940, 12941, 12942, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7288.0. Sexual Harassment Training and Education.
Note • History
(a) Definitions. For purposes of this section:
(1) “Contractor” is a person performing services pursuant to a contract to an employer, meeting the criteria specified by Government Code section 12940, subdivision (j)(5), for each working day in 20 consecutive weeks in the current calendar year or preceding calendar year.
(2) “Effective interactive training” includes any of the following:
(A) “Classroom” training is in-person, trainer-instruction, whose content is created by a trainer and provided to a supervisor by a trainer, in a setting removed from the supervisor's daily duties.
(B) “E-learning” training is individualized, interactive, computer-based training created by a trainer and an instructional designer. An e-learning training shall provide a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance and assistance about the training within a reasonable period of time after the supervisor asks the question, but no more than two business days after the question is asked.
(C) “Webinar” training is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time. An employer utilizing a webinar for its supervisors must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training's interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.
(D) Other “effective interactive training” and education includes the use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.
(E) For any of the above training methods, the instruction shall include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training.
(3) “Employee” includes full time, part time, and temporary workers.
(4) “Employer” means any of the following:
(A) any person engaged in any business or enterprise in California, who employs 50 or more employees to perform services for a wage or salary or contractors or any person acting as an agent of an employer, directly or indirectly.
(B) the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees. For the purposes of this section, governmental and quasi-governmental entities such as boards, commissions, local agencies and special districts are considered “political subdivisions of the state.”
(5) “Having 50 or more employees” means employing or engaging fifty or more employees or contractors for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year. There is no requirement that the 50 employees or contractors work at the same location or all work or reside in California.
(6) “Instructional Designer” under this section is an individual with expertise in current instructional best practices, and who develops the training content based upon material provided by a trainer.
(7) “New” supervisory employees are employees promoted or hired to a supervisory position after July 1, 2005.
(8) “Supervisory employees” or “supervisors” under this section are supervisors located in California, defined under Government Code section 12926, subdivision (r). Attending training does not create an inference that an employee is a supervisor or that a contractor is an employee or a supervisor.
(9) “Trainers” or “Trainers or educators” qualified to provide training under this section are individuals who, through a combination of training and experience have the ability to train supervisors about the following: 1) what are unlawful harassment, discrimination and retaliation under both California and federal law; 2) what steps to take when harassing behavior occurs in the workplace; 3) how to report harassment complaints; 4) how to respond to a harassment complaint; 5) the employer's obligation to conduct a workplace investigation of a harassment complaint; 6) what constitutes retaliation and how to prevent it; 7) essential components of an anti-harassment policy; and 8) the effect of harassment on harassed employees, co-workers, harassers and employers.
(A) A trainer shall be one or more of the following:
1. “Attorneys” admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
2. “Human resource professionals” or “harassment prevention consultants” working as employees or independent contractors with a minimum of two or more years of practical experience in one or more of the following: a. designing or conducting discrimination, retaliation and sexual harassment prevention training; b. responding to sexual harassment complaints or other discrimination complaints; c. conducting investigations of sexual harassment complaints; or d. advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
3. “Professors or instructors” in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.
(B) Individuals who do not meet the qualifications of a trainer as an attorney, human resource professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team teach with a trainer in classroom or webinar trainings provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.
(10) “Training,” as used in this section, is effective interactive training as defined at section 7288.0, subdivision (a)(2).
(11) “Two hours” of training is two hours of classroom training or two hours of webinar training or, in the case of an e-learning training, a program that takes the supervisor no less than two hours to complete.
(b) Training.
(1) Frequency of Training. An employer shall provide two hours of training, in the content specified in section 7288.0, subdivision (c), once every two years, and may use either of the following methods or a combination of the two methods to track compliance.
(A) “Individual” Tracking. An employer may track its training requirement for each supervisory employee, measured two years from the date of completion of the last training of the individual supervisor.
(B) “Training year” tracking. An employer may designate a “training year” in which it trains some or all of its supervisory employees and thereafter must again retrain these supervisors by the end of the next “training year,” two years later. Thus, supervisors trained in training year 2005 shall be retrained in 2007. For newly hired or promoted supervisors who receive training within six months of assuming their supervisory positions and that training falls in a different training year, the employer may include them in the next group training year, even if that occurs sooner than two years. An employer shall not extend the training year for the new supervisors beyond the initial two year training year. Thus, with this method, assume that an employer trained all of its supervisors in 2005 and sets 2007 as the next training year. If a new supervisor is trained in 2006 and the employer wants to include the new supervisor in its training year, the new supervisor would need to be trained in 2007 with the employer's other supervisors.
(2) Documentation of Training. An employer shall keep documentation of the training it has provided its employees under this section to track compliance, including the name of the supervisory employee trained, the date of training, the type of training, and the name of the training provider and shall retain the records for a minimum of two years.
(3) Training at New Businesses. Businesses created after January 1, 2006, must provide training to supervisors within six months of their establishment and thereafter biennially. Businesses that expand to 50 employees and/or contractors and thus become eligible under these regulations, must provide training to supervisors within six months of their eligibility and thereafter biennially.
(4) Training for New Supervisors. New supervisors shall be trained within six months of assuming their supervisory position and thereafter shall be trained once every two years, measured either from the individual or training year tracking method.
(5) Duplicate Training. A supervisor who has received training in compliance with this section within the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer's anti-harassment policy within six months of assuming the supervisor's new supervisory position or within six months of the employer's eligibility. That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor's last training. The burden of establishing that the prior training was legally compliant with this section shall be on the current employer.
(6) Duration of Training. The training required by this section does not need to be completed in two consecutive hours. For classroom training or webinars, the minimum duration of a training segment shall be no less than half an hour. E-learning courses may include bookmarking features which allow a supervisor to pause their individual training so long as the actual e-learning program is two hours.
(c) Content.
The learning objectives of the training mandated by California Government Code section 12950.1 shall be: 1) to assist California employers in changing or modifying workplace behaviors that create or contribute to “sexual harassment” as that term is defined in California and federal law; and 2) to develop, foster and encourage a set of values in supervisory employees who complete mandated training that will assist them in preventing and effectively responding to incidents of sexual harassment.
Towards that end, the training mandated by California Government Code section 12950.1, shall include but is not limited to:
(1) A definition of unlawful sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964. In addition to a definition of sexual harassment, an employer may provide a definition of and train about other forms of harassment covered by the FEHA, as specified at Government Code section 12940, subdivision (j), and discuss how harassment of an employee can cover more than one basis.
(2) FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment.
(3) The types of conduct that constitutes sexual harassment.
(4) Remedies available for sexual harassment.
(5) Strategies to prevent sexual harassment in the workplace.
(6) “Practical examples,” such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using training modalities such as role plays, case studies and group discussions.
(7) The limited confidentiality of the complaint process.
(8) Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged sexual harassment.
(9) The employer's obligation to conduct an effective workplace investigation of a harassment complaint.
(10) Training on what to do if the supervisor is personally accused of harassment.
(11) The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed. Either the employer's policy or a sample policy shall be provided to the supervisors. Regardless of whether the employer's policy is used as part of the training, the employer shall give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of that policy.
(d) Remedies.
As part of an order in an adjudicatory proceeding pursuant to California Code of Regulations, Title 2, section 7429, the Commission may issue an order finding an employer failed to comply with Government Code section 12950.1 and order such compliance within 60 days of the effective date of the Commission's order.
(e) Compliance with section 12950.1 prior to effective date of Commission regulations.
An employer who has made a substantial, good faith effort to comply with section 12950.1 by completing training of its supervisors prior to the effective date of these regulations shall be deemed to be in compliance with section 12950.1 regarding training as though it had been done under these regulations.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12926(r), 12940(j)(5), 12950 and 12950.1, Government Code.
HISTORY
1. Renumbering of reserved section 7288.0 to reserved section 7288.1 and new section 7288.0 filed 7-18-2007; operative 8-17-2007 (Register 2007, No. 29).
§7288.1. Labor Organizations. (Reserved.)
History
HISTORY
1. Renumbering of reserved section 7288.1 to reserved section 7288.2 and renumbering of reserved section 7288.0 to reserved section 7288.1 filed 7-18-2007; operative 8-17-2007 (Register 2007, No. 29).
§7288.2. Apprenticeship Programs. (Reserved.)
History
HISTORY
1. Renumbering of reserved section 7288.2 to reserved section 7288.3 and renumbering of reserved section 7288.1 to reserved section 7288.2 filed 7-18-2007; operative 8-17-2007 (Register 2007, No. 29).
§7288.3. Employment Agencies. (Reserved.)
History
HISTORY
1. Renumbering of reserved section 7288.2 to reserved section 7288.3 filed 7-18-2007; operative 8-17-2007 (Register 2007, No. 29).
Subchapter 3. Race and Color Discrimination (Reserved)
Subchapter 4. National Origin and Ancestry Discrimination
Note • History
These regulations incorporate the defenses set forth in Section 7286.7.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12940, Government Code.
HISTORY
1. New Subchapter 4 (Sections 7289.4 and 7289.5) filed 12-17-82; effective thirtieth day thereafter (Register 82, No. 52).
§7289.5. Specific Employment Practices.
Note
(a)-(c) (Reserved)
(d) An employer may have a rule requiring that employees speak only in English at certain times if the employer can show that the rule is justified by business necessity (See Section 7286.7(b)), and if the employer has effectively notified its employees of the circumstances and time when speaking only in English is required and of the consequences of violating the rule.
(e) (Reserved)
(f) Citizenship requirements. Citizenship requirements which have the purpose or effect of discriminating against applicants or employees on the basis of national origin or ancestry are unlawful unless pursuant to a permissible defense.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12940, Government Code.
Subchapter 5. Ancestry Discrimination (Reserved)
Subchapter 6. Sex Discrimination
§7290.6. General Prohibition Against Discrimination on the Basis of Sex.
Note • History
(a) Statutory Source. These regulations are adopted by the Fair Employment and Housing Commission pursuant to Sections 1420, 1420.2 and 1420.35 of the Labor Code. (Sections 12940, 12943, and 12945 of the Government Code.)
(b) Statement of Purpose. The purpose of the law against discrimination in employment because of sex is to eliminate the means by which individuals of the female sex have historically been relegated to inferior jobs and to guarantee that in the future both sexes will enjoy equal employment benefits.
(c) Incorporation of General Regulations. These regulations pertaining to discrimination on the basis of sex incorporate each of the provisions of Subchapters 1 and 2 of Chapter 2, unless a provision is specifically excluded or modified.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.2, 1420.35, Labor Code. (Sections 12920, 12921, 12940, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note • History
(a) “Sex.” An applicant's or employee's gender; however, nothing herein shall limit protections due an individual on account of pregnancy, childbirth, or related medical conditions.
(b) “Sex Stereotype.” An assumption about an individual's ability or inability to perform certain kinds of work based on a myth or generalization about the individual's gender.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.2, 1420.35, Labor Code. (Sections 12920, 12921, 12940, 12943, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note • History
Once employment discrimination on the basis of sex has been established, an employer or other covered entity may prove one or more appropriate affirmative defenses as generally set forth in Section 7286.7, including, but not limited to, the defense of Bona Fide Occupational Qualification (BFOQ).
(a) Among situations which will not justify the application of the BFOQ defense are the following:
(1) A correlation between individuals of one sex and physical agility or strength;
(2) A correlation between individuals of one sex and height;
(3) Customer preference for employees of one sex;
(4) The necessity for providing separate facilities for one sex or
(5) The fact that members of one sex have traditionally been hired to perform the particular type of job.
(b) Personal privacy considerations may justify a BFOQ only where:
(1) The job requires an employee to observe other individuals in a state of nudity or to conduct body searches, and
(2) It would be offensive to prevailing social standards to have an individual of the opposite sex present, and
(3) It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of the opposite sex present.
(c) Employers or other covered entities shall assign job duties and make other reasonable accommodation so as to minimize the number of jobs for which sex is a BFOQ.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420.2, 1420.35, Labor Code. (Sections 12920, 12921, 12940, 12943, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7290.9. Pre-Employment Practices.
Note • History
(a) Recruitment and Advertising.
(1) Employers or other covered entities engaged in recruiting activity (see Section 7287.2(a)) shall recruit individuals of both sexes for all jobs unless pursuant to a permissible defense.
(2) It is unlawful for any publication or other media to separate listings of job openings into “male” and “female” classifications.
(b) Pre-Employment Inquiries and Applications.
(1) For all employers or other covered entities who provide, accept and consider applications, it shall be unlawful to refuse to provide, accept and consider applications from individuals of one sex unless pursuant to a permissible defense.
(2) It is unlawful for an employer or other covered entity to ask the sex of the applicant on an application form or pre-employment questionnaire unless pursuant to a permissible defense or for recordkeeping purposes. After an individual is hired, the employer or other covered entity may record the employee's sex for non-discriminatory personnel purposes.
(3) It is unlawful for an employer or other covered entity to ask questions regarding childbearing, pregnancy, birth control, or familial responsibilities unless they are related to specific and relevant working conditions of the job in question.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, 1420., 1420.35, Labor Code. (Sections 12920, 12921, 12940, 12943, 12945, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note • History
(a) Tests of Physical Agility or Strength. Tests of physical agility or strength shall not be used unless the test is administered pursuant to a permissible defense. No applicant or employee shall be refused the opportunity to demonstrate that he or she has the requisite strength or agility to perform the job in question.
(b) Height and Weight Standards.
(1) Use of height or weight standards which discriminate against one sex or the other is unlawful unless pursuant to a permissible defense.
(2) Use of separate height and/or separate weight standards for males and females is unlawful unless pursuant to a permissible defense.
(c) Hiring Applicants of Childbearing Age. It is unlawful to refuse to hire a female applicant because she is of childbearing age.
(d) Prior Work Experience. If an employer or other covered entity considers prior work experience in the selection or assignment of an employee, the employer or other covered entity shall also consider prior unpaid or volunteer work experience.
(e) Sex Stereotypes. Use of any criterion which is based exclusively or in part on a sex stereotype is unlawful unless pursuant to a permissible defense.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940, 12943 and 12945, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Amendment filed 3-11-82; effective thirtieth day thereafter (Register 82, No. 11).
§7291.1. Terms, Conditions, and Privileges of Employment.
Note • History
(a) Compensation.
(1) Except as otherwise required or permitted by regulation, an employer or other covered entity shall not base the amount of compensation paid to an employee, in whole or in part, on the employee's sex.
(2) Equal Compensation for Comparable Work. (Reserved.)
(b) Fringe Benefits.
(1) It is unlawful for an employer to condition the availability of fringe benefits upon an employee's sex.
(2) Insofar as an employment practice discriminates against one sex, an employer or other covered entity shall not condition the availability of fringe benefits upon whether an employee is a “head of household,” “principal wage earner,” “secondary wage earner,” or of other similar status.
(3) Except where otherwise required by state law, an employer or other covered entity shall not require unequal employee contributions by similarly situated male and female employees to fringe benefit plans, nor shall different amounts of basic benefits be established under fringe benefit plans for similarly situated male and female employees.
(4) It shall be unlawful for an employer or other covered entity to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on the sex of the employee.
(c) Lines of Progression.
(1) It is unlawful for an employer or other covered entity to classify a job as “male” or “female” or to maintain separate lines of progression or separate seniority lists based on sex unless it is justified by a permissible defense. For example, a line of progression or seniority system is unlawful which:
(A) Prohibits a female from applying for a job labelled “male” or for a job in a “male” line of progression, and vice versa; or
(B) Prohibits a male scheduled for layoff from displacing a less senior female on a “female” seniority list, and vice versa.
(2) An employer or other covered entity shall provide equal opportunities to all employees for upward mobility, promotion, and entrance into all jobs for which they are qualified. However, nothing herein shall prevent an employer or other covered entity from implementing mobility programs to accelerate the promotability of underrepresented groups.
(d) Dangers to Health, Safety, or Reproductive Functions.
(1) If working conditions pose a greater danger to the health, safety, or reproductive functions of applicants or employees of one sex than to individuals of the other sex working under the same conditions, the employer or other covered entity shall make reasonable accommodation to:
(A) Upon the request of an employee of the more endangered sex, transfer the employee to a less hazardous or strenuous position for the duration of the greater danger, unless it can be demonstrated that the transfer would impose an undue hardship on the employer; or
(B) Alter the working conditions so as to eliminate the greater danger, unless it can be demonstrated that the modification would impose an undue hardship on the employer. Alteration of working conditions includes, but is not limited to, acquisition or modification of equipment or devices and extension of training or education.
(2) An employer or other covered entity may require an applicant or employee to provide a physician's certification that he or she is endangered by the working conditions.
(3) The existence of a greater risk for employees of one sex than the other shall not justify a BFOQ defense.
(4) An employer may not discriminate against members of one sex because of the prospective application of this subsection.
(5) With regard to protections due on account of pregnancy, childbirth, or related medical conditions, see Section 7291.2.
(6) Nothing in this subsection shall be construed to limit the rights or obligations set forth in Labor Code Section 6300 et seq.
(e) Working Conditions.
(1) Where rest periods are provided, equal rest periods must be provided to employees of both sexes.
(2) Equal access to comparable and adequate toilet facilities shall be provided to employees of both sexes. This requirement shall not be used to justify any discriminatory employment decision.
(3) Support services and facilities, such as clerical assistance and office space, shall be provided to employees without regard to the employee's sex.
(4) Job duties shall not be assigned according to sex stereotypes.
(5) It is unlawful for an employer or other covered entity to refuse to hire, employ or promote, or to transfer, discharge, dismiss, reduce, suspend, or demote an individual of one sex and not the other on the grounds that the individual is not sterilized or refuses to undergo sterilization.
(6) It shall be lawful for an employer or labor organization to provide or make financial provision for childcare services of a custodial nature for its employees or members who are responsible for the care of their minor children.
(f) Interpersonal Conduct and Appearance.
(1) Sexual Harassment. Sexual harassment is unlawful as defined in Section 7287.6(b), and includes verbal, physical, and visual harassment, as well as unwanted sexual advances.
(2) Physical Appearance, Grooming, and Dress Standards. It is lawful for an employer or other covered entity to impose upon an applicant or employee physical appearance, grooming or dress standards. However, if such a standard discriminates on the basis of sex and if it also significantly burdens the individual in his or her employment, it is unlawful.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Subchapter 6A. Sex Discrimination: Pregnancy, Childbirth or Related Medical Conditions
Note • History
The following definitions apply only to this subchapter:
(a) “Accrued leave,” as that term is used in Government Code section 12945, subdivision (b)(1), and section 7291.11, subdivision (a)(1)(A), is any right of an employee, accumulated over the course of his or her employment, to leave work for a period of time with monetary compensation from the employer.
(b) “Affected by pregnancy,” as that term is used in section 7291.6, means that a woman is pregnant or has a related medical condition and that, because of pregnancy, her health care provider has certified that it is medically advisable for her to transfer, in accordance with the provisions of section 7291.2, subdivision (d).
(c) “Because of pregnancy” includes because of pregnancy, childbirth or a related medical condition or because of an employer's or other covered entity's perception that a woman is pregnant or has a related medical condition.
(d) “Certification” means a written communication from the heal;th care provider of the employee that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties.
(1) The certification indicating disability necessitating a leave should contain:
(A) The date on which the woman became disabled due to pregnancy;
(B) The probable duration of the period or periods of disability, and
(C) An explanatory statement that, due to the disability, the employee is unable to work at all or is unable to perform any one or more of the essential functions of her position without undue risk to herself, the successful completion of her pregnancy, or to other persons.
(2) The certification indicating the medical advisability of the transfer should contain:
(A) The date on which the need to transfer became medically advisable;
(B) The probable duration of the period or periods of the need to transfer; and
(C) An explanatory statement that, due to the woman's pregnancy, the transfer is medically advisable.
(e) “CFRA” means the Moore-Brown-Roberti Family Rights Act of 1993. (California Family Rights Act, Gov. Code §§12945.1 and 12945.2.) “CFRA leave” means family care or medical leave taken pursuant to CFRA.
(f) A “covered entity” is any person (as defined in Government Code section 12925, subdivision (d)), labor organization, apprenticeship training program, training program leading to employment, employment agency, governing board of a school district, licensing board or other entity to which the provisions of Government Code sections 12940, 12943, 12944 or 12945 apply.
(g) A woman is “disabled by pregnancy” if, in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons. The term “essential functions” is defined in Government Code section 12926, subdivision (f). For purposes of this subdivision, a woman is also considered to be “disabled by pregnancy” if she is suffering from severe “morning sickness” or needs to take time off for prenatal care.
(h) “Employer,” as used in these regulations, except for section 7291.3, is any employer with five or more full or part time employees, who is an employer within the meaning of Government Code section 12926, subdivision (d), and section 7286.5, subdivision (a), of these regulations. “Employer” includes “non-Title VII employers” and “Title VII employers,” as those terms are defined below. “Employer” includes the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees. The terms “all employers” and “any employer” refer to employers covered by the FEHA.
(1) A “non-Title VII employer” is any employer with five to 14 employees who is not subject to any provision of Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq.
(2) A “Title VII employer” is any employer with 15 or more employees who is also subject to any provision of Title VII of the federal Civil Rights Act of 1964.
(i) “Employment in the same position” means employment in, or reinstatement to, the original position that an employee held before being transferred and/or taking a disability leave, or both, because of pregnancy.
(j) “Employment in a comparable position” means employment in a position which is virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule.
(k) “FMLA” means the federal Family and Medical Leave Act of 1993, 29 U.S.C. §2601, et seq., and its implementing regulations, 29 CFR Part 825, issued January 6, 1995. “FMLA leave” means family care or medical leave taken pursuant to FMLA.
(l) “Four months,” as that term is used in Government Code section 12945, subdivision (b)(2), means the number of days the employee would normally work within four months. (See also section 7291.7, subdivision (a)(1).)
(m) “Health Care Provider” means either:
(1) an individual holding either a physician's and surgeon's certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code or an osteopathic physician's and surgeon's certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or any other individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, including another country, who directly treats or supervises the treatment of the pregnancy, childbirth or related medical condition, or
(2) any other persons, including nurse practitioners, nurse midwives, or others who meet the definition of “others capable of providing health care services” under FMLA and its implementing regulations.
(n) A “normal pregnancy, childbirth or related medical condition” is a pregnancy or childbirth that in the opinion of the woman's health care provider involves neither high risk nor complications.
(o) “Pregnancy disability leave” is any leave, whether paid or unpaid, taken by an employee, for any period(s) up to a total of four months during which she is disabled by pregnancy.
(p) A “related medical condition” is any medically recognized physical or mental condition that is related to pregnancy or childbirth. This term is not the same as the term “medical condition” defined in Government Code section 12926, subdivision (h), which means any health impairment related to or associated with a diagnosis of cancer, for which a person has been rehabilitated or cured, based on competent medical evidence.
(q) “Transfer,” as that term is used throughout these regulations, refers to the transfer of an employee because of pregnancy to a less strenuous or hazardous position or to less strenuous or hazardous duties.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12926, subd. (d), 12940, 12943, 12944, 12945, Government Code; Family and Medical Leave Act, (FMLA) 29 U.S.C. §2601, et seq. and FMLA regulations, Code of Federal Regulations, tit. 29, part 825, issued January 6, 1995 (hereafter, 29 CFR 825); Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. §2000e; and J.E. Robinson v. Fair Employment & Housing Com. (1992) 2 Cal. 4th 226.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Repealer and new section filed 3-20-87; effective thirtieth day thereafter (Register 87, No. 12).
3. New subchapter 6A, repealer and new section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.3. Prohibition Against Harassment.
Note • History
It is an unlawful employment practice for any employer with one or more employee or other covered entity to harass, as defined in Government Code section 12940, subdivision (h)(3)(C), an employee or applicant because of pregnancy.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12926, subd. (o), 12940, subds. (h)(1)-(3)(C), and 12945, subd. (d), Government Code.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.4. Responsibilities of Covered Entities Other than Employers.
Note • History
Unless a permissible defense applies, discrimination because of pregnancy by any covered entity other than employers constitutes discrimination because of sex under Government Code sections 12926, subdivision (o), 12940, subdivisions (b), (c), (d), (f), (g), (h) and (i), 12943 and 12944.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12926, subd. (o), 12940, subds. (b), (c), (d), (f), (g), (h) and (i), 12943, 12944, 12945, subd. (d), Government Code; and Stats. 1990, c. 15 (SB 1027), §2.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.5. Responsibilities of Employers.
Note • History
Discrimination by employers because of pregnancy constitutes discrimination because of sex under Government Code sections 12926, subdivision (o), and 12940, subdivisions (a), (d), (f), (g), (h), and (i).
(a) Employer Obligations
Except as excused by a permissible defense, it is unlawful for any employer, because of pregnancy of an employee or applicant, to:
(1) refuse to hire or employ the applicant;
(2) refuse to select the applicant or employee for a training program leading to employment or promotion, except for non-Title VII employers, as set forth at subdivision (c), below;
(3) refuse to promote the employee;
(4) bar or to discharge the applicant or employee from employment or from a training program leading to employment or promotion;
(5) refuse to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities, except for non-Title VII employers, as set forth at subdivision (d), below;
(6) discriminate against the applicant or employee in terms, conditions or privileges of employment, except for non-Title VII employers, as set forth at section 7291.11, subdivision (a)(1)(A), below;
(7) harass the applicant or employee because of pregnancy, as set forth in section 7291.3;
(8) retaliate, as set forth in section 7291.14, against the employee because of pregnancy or because that employee has exercised her right to take a pregnancy disability leave or transfer; or
(9) refuse to accommodate the employee who is temporarily disabled by pregnancy to the same extent that other temporarily disabled employees are accommodated under the employer's policy, practice or collective bargaining agreement.
(10) refuse to transfer the employee affected by pregnancy, as set forth at section 7291.6, below;
(11) refuse to grant the employee disabled by pregnancy a pregnancy disability leave, as set forth at section 7291.7, below:
(12) discriminate otherwise against the applicant or employee by any practice that is prohibited by Government Code section 12940, subdivisions (a) and (c) through (l), on the basis of sex.
(b) Permissible defenses, as defined at section 7286.7, include a bona fide occupational qualification, business necessity or where the practice is otherwise required by law.
(c) Training Programs Leading to Promotion - Exception for non-Title VII Employers
It is lawful for a non-Title VII employer to refuse to select a pregnant employee for a formal training program leading to promotion if the employee is unable to complete the training program at least three months prior to the date, anticipated at the time she applies for the training program, on which she intends to depart on pregnancy disability leave.
(d) Provision of Medical Benefits - Exception for non-Title VII Employers
A non-Title VII employer with five to 14 employees is not required to provide its employees with health insurance coverage for the medical costs of pregnancy, childbirth, or related medical conditions even if the employer provides coverage for other temporary disabilities.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12926, subd. (o), 12940, subds. (a), (c) - (l), 12945, subds. (A), (b)(1), (d) and (e); Stats. 1990, c.15 (SB 1027), §2, Government Code; Pregnancy Discrimination Act of 1978 (P.L. 95-555, 42 U.S.C. §2000e, §701(k)), an amendment to Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.); Cal. Federal Sav. and Loan Ass'n v. Guerra 479 U.S. 272 [107 S.Ct. 683, 93 L.Ed.2d 613]; and Cal. Code of Regs., tit. 2, §7286.7.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Note • History
(a) Transfer - All Employers
It is unlawful for an employer to deny the request of an employee affected by pregnancy to transfer provided that:
(1) The employee's request is based on the certification of her health care provider that a transfer is medically advisable; and
(2) Such transfer can be reasonably accommodated by the employer. No employer is required to create additional employment that the employer would not otherwise have created, discharge another employee, violate the terms of a collective bargaining agreement, transfer another employee with more seniority, or promote or transfer any employee who is not qualified to perform the new job. Nothing in these regulations is intended to prevent an employer from accommodating a transfer request by transferring another employee, but there is no obligation to do so.
(b) Burden of Proof
The burden shall be on the employer to prove, by a preponderance of the evidence, that such transfer cannot be reasonably accommodated for one or more of the enumerated reasons listed is section 7291.6, subdivision (a)(2).
(c) Transfer to Accommodate Intermittent Leave or a Reduced Work Schedule
If it is medically advisable for an employee to take intermittent leave or leave on a reduced work schedule and it is foreseeable based on planned medical treatment because of pregnancy, the employer may require the employee to transfer temporarily to an available alternative position. This alternative position must have the equivalent rate of pay and benefits, the employee must be qualified for the position, and it must better accommodate recurring periods of leave than the employee's regular job. It does not have to have equivalent duties. Transfer to an alternative position may include altering an existing job to accommodate better the employee's need for intermittent leave or a reduced work schedule.
(d) Right to Reinstatement After Transfer
When the employee's health care provider certifies that there is no further medical advisability for the transfer, intermittent leave, or leave on a reduced work schedule, the employer must reinstate her to her same or comparable position in accordance with the requirements of section 7291.9.
(e) No Eligibility Requirement
There is no length of service requirement before an employee affected by pregnancy is eligible for a transfer.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Section 12945, subds. (c)(1) and (2); Stats. 1992, c. 907 (AB 2865), §1, Government Code; FMLA, 29 U.S.C. §2601, et seq. and FMLA regulations, 29 CFR 825. DFEH v. Save Mart (1992) FEHC Dec. No. 92-01 [1992-93 CEB 1].
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.7. Pregnancy Disability Leave.
Note • History
The following provisions apply to leave taken for disability because of pregnancy.
(a) Four-Month Leave Requirement for all Employers
All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice which provides less than four months of leave for other similarly situated temporarily disabled employees.
(1) A “four month leave,” as that term is defined in section 7291.2, subdivision (l), means the number of days the employee would normally work within four months. For a full time employee who works five eight-hour days per week, “four months” means 88 working and/or paid eight-hour days of leave entitlement, based on an average of 22 working days per month for four months.
(2) For employees who work more or less than five days a week, or who work on alternative work schedules, the number of working days which constitutes “four months” is calculated on a pro rata or proportional basis.
(A) For example, for an employee who works half time, “four months” may mean 44 eight-hour days or 88 four-hour days, or four months of whatever is the employee's normal half time work schedule. For an employee who normally works six eight-hour days in a week, “four months” means 104 working and/or paid days of leave entitlement.
(B) If an employee takes leave on an intermittent leave or a reduced work schedule, only the amount of leave actually taken may be counted toward the four months of leave to which the employee is entitled. For example, if an employee misses two hours of work in a morning because of morning sickness, only two hours would be charged against her pregnancy disability leave entitlement.
(C) If a holiday falls within a week taken as a pregnancy disability leave, the week is nevertheless counted as a week of pregnancy disability leave. If, however, the employer's business activity has temporarily ceased for some reason and employees generally are not expected to report for work for one or more weeks, (e.g., a school closing for two weeks for the Christmas/New Year holiday or summer vacation or an employer closing the plant for retooling), the days the employer's activities have ceased do not count against the employee's pregnancy disability leave entitlement.
(3) Minimum Duration
Leave may be taken intermittently or on a reduced work schedule when medically advisable, as determined by the health care provider of the employee. An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave.
(b) Employers With More Generous Leave Policies
If an employer has a more generous leave policy for other temporary disabilities than is required under section 7291.7, subdivision (a), above, the employer must provide such leave to employees temporarily disabled by pregnancy.
(c) No Eligibility Requirement
There is no length of service requirement before an employee disabled by pregnancy is entitled to a pregnancy disability leave.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12940, subd. (a), 12945, subds. (b)(2), (d) and (e), Government Code; Stats. 1990, c. 15 (SB 1027), §2; FMLA, 29 U.S.C. §2601, et seq. and FMLA regulations, 29 CFR 825; Cal. Federal Sav. and Loan Ass'n v. Guerra 479 U.S. 272 [107 S.Ct. 683, 93 L.Ed.2d 613].
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Note • History
(a) Unlawful Employment Practice
It is an unlawful employment practice for an employer to refuse to grant a pregnancy disability leave to an eligible employee.
(b) Burden of Proof
Denial of a request for pregnancy disability leave is established if the Department or the employee proves, by a preponderance of the evidence, the following elements.
(1) The employer was an employer under the FEHA with five or more employees.
(2) The employee was disabled by pregnancy.
(3) The request was reasonable.
(4) The employer denied the request for pregnancy disability leave.
(c) Reasonable Request
A request to take a pregnancy disability leave is reasonable if it complies with any applicable notice requirements, as specified in section 7291.10, and if it is accompanied, where required, by a certification, as that term is defined in section 7291.2, subdivision (d).
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Section 12945, subd. (b)(2), Government Code; FMLA, 29 U.S.C. §2601, et seq., and FMLA regulations, 29 CFR 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.9. Right to Reinstatement from Pregnancy Disability Leave.
Note • History
The following rules apply to reinstatement from any leave or transfer taken for disability because of pregnancy.
(a) Guarantee of Reinstatement
Upon granting the pregnancy disability leave or transfer, the employer shall guarantee to reinstate the employee to the same position, or, if excused by section 7291.9, subdivisions (c)(1)(A) or (c)(1)(B), to a comparable position, and shall provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for any employer, after granting a requested pregnancy disability leave or transfer, to refuse to honor its guarantee of reinstatement unless the refusal is justified by the defenses below in subdivision (c)(1) and (c)(2).
(b) Refusal to Reinstate
(1) Definite Date of Reinstatement
Where a definite date of reinstatement has been agreed upon at the beginning of the leave or transfer, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the leave or transfer was granted by the employer and that the employer failed to reinstate the employee by the date agreed upon to the same position or, where applicable to a comparable position, as specified below in subdivisions (c)(1) and (c)(2).
(2) Change in Date of Reinstatement
If the reinstatement date differs from the employer's and the employee's original agreement, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee within two business days, where feasible, after the employee notifies the employer of her readiness to return, to the same, or, where applicable, to a comparable position, as specified below in subdivisions (c)(1) and (c)(2).
(c) Permissible Defenses
(1) Right to Reinstatement to the Same Position
An employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than if the employee had been continuously employed in this position during the pregnancy disability leave or transfer period. A refusal to reinstate the employee to her same position or duties is justified if the employer proves, by a preponderance of the evidence, either of the following:
(A) That the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).
(B) That each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer's ability to operate the business safely and efficiently.
(2) Right to Reinstatement to a Comparable Position
An employee has no greater right to reinstatement to a comparable position or to other benefits and conditions of employment than an employee who has been continuously employed in another position that is being eliminated. If the employer is excused from reinstating the employee to her same position, or with the same duties, a refusal to reinstate the employee to a comparable position is justified if the employer proves, by a preponderance of the evidence, either of the following:
(A) That there is no comparable position available. A position is “available” if there is a position open on the employee's scheduled date of reinstatement or within 10 working days thereafter for which the employee is qualified, or to which the employee is entitled by company policy, contract, or collective bargaining agreement.
(B) For am employer whose employee takes a pregnancy disability leave which does not qualify as a FMLA leave, that a comparable position is available, but filling the available position with the returning employee would substantially undermine the employer's ability to operate the business safely and efficiently.
(d) Right to Reinstatement to Job If Pregnancy Disability Leave Exceeds Four Months
If an employee disabled by pregnancy has taken a pregnancy disability leave for longer than four months, an employer must treat the employee the same regarding reinstatement rights as it treats any other similarly situated employee who has taken a similar length disability leave. For example, if the employer has a policy which allows reinstatement to other temporarily disabled employees who are disabled for six months, the employer must also allow reinstatement to a woman disabled by pregnancy for six months.
(e) Right to Reinstatement to Job If CFRA Leave is Taken Following Pregnancy Disability Leave
At the expiration of a pregnancy disability leave, if an employee takes a CFRA leave for reason of the birth of her child, the employee's right to reinstatement to her job is governed by CFRA and not sections 7291.9, subdivisions (c)(1) and (c)(2), above. Under CFRA, an employer may reinstate an employee either to her same or a comparable job.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12940, subd. (a), 12945, subds. (b)(2) and (d), Government Code; FMLA, 29 .U.S.C. §2601, et seq. and FMLA regulations, 29 CFR 825; Cal. Federal Sav. and Loan Ass'n v. Guerra 479 U.S. 272 [107 S.Ct. 683, 93 L.Ed.2d 613].
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.10. Requests for Pregnancy Disability Leave or Transfer: Advance Notice; Certification; Employer Response.
Note • History
The following rules apply to any pregnancy disability leave or transfer.
(a) Advance Notice
(1) Verbal Notice
An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs a pregnancy disability leave or transfer, and the anticipated timing and duration of the leave or transfer.
(2) 30 Days Advance Notice
An employee must provide the employer at least 30 days advance notice before pregnancy disability leave or transfer is to begin if the need for the leave or transfer is foreseeable because of pregnancy. The employee shall consult with the employer and make a reasonable effort to schedule any planned medical treatment or supervision so as to minimize disruption to the operations of the employer. Any such scheduling, however, shall be subject to the approval of the health care provider of the employee.
(3) When 30 Days Not Practicable
If 30 days advance notice is not practicable, such as because of a lack of knowledge of approximately when leave or transfer will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.
(4) Prohibition Against Denial of Leave or Transfer in Emergency or Unforeseeable Circumstances
An employer shall not deny a pregnancy disability leave or transfer, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave or transfer.
(5) Employer Obligation to Inform Employees of Notice Requirement
An employer shall give its employees reasonable advance notice of any notice requirements which it adopts. The employer may incorporate its notice requirements in the general notice requirements in section 7291.16 and such incorporation shall constitute “reasonable advance notice.” Failure of the employer to give or post such notice(s) shall preclude the employer from taking any adverse action against the employee, including denying pregnancy disability leave, for failing to furnish the employer with advance notice of a need to take pregnancy disability leave.
(6) Employer Response to Leave or Transfer Request
The employer shall respond to the leave or transfer request as soon as practicable and in any event no later than ten calendar days after receiving the request. The employer shall attempt to respond to the leave request before the date the leave is due to begin. Once given, approval shall be deemed retroactive to the date of the first day of the leave.
(b) Medical Certification
As a condition of granting a pregnancy disability leave or transfer, the employer may require medical certification, as defined in section 7291.2, subdivision (d), if the employer requires certification of other similarly situated employees. If the certification satisfies the requirements of section 7291.2, subdivision (d), the employer must accept it as sufficient. Upon expiration of the time period which the health care provider originally estimated that the employee needed, the employer may require the employee to obtain recertification if additional time is requested if the employer has similar requirements for other similarly situated employees.
(1) The employer may not ask the employee to provide additional information beyond that allowed by these regulations.
(2) The employer is responsible for complying with all applicable law regarding the confidentiality of any medical information requested.
(c) Release to Return to Work
As a condition of an employee's return from pregnancy disability leave or transfer, the employer may require that the employee obtain a release to “return-to-work” from her health care provider stating that she is able to resume her original job duties only if the employer has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a non-pregnancy related disability leave or transfer.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12940, subd. (a), 12945, subd. (b)(2), Government Code; FMLA, 29 U.S.C. §2601, et seq., and FMLA regulations, 29 CFR 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.11. Terms of Pregnancy Disability Leave.
Note • History
(a) Paid Leave
An employer is not required to pay an employee during a pregnancy disability leave except:
(1) If the employer pays for other temporary disability leaves.
(A) A non-Title VII employer with five to 14 employees must pay an employee disabled by pregnancy only six weeks of accrued, paid leave for a normal pregnancy regardless of its paid leave policy for other disabled employees.
1) A “six week leave,” means the equivalent of six of the employee's normally scheduled workweeks. For a full time employee working five eight-hour days per week, this means 30 working and/or paid eight hour days of leave entitlement. For employees who work less than full time, or who work full time but on alternative work schedules, the number of working days which constitutes “six weeks” is calculated on a pro rata or proportional basis.
2) This exception does not apply to any employee disabled by pregnancy that is not normal as defined at section 7291.2, subdivision (n).
(b) Accrued Time Off
(1) Sick Leave
An employer may require an employee to use, or an employee may elect to use, any accrued sick leave during the otherwise unpaid portion of her pregnancy disability leave.
(2) Vacation Time and Other Accrued Time Off
An employee may elect, at her option, to use any vacation time or other accrued personal time off (including undifferentiated paid time off (“PTO”)) that the employee is otherwise eligible to take during the otherwise unpaid portion of the pregnancy disability leave.
(c) Other Benefits and Seniority Accrual
During the period of pregnancy disability leave, the employee is entitled to accrual of seniority and to participate in health plans, employee benefit plans, including life, short-term and long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other unpaid disability leave granted by the employer for any reason other than a pregnancy disability.
(1) If the employer's policy allows seniority to accrue when employees are on paid leave, such as paid sick or vacation leave, and/or unpaid leave, then seniority will accrue during any part of a paid and/or unpaid pregnancy disability leave, consistent with the employer's policy.
(2) The employee returning from a pregnancy disability leave shall return with no less seniority than the employee had when the leave commenced for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(d) Employee Status
The employee shall retain employee status during the period of the pregnancy disability leave. The leave shall not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, et cetera.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Sections 12940, subd. (a), 12945, subds. (b)(1), (b)(2), Government Code; FMLA, 29 U.S.C. §2601, et seq. and FMLA regulations, 29 CFR 825; Pregnancy Discrimination Act of 1978 (P.L. 95-555, 42 U.S.C. §2000e, §701(k)), an amendment to Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.).
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.12. Relationship Between Pregnancy Leave and FMLA Leave.
Note • History
(a) A Pregnancy Leave May Also Be a FMLA Leave
If the employer is a covered employer and the employee is eligible for leave under the federal Family Care and Medical Leave Act (FMLA), the employer may be able to count the employee's pregnancy disability leave under this subchapter, up to a maximum of 12 weeks, against her FMLA leave entitlement.
(b) Pregnancy a “Serious Health Condition” under FMLA
Any period of incapacity or treatment due to pregnancy, including prenatal care, is included as a “serious health condition” under FMLA.
(c) Employer Obligation under FMLA to Continue Group Health Plan Benefits
During any part of the pregnancy disability leave which is also a FMLA leave, if the employer provides health benefits under any “group health plan,” the employer may have a FMLA obligation to continue providing such benefits.
(d) FMLA Coverage
In general, only employees working for employers with 50 or more employees are eligible to take a family care leave under FMLA. For more specifics on rights and obligations under FMLA, consult the FMLA regulations regarding family care and medical leave (Title 29, Part 825 of the Code of Federal Regulations, issued January 6, 1995).
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Section 12940, subd. (b)(2), Government Code; FMLA, 29 U.S.C. §2601, et seq.; and FMLA regulations, 29 CFR 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.13. Relationship Between CFRA and Pregnancy Leaves.
Note • History
(a) Separate and Distinct Entitlements
The right to take a pregnancy disability leave under Government Code section 12945, subdivision (b)(2), and these regulations is separate and distinct from the right to take a CFRA leave under the California Family Rights Act, Government Code sections 12945.1 and 12945.2.
(b) “Serious Health Condition” - Pregnancy
An employee's own disability due to pregnancy, childbirth or related medical conditions is not included as a “serious health condition” under CFRA.
(c) CFRA Leave after Pregnancy Disability Leave
At the end of the employee's period(s) of pregnancy disability, or at the end of four months pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy before taking CFRA leave for reason of the birth of her child.
(1) As provided in section 7297.6, subdivision (c)(1), where an employee has utilized four months of pregnancy disability leave prior to the birth of her child, and her health care provider determines that a continuation of the leave is medically necessary, an employer may, but is not required to, allow an eligible employee to utilize CFRA leave prior to the birth of her child. No employer shall, however, be required to provide more CFRA leave than the amount to which the employee is otherwise entitled.
(d) Maximum Entitlement
The maximum possible combined statutory leave entitlement for CFRA/FMLA employees for both pregnancy disability leave (under FMLA and Government Code section 12945, subdivision (b)(2)) and CFRA leave for reason of the birth of the child is four months and 12 workweeks. This assumes that the employee is disabled by pregnancy for four months and then requests, and is eligible for, a 12-week CFRA leave for reason of the birth of her child.
(e) CFRA Coverage
In general, employers who are covered by CFRA and employees who are eligible to take CFRA leave are the same as under FMLA. For more specifics on rights and obligations under CFRA, consult the CFRA regulations (Cal. Code of Regs., tit. 2, §7297.0, et seq.).
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Section 12940, subd. (b)(2), Government Code; FMLA, 29 U.S.C. §2601, et seq.; and FMLA regulations, 29 CFR 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Note • History
In addition to the retaliation prohibited by Government Code section 12940, subdivision (f), and section 7287.8 of the regulations, it shall be an unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual, except as otherwise permitted in this subchapter, because:
(a) of the individual's pregnancy and/or
(b) because that individual has exercised her right to take a pregnancy disability leave or transfer and/or
(c) because that individual has given information or testimony regarding her pregnancy disability leave, in any inquiry or proceeding related to any right guaranteed under this subchapter.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Section 12940, subd. (f), Government Code; California Code of Regulations, title 2, section 7287.8; FMLA, 29 U.S.C. §2601, et seq.; and FMLA regulations, 29 CFR 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Note • History
Upon determining that an employer has violated Government Code sections 12940, 12943, or 12945, the Commission may order any remedy available under Government Code section 12970, and section 7286.9 of the regulations. The remedy, however, for a violation of section 7291.16, subdivision (b), (failure to provide notice) shall be an order that the employer provide such notice.
NOTE
Authority cited: Section 12935, subd. (a), Government Code. Reference: Section 12970, Government Code.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7291.16. Notice of Right to Request Pregnancy Disability Leave or Transfer.
Note • History
(a) Employers to Post Notice
All employers shall provide notice to their employees of the right to request pregnancy disability leave or transfer under the Fair Employment and Housing Act as specified at section 7291.16, subdivisions (d) and (e) and as contained in “Notice A” and “Notice B”. Employers shall post the appropriate notice in a conspicuous place or places where employees tend to congregate. If the employer publishes an employee handbook which describes other kinds of temporary disability leaves or transfers available to its employees, that employer shall include a description of pregnancy disability leave or transfer in the next edition of its handbook which it publishes following adoption of these regulations. If an employer qualifies as a CFRA employer, the employer may include both pregnancy disability leave and CFRA leave requirements in a single notice. An employer is also required to give an employee a copy of the appropriate notice as soon as practicable after the employee tells the employer of her pregnancy or sooner if the employee inquires about pregnancy disability leaves or transfers.
(b) Employers to Give Notice
Employers are also encouraged to give a copy of the notice to each current and new employee, ensure that copies are otherwise available to each current and new employee, and disseminate the notice in any other way.
(c) Non-English Speaking Workforce
Any CFRA-covered employer whose work force at any facility or establishment contains ten percent or more of persons who speak a language other than English as their primary language shall translate the notice into the language or languages spoken by this group or these groups of employees.
(d) “Notice A”
The text below in “Notice A” contains only the minimum requirements of the Fair Employment and Housing Act's provisions regarding pregnancy, childbirth or related medical conditions. This Notice is suitable for use by employers with less than 50 employees and who are therefore not subject to CFRA or FMLA. Nothing in this notice requirement prohibits an employer from providing a leave policy which is more generous than that required by this act if that more generous policy is provided to all similarly situated disabled employees. At employer may provide its own notice of its own policy. Employers may develop their own notice or they may choose to use the text provided below, unless it does not accurately reflect their own policy.
(e) “Notice B”
The text below in “Notice B” combines notice of both an employee's CFRA leave rights and pregnancy disability leave rights. Adoption of this notice, or a comparable notice, satisfies the employer's notice obligations under both this subchapter and section 7297.9 of the regulations. This notice is suitable for use by all employers with 50 employees or more.
“NOTICE A”
PREGNANCY DISABILITY LEAVE
Under the California Fair Employment and Housing Act (FEHA), if you are disabled by pregnancy, childbirth or related medical conditions, you are eligible to take a pregnancy disability leave (PDL). If you are affected by pregnancy or a related medical condition, you are also eligible to transfer to a less strenuous or hazardous position or to less strenuous or hazardous duties, if this transfer is medically advisable.
• The PDL is for any period(s) of actual disability caused by your pregnancy, childbirth or related medical conditions up to four months (or 88 work days for a full time employee) per pregnancy.
• The PDL does not need to be taken in one continuous period of time but can be taken on an as-needed basis.
• Time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, and recovery from childbirth would all be covered by your PDL.
• Generally, we are required to treat your pregnancy disability the same as we treat other disabilities of similarly situated employees. This affects whether your leave will be paid or unpaid.
• You may be required to obtain a certification from your health care provider of your pregnancy disability or the medical advisability for a transfer. The certification should include:
1) the date on which you become disabled due to pregnancy or the date of the medical advisability for the transfer;
2) the probable duration of the period(s) of disability or the period(s) for the advisability of the transfer; and,
3) a statement that, due to the disability, you are unable to work at all or to perform any one or more of the essential functions of your position without undue risk to yourself, the successful completion of your pregnancy or to other persons or a statement that, due to your pregnancy, the transfer is medically advisable.
• At your option, you can use any accrued vacation or other accrued time off as part of your pregnancy disability leave before taking the remainder of your leave as an unpaid leave. We may require that you use up any available sick leave during your leave. You may also be eligible for state disability insurance for the unpaid portion of your leave.
• Taking a pregnancy disability leave may impact certain of your benefits and your seniority date. If you want more information regarding your eligibility for a leave, the impact of the leave on your seniority and benefits, and our policy for other disabilities, please contact__________________________________________.
“NOTICE B”
FAMILY CARE AND MEDICAL LEAVE (CFRA LEAVE)
AND PREGNANCY DISABILITY LEAVE
Under the California Family Rights Act of 1993 (CFRA), if you have more than 12 months of service with us and have worked at least 1,250 hours in the 12-month period before the date you want to begin your leave, you may have a right to an unpaid family care or medical leave (CFRA leave). This leave may be up to 12 workweeks in a 12-month period for the birth, adoption, or foster care placement of your child or for your own serious health condition or that of your child, parent or spouse.
Even if you are not eligible for CFRA leave, if disabled by pregnancy, childbirth or related medical conditions, you are entitled to take a pregnancy disability leave of up to four months, depending on your period(s) of actual disability. If you are CFRA-eligible, you have certain rights to take BOTH a pregnancy disability leave and a CFRA leave for reason of the birth of your child. Both leaves contain a guarantee of reinstatement to the same or to a comparable position at the end of the leave, subject to any defense allowed under the law.
If possible, you must provide at least 30 days advance notice for foreseeable events (such as the expected birth of a child or a planned medical treatment for your self or of a family member). For events which are unforeseeable, we need you to notify us, at least verbally, as soon as you learn of the need for the leave.
Failure to comply with these notice rules is grounds for, and may result in, deferral of the requested leave until you comply with this notice policy.
We may require certification from your health care provider before allowing you a leave for pregnancy or your own serious health condition or certification from the health care provider of your child, parent, or spouse who has a serious health condition before allowing you a leave to take care of that family member. When medically necessary, leave may be taken on an intermittent or a reduced work schedule.
If you are taking a leave for the birth, adoption or foster care placement of a child, the basic minimum duration of the leave is two weeks and you must conclude the leave within one year of the birth or placement for adoption or foster care.
Taking a family care or pregnancy disability leave may impact certain of your benefits and your seniority date. If you want more information regarding your eligibility for a leave and/or the impact of the leave on your seniority and benefits, please contact _________________________.
NOTE
Authority cited: Sections 12935, subd. (a), Government Code. Reference: Section 12940, subd. (i), Government Code; FMLA, 29 U.S.C. §2601, et seq.; and FMLA regulations, 29 CFR 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Subchapter 7. Marital Status Discrimination
§7292.0. General Prohibition Against Discrimination on the Basis of Marital Status.
Note
(a) Statutory Source. These regulations are adopted by the Fair Employment and Housing Commission pursuant to Section 1420 of the Labor Code (Section 12940 of the Government Code).
(b) Statement of Purpose. The purpose of the law prohibiting marital status discrimination is to make it unlawful for an employer or other covered entity to deny or grant employment benefits for the reason that an applicant or employee is either married or unmarried.
(c) Incorporation of General Regulations. These regulations pertaining to discrimination on the basis of marital status incorporate each of the provisions of Subchapters 1 and 2 of Chapter 2, unless a provision is specifically excluded or modified.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
Note • History
(a) “Marital Status.” An individual's state of marriage, non-marriage, divorce or dissolution, separation, widowhood, annulment, or other marital state.
(b) “Spouse.” A partner in marriage as defined in Civil Code Section 4100.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7292.2. Establishing Marital Status Discrimination.
Note • History
Marital status discrimination may be established by showing that an applicant or employee has been denied an employment benefit by reason of:
(a) The fact that the applicant or employee is not married;
(b) An applicant's or employee's “single” or “married” status, or
(c) The employment or lack of employment of an applicant's or employee's spouse.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note
Any defense permissible under Subchapter 1 is applicable to this subchapter, in addition to any other defense provided herein.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420(a), 1420(a)(3), Labor Code. (Sections 12920, 12921, 12940, Government Code.)
§7292.4. Pre-Employment Practices.
Note
(a) Impermissible Inquiries. It is unlawful to ask an applicant to disclose his or her marital status as part of a pre-employment inquiry unless pursuant to a permissible defense.
(b) Request for Names. For business reasons other than ascertaining marital status, an applicant may be asked whether he or she has ever used another name, e.g., to enable an employer or other covered entity to check the applicant's past work record.
(c) Employment of Spouse. It is lawful to ask an applicant to state whether he or she has a spouse who is presently employed by the employer, but this information may not be used as a basis for an employment decision except as stated below.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
Note • History
(a) Employment of Spouse. An employment decision shall not be based on whether an individual has a spouse presently employed by the employer except in accordance with the following criteria:
(1) For business reasons of supervision, safety, security or morale, an employer may refuse to place one spouse under the direct supervision of the other spouse.
(2) For business reasons of supervision, security or morale, an employer may refuse to place both spouses in the same department, division or facility if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons.
(b) Accommodation for Co-Employees Who Marry. If co-employees marry, an employer shall make reasonable efforts to assign job duties so as to minimize problems of supervision, safety, security, or morale.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of NOTE filed 4-23-82; designated effective 6-1-82 (Register 82, No. 17).
§7292.6. Terms, Conditions and Privileges of Employment.
Note • History
(a) Fringe Benefits.
(1) The availability of benefits to any employee shall not be based on the employee's marital status. However:
(A) Bona fide fringe benefit plans or programs may provide benefits to an employee's spouse or dependents;
(B) Such bona fide fringe benefit plans or programs may decline to provide benefits to any individual who is not one of the following: an employee of the employer, a spouse of an employee of the employer, or a dependent of an employee of the employer.
(2) Insofar as an employment practice discriminates against individuals on the basis of marital status, fringe benefits shall not be conditioned upon whether an employee is “head of household,” “principal wage earner,” “secondary wage earner,” or other similar status.
(b) Inter-Personal Conduct.
(1) An employer or other covered entity shall not use job responsibilities such as travel, entertainment, or other non-office hour duties as a justification for discriminating on the basis of marital status.
(2) It is unlawful to require a married female applicant or employee to use her husband's name.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Subchapter 8. Religious Creed Discrimination
§7293.0. General Prohibition Against Religious Creed Discrimination.
(a) Statutory Source. These regulations concerning religious discrimination are adopted by the Commission pursuant to Section 1420 of the Labor Code. (Section 12940 of the Government Code.)
(b) Statement of Purpose. The freedom to worship as one believes is a basic human right. To that end, the accommodation to religious pluralism is an important and necessary part of our society. Questions of religious discrimination and accommodation to the varied religious practices of the people of the State of California often arise in complex and emotionally charged situations; therefore, each case must be reviewed on an individual basis to best balance often contradictory social needs.
(c) Incorporation of General Regulations. These regulations incorporate all of the provisions of Subchapters 1 and 2 of Chapter 2, unless specifically excluded or modified.
§7293.1. Establishing Religious Creed Discrimination.
Note • History
“Religious creed” includes any traditionally recognized religion as well as beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. Religious creed discrimination may be established by showing:
(a) Employment benefits have been denied, in whole or in part, because of an applicant's or employee's religious creed or lack of religious creed.
(b) The employer or other covered entity has failed to reasonably accommodate the applicant's or employee's religious creed despite being informed by the applicant or employee or otherwise having become aware of the need for reasonable accommodation.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
Note
Any permissible defense set forth in Subchapter 1 shall be applicable to this Subchapter.
NOTE
Authority cited: Section 1418(a), Labor Code. Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
§7293.3. Reasonable Accommodation.
Note • History
An employer or other covered entity shall make accommodation to the known religious creed of an applicant or employee unless the employer or other covered entity can demonstrate that the accommodation is unreasonable because it would impose an undue hardship.
(a) Reasonable accommodation may include, but is not limited to, job restructuring, job reassignment, modification of work practices, or allowing time off in an amount equal to the amount of non-regularly scheduled time the employee has worked in order to avoid a conflict with his or her religious observances.
(b) In determining whether a reasonable accommodation would impose an undue hardship on the operations of an employer or other covered entity, factors to be considered include, but are not limited to:
(1) The size of the relevant establishment or facility with respect to the number of employees, the size of budget, and other such matters;
(2) The overall size of the employer or other covered entity with respect to the number of employees, number and type of facilities, and size of budget;
(3) The type of the establishment's or facility's operation, including the composition and structure of the workforce or membership;
(4) The type of the employer's or other covered entity's operation, including the composition and structure of the workforce or membership;
(5) The nature and cost of the accommodation involved;
(6) Reasonable notice to the employer or other covered entity of the need for accommodation; and
(7) Any available reasonable alternative means of accommodation.
(c) Reasonable accommodation includes, but is not limited to, the following specific employment policies or practices:
(1) Interview and examination times. Scheduled times for interviews, examinations, and other functions related to employment opportunities shall reasonably accommodate religious practices.
(2) Dress Standards. Dress standards or requirements for personal appearance shall be flexible enough to take into account religious practices.
(3) Union Dues. An employer or union shall not require membership from any employee or applicant whose religious creed prohibits such membership. An applicant's or employee's religious creed shall be reasonably accommodated with respect to union dues.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920, 12921, 12940, Government Code.)
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
§7293.4. Pre-Employment Practices.
Note
Pre-employment inquiries regarding an applicant's availability for work on weekends or evenings shall not be used as a pretext for ascertaining his or her religious creed, nor shall such inquiry be used to evade the requirement of reasonable accommodation. However, inquiries as to the availability for work on weekends or evenings are permissible where reasonably related to the normal business requirements of the job in question.
NOTE
Authority cited: Section 1418(a), Labor Code. (Section 12935(a), Government Code.) Reference: Sections 1411, 1412, 1420, Labor Code. (Sections 12920. 12921, 12940, Government Code.)
Subchapter 9. Disability Discrimination
§7293.5. General Prohibitions Against Discrimination on the Basis of Disability.
Note • History
(a) Statutory Source. These regulations are adopted by the Commission pursuant to Sections 12926 and 12940 of the Government Code.
(b) Statement of Purpose. The Fair Employment and Housing Commission is committed to ensuring each individual employment opportunities commensurate with his or her abilities. These regulations are designed to assure discrimination-free access to employment opportunities notwithstanding any individual's actual or perceived disability.
(c) Incorporation of General Regulations. These regulations governing discrimination on the basis of disability incorporate each of the provisions of Subchapters 1 and 2 of Chapter 2, unless specifically excluded or modified.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of subsection (a) and NOTE (Register 86, No. 45).
3. Change without regulatory effect amending subchapter 9 heading, section heading, subsections (b)-(c) and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
Note • History
As used in this subchapter, the following definitions apply:
(a) “Disability” means and includes:
(1) “Physical disability,” as defined in Government Code Section 12926, subdivision (k), and Section 7293.6, subdivision (e), herein; and
(2) “Mental disability,” as defined in Government Code Section 12926, subdivision (i), and Section 7293.6, subdivision (f), herein; and
(3) “Medical condition,” as defined in Government Code Section 12926, subdivision (h), and Section 7293.6, subdivision (g), herein; and
(4) “Disability,” as used in the Americans with Disabilities Act of 1990 (Public Law 101-336) (“ADA”), if:
(A) the ADA definition of “disability” would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (i) or (k) of Government Code Section 12926; or
(B) the ADA definition of “disability” would include any medical condition not included within subdivision (i) or (k) of Government Code Section 12926.
(b) “Disability” does not include:
(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current illegal use of drugs.
(c) Homosexuality and bisexuality are not impairments and as such are not disabilities.
(d) The unlawful use of controlled substances or other drugs shall not be deemed, in and of itself, to constitute a physical disability or a mental disability.
(e) “Physical disability”
(1) “Physical disability” includes, but is not limited to, all of the following:
(A) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
1) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
2) Limits an individual's ability to participate in major life activities.
a) “Major Life Activities” are functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Primary attention is to be given to those life activities that affect employability, or otherwise present a barrier to employment or advancement.
(B) Any other health impairment not described in paragraph (A) that requires special education or related services.
(C) Being regarded as having or having had a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (A) or (B).
(D) Being regarded as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (A) or (B).
(2) It is the intent of the Legislature that the definition of “physical disability” in Government Code Section 12926, subdivision (k), and in this subdivision, shall have the same meaning as the term “physical handicap” formerly defined by Government Code Section 12926 and construed in American National Ins. Co. v. Fair Employment & Housing Com., (1982) 32 Cal.3d 603.
(f) “Mental disability” includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(g) “Medical condition” includes any health impairment related to or associated with a diagnosis of cancer, for which a person has been rehabilitated or cured, based on competent medical evidence.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code and; American National Ins. Co. v. Fair Employment and Housing Com. (1982) 32 Cal. 3d 603, 608-10 and; Americans with Disabilities Act of 1990 (Public Law 101-336) (42 U.S.C.A. §12101, et seq.).
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect repealing former subsection (f) which defined the term “health impairment which requires special education or related services” by including citations to definitions of “physically handicapped” contained in Education Code Sections 1850, 56700, 56701, 78701 and 78702 because the cross referenced definitions in the Education Code have been repealed, relettering of former subsections (g)-(k) to subsections (f)-(j) and correction of NOTE (Register 86, No. 45).
3. Amendment of subsections (a) and repealer of subsection (j) filed 4-22-88; operative 4-22-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending section and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
5. Editorial correction of subsection (g) (Register 95, No. 34).
§7293.7. Establishing Disability Discrimination.
Note • History
Disability discrimination is established by showing that an employment practice denies, in whole or in part, an employment benefit to an individual because he or she is an individual with a disability.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment filed 4-22-88; operative 4-22-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending section heading and section filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
Note • History
(a) In addition to any other defense provided herein, any defense permissible under Subchapter 1 shall be applicable to this subchapter.
(b) Inability to Perform. It is a permissible defense for an employer or other covered entity to demonstrate that, after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question because of his or her disability.
(c) Health or Safety of an Individual With a Disability. It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger his or her health or safety because the job imposes an imminent and substantial degree of risk to the applicant or employee.
(d) Health and Safety of Others. It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job.
(e) Future Risk. However, it is no defense to assert that an individual with a disability has a condition or a disease with a future risk, so long as the condition or disease does not presently interfere with his or her ability to perform the job in a manner that will not immediately endanger the individual with a disability or others, and the individual is able to safely perform the job over a reasonable length of time. “A reasonable length of time” is to be determined on an individual basis.
(f) Factors to be considered when determining the merits of the defenses enumerated in Section 7293.8(c)-(e) include, but are not limited to:
(1) Nature of the disability;
(2) Length of the training period relative to the length of time the employee is expected to be employed;
(3) Type of time commitment, if any, routinely required of all other employees for the job in question; and
(4) Normal workforce turnover.
(g) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include the marginal functions of the position.
(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A) The function may be essential because the reason the position exists is to perform that function.
(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A) The employer's judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80. No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment of subsections (b)-(f) filed 4-22-88; operative 4-22-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending subsections (b)-(e) and (f)(1), new subsections (g)-(g)(2)(G), and amendment of Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
§7293.9. Reasonable Accommodation.
Note • History
Any employer or other covered entity shall make reasonable accommodation to the disability of any individual with a disability if the employer or other covered entity knows of the disability, unless the employer or other covered entity can demonstrate that the accommodation would impose an undue hardship.
(a) Examples of Reasonable Accommodation. Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as:
(1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
(2) Job Restructuring. Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.
(b) “Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1) the nature and cost of the accommodation needed;
(2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility;
(3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities;
(4) the type of operations, including the composition, structure, and functions of the workforce of the entity;
(5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.
(c) Accessibility Standards. To comply with Section 7293.9(a), the design, construction or alteration of premises shall be in conformance with the standards set forth by the Division of the State Architect in the State Building Code, Title 24, pursuant to Chapter 7 (commencing with Section 4450), Division 5 of Title 1 of the Government Code and Part 5.5 (commencing with Section 19955) and Division 13 of the Health and Safety Code.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Editorial correction of NOTE filed 4-23-82; designated effective 6-1-82 (Register 82, No. 17).
3. Amendment filed 4-22-88; operative 4-22-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending section and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
5. Editorial correction of subsection (a)(2) (Register 95, No. 38).
§7294.0. Pre-Employment Practices.
Note • History
(a) Recruitment and Advertising.
(1) Employers and other covered entities engaged in recruiting activities shall consider individuals with disabilities on an equal basis with individuals without disabilities for all jobs unless pursuant to a permissible defense.
(2) It is unlawful to advertise or publicize an employment benefit in any way which discourages or is designed to discourage individuals with disabilities to a greater extent than individuals without disabilities.
(b) Applications.
(1) An employer or other covered entity must consider applications from individuals with disabilities equally with applications from individuals without disabilities. Where applications are being accepted in the normal course of business, an application from an individual with a disability must be accepted.
(2) Prohibited Inquiries. It is unlawful to ask general questions on disability in an application form or pre-employment questionnaire or in the course of the selection process. Examples of prohibited inquiries are:
(A) “Do you have any particular disabilities?”
(B) “Have you ever been treated for any of the following diseases or conditions?”
(C) “Are you now receiving or have you ever received Workers Compensation?”
(3) Permissible Job-Related Inquiry. Except as provided in the Americans with Disabilities Act of 1990 (Public Law 101-336) (42 U.S.C.A. §12101 et seq.) and the regulations adopted pursuant thereto, nothing in Government Code Section 12940, subdivision (d), or in this subdivision, shall prohibit any employer from making, in connection with prospective employment, an inquiry as to, or a request for information regarding, the physical fitness, medical condition, physical condition, or medical history of applicants if that inquiry or request for information is directly related and pertinent to the position the applicant is applying for or directly related to a determination of whether the applicant would endanger his or her health or safety or the health or safety of others.
(c) Interviews. An employer or other covered entity shall make reasonable accommodation to the needs of individuals with disabilities in interviewing situations, e.g., providing interpreters for the hearing-impaired, or scheduling the interview in a room accessible to wheelchairs.
(d) Medical Examination. An employer may condition an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty in order to determine fitness for the job in question provided that:
(1) All entering employees in similar positions are subjected to such an examination.
(2) Where the results of such medical examination would result in disqualification, an applicant or employee may submit independent medical opinions for consideration before a final determination on disqualification is made.
(3) The results are to be maintained on separate forms and shall be accorded confidentiality as medical records, except that:
(A) Supervisors and managers may be informed of restrictions on the work or duties of individuals with disabilities and necessary accommodations; and
(B) First aid and safety personnel may be informed, where appropriate, that the condition might require emergency treatment.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Amendment of subsection (a)(1) filed 4-22-88; operative 4-22-88 pursuant to Government Code Section 11346.2(d) (Register 88, No. 18).
4. Change without regulatory effect amending subsections (a)(1)-(2), (b)(1)-(2), (b)(3), (c), (d)(3)(A) and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
5. Editorial correction of subsections (b)(1) and (b)(3) (Register 95, No. 38).
Note • History
(a) Prospective Need for Reasonable Accommodation. An employer or other covered entity shall not deny an employment benefit because of the prospective need to make reasonable accommodation to an individual with a disability.
(b) Testing.
(1) An employer or other covered entity shall not make use of any testing criterion that discriminates against individuals with disabilities, unless:
(A) The test score or other selection criterion used is shown to be job-related for the position in question; and
(B) An alternative job-related test or criterion that does not discriminate against individuals with disabilities is not available.
(2) Tests of physical agility or strength shall not be used unless the physical agility or strength measured by such test is related to job performance.
(3) An employer or other covered entity shall select and administer tests concerning employment so as to best ensure that, when administered to any individual, including an individual with a disability, the test results accurately reflect the applicant's or employee's job skills, aptitude, or whatever other factor the test purports to measure rather than reflecting the applicant's or employee's disability, except when those skills are the factors that the tests purport to measure. To accomplish this end, reasonable accommodation must be made in testing conditions. For example:
(A) The test site must be accessible to applicants with a disability.
(B) For blind persons, an employer or other covered entity might translate written tests into Braille, provide or allow the use of a reader, or provide oral presentation of the test.
(C) For quadriplegic individuals, an employer or other covered entity might provide or allow someone to write for the applicant or to allow oral responses to written test questions.
(D) For individuals with a hearing impairment, an employer or other covered entity might provide or allow the services of an interpreter.
(E) For individuals whose disabilities interfere with their ability to communicate, an employer or other covered entity might allow additional time to complete the examination.
(F) Alternate tests or individualized assessments may be necessary where test modification is inappropriate. Competent advice should be sought before attempting such modification since the validity of the test may be affected.
(4) Where reasonable accommodation is appropriate, an employer shall permit the use of readers, interpreters, or similar supportive individuals or instruments.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Repealer and new section filed 6-20-80 as an emergency; effective upon filing. Certificate of Compliance included (Register 80, No. 25).
2. Change without regulatory effect of NOTE (Register 86, No. 45).
3. Change without regulatory effect amending subsections (a), (b)(1), (b)(1)(B), (b)(3), (b)(3)(A), (b)(3)(E) and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
§7294.2. Terms, Conditions and Privileges of Employment.
Note • History
(a) Fringe Benefits. It shall be unlawful to condition any employment decision regarding an applicant or employee with a disability upon the waiver of any fringe benefit.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926 and 12940, Government Code.
HISTORY
1. Change without regulatory effect of NOTE (Register 86, No. 45).
2. Change without regulatory effect amending subsection (a) and Note filed 7-17-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 29).
Subchapter 11. Age Discrimination
§7295.0. General Prohibition Against Discrimination on the Basis of Age over the Age of Forty.
Note • History
(a) Statement of Purpose. The purpose of the law prohibiting age discrimination in employment is to guarantee all protected individuals 40 or over employment opportunities commensurate with their abilities. These regulations are promulgated to assure that employment opportunities for those protected persons over the age of forty are based upon their abilities and are not conditioned upon age-based stereotypes and unsupported generalizations about their qualifications or job performance. In addition, these regulations are promulgated to clarify when the use of mandatory retirement programs which are based upon age over the age of forty is unlawful.
(b) Incorporation of General Regulations. These regulations pertaining to discrimination on the basis of age incorporate each of the provisions of Subchapters 1 and 2 of Chapter 2, unless a provision is specifically excluded or modified.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12940, 12941 and 12942, Government Code.
HISTORY
1. Editorial renumbering of Article 11 (Sections 295.0-296.4) of Chapter 3, Title 8 to Subchapter 11 (Sections 7295.0-7296.4) of Division 4, Title 2 (Register 81, No. 3).
2. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
Note • History
As used in this article the following definitions of terms apply, unless the context in which they are used indicates otherwise:
(a) “Employer” refers to all employers, public and private, as defined in Government Code Section 12926, except employers mandatorily or voluntarily subject to Government Code Sections 20983.5, 20983.6, 21258.1, 31671.03 or 45346, or subject to Education Code Section 23922.
(b) “Public employer” refers to public agencies as defined in Government Code Sections 31204 and 20009.
(c) “Private employer” refers to all employers not defined in subsection (b) above.
(d) “Retirement or Pension Program” refers to any plan, program or policy of an employer which is in writing and has been communicated to eligible or affected employees, which is intended to provide an employee with income upon retirement (this may include pension plans, profit-sharing plans, money-purchase plans, tax-sheltered annuities, employer sponsored Individual Retirement Accounts, employee stock ownership plans, matching thrift plans, or stock bonus plans or other forms of defined benefit or defined contribution plans).
(e) “Collective Bargaining Agreement” refers to any collective bargaining agreement between an employer and a labor organization which is in writing.
(f) “Normal Retirement Date or NRD” refers to one of the following dates:
(1) for employees participating in a private employee pension plan regulated under the federal Employee Retirement Income Security Act of 1974, the NRD refers to the time a plan participant reaches normal retirement age under the plan or refers to the later of either the time a plan participant reaches 65 or the tenth anniversary of the time a plan participant commenced participation in the plan;
(2) for employees not described under (1) whose employers have a written retirement policy or whose employers are parties to a collective bargaining agreement which specifies retirement practices, the NRD refers to the normal retirement time or age specified in such a policy or agreement; or
(3) for employees not described under either (1) or (2) the NRD refers to the last calendar day of the month in which an employee reaches his or her seventieth, 70th, birthday.
(g) (Reserved.)
(h) “Basis of Age” or “Ground of Age” refers to age over forty.
(i) “Over Forty” refers to the chronological age of an individual who has reached his or her fortieth birthday.
(j) “Age Based Stereotype” refers to generalized opinions about matters including the qualifications, job performance, health, work habits, and productivity of individuals over forty.
(k) “Employment Benefit” refers to employment benefit as defined in Section 7286.5(f). It also includes a workplace free of harassment as defined in Section 7286.7(b) of Subchapter 2.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12926, 12940, 12941(a) and 12942, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7295.2. Establishing Age Discrimination.
Note • History
(a) Employers. Discrimination on the basis of age may be established by showing that a job applicant's or employee's age over forty was considered in the denial of an employment benefit.
(b) Employment Agencies, Labor Organizations, and Apprenticeship Training Programs in Which the State Participates. Discrimination on the basis of age may be established against employment agencies, labor organizations, and apprenticeship training programs in which the state participates upon a showing that they have engaged in recruitment, screening, advertising, training, job referral, placement or similar activities which discriminate against an individual or individuals over forty.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12926(c), (d) and (e), and 12941(a), Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
Note • History
(a) Defenses. Generally. In addition to any other defense provided herein, once an inference of employment discrimination on the basis of age has been established, an employer or other covered entity may prove one or more appropriate defenses as generally set forth in Section 7286.7 of Subchapter 2.
(b) Specific Defenses, Exemptions, Permissible Practices. An employment practice which discriminates on the basis of age is permissible, exempted, or has a valid defense:
(1) If the practice is otherwise mandated or permitted, by federal or state law which preempts, supersedes, or otherwise takes precedence over the Act;
(2) If the practice, at the time it occurred, was deemed lawful by the terms of one or more sections of this subchapter;
(3) If the practice is declared by one or more sections of this subchapter to be permissible or lawful.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7295.4. Pre-Employment Practices.
Note • History
(a) Recruitment and Advertising.
(1) Recruitment. The provisions of Section 7287.3 (a) are applicable and are incorporated by reference herein.
Generally, during recruitment it is unlawful for employers to refuse to consider applicants because they are over forty years of age. However, it is lawful for an employer to participate in established recruitment programs with high schools, colleges, universities and trade schools. It is also lawful for employers to utilize temporary hiring programs directed at youth, even though such programs traditionally provide disproportionately few applicants who are over forty. However, exclusive screening and hiring of applicants provided through the above recruitment or temporary programs will constitute discrimination on the basis of age if the programs are used to evade the Act's prohibition against age discrimination.
(2) Advertising. It is unlawful for an employer to either express a preference for individuals under forty or to express a limitation against individuals over forty when advertising employment opportunities by any means such as the media, employment agencies, and job announcements.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7295.5. Pre-Employment Inquiries, Interviews and Applications.
Note • History
(a) Pre-Employment Inquiries. Pre-employment inquiries which would result in the direct or indirect identification of persons on the basis of age are unlawful. This provision applies to oral and written inquiries and interviews. (See Section 7287.3(b), which is applicable and incorporated by reference herein.)
Pre-employment inquiries which result in the identification of persons on the basis of age shall not be unlawful when made for purposes of applicable reporting requirements or to maintain applicant flow data provided that the inquiries are made in a manner consistent with Section 7287.0 (and particularly subsection (b) of Subchapter 2.
(b) Applications. It is discrimination on the basis of age for an employer or other covered entity to reject or refuse to seriously and fairly consider the application form, preemployment questionnaire, oral application or the oral or written inquiry of an individual because such individual is over forty. (See Section 7287.3(c), which is applicable and incorporated by reference herein.)
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12941, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7295.6. Physical or Medical Examination of Applicants and Employees.
Note • History
(a) It is not a violation of this subchapter for an employer to require an applicant who is over forty to undergo physical or medical examinations to determine whether or not the applicant meets the job-related physical or medical standards for the position sought so long as such examinations are uniformly and equally required of all applicants for the position, regardless of their age.
(b) It is not a violation of this subchapter for an employer to require an employee who is over forty to undergo a physical or medical examination at reasonable times and intervals and at the expense of the employer to determine whether or not the employee continues to meet the job-related physical or medical standards for the position held so long as such examinations are uniformly and equally required of all similarly situated employees in the particular job class regardless of their age.
(c) It is discrimination based on age to require an applicant or employee over forty to meet physical or medical examination standards which are higher then those standards applied to applicants or employees who are below the age of forty and are seeking or holding the same job.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12941(a), Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
Note • History
(a) Selection. So long as age is not a factor, this subchapter does not preclude an employer from selecting an individual who is in fact better qualified than other applicants, and it does not preclude an employer from hiring an individual on the basis of experience and training superior to other applicants.
(b) Selection Based Upon Seniority or Prior Service. So long as age is not a factor, it is not a violation of this subchapter for an employer, during the process of selection, to give a candidate who has a record of seniority or time in prior service with that employer preference over a candidate who has no such record or who has less seniority or time in prior service with that employer. However, where candidates for hire have the same record of seniority or time in prior service, it is discrimination based on age, in selecting from among them, to refuse to select a candidate because he or she is over forty.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12941, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
Note • History
(a) In selecting a candidate for promotion, it is not, itself, a violation of this subchapter, for an employer to limit the group of eligible candidates to members of the employer's existing workforce or to give a preference in selection to an incumbent employee over a candidate who is not an incumbent employee. However, in evaluating or selecting candidates for promotion from among its existing workforce, it is discrimination on the basis of age for an employer to evaluate unequally or to fail to select a candidate who is over forty because of the age of the candidate.
(b) In selecting a candidate for promotion, it is not, itself, a violation of this subchapter for an employer to promote a candidate under the age of forty in preference to a candidate over forty on the basis of the superior experience and training of the younger candidate, or on the basis of other legitimate reasons, so long as age is not a factor.
(c) It is discrimination on the basis of age for an employer to deny an employee the opportunity to gain the experience and training necessary to achieve promotion, because such employee is over forty.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12942(a), Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7295.9. Terms, Conditions and Privileges of Employment. (Reserved.)
NOTE
Authority cited: Section 1418(a), Labor Code; Section 12935(a), Government Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941 and 12942, Government Code.
HISTORY
1. Repealer of former Section 7295.9 and new section heading filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7296.0. Retirement Practices.
Note • History
(a) Mandatory Retirement--Generally. Generally, it is discrimination on the basis of age for a private employer to discharge or force the retirement of an employee because such employee has reached a certain chronological age over forty.
(b) Retirement Plans Generally. Generally, any provision in a private employer's retirement plan, pension plan, collective bargaining agreement or similar plan or agreement which requires mandatory retirement of an employee over forty years of age is unlawful.
(c) Mandatory Retirement Permitted. Mandatory retirement of the following employees is not unlawful:
(1) Prior to July 1, 1982, any employee who has attained 65 years of age, and thereafter 70 years of age, and is serving under a contract of unlimited tenure, or similar arrangement providing for unlimited tenure at an institution of higher education as defined by Section 1201(a) of the Federal Higher Education Act of 1965;
(2) Any employee who has attained 65 years of age and who for the two year period immediately prior to retirement, was employed in a bona fide executive or high policymaking position, providing that at the time of mandatory retirement, the employee is entitled to receive an immediate non-forfeitable annual retirement benefit from the current employer which equals a minimum of $27,000.00, and is either derived from one or a combination of plans such as profitsharing, pension, savings, or deferred compensation plans.
(3) Any employee who has attained 70 years of age and is a physician employed by a professional medical corporation, the articles or bylaws of which provide for compulsory retirement.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7296.1. Procedures for Continuing in Employment Past the Normal Retirement Date.
Note • History
Where a private employer has a private pension or retirement program, the following procedures apply:
(a) Advisory Notice by the Employer. Private employers must advise their employees who are nearing their normal retirement date that if they intend to continue in employment beyond their NRD, they must file a written notice of this intention. The employer's Advisory Notice should be in writing, and should be provided to the employee no later than ninety (90) days prior to the NRD and no earlier than one hundred and eighty (180) days prior to the NRD. The Advisory Notice to the employee must clearly indicate when his or her Continuation Notice, as described in subsection (b), must be submitted.
(b) Continuation Notice by the Employee. An employee of a private employer who wishes to continue working beyond his or her NRD must provide a written notification of this intention to the employer not more than forty-five (45) days after the employee receives an Advisory Notice from the employer as described in subsection (a).
(c) Notice by Employee Following the Normal Retirement Date. An employee continuing in employment past the normal retirement date has an obligation to provide his or her private employer with written notice in advance of the date on which he or she intends to retire from employment. Such notice of retirement should be provided at a reasonable time, no later than sixty (60) days prior to the employee's anticipated date of retirement.
(d) Notice by Private Employer Following the Normal Retirement Date. Where an employee continues in employment beyond his or her NRD, a private employer does not violate this article by periodically sending a written notice to such employee seeking to determine if the employee intends to continue in employment. However, the initial notice of this kind should not be sent to the employee until at least two years following his or her normal retirement date has elapsed. Subsequent thereto, the notice should not be sent more frequently than on an annual basis.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12942, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7296.2. Termination and Disciplinary Actions.
Note • History
(a) It is not a violation of this subchapter for an employer to terminate, discharge, dismiss, demote or otherwise discipline an employee over forty who fails to perform the normal functions of his or her position or who fails to conform to the bona fide requirements of his or her position, so long as the performance standards and job requirements do not discriminate against employees over forty.
(b) Where an employee is continuing in employment beyond his or her normal retirement date, it is not a violation of this subchapter for an employer to terminate, force the retirement of, or otherwise discipline such an employee if the employee's job performance no longer satisfies the employer's performance standards. Any such performance standards for quality of work must not be arbitrary and must not be based upon the age of the employee.
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12941 and 12942, Government Code.
HISTORY
1. Amendment filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7296.3. Termination and Disciplinary Action. [Repealed]
Note • History
NOTE
Authority cited: Section 1418(a), Labor Code; Section 12935(a), Government Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941 and 12942, Government Code.
HISTORY
1. Repealer filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
§7296.4. Application of Federal Law. [Repealed]
Note • History
NOTE
Authority cited: Section 1418(a), Labor Code; Section 12935(a), Government Code. Reference: Sections 1420.1 and 1420.15, Labor Code; Sections 12941 and 12942, Government Code.
HISTORY
1. Repealer filed 5-12-83; effective thirtieth day thereafter (Register 83, No. 20).
Subchapter 12. Family Care and Medical Leave
Note • History
The following definitions apply only to this subchapter. The definitions in the federal regulations issued January 6, 1995 (29 CFR Part 825), interpreting the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. §§2601 et seq.) shall also apply to this subchapter, to the extent that they are not inconsistent with the following definitions:
(a) “Certification” means a written communication from the health care provider of the child, parent, spouse, or employee with a serious health condition to the employer of the employee requesting a family care leave to care for the employee's child, parent or spouse or a medical leave for the employee's own serious health condition.
(1) For family care leave for the employee's child, parent, or spouse, this certification need not identify the serious health condition involved, but shall contain:
(A) the date, if known, on which the serious health condition commenced,
(B) the probable duration of the condition,
(C) an estimate of the amount of time which the health care provider believes the employee needs to care for the child, parent or spouse, and
(D) a statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the child, parent or spouse.
1) “Warrants the participation of the employee” includes, but is not limited to, providing psychological comfort, and arranging “third party” care for the child, parent or spouse, as well as directly providing, or participating in, the medical care.
(2) For medical leave for the employee's own serious health condition, this certification need not, but may, at the employee's option, identify the serious health condition involved. It shall contain:
(A) The date, if known, on which the serious health condition commenced,
(B) The probable duration of the condition, and
(C) A statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of his or her position.
(b) “CFRA” means the Moore-Brown-Roberti California Family Rights Act of 1993. (California Family Rights Act, Gov. Code §§12945.1 and 12945.2.) “CFRA leave” means family care or medical leave taken pursuant to CFRA.
(c) “Child” means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, or a child of an employee who stands in loco parentis to that child, who is either under 18 years of age or an adult dependent child. An adult dependent child is an individual who is 18 years of age or older and who is incapable of self-care because of a mental or physical disability within the meaning of Government Code section 12926, subdivisions (i) and (k).
(1) “In loco parentis” means in the place of a parent; instead of a parent; charged with a parent's rights, duties, and responsibilities. It does not require a biological or legal relationship.
(d) “Covered employer” means any person or individual engaged in any business or enterprise in California who directly employs 50 or more persons within any State of the United States, the District of Columbia or any Territory or possession of the United States to perform services for a wage or salary. It also includes the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees. There is no requirement that the 50 employees work at the same location or work full time.
(1) “Directly employs” means that the employer maintains an aggregate of at least fifty part or full time employees on its payroll(s) for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The workweeks do not have to be consecutive. The phrase “current or preceding calendar year” refers to the calendar year in which the employee requests the leave or the calendar year preceding this request.
(2) “Perform services for a wage or salary” excludes independent contractors as defined in Labor Code section 3353 but includes persons who are compensated in whole or in part by commission.
(e) “Eligible employee” means a full or part time employee working in California with more than 12 months (52 weeks) of service with the employer at any time, and who has actually worked (within the meaning of the Fair Labor Standards Act, 29 CFR Part 785) for the employer at least 1,250 hours during the 12-month period immediately prior to the date the CFRA leave or FMLA leave is to commence.
(1) Once the employee meets these two eligibility criteria and takes a leave for a qualifying event, the employee does not have to requalify, in terms of the numbers of hours worked, in order to take additional leave for the same qualifying event during the employee's 12-month leave period.
(2) For an employee who takes a pregnancy disability leave which is also a FMLA leave, and who then wants to take CFRA leave for reason of the birth of her child immediately after her pregnancy disability leave, the 12-month period during which she must have worked 1,250 hours is that period immediately preceding her first day of FMLA leave based on her pregnancy, not the first day of the subsequent CFRA leave for reason of the birth of her child.
(3) In order to be eligible, the employee must also work for an employer who maintains on the payroll, as of the date the employee gives notice of the need for leave, at least 50 part or full time employees within 75 miles, measured in surface miles, using surface transportation, of the worksite where the employee requesting the leave is employed.
(A) Once the employee meets this eligibility criterion and takes a leave for a qualifying event, the employer may not cut short the leave or deny any subsequent leave taken for the same qualifying event during the employee's 12-month leave period, even if the number of employees within the relevant 75-mile radius falls below 50. In such cases, however, the employee would not be eligible for any subsequent leave requested for a different qualifying event.
(f) “Employment in the same position” means employment in, or reinstatement to, the original position which the employee held prior to taking a CFRA leave.
(g) “Employment in a comparable position” means employment in a position which is virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule. It has the same meaning as the term “equivalent position” in FMLA and its implementing regulations.
(h) “Family care leave” means either:
(1) Leave of up to a total of 12 workweeks in a 12-month period for reason of the birth of a child of the employee, the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, and a guarantee of employment, made at the time the leave is granted, in the same or a comparable position upon termination of the leave; or
(2) Leave of up to a total of 12 workweeks in a 12-month period to care for a child, parent or spouse of the employee who has a serious health condition, and a guarantee of employment, made at the time the leave is granted, in the same or a comparable position upon termination of the leave.
(i) “FMLA” means the federal Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq., and its implementing regulations, 29 CFR Part 825, issued January 6, 1995. “FMLA leave” means family care or medical leave taken pursuant to FMLA.
(j) “Health care provider” means either:
(1) an individual holding either a physician's and surgeon's certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code or an osteopathic physician's and surgeon's certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or any other individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, including another country, who directly treats or supervises the treatment of the serious health condition, or
(2) any other person who meets the definition of others “capable of providing health care services,” as set forth in FMLA and its implementing regulations.
(k) “Medical leave” means leave of up to a total of 12 workweeks in a 12-month period because of an employee's own serious health condition that makes the employee unable to work at all or unable to perform any one or more of the essential functions of the position of that employee. The term “essential functions” is defined in Government Code section 12926, subdivision (f). “Medical leave” does not include leave taken for an employee's pregnancy disability, as defined in (m) below, except as specified below in section 7297.6, subdivision (c)(1).
(l) “Parent” means a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child. Parent does not include a parent-in-law.
(m) “Pregnancy disability leave” means a leave taken for disability on account of pregnancy, childbirth, or related medical conditions, pursuant to Government Code section 12945, subdivision (b)(2), and defined in section 7291.2, subdivision (o) of the regulations.
(n) “Reinstatement” means “restoration” within the meaning of FMLA and its implementing regulations.
(o) “Serious health condition” means an illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee which involves either:
(1) inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential health care facility, or
(2) continuing treatment or continuing supervision by a health care provider, as detailed in FMLA and its implementing regulations.
(p) “Spouse” means a partner in marriage as defined in Family Code section 300.
(q) “Twelve workweeks” means the equivalent of twelve of the employee's normally scheduled workweeks. (See also section 7297.3, subdivision (d).)
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Section 12945.2, Government Code; and J.E. Robinson v. FEHC (1992) 2 Cal.4th 226 [5 Cal.Rptr.2d 782]; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; Code of Federal Regulations, tit. 29, part 825, issued January 6, 1995; Fair Labor Standards Act, 29 U.S.C. section 201 et seq; and 29 CFR part 785.
HISTORY
1. New subchapter 12 and section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of subchapter 12 heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
3. Editorial correction of subsection (e) (Register 95, No. 44).
§7297.1. Right to CFRA Leave: Denial of Leave; Reasonable Request; Permissible Limitation.
Note • History
(a) It is an unlawful employment practice for a covered employer to refuse to grant, upon reasonable request, a CFRA leave to an eligible employee, unless such refusal is justified by the permissible limitation specified below in subdivision (c).
(b) Denial of leave.
(1) Burden of proof.
Denial of a request for CFRA leave is established if the Department or the employee shows, by a preponderance of the evidence, that the employer was a covered employer, the employee making the request was an eligible employee, the request was for a CFRA qualifying purpose, the request was reasonable, and the employer denied the request for CFRA leave.
(2) Reasonable request.
A request to take a CFRA leave is reasonable if it complies with any applicable notice requirements, as specified in section 7297.4, and if it is accompanied, where required, by a certification, as that term is defined in section 7297.0, subdivision (a).
(c) Limitation on Entitlement.
If both parents are eligible for CFRA leave but are employed by the same employer, that employer may limit leave for the birth, adoption or foster care placement of their child to 12 workweeks in a 12-month period between the two parents. The employer may not limit their entitlement to CFRA leave for any other qualifying purpose. If the parents are unmarried, they may have different family care leave rights under FMLA.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7297.2. Right to Reinstatement: Guarantee of Reinstatement; Refusal to Reinstate; Permissible Defenses.
Note • History
(a) Guarantee of Reinstatement.
Upon granting the CFRA leave, the employer shall guarantee to reinstate the employee to the same or a comparable position, subject to the defenses permitted by section 7297.2, subdivisions (c)(1) and (c)(2), and shall provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for an employer, after granting a requested CFRA leave, to refuse to honor its guarantee of reinstatement to the same or a comparable position at the end of the leave, unless the refusal is justified by the defenses stated in § 7297.2, subdivisions (c)(1) and (c)(2).
(b) Refusal to reinstate.
(1) Definite Date of Reinstatement.
Where a definite date of reinstatement has been agreed upon at the beginning of the leave, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the leave was granted by the employer and that the employer failed to reinstate the employee to the same or a comparable position by the date agreed upon.
(2) Change in Date of Reinstatement.
If the reinstatement date differs from the employer's and employee's original agreement, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee to the same or a comparable position within two business days, where feasible, after the employee notifies the employer of his or her readiness to return, as required by the FMLA regulations.
(c) Permissible defenses.
(1) Employment Would Have Ceased
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny reinstatement.
(A) If an employee is laid off during the course of taking CFRA leave and employment is terminated, the employer's responsibility to continue CFRA leave, maintain group health plan benefits and reinstate the employee ceases at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise.
(2) “Key Employee.”
A refusal to reinstate a “key employee” to his or her same position or to a comparable position is justified if the employer shows, by a preponderance of the evidence, that all of the following conditions exist:
(A) The employee requesting the CFRA leave is a salaried employee, and
(B) The employee requesting the leave is among the highest paid ten percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request, and
(C) The refusal to reinstate the employee is necessary because the employee's reinstatement will cause substantial and grievous economic injury to the operations of the employer, and
(D) The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines that the refusal is necessary under (C) above, and
(E) In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed in (D) above.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
3. Editorial correction of subsection (a) (Register 95, No. 44).
§7297.3. Computation of Time Periods: Twelve Workweeks; Minimum Duration.
Note • History
(a) CFRA leave does not need to be taken in one continuous period of time. It cannot exceed more than 12 workweeks total for any purpose in a 12-month period.
(b) If the leave is common to both CFRA and FMLA, this 12-month period will run concurrently with the 12-month period under FMLA. An employer may choose any of the methods allowed in the FMLA regulations, issued January 6, 1995, 29 CFR Part 825, section 825.200, subdivision (b), for determining the “12-month period” in which the 12 weeks of leave entitlement occurs. The employer must, however, apply the chosen method consistently and uniformly to all employees.
(c) “Twelve workweeks” as that term is defined in section 7297.0, subdivision (q), means the equivalent of twelve of the employee's normally scheduled workweeks. For eligible employees who work more or less than five days a week, or who work on alternative work schedules, the number of working days which constitutes “twelve weeks” is calculated on a pro rata or proportional basis.
(1) For example, for a full time employee who works five eight-hour days per week, “twelve workweeks” means 60 working and/or paid eight-hour days of leave entitlement. For an employee who works half time, “twelve workweeks” may mean 30 eight-hour days or 60 four-hour days, or twelve workweeks of whatever is the employee's normal half-time work schedule. For an employee who normally works six eight-hour days, “twelve workweeks” means 72 working and/or paid eight-hour days of leave entitlement.
(2) If an employee takes leave on an intermittent or reduced work schedule, only the amount of leave actually taken may be counted toward the twelve weeks of leave to which the employee is entitled. For example, if an employee needs physical therapy which requires an absence from work of two hours a week, only those two hours can be charged against the employee's CFRA leave entitlement.
(3) If a holiday falls within a week taken as CFRA leave, the week is nevertheless counted as a week of CFRA leave. If, however, the employer's business activity has temporarily ceased for some reason and employees generally are not expected to report for work for one or more weeks, (e.g., a school closing for two weeks for the Christmas/New Year holiday or summer vacation or an employer closing the plant for retooling), the days the employer's activities have ceased do not count against the employee's CFRA entitlement.
(d) Minimum duration for CFRA leaves taken for the birth, adoption, or foster care placement of a child. CFRA leave taken for reason of the birth, adoption, or foster care placement of a child of the employee does not have to be taken in one continuous period of time. Any leave(s) taken shall be concluded within one year of the birth or placement of the child with the employee in connection with the adoption or foster care of the child by the employee. The basic minimum duration of the leave shall be two weeks. However, an employer shall grant a request for a CFRA leave of less than two weeks' duration on any two occasions.
(e) Minimum duration for CFRA leaves taken for the serious health condition of a parent, child, or spouse or for the serious health condition of the employee. Where CFRA leave is taken for a serious health condition of the employee's child, parent or spouse or of the employee, leave may be taken intermittently or on a reduced work schedule when medically necessary, as determined by the health care provider of the person with the serious health condition. An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave.
(1) If an employee needs intermittent leave or leave on a reduced work schedule that is foreseeable based on planned medical treatment for the employee or a family member, the employer may require the employee to transfer temporarily to an available alternative position. This alternative position must have the equivalent rate of pay and benefits, the employee must be qualified for the position, and it must better accommodate recurring periods of leave than the employee's regular job. It does not have to have equivalent duties. Transfer to an alternative position may include altering an existing job to accommodate better the employee's need for intermittent leave or a reduced work schedule.
(2) CFRA leave, including intermittent leave and/or reduced work schedules, is available to instructional employees of educational establishments and institutions under the same conditions as apply to all other eligible employees.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code; and Stats. 1993, ch. 827, (AB 1460), § 2. Reference: Section 12945.2, Government Code; and Stats. 1993, ch. 827 (AB 1460), § 2; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7297.4. Requests for CFRA Leave: Advance Notice; Certification; Employer Response.
Note • History
(a) Advance Notice.
(1) Verbal Notice.
An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken.
(A) Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee's spokesperson, and to give notice of the designation to the employee.
(B) Employers may not retroactively designate leave as “CFRA leave” after the employee has returned to work, except under those same circumstances provided for in FMLA and its implementing regulations for retroactively counting leave as “FMLA leave.”
(2) 30 Days Advance Notice.
An employer may require that employees provide at least 30 days advance notice before CFRA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member. The employee shall consult with the employer and make a reasonable effort to schedule any planned medical treatment or supervision so as to minimize disruption to the operations of the employer. Any such scheduling, however, shall be subject to the approval of the health care provider of the employee or the employee's child, parent or spouse.
(3) When 30 Days Not Practicable.
If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.
(4) Prohibition Against Denial of Leave in Emergency or Unforeseeable Circumstances.
An employer shall not deny a CFRA leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave.
(5) Employer Obligation to Inform Employees of Notice Requirement.
An employer shall give its employees reasonable advance notice of any notice requirements which it adopts. The employer may incorporate its notice requirements in the general notice requirements in section 7297.9 and such incorporation shall constitute “reasonable advance notice.” Failure of the employer to give or post such notice shall preclude the employer from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave.
(6) Employer Response to Leave Request.
The employer shall respond to the leave request as soon as practicable and in any event no later than ten calendar days after receiving the request. The employer shall attempt to respond to the leave request before the date the leave is due to begin. Once given, approval shall be deemed retroactive to the date of the first day of the leave.
(b) Medical Certification.
(1) Serious Health Condition of Child, Parent, or Spouse.
As a condition of granting a leave for the serious health condition of the employee's child, parent or spouse, the employer may require certification of the serious health condition, as defined in section 7297.0, subdivision (a)(1). If the certification satisfies the requirements of section 7297.0, subdivision (a)(1), the employer must accept it as sufficient. Upon expiration of the time period which the health care provider originally estimated that the employee needed to take care of the employee's child, parent or spouse, the employer may require the employee to obtain recertification if additional leave is requested.
(2) Serious Health Condition of Employee.
As a condition of granting a leave for the serious health condition of the employee, the employer may require certification of the serious health condition, as defined in section 7297.0, subdivision (a)(2). Upon expiration of the time period which the health care provider originally estimated that the employee needed for his/her own serious health condition, the employer may require the employee to obtain recertification if additional leave is requested.
(A) If the employer has reason to doubt the validity of the certification provided by the employee for his/her own serious health condition, the employer may require, at the employer's own expense, that the employee obtain the opinion of a second health care provider, designated or approved by the employer, concerning any information in the certification. The health care provider designated or approved by the employer shall not be employed on a regular basis by the employer.
1) The employer may not ask the employee to provide additional information beyond that allowed by these regulations.
2) The employer is responsible for complying with all applicable law regarding the confidentiality of any medical information received.
(B) In any case in which the second opinion described in (b)(2)(A) differs from the opinion in the original certification, the employer may require, at the employer's expense, that the employee obtain the opinion of a third health care provider, designated or approved jointly by both the employer and the employee, concerning any information in the certification.
(C) The opinion of the third health care provider concerning the information in the certification shall be considered to be final and shall be binding on the employer and the employee.
(D) The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, without cost, upon the request of the employee.
(E) As a condition of an employee's return from medical leave, the employer may require that the employee obtain a release to “return-to-work” from his/her health care provider stating that he/she is able to resume work only if the employer has a uniformly applied practice or policy of requiring such releases from other employees returning to work after illness, injury or disability.
(3) Providing Certification.
The employer may require that the employee provide any certification within fifteen calendar days of the employer's request for such certification, unless it is not practicable for the employee to do so despite the employee's good faith efforts. This means that, in some cases, the leave may begin before the employer receives the certification.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, subd. (a), Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
3. Editorial correction of subsection (a)(5) and Note (Register 95, No. 44).
Note • History
(a) The following rules apply to the permissible terms of a CFRA leave, to the extent that they are consistent with the requirements of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Nothing in these regulations infringes on the employer's obligations, if any, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (29 U.S.C. §1161 et seq.) or prohibits an employer from granting CFRA leave on terms more favorable to the employee than those listed below.
(b) Paid Leave.
An employer is not required to pay an employee during a CFRA leave except:
(1) An employee may elect to use any accrued vacation time or other paid accrued time off (including undifferentiated paid time off (“PTO”)), other than accrued sick leave, that the employee is otherwise eligible to take during the otherwise unpaid portion of the CFRA leave.
(2) Only if the employee asks for leave for what would be a CFRA-qualifying event may an employer require the employee to use any accrued vacation time or other paid accrued time off (including “PTO” time), other than accrued sick leave, that the employee is otherwise eligible to take during the otherwise unpaid portion of the CFRA leave.
(A) If an employee requests to utilize accrued vacation time or other paid accrued time off without reference to a CFRA-qualifying purpose, an employer may not ask whether the employee is taking the time off for a CFRA-qualifying purpose.
1) If the employer denies the employee's request and the employee then provides information that the requested time off is or may be for a CFRA-qualifying purpose, the employer may inquire further into the reasons for the absence. If the absence is CFRA-qualifying, then the rules in section 7297.5, subdivision (b)(1) and (2), above, apply.
(3) An employer may require the employee to use, or an employee may elect to use, any accrued sick leave that the employee is otherwise eligible to take during the otherwise unpaid portion of a CFRA leave for:
(A) the employee's own serious health condition, or
(B) any other reason if mutually agreed to between the employer and the employee.
(4) An employer and employee may negotiate for the employee's use of any additional paid or unpaid time off to substitute for the CFRA leave provided by this section.
(c) Provision of Health Benefits.
If the employer provides health benefits under any “group health plan,” the employer has an obligation to continue providing such benefits during an employee's CFRA leave, FMLA leave, or both. The following rules apply:
(1) The employer shall maintain and pay for the employee's health coverage at the same level and under the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.
(2) This obligation commences on the date leave first begins under FMLA (i.e., for pregnancy disability leaves) or under FMLA/CFRA (i.e., for all other family care and medical leaves). The obligation continues for the duration of the leave(s), up to a maximum of 12 workweeks in a 12-month period.
(3) A “group health plan” is as defined in section 5000, subdivision (b)(1), of the Internal Revenue Code of 1986. If the employer's group health plan includes dental care, eye care, mental health counselling, et cetera, or if it includes coverage for the employee's dependents as well as for the employee, the employer shall also continue this coverage.
(4) Although the employer's obligation to continue group health benefits under either FMLA or CFRA, or both, does not exceed 12 workweeks in a 12-month period, nothing shall preclude the employer from maintaining and paying for health care coverage for longer than 12 workweeks.
(5) An employer may recover the premium that the employer paid for maintaining group health care coverage during any unpaid part of the CFRA leave if both of the following conditions occur:
(A) The employee fails to return from leave after the period of leave to which the employee is entitled has expired. An employee is deemed to have “failed to return from leave” if he/she works less than 30 days after returning from CFRA leave.
(B) The employee's failure to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition that entitles the employee to CFRA leave, or other circumstances beyond the control of the employee.
(d) Other Benefits and Seniority Accrual
During the period of CFRA leave, the employee is entitled to accrual of seniority and to participate in health plans for any additional period of leave not covered by (c) above, and also in any employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave.
(1) Unpaid CFRA leave for the serious health condition of the employee shall be compared to other unpaid disability leaves whereas unpaid CFRA leaves for all other purposes shall be compared to other unpaid personal leaves offered by the employer.
(2) If the employer's policy allows seniority to accrue when employees are out on paid leave, such as paid sick or vacation leave, then seniority will accrue during any part of a paid CFRA leave.
(3) The employee returning from CFRA leave shall return with no less seniority than the employee had when the leave commenced for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.
(e) Continuation of Other Benefits.
If the employer has no policy, practice or collective bargaining agreement which requires or authorizes any other type of unpaid personal or disability leave or if the employer's other unpaid personal or disability leaves do not allow for the continuation of benefits during these leaves, an employee taking a CFRA leave shall be entitled to continue to participate in the employer's health plans, pension and retirement plans, supplemental unemployment benefit plans or any other health and welfare employee benefit plan, in accordance with the terms of those plans, during the period of the CFRA leave.
(1) As a condition of continued coverage of group medical benefits (beyond the employer's obligation during the 12-week period described above in (c)), life insurance, short- or long-term disability plans or insurance, accident insurance, or other similar health and welfare employee benefit plans during any unpaid portion of the leave, the employer may require the employee to pay premiums at the group rate.
(A) If the employee elects not to pay premiums to continue these benefits, this nonpayment of premiums shall not constitute a break in service for purposes of longevity, seniority under any collective bargaining agreement or any employee benefit plan requiring the payment of premiums.
(2) An employer is not required to make plan payments to any pension and/or retirement plan or to count the leave period for purposes of “time accrued” under any such plan during any unpaid portion of the CFRA leave. The employer shall allow an employee covered by a pension and/or retirement plan to continue to make contributions, in accordance with the terms of these plans, during the unpaid portion of the leave period.
(f) Employee Status.
The employee shall retain employee status during the period of the CFRA leave. The leave shall not constitute a break in service for purposes of longevity and/or seniority under any collective bargaining agreement or under any employee benefit plan. Benefits must be resumed upon the employee's reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period, physical exam, et cetera.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; ERISA, 29 U.S.C. §§1001 et seq; and COBRA, 29 U.S.C. §§1161 et seq.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
3. Editorial correction of subsections (b)(1), (d)(1) and (e)(1) (Register 95, No. 44).
§7297.6. Relationship Between CFRA Leave and Pregnancy Disability Leave.
Note • History
(a) Separate and Distinct Entitlements.
The right to take a CFRA leave under Government Code section 12945.2 is separate and distinct from the right to take a pregnancy disability leave under Government Code section 12945, subdivision (b)(2), and section 7291.2 et seq. of the regulations.
(b) Serious Health Condition - Pregnancy.
An employee's own disability due to pregnancy, childbirth or related medical conditions is not included as a “serious health condition” under CFRA. Any period of incapacity or treatment due to pregnancy, including prenatal care, is included as a “serious health condition” under FMLA.
(c) CFRA Leave after Pregnancy Disability Leave.
At the end of the employee's period(s) of pregnancy disability, or at the end of four months pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy, childbirth or related medical conditions before taking CFRA leave for reason of the birth of her child.
(1) Where an employee has utilized four months of pregnancy disability leave prior to the birth of her child, and her health care provider determines that a continuation of the leave is medically necessary, an employer may, but is not required to, allow an eligible employee to utilize CFRA leave prior to the birth of her child. No employer shall, however, be required to provide more CFRA leave than the amount to which the employee is otherwise entitled.
(d) Maximum Entitlement.
The maximum possible combined leave entitlement for both pregnancy disability leave (under FMLA and Government Code section 12945, subdivision (b)(2)) and CFRA leave for reason of the birth of the child (under this subchapter) is four months and 12 workweeks. This assumes that the employee is disabled by pregnancy, childbirth or related medical conditions for four months and then requests, and is eligible for, a 12-week CFRA leave for reason of the birth of her child.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Sections 12945, subd. (b)(2) and 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
3. Editorial correction of subsection (a) (Register 95, No. 44).
Note • History
In addition to the retaliation prohibited by Government Code section 12940, subdivision (f), and section 7287.8 of the regulations, it shall be an unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual, except as otherwise permitted in this subchapter, because that individual has:
(a) exercised his or her right to CFRA leave, and/or
(b) given information or testimony regarding his or her CFRA leave, or another person's CFRA leave, in any inquiry or proceeding related to any right guaranteed under this subchapter.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Sections 12940, subd. (f) and 12945.2, Government Code.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Note • History
Upon determining that an employer has violated Government Code section 12945.2, the Commission may order any remedy available under Government Code section 12970, and section 7286.9 of the regulations. The remedy, however, for a violation of section 7297.9 (failure to provide notice) shall be an order that the employer provide such notice.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Sections 12945.2 and 12970, Government Code.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
§7297.9. Notice of Right to Request CFRA Leave.
Note • History
(a) Employers to Post Notice.
Covered employers shall provide notice to their employees of the right to request CFRA leave under the California Family Rights Act. Employers shall post the notice in a conspicuous place or places where employees tend to congregate. If the employer publishes an employee handbook which describes other kinds of personal or disability leaves available to its employees, that employer shall include a description of CFRA leave in the next edition of its handbook which it publishes following adoption of these regulations. The employer may include both pregnancy disability leave and CFRA leave requirements in a single notice.
(b) Employers to Give Notice.
Employers are also encouraged to give a copy of the notice to each current and new employee, ensure that copies are otherwise available to each current and new employee, and disseminate the notice in any other way.
(c) Non-English Speaking Workforce.
Any employer whose workforce at any facility or establishment contains ten percent or more of persons who speak a language other than English as their primary language shall translate the notice into the language or languages spoken by this group or these groups of employees.
(d) Text of Notice.
The text below contains only the minimum requirements of the California Family Rights Act of 1993 and of the employer's obligation to provide pregnancy disability leave. Nothing in this notice requirement prohibits an employer from providing a leave policy which is more generous than that required by this act and providing its own notice of its own policy. Covered employers may develop their own notice or they may choose to use the text provided below, unless it does not accurately reflect their own policy.
FAMILY CARE AND MEDICAL LEAVE (CFRA LEAVE)
AND PREGNANCY DISABILITY LEAVE
Under the California Family Rights Act of 1993 (CFRA), if you have more than 12 months of service with us and have worked at least 1,250 hours in the 12-month period before the date you want to begin your leave, you may have a right to an unpaid family care or medical leave (CFRA leave). This leave may be up to 12 workweeks in a 12-month period for the birth, adoption, or foster care placement of your child or for your own serious health condition or that of your child, parent or spouse.
Even if you are not eligible for CFRA leave, if you are disabled by pregnancy, childbirth or related medical conditions, you are entitled to take a pregnancy disability leave of up to four months, depending on your period(s) of actual disability. If you are CFRA-eligible, you have certain rights to take BOTH a pregnancy disability leave and a CFRA leave for reason of the birth of your child. Both leaves contain a guarantee of reinstatement to the same or to a comparable position at the end of the leave, subject to any defense allowed under the law.
If possible, you must provide at least 30 days advance notice for foreseeable events (such as the expected birth of a child or a planned medical treatment for yourself or of a family member). For events which are unforeseeable, we need you to notify us, at least verbally, as soon as you learn of the need for the leave. Failure to comply with these notice rules is grounds for, and may result in, deferral of the requested leave until you comply with this notice policy.
We may require certification from your health care provider before allowing you a leave for pregnancy or your own serious health condition or certification from the health care provider of your child, parent or spouse who has a serious health condition before allowing you a leave to take care of that family member. When medically necessary, leave may be taken on an intermittent or reduced work schedule.
If you are taking a leave for the birth, adoption or foster care placement of a child, the basic minimum duration of the leave is two weeks and you must conclude the leave within one year of the birth or placement for adoption or foster care.
Taking a family care or pregnancy disability leave may impact certain of your benefits and your seniority date. If you want more information regarding your eligibility for a leave and/or the impact of the leave on your seniority and benefits, please contact ______________________________.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Sections 12940, subd. (i), 12945, subd. (b)(2) and 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 2-9-93; operative 3-11-93 (Register 93, No. 7).
2. Amendment of section heading, section and Note filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
§7297.10. Relationship with FMLA Regulations.
Note • History
To the extent that they are not inconsistent with this subchapter, other state law or the California Constitution, the Commission incorporates by reference the federal regulations interpreting FMLA issued January 6, 1995 (29 CFR Part 825), which govern any FMLA leave which is also a leave under this subchapter.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq; and Code of Federal Regulations, tit. 29, part 825.
HISTORY
1. New section filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
Note • History
For leaves involving serious health conditions, the employer may utilize the following “Certification of Health Care Provider” form or its equivalent. Employers may also utilize any other certification form, such as the United States Department of Labor Form WH-380, revised December 1994 (“Certification of Health Care Provider/Family and Medical Leave Act of 1993”), provided that the health care provider does not disclose the underlying diagnosis of the serious health condition involved without the consent of the patient.
NOTE
Authority cited: Sections 12935, subd. (a) and 12945.2, Government Code. Reference: Section 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. §§2601 et seq.; and Code of Federal Regulations, tit. 29, part 825. Appendix B, Form WH-380, as revised December 1994.
HISTORY
1. New section and form filed 7-13-95; operative 8-12-95 (Register 95, No. 28).
2. Editorial correction of form (Register 95, No. 44).
Embedded Graphic 02.0038
Embedded Graphic 02.0039
Chapter 3. Discrimination In Housing (Reserved)
HISTORY
1. Editorial renumbering of Subchapter 3 of Chapter 3, Title 8 to Chapter 3 of Division 4, Title 2 (Register 81, No. 3).
Chapter 4. Procedures of the Commission
Note • History
These regulations interpret, implement, and supplement the procedures set forth in Articles 1 (employment, Unruh Act and Ralph Act, discrimination) (Gov. Code, §12960 et seq.) and 2 (housing discrimination) of the Fair Employment and Housing Act (FEHA) (Gov. Code, §12980 et seq.). These regulations and provisions of the FEHA shall govern the practice and procedure in all matters before the Fair Employment and Housing Commission (Commission). They incorporate the requirements of the Administrative Adjudication Bill of Rights, Government Code sections 11425.10 et seq., and incorporate by reference certain sections of the Administrative Procedure Act, Government Code sections 11370 et seq., as specified.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11370 et seq., 11425.10 et seq., 12948, 12960 et seq. and 12980 et seq., Government Code.
HISTORY
1. Repealer of former chapter 4 (subchapters 1-4, sections 7400-7467), repealer of former subchapter 1 (sections 7400-7405), new chapter 4 (sections 7400-7438) and repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history of chapter 4, see Register 83, No. 23.
Note • History
Except where otherwise prohibited by law or by these regulations, the Commission may delegate any of the powers and duties of the Commission to the Chairperson, the Hearing Officers, or other members of the staff of the Commission. When a regulation requires something to be delivered or mailed to the “Commission,” it may be delivered or mailed, unless otherwise specified, to the Executive and Legal Affairs Secretary (ELAS) or Hearing Officer if there is a Hearing Officer assigned to the case.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Section 12935(a), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 82, No. 52.
Note • History
(a) “Accusation” means the charging document issued by the Department pursuant to Government Code sections 12965 and 12981.
(b) “Administrative adjudication” means any stage of any proceeding, including but not limited to, the hearing of the Commission following the issuance of an accusation by the Department of Fair Employment and Housing (Department) and enforcement of any judgment entered.
(c) “Amicus brief” means a written submission to the Commission by a non-party who has an interest in the subject matter of a particular adjudicative proceeding.
(d) “Chairperson” means the Chairman or Chairwoman of the Commission.
(e) “Clerk of the Commission” means any individual assigned administrative responsibilities by the ELAS.
(f) “Commission” means the Fair Employment and Housing Commission and includes any Commissioner, officer, employee, or other individual delegated any function, power, or duty of the Commission.
(g) “Commissioner” means any member of the Fair Employment and Housing Commission, including the Chairperson.
(h) “Complainant” means a person claiming to be aggrieved by a practice which is unlawful under the FEHA and who files a complaint with the Department, pursuant to Government Code section 12960 or 12980.
(i) “Complaint” means a complaint filed with the Department, pursuant to Government Code section 12960 or 12980, by a person alleging a practice which is unlawful under the FEHA. It also means a complaint of housing discrimination filed by the California Attorney General, pursuant to Government Code section 12980, subdivision (b).
(j) “Deliver” or “mail” includes, but is not limited to, sending something by facsimile (fax) or other means of electronic transmission, as allowed by the rules set forth in sections 7406 and 7407.
(k) “Department” means the Department of Fair Employment and Housing and includes any officer, employee, or other individual delegated any function, power, or duty of the Department.
(l) “Director” means the Director of the Department who is the executive officer of the Department and includes any officer, employee, or other individual delegated any function, power, or duty of the Director.
(m) “ELAS” means the Executive and Legal Affairs Secretary and chief executive officer of the Commission and includes any officer, employee or other individual delegated any function, power, or duty of the ELAS.
(n) “Hearing” means the evidentiary hearing of the Commission held pursuant to the issuance of an accusation by the Department.
(o) “Hearing Officer” means an administrative law judge of the Commission.
(p) “Motion in limine” means a written request to the Hearing Officer brought prior to the taking of evidence at hearing to exclude irrelevant or prejudicial matters at hearing.
(q) “Party” includes the Department, the respondent(s), and any person who has been allowed by the Commission to intervene in the proceeding.
(r) “Person” includes one or more individuals, limited liability companies, partnerships, associations, governmental entity, corporations, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.
(s) “Respondent” means any person who is alleged to have committed an unlawful practice in a complaint filed with the Department pursuant to Government Code section 12960 or 12980 and/or a person against whom an accusation is filed pursuant to Government Code section 12965 or 12981.
(t) “Section 12948 discrimination” means allegations of a denial of public accommodation rights or a denial of rights because of hate violence pursuant to Civil Code section 51, 51.7, 54, 54.1, or 54.2, as incorporated in Government Code section 12948.
(u) “Vice chairperson” is a person elected by the Commission as a whole to assume the duties of the chair when the chairperson is absent. Whenever the word “chairperson” appears in these regulations, it shall include “vice chairperson.”
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 51, 51.7, 54, 54.1 and 54.2, Civil Code; and Sections 12965, 12981, 12960, 12980, 12925(d) and 12948, Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 82, No. 52.
§7403. Department to Maintain Current Addresses and Telephone Numbers of Complainants and Respondents.
Note • History
All complainants and respondents shall keep the Department advised of their current telephone number and mailing address.
(a) Complainants shall file with the Department their telephone numbers, mailing addresses and addresses at which they can be personally served with documents at the time they sign the complaint and shall notify the Department of any changes of addresses and telephone numbers during the investigation and administrative adjudication of the complaint and until payment of any judgment is complete.
(b) When serving the complaint on respondents, the Department shall notify respondents in writing that a complaint has been filed against them, that they are required to file their telephone numbers and mailing addresses and addresses at which they can be personally served documents with the Department, and that they must notify the Department of any changes of addresses or telephone number during the investigation and administrative adjudication of the complaint and until payment of any judgment is complete.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12960, 12962, 12980 and 12986, Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
§7403.5. Interpretive Guidelines. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12935(i), Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7404. Public Hearing Records.
Note • History
The official record of the Commission in every case which is to proceed to hearing shall be available for public inspection upon making appropriate arrangements with the Clerk of the Commission.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 6253(a) and 12935(a), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 82, No. 52.
§7405. Representation in Matters Before the Commission.
Note • History
(a) At all stages of the investigation and administrative adjudication, a respondent may represent himself or herself, may have representation by legal counsel, or may have non-legal representation.
(b) When a party is unrepresented or chooses representation other than by legal counsel, the Commission shall make reasonable efforts to ensure that the rights of the party are protected. Where not otherwise prohibited by law, these efforts may include interpreting papers as motions before hearings or requests for discovery, granting extensions of time to file papers, and waiving procedural requirements when in the interests of justice.
(c) Nothing in this section shall be interpreted to permit a party to engage in dilatory or delaying tactics, such as choosing not to respond to an accusation, or delaying choice of representation.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12935(a), 12967 and 12981(c), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 82, No. 52.
§7406. Filing of Papers with the Commission.
Note • History
(a) To file a document with the Commission, a party shall submit two copies of the document to the Clerk of the Commission at its office in San Francisco, California.
(b) Filing of a document is effective if the document is mailed to the Commission by first class, overnight or express mail, registered, or certified mail, postmarked no later than the last day of the time limit. Where mail is metered and bears a later postmark, the date of the postmark shall control for timeliness purposes.
(c) Filing of a document is also effective if it is delivered or sent by facsimile transmission (fax) or other electronic delivery, such as electronic mail (e-mail), when approved by the Commission, on or before the last day of the time limit. If a document is filed by facsimile or other approved electronic means of delivery, the sender shall also place two hard copies of the document in the mail to the Commission, postmarked no later than the last day of the time limit. The copy of any document filed by facsimile or other approved electronic means of delivery shall bear a notation of the date and place of transmission and the facsimile telephone number or e-mail address, where appropriate, to which it is being transmitted.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Section 1013(f), Code of Civil Procedure; and Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7407. Service of Parties and Complainants.
Note • History
Whenever a party files any papers with the Commission, the party shall serve copies of the same on all other parties and on the complainant, or on their attorneys or representatives of record. Service may be by first class mail, registered or certified mail, overnight or express mail, or any other form of mail delivery. Service may also be by facsimile transmission or other approved electronic means of delivery. If a document is served by facsimile or other approved electronic means of delivery, the person serving the document shall also place a hard copy in the mail within any applicable time limit. Service may also be by personal service.
(a) Proof of Service. Service shall be made simultaneously with filing and proof of such service, by means of a written declaration under penalty of perjury, shall be attached to the papers. Any proof of service which meets the requirements of Code of Civil Procedure section 1013a is acceptable. A sample proof of service, which assumes service by facsimile, followed by placing a hard copy of the document in the mail, is the following:
Declaration of Service by [insert means of service]
I, the undersigned, hereby declare:
I am over eighteen years of age and not a party to the within cause. My address is [insert address]. On [insert date], I served a copy of the [list all documents by title or description] on each of the following, by [insert means of service], facsimile transmission and by placing the same in an envelope (or envelopes) addressed respectively as follows:
[insert names and addresses of all persons served with the documents and, if applicable, which party each person represents]
Each said envelope was then on said date sealed and deposited in the United States mail at [insert location], the county in which I am employed, with the postage thereon fully prepaid.
I declare under penalty of perjury that the foregoing is true and correct. Executed on [insert date] at [insert location].
[Signed by the person executing the service]
(b) Date of Service. The date of service of papers served on parties and on complainants, and papers served by the Commission, shall be when the paper is deposited in the United States mail, including overnight mail, delivered in person, or sent by facsimile transmission or other approved means of electronic delivery (assuming that a hard copy was also sent by mail, as required by this section). Where mail is metered and bears a later postmark, the date of the postmark shall control for timeliness purposes.
(c) Computation of Time Periods.
(1) Beginning and end of time period. In computing time periods prescribed by these rules, the day of the event which starts the time period running is not counted, but the last day of the period is included. If the last day of the period falls on a Saturday, Sunday, or a state legal holiday, the time period expires at the corresponding time on the next business day.
(2) Extension for service by mail. Whenever a time period is triggered by service of papers on a party or on a complainant and such service is made by regular mail, five days shall be added to the prescribed period for response. When service is made by overnight or other express mail, or by facsimile transmission, two state business days shall be added to the prescribed period for response. No days will be added to any time period when an extension of time has been granted.
(d) The rules contained in this regulation shall also govern all notices, Commission decisions, and other papers sent out by the Commission pertaining to administrative adjudication.
(e) Service and orders adverse to respondents. If the respondent has not filed a Notice of Defense or appeared at the hearing, the Commission may issue an order adversely affecting the respondent only if the Department proves that it has served the respondent with the accusation, accusation package, and Notice of Hearing, either personally or by registered or certified mail addressed to the last known mailing address on file with the Department, as required by section 7403(b).
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 1012.5, 1013 and 1013a, Code of Civil Procedure; Sections 11505(c), 12935(a) and 12972(a)(2), Government Code; and Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Only the Director or individual within the Department delegated such authority may, in his or her discretion, issue an accusation.
(b) An accusation shall be deemed issued on the date it is filed with the Commission. An accusation shall be filed with the Commission in the manner set forth in section 7406.
(c) All accusations issued pursuant to Government Code section 12965, subdivision (a), alleging employment or Section 12948 discrimination, shall be issued by the Department and filed with the Commission on or before the one-year anniversary date of the filing of the complaint.
(d) All accusations issued pursuant to Government Code section 12981, subdivision (a), alleging unlawful housing practices, shall be issued by the Department and filed with the Commission on or before the 100th day after the date of the filing of the complaint, unless impracticable for the Department to do so. If the Department determines that it is impracticable to meet this deadline, it shall file in the Pleading File a copy of the notification provided to the complainant and respondent explaining the Department's reason(s) for the delay.
(e) Contents of accusation. The form and contents of an accusation may be determined by the Department but, at a minimum, shall meet all of the following:
(1) be written;
(2) be in the name of the Department;
(3) contain the name of each respondent and, if applicable, the capacity in which each respondent is being named;
(4) set forth the nature of the charges in ordinary and concise language with appropriate references to specific sections of the FEHA or other applicable statutes and regulations sufficient to allow the respondent(s) to prepare a defense; and
(5) set forth the relief sought by the Department.
(f) Accusations need not be verified.
(g) The Commission may ignore or correct any error or defect in the accusation which does not substantially affect the rights of any party.
(h) Contents of accusation package. Upon the filing of an accusation, the Department shall serve on the respondent and the complainant, in accordance with the rules in section 7406, an “accusation package.” The accusation package shall include, but is not limited to, the following documents:
(1) a copy of the accusation;
(2) a copy of the underlying complaint(s) which is the subject of the accusation;
(3) a copy of the Commission's procedural regulations accompanied by a statement that these regulations are the governing procedure for administrative adjudication before the Commission;
(4) a copy of a subpoena and a subpoena duces tecum form with instructions for their use;
(5) a copy of the Statement to Respondents;
(6) a Notice of Defense form;
(7) a notice of the right to request, as needed, an interpreter or reasonable accommodation;
(8) if applicable under Government Code section 12965(c) for allegations of employment or Section 12948 discrimination, a statement regarding respondent's right to elect to transfer the proceedings to court in lieu of administrative adjudication, and a form notice to transfer proceedings to court;
(9) for accusations issued pursuant to Government Code section 12981(a), regarding allegations of housing discrimination, a statement regarding respondent's, complainant's, or other aggrieved person's right to elect to have the claims adjudicated in a civil action in lieu of administrative adjudication, and a form notice to transfer proceedings to court;
(10) if applicable under Government Code section 12981(g), for housing discrimination cases, a statement to the complainant that she or he may only be able to recover damages for emotional distress or other intangible injuries through a civil action;
(11) a notice asking the respondent to consent to electronic, rather than stenographic, reporting of the proceedings at hearing;
(12) a copy of the Department's notice informing respondents and complainants of their obligation to keep the Department informed of any change of mailing address or telephone number;
(13) a Notice of Hearing or Notice of Impending Hearing;
(14) a proof of service specifying that all of the above documents have been served.
(i) Service of accusation and accompanying materials. The accusation and accusation package shall be served on each respondent in accordance with the rules in section 7407. The complainant will be provided with a copy of the accusation and related papers pertinent to complainant.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12965, 12948, 12980(f), 12981, 11425.10(a)(2) and 11503, Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) The Department may amend an accusation, issued pursuant to Government Code section 12965 regarding allegations of employment or Section 12948 discrimination, to pray either for damages for emotional injury or for administrative fines, or both, only within the first thirty days after the issuance of the original accusation.
(b) The Department may amend an accusation with new charges (other than those in subdivision (a)) any time up to 30 calendar days prior to the original or continued date the hearing is scheduled to commence. After that time, the Department may amend an accusation which contains new charges only upon such terms as the Hearing Officer approves, including, but not limited to, granting a continuance to the respondent. “New charges” include any amendment which may affect the liability of respondents, such as, but not limited to, the addition of a new respondent or the naming of an existing respondent in a new capacity; the charging of a violation of new sections of the FEHA; the pleading of substantive new facts; and the prayer for new or significantly modified relief.
(c) Any new charges shall be deemed controverted and the respondent does not need to file a new Notice of Defense. Any objections to the amended accusation may be made orally and shall be noted on the record.
(d) At any time before the matter is submitted to the Hearing Officer for decision, the Department may amend an accusation to make nonsubstantive changes.
(e) The first amended accusation shall be clearly labeled “First Amended Accusation,” and any subsequent amended accusations shall be labeled consecutively. The Department shall clearly identify the changes made to each amended accusation either by highlighting the changes or identifying them in a separate written statement.
(f) Any amended accusations shall be filed with the Commission and served on all parties and the complainant in accordance with sections 7406 and 7407.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11507, 12965(c)(4), 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7410. Election to Transfer Proceedings to Court in Lieu of Administrative Adjudication.
Note • History
(a) Accusations Issued Pursuant to Government Code Section 12965(a) Regarding Allegations of Employment or Section 12948 Discrimination. If the accusation (or amended accusation if the purpose of the amendment is to add a prayer for damages for emotional injuries and/or administrative fines) includes a prayer for damages for emotional injury or for administrative fines, or both, any respondent may elect to transfer the proceedings to a court instead of having the matter heard by the Commission. In order to do this, the respondent must serve written notice to this effect. The respondent may use the form provided for this purpose in the Statement to Respondents or available from the Department, or any comparable form. The respondent must serve this notice on the Department, the Commission, and the complainant within 30 days after service of the accusation (or an accusation which has been amended to add a prayer for damages for emotional injuries and/or administrative fines) on the respondent. Where not all of the named respondents exercise election to transfer proceedings to court, the case may be bifurcated and proceed with administrative adjudication as to those non-electing respondents.
(b) Accusations Issued Pursuant to Government Code Section 12981 Regarding Allegations of Housing Discrimination. Any respondent or complainant may elect to have the charges asserted in the accusation adjudicated in a civil action rather than before the Commission. In order to do this, the person seeking election must serve written notice to this effect. The person may use the form provided for this purpose in the Statement to Respondents or available from the Department, or any comparable form. The person must serve the notice on the Department, the Commission, and all other parties, and the complainant, within 20 days after service of the accusation.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12948, 12965, 12965(c)(1) and 12989, Government Code.
HISTORY
1. Repealer of former subchapter 2 (articles 1-6, sections 7410-7467), repealer of former article 1 (sections 7410-7413), and repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 82, No. 52.
§7411. Statement to Respondent.
Note • History
The Statement to Respondent shall be substantially in the following form:
You may make a request for a hearing by delivering or mailing the enclosed form, called a Notice of Defense, to the Fair Employment and Housing Commission, [fill in address of the Commission] within 15 days after the accusation is served on you or you receive it by mail. You may also fax the Notice of Defense to the Commission at [fill in facsimile number], as long as you also place two hard copies of the Notice of Defense in the mail within the 15-day time limit. Either you or your representative must sign the Notice of Defense. If you do not file a Notice of Defense, the Department may proceed to hearing without you. You have a right to be represented by a lawyer or other person in these proceedings. The Department will always be represented by a lawyer. Whether or not you hire an attorney to represent you at the hearing, you may want to seek legal advice to better understand your rights and obligations.
The potential monetary damages that may be assessed by the Commission against you in an administrative adjudication may include, among other things, actual damages, compensatory damages for emotional distress, and administrative fines or civil penalties. In an employment case brought pursuant to Government Code section 12965, the maximum monetary recovery per complainant for the emotional distress and administrative fines combined shall not exceed $50,000 against each respondent. These damages are in addition to any actual damages, such as back pay, front pay, medical expenses and other out-of-pocket costs. In a housing case brought pursuant to Government Code section 12981, there is no upper limit on the emotional distress damages that may be awarded against you.
You are entitled to receive the names and addresses of Department witnesses and to inspect and copy the items mentioned in section 7417 which are held by the Department. You may contact: (here insert name and address of appropriate Department attorney) to obtain these items.
Once the hearing is set, it may be postponed only for good cause. If you have good cause, you must notify the Commission within 10 working days after you discover the good cause. Failure to give notice within 10 days may mean that the hearing will not be postponed.
You must at all times keep the Department notified of your current address, telephone number, and, if applicable, fax number.
[Add appropriate “election to transfer” language from section 7410, subdivision (a) or (b), and state that the appropriate “election to transfer” notice is included in the Statement to Respondent.]
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11505(b), 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
Note • History
(a) Within 15 days after service of the accusation, the respondent may file with the Commission a Notice of Defense, using the form provided by the Department in the accusation package or any substantially equivalent form. In the Notice of Defense, the respondent may request a hearing and state any objections the respondent may have to the form or substance of the accusation.
(b) The Notice of Defense shall be in writing and signed by, or on behalf of, the respondent and shall state the respondent's mailing address, address at which the respondent can be personally served with documents, and telephone number. If the respondent is represented by an attorney or non-attorney representative, or is a corporation, the Notice of Defense shall state the name, mailing address and telephone number of respondent's representative. It need not be verified, or follow any particular form.
(c) The respondent shall be entitled to a hearing on the merits if the respondent files a Notice of Defense.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11506, 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Subpoenas and subpoenas duces tecum may be issued for attendance at the hearing and for production of documents at any reasonable time and place in advance of the hearing or at the hearing.
(b) The Department and each party represented by legal counsel shall issue and sign its own subpoenas and subpoenas duces tecum, using the form in the Appendix to these regulations. Parties who are not represented by legal counsel may request the Commission to issue and sign subpoena and subpoena duces tecum forms.
(c) The process extends to all parts of the state and shall be served in accordance with Code of Civil Procedure sections 1987 and 1988. A subpoena or subpoena duces tecum may also be delivered by certified mail, return receipt requested, or by personal service.
(d) No witness is obliged to attend unless the witness is a resident of the state at the time of service.
(e) A person served with a subpoena or subpoena duces tecum may object to its terms by a motion which shall be resolved by the ELAS or a Hearing Officer in an appropriate order.
(f) A witness appearing pursuant to a subpoena or subpoena duces tecum, other than a party, shall receive for the appearance the same mileage and fees allowed by law to a witness in a civil case (see Government Code sections 68092.5-68093), to be paid by the party at whose request the witness is subpoenaed. Fees for witnesses who are officers and employees of the state or political subdivision of the state shall be governed by Government Code sections 68096.1-68097.10).
(g) Subpoenas and subpoenas duces tecum shall be served on the opposing party in the manner provided in section 7407 and shall comply with consumer notice requirements, Code of Civil Procedure sections 1985.3 and 1985.6, where applicable.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 1985.3, 1985.6, 1987, 1988, Code of Civil Procedure; Sections 11450.10, 11450.20(b), 11450.30, 11450.40, 68092.5-68093, 68096.1-68097.10, 12935(a) and 12972(a)(2), Government Code; and Sehlmeyer v. Department of General Services (1993) 17 Cal.App.4 1072.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Requests for hearing. Where respondent has not stipulated in writing to waive the 90-day hearing requirement pursuant to regulation section 7429(c), the Department shall request the Commission to set the hearing within 90 days of issuance of the accusation. Where respondent has stipulated in writing to waive the 90-day hearing requirement, the Department shall make an effort to consult with the respondent and the complainant regarding hearing dates, and shall then request the Commission to set the hearing.
(b) Notice of hearing. The Department shall deliver or mail a Notice of Hearing to all parties and the complainant at least 30 days prior to the date the hearing is scheduled to commence. If the hearing is continued, advance notice as short as 10 days may be given. The Notice of Hearing shall be substantially in the following form but may include other information:
You are hereby notified that a hearing will be held before the Fair Employment and Housing Commission at [place of hearing] on the [date and time of hearing] upon the charges made in the accusation served upon you. If you do not attend the hearing, the case will be decided without you and an order may be entered which directs you to pay money or take other action.
You have the right to be represented by a lawyer or other representative at your own expense.
You are not entitled to the appointment of a lawyer to represent you at public expense. The Department will be represented by a lawyer. You are entitled to represent yourself without legal counsel. You may present any relevant evidence, and will be given full opportunity to cross-examine all witnesses testifying against you.
You are entitled to the issuance of subpoenas to compel the attendance of witnesses at the hearing and the production of books, documents or other things, either before the hearing at a reasonable time and place or at the hearing. If you are represented by a lawyer, your lawyer may use the subpoena forms attached to this Notice. If you are unrepresented or represented by someone other than a lawyer, you may obtain signed subpoena forms from the Fair Employment and Housing Commission at [here, insert the Commission's address and telephone number]. You are responsible for serving the subpoenaed person or entity with the subpoena, as well as serving a copy of the subpoena on the opposing party, in the manner set forth in section 7407. You must also comply with any consumer notice requirements (Code of Civil Procedure sections 1985.3 and 1985.6) where applicable.
If you or any of your witnesses will need language assistance, including sign language, or other accommodation, you must notify the Commission of this need as soon as possible, but no later than fifteen (15) days before the hearing is to start. The Commission will secure the appropriate interpreter.
Attached is the Commission's regulation on Pre-Hearing Statements and a form for you to use. Please make sure that you comply with its requirements.
(c) Requests for continuance of the hearing. A request for a continuance of a hearing date shall be made in writing, filed with the ELAS, and served on all of the parties and the complainant. Before making a request, the moving party shall contact all other parties to determine if there is any opposition and shall state whether there is any opposition in its papers to the ELAS.
(1) Requests for continuance will be granted only for good cause.
(2) A continuance beyond the 90-day time limitation after issuance of an accusation provided by Government Code section 12968 will only be granted by written stipulation of the parties, written waiver of the time limit by all respondents, and upon approval of the ELAS. If approved, the order of the Commission shall specify new hearing dates or shall order the parties to set new dates.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 1985.3 and 1985.6, Code of Civil Procedure; Sections 11509, 11435.60, 12935(a) and 12972(a)(2), Government Code; and Sehlmeyer v. Department of General Services (1993) 17 Cal.App.4 1072.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7415. Withdrawal of Accusation.
Note • History
(a) Accusations issued pursuant to Government Code section 12965 regarding allegations of employment or section 12948 discrimination. The Department may at any time withdraw the accusation. If a complainant's right-to-sue notice has expired and that complainant objects to the withdrawal, however, the Commission shall decide whether to let the Department withdraw the accusation and whether to allow the administrative adjudication to proceed without the Department, and, if so, on what terms.
(b) Accusations issued pursuant to Government Code section 12981 regarding allegations of housing discrimination. The Department shall not withdraw the accusation unless the complainant withdraws the underlying complaint or the Department determines, after a thorough investigation, that, based on the facts, no reasonable cause exists to believe that an unlawful housing practice, as prohibited by the Act, has occurred or is about to occur or the Department determines that respondent has eliminated the violation which has occurred or is about to occur.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12948, 12965, 12981 and 12981.1, Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7416. Notification of Settlement or Withdrawal of Accusation.
Note • History
The Department shall promptly notify the Clerk of the Commission of all settlements and withdrawals of accusations or any other action terminating a matter before the Commission. When properly notified, the Commission will vacate any hearing date and close its file on the matter on receipt of the withdrawal of the accusation.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Once an accusation is issued, a party is entitled to discovery. The party may make a written request to another party prior to the hearing and within 30 days after service by the Department of the initial accusation or within 15 days after service of an amended accusation or additional pleading. Unless otherwise agreed to by the parties, all responses to written requests for discovery are due 30 days after the request has been made. The following discovery is allowable:
(1) obtain the names and addresses of witnesses who have knowledge of the matters raised in the accusation, to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and
(2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party or the complainant:
(A) A statement pertinent to the subject matter of the accusation, made by the complainant or any party or any person employed by or related to a party.
(B) Statements of witnesses proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in (A) above;
(C) All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party proposes to offer in evidence;
(D) Any writing or thing which is relevant and which would be admissible in evidence and which is in the possession or control of a party or the complainant;
(E) Investigative or progress reports made by or on behalf of the Department or other party pertaining to the subject matter of the proceeding, to the extent that these reports 1. contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or 2. reflect matters perceived by the Department in the course of its investigation, or 3. contain or include by attachment any statement or writing described in (A) to (E), inclusive, or summary thereof.
(3) For the purpose of this section, “statements” include written statements by the person signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of these oral statements.
(4) Nothing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as the attorney's work product.
(5) If the Department alleges conduct which constitutes sexual harassment, sexual assault, or sexual battery, the following rule shall apply: Evidence of specific instances of a complainant's sexual conduct with individuals other than the alleged perpetrator is not discoverable unless it is to be offered at hearing to attack the credibility of the complainant as provided for in section 7429(f)(7).
(b) In addition to the above, the Department and each respondent or other party may each take a single deposition, which shall continue day to day until completed. If an accusation charges multiple respondents, the Department may take a single deposition per respondent. A notice of deposition may also include a notice for production at the deposition of papers, books, accounts and documents. Unless agreed to otherwise by the parties or upon approval of the ELAS or Hearing Officer assigned to the case, depositions shall be scheduled for a date at least ten days after service of the deposition notice and shall be completed on or before the 30th day before the date initially set for hearing or the date of any continued hearing. However, the 30-day cut-off shall not apply where respondent has not stipulated in writing to waive the 90-day hearing requirement pursuant to regulation section 7429(c). In those cases, the deposition shall be completed on or before the 10th day before the hearing date.
Depositions are to be taken in the manner prescribed by Code of Civil Procedure section 2025, except that any application for a protective order, an order to stay the taking of the deposition and quash the deposition notice, or an order to compel the taking of the deposition shall be made to the Commission rather than to the courts. The rules and time limits for enforcement of discovery set forth below in subdivision (c) shall apply to depositions as well.
(c) Procedures for enforcement
(1) Any party claiming that its discovery, including subpoenas and subpoenas duces tecum, has not been complied with (the Moving Party) may serve on the Opposing Party and file with the ELAS, or Hearing Officer, if one has been assigned to hear the discovery matter, a motion to compel discovery, against the party refusing or failing to comply with this section (the Opposing Party). The motion shall state facts showing that the Opposing Party failed or refused to comply with this section, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under this section, that a reasonable and good faith attempt to reach an informal resolution of the issue with the Opposing Party has been made, and the ground or grounds of the Opposing Party's refusal so far as known to the Moving Party.
(2) The Moving Party shall serve the motion upon the Opposing Party and file the motion with the Commission within thirty (30) days after the Opposing Party has failed or refused to respond to the written request for discovery or to testify pursuant to a deposition notice. The Opposing Party shall have seven (7) days from the date of service of the motion to file and serve a response. The ELAS or assigned Hearing Officer, in his or her discretion, may allow a greater or lesser time in which to file a motion or response.
(3) A party's “failure or refusal to respond” to discovery includes when that party has stated or indicated that it will not provide any response to the discovery or where, on the Moving Party's notification to the party that the response provided is incomplete or inadequate, that the party will not supplement the response, or where the Moving Party has advised that party in writing that its lack of meaningful, good faith response shall be considered a failure or refusal to respond for the purposes of section 7417(c)(2).
(4) The ELAS or assigned Hearing Officer has the discretion to decide the matter without hearing. If the ELAS or Hearing Officer decides that a hearing is necessary, s/he has the discretion to conduct it by telephone or with the parties present.
(5) Where the matter sought to be discovered is under the custody or control of the Opposing Party and the Opposing Party asserts that the matter is not a discoverable matter under the provisions of this section, or is privileged against disclosure under these provisions, the ELAS or Hearing Officer may order matters provided in subdivision (b) of section 915 of the Evidence Code to be lodged with the Commission and may examine the matters in accordance with its provisions.
(6) Unless otherwise stipulated by the parties, the ELAS or Hearing Officer shall, no later than 15 days after the hearing (or, if no hearing has been held, within 15 days after receipt of the moving papers), make an order denying or granting the motion. The order shall be in writing setting forth the matters which the Moving Party is entitled to discover under this section. The ELAS or Hearing Officer shall serve by mail upon the parties a copy of the order. Where the order grants the motion in whole or in part, the order shall not become effective until 10 days after the date the order is served. Where the order denies relief to the Moving Party, the order shall be effective on the date it is served.
(7) Unless the ELAS or Hearing Officer rules otherwise, any discovery enforcement proceedings shall stay the 90-day requirement under Government Code section 12968 for the commencement of the hearing.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Section 2025, Code of Civil Procedure; Sections 11440.40, 12968, 12972, 11507.6 and 11507.7, Government Code; and Section 915, Evidence Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7418. Interpreters and Accommodation.
Note • History
(a) In proceedings where a party, a party's representative, or a party's expected witness requires an interpreter for any language, including sign language, that party shall be responsible for notifying the Commission, following the pre-hearing motion procedure in section 7419. The Commission shall be responsible for securing the interpreter and shall assess the costs of the interpreter as an ordinary cost of the hearing.
(b) In proceedings where a party, a party's representative, or a party's expected witness has a disability requiring accommodation either at the hearing or at any other stage of the administrative adjudication, that party shall be responsible for complying with Judicial Rule 989.3 and/or Evidence Code section 754, set forth in the Appendix to these regulations.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Section 754, Evidence Code; Judicial Rule 989.3; and Sections 11425.10(a)(9) and 11435.05-11435.65, Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
Pre-hearing motions before the Commission shall not decide substantive matters. Substantive matters, including jurisdictional or legal challenges, are to be presented at the hearing on the merits and, except as expressly provided below, shall not be the subject of proceedings before hearing.
(a) If all parties stipulate in writing that there is a jurisdictional or other threshold dispositive issue which should, in the interests of judicial economy, be decided before proceeding to the merits of the case, the Hearing Officer assigned to hear the case may take evidence solely on the jurisdictional or other threshold issue and issue a written ruling on this issue alone. If the Hearing Officer rules for the Department, the parties shall set the case for the hearing on the merits. If the Hearing Officer rules against the Department, the procedure in section 7434 shall be followed and the issue will be placed before the Commission for decision in the matter. If the Commission decides for the Department, the case will then be remanded to the Hearing Officer for a hearing on the merits.
(b) Allowable pre-hearing (non-discovery) motions.
(1) Intervention.
(2) Amicus briefs.
(3) Motion compelling deposition of an unavailable witness.
(4) Consolidation or severance of matters for hearing.
(5) Request for Interpreter, in compliance with the rules set forth in section 7418 and Government Code sections 11435.05 through 11435.65.
(6) Motion for disqualification of the hearing officer, in compliance with the rules set forth in Government Code section 11425.40, subdivisions (a) through (c).
(7) Motion to Amend Accusation.
(8) Motion to Withdraw Accusation.
(9) Motion to Change Venue.
(10) Other motions, on prior approval of the ELAS.
(c) Pre-hearing motions: procedure.
(1) Pre-hearing motions shall be filed with the ELAS, or assigned Hearing Officer, be in writing, and include a proof of service indicating service on all parties and the complainant.
(2) No special form of motion is required.
(3) Unless these regulations set forth a different time for filing a particular motion (see, e.g., section 7409 for Amended Accusation; section 7415 for Withdrawal of Accusation; and section 7429(c), for Motion to Change Venue), pre-hearing motions shall be filed and served at least 15 calendar days before the date set for commencement of the hearing. Such motions may be heard on shorter notice on written application to, and approval of, the ELAS, for good cause, on such terms as determined by the ELAS. The non-moving party shall have seven (7) days from the date of service of the motion to file and serve a response. The ELAS, or Hearing Officer assigned to hear the case, in his or her discretion, may allow a lesser or greater time in which to file a motion or response.
(4) An order granting or denying a motion shall be made by the ELAS or Hearing Officer assigned to hear the case. The order shall be in writing and served by mail on all parties of record.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. References: Sections 11425.10(a)(5),(9), 11435.05-11435.65 and 11425.40, Government Code; Section 754, Evidence Code; and Judicial Rule 989.3.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7420. Ex Parte Communications.
Note • History
Except as otherwise allowed under the Administrative Procedure Act, Government Code sections 11430.10-11430.80, or as authorized by Judicial Rule 989.3 or under these regulations, there shall be no communication, direct or indirect, regarding any issue in a pending proceeding, to the Hearing Officer, ELAS, or Commission from an employee or representative of the Department or from an interested person outside of the Department, or from the respondent or complainant, without notice and opportunity for all parties to participate in the communication.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11430.10-11430.80, Government Code.
HISTORY
1. Repealer of former article 2 (sections 7420-7425) and repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7421. Consolidation and Severance.
Note • History
(a) A Hearing Officer, on his or her own motion, may order consolidation of two or more cases or severance of any consolidated cases or of issues in a single case. The Hearing Officer shall provide notice to all parties and allow a reasonable time for the parties to file and serve any objections in writing. Failure to assert objections within the time allowed shall constitute a waiver of objection to the order of consolidation or severance.
(b) A party who brings a motion for consolidation or severance shall comply with section 7419.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11507.3, 12935(a) and 12972(a)(2). Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7422. Pre-Hearing Statements.
Note • History
(a) Prior to hearing, the parties shall make best efforts to confer in person or by telephone to resolve or define any issues relating to the hearing. Thereafter, each party shall prepare a pre-hearing statement.
(b) No later than five (5) state business days prior to the scheduled date of hearing, each party shall file with the Commission a pre-hearing statement signed by the party or his/her representative of record. This statement shall include, if relevant, but need not be limited to, the following:
(1) A brief summary of any stipulated facts.
(2) Identification of all operative pleadings by their title and date signed.
(3) A current estimate from each party of the time necessary to try its case.
(4) The name of each witness each party may call at hearing, along with a brief statement of the content of each witness's expected testimony.
(5) The name and address of each expert witness each party intends to call at hearing, along with a brief statement of the opinion each expert is expected to give and a copy of the current resume or curriculum vitae of each expert witness.
(6) A list of documentary exhibits each party intends to present at hearing and a description of any physical or demonstrative evidence.
(7) The identity of any witness whose testimony will be presented by affidavit pursuant to section 7428 or by deposition pursuant to section 7427.
(8) A concise statement of any significant evidentiary issues.
(9) A copy of any pre-hearing motion filed by either party, any response filed thereto, and, if applicable, any order from the ELAS or Hearing Officer.
(10) Any anticipated motions in limine.
(c) The pre-hearing statement may be prepared in the format provided in the Appendix to these regulations.
(d) Failure to disclose fully all required items in the pre-hearing statement without good cause will, at the discretion of the Hearing Officer, result in the exclusion or restriction of evidence at hearing.
(e) The parties are not required to disclose any witnesses or exhibits which may be presented for rebuttal or impeachment purposes.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11511, 11514, 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
§7423. Pre-Hearing Conferences.
Note • History
(a) The Hearing Officer assigned to hear the case may order a pre-hearing conference, which ordinarily will be held by telephone, unless the Hearing Officer determines otherwise.
(b) The pre-hearing statements and any pre-hearing motions and responsive papers shall provide the basis for discussion of issues and rulings at the pre-hearing conference.
(c) At or after the pre-hearing conference, the Hearing Officer may issue a prehearing order, or dictate into the record, the matters determined at the conference.
(d) Pre-hearing conferences need not be open to public observation.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11425.20(c), 11511.5, 12935(a), 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7424. Settlement Conferences.
Note • History
(a) At any time after the Department issues an accusation, any party may file with the ELAS and serve upon all parties and the complainant a request for a settlement conference. Nothing in these regulations precludes the parties from discussing settlement whether or not a settlement conference is convened.
(b) Upon receipt of a request for a settlement conference, the ELAS shall ascertain if the other party agrees and shall assess whether a settlement conference is feasible, and, if so, shall assign a settlement conference Hearing Officer to convene a settlement conference. The conference may be conducted by telephone or with the parties and complainant present, within the discretion of the settlement conference Hearing Officer.
(c) The discussions at the settlement conference shall remain confidential and shall not be disclosed to the Hearing Officer assigned to hear the case. All settlement materials received by the settlement conference Hearing Officer shall be maintained in a separate settlement file. If efforts at settlement are unsuccessful or if the matter goes to hearing, a different Hearing Officer, who shall have no access to the settlement file, shall be assigned to hear the case.
(d) No evidence of an offer of compromise or settlement made in settlement negotiations shall be admissible in any administrative adjudication before the Commission, whether as affirmative evidence, by way of impeachment, or for any other purpose.
(e) The respondent and his/her representative, the Department's representative, and any other party to the action shall attend the settlement conference, or otherwise be available. Each party shall send, or have available, someone who has the authority to discuss and give tentative approval of a settlement. The complainant may be present, but in all events shall be available by telephone for consultation during the conference.
(f) If a settlement is reached at, or as a result of, a settlement conference, the terms of the settlement shall be set forth in a written stipulation, settlement agreement or consent order, or orally placed on the record.
(g) Settlement conferences are not open to public observation.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11425.20(c), 11511.7, 11415.60(a), 12963.7 and 12932(d), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) The complainant may intervene as a matter of right in any administrative adjudication before the Commission. In order to intervene, the complainant shall notify the Commission and the parties in writing of his/her intent to intervene.
(b) Any other person who wishes to intervene in the administrative adjudication of a case which is before the Commission shall file a motion so requesting with the Commission in accordance with section 7419(b).
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
Before the hearing has commenced, any person wishing to file an amicus curiae brief in a matter which is before the Commission shall file a motion so requesting with the Commission in accordance with section 7419(b). After the hearing has commenced, the Commission may, in its discretion, permit any person to file an amicus brief at any time before the Commission decides the case.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7427. Depositions of Unavailable Witnesses.
Note • History
Where a witness will be unable to attend or cannot be compelled to attend the hearing, any party may move the Commission for an order that the witness be deposed in the manner prescribed by law for depositions in Code of Civil Procedure section 2025. The motion shall be governed by the procedure set forth for pre-hearing motions in section 7419(b). The motion shall set forth the nature of the pending proceeding; the name and address of the witness whose testimony is desired; a showing of the materiality of the testimony; a showing that the witness will be unable, as defined in Evidence Code section 240, or cannot be compelled to attend, and shall request an order requiring the witness to appear and testify before an officer named in the petition for that purpose. Where the witness resides outside the state and where the Commission has ordered the taking of the testimony by deposition, the Moving Party shall obtain an order of the court to that effect by filing a petition therefor in the superior court in Sacramento County. The proceedings thereon shall be in accordance with the provisions of Government Code section 11189. At the hearing, the deposition may be used in accordance with the rules in Code of Civil Procedure section 2025, subdivision (u). This section is in addition to the deposition authorized by section 7417(b).
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11511, 11189, 12935(a) and 12972(a)(2), Government Code; Section 2025, Code of Civil Procedure; and Section 740, Evidence Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) At any time 10 or more days prior to a hearing or a continued hearing, any party may serve on the opposing party a copy of any affidavit which he or she proposes to introduce into evidence, together with a notice as provided in subdivision (b). Unless the opposing party, within seven days after such receipt of the affidavit, serves on the proponent a request to cross-examine the affiant, the opposing party's right to cross-examine the affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine the affiant is not afforded after a timely request to do so is made as provided herein, the affidavit may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be substantially in the following form: The enclosed affidavit of [name of affiant] will be introduced as evidence at the hearing in [title of proceeding]. [Name of affiant] will not be called to testify orally and you will not be entitled to question [him/her] unless you notify [name of person offering the testimony or his/her attorney] at [address] that you wish to cross-examine this person. To be effective, your request must be mailed, sent by facsimile machine (faxed) or delivered to [name of person offering the testimony or his/her attorney] on or before [date which is at least seven days after the date of mailing or delivering the affidavit to the opposing party], together with a proof of service.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11514, 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Every hearing in a contested case shall be presided over by a Hearing Officer appointed by the Commission. The Hearing Officer shall hear the case alone, unless a quorum of the Commission decides to hear the case along with the Hearing Officer. If the Commission itself decides to hear the case, the rules in the Administrative Procedure Act, Government Code sections 11512 and 11517(a), shall govern the proceeding.
(b) The hearing shall be open to public observation, unless the Hearing Officer orders closure of a hearing for one of the reasons set forth in Government Code section 11425.20, subdivision (a) (1)-(3).
(1) The Hearing Officer may exclude persons whose conduct impedes the orderly conduct of the hearing; restrict or regulate attendance because of the physical limitations of the hearing room; or take other action to promote due process or the orderly conduct of the hearing.
(2) The Hearing Officer may grant a motion to exclude witnesses under Evidence Code section 777.
(c) Time and place of hearing.
(1) The hearing shall commence within 90 days of the filing of the accusation unless the parties waive the 90-day hearing requirement contained in Government Code section 12968, or a continuance has been granted, subject to the rule in section 7414, subdivision (c).
(2) The Department shall make arrangements for the place of hearing, unless otherwise ordered by the Commission. The hearing shall be held in the county in which the alleged violation of the Fair Employment and Housing Act occurred or where the respondent does business, unless the parties agree, or the Commission orders, that the hearing take place in some other place. A party may move for a change in the place in hearing by written motion to the Commission in compliance with regulation sections 7406, 7407 and 7419, no later than 10 days after service of the Notice of Hearing, because of economic hardship, convenience of witnesses, or other good cause.
(3) The hearing shall ordinarily be conducted with the parties present before the Hearing Officer, unless the Hearing Officer, with the approval of the parties, permits the hearing to be conducted by telephone, television, or other electronic means.
(4) The Department shall attempt to consult with the respondent or respondent's representative prior to sending out the Notice of Hearing, in order to select mutually agreeable dates of hearing.
(d) Conduct of hearings
(1) The proceedings at the hearing shall be reported by a stenographic reporter. Upon the consent of all the parties, however, the proceedings may be reported electronically.
(2) If the Hearing Officer determines to order a transcript, the Commission shall receive an original and one copy. The Commission retains the original and the copy goes to the Department. Respondents and complainants, if they desire a copy of the transcript, are responsible for ordering their own copy of the transcript.
(e) Motions during hearing
(1) Motions during the hearing, including motions in limine, shall be directed to the Hearing Officer, and may be made orally on the record or in writing with copies served on all parties and the complainant. The Hearing Officer shall rule on all motions, except as provided below in 2., orally on the record, unless s/he reserves ruling until after the close of the hearing, in which case the ruling shall be made a part of the proposed decision.
(2) The Hearing Officer shall not entertain motions in the nature of motions for non-suit, dismissal, or for judgment, but must proceed with the taking of evidence until all of the testimony to be offered by all the parties has been received.
(f) Evidence rules
(1) Oral evidence shall be taken only on oath or affirmation.
(2) Each party shall have these rights: to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues, even though that matter was not covered in the direct examination; to impeach any witness, regardless of which party first called him or her to testify; and to rebut the evidence against him or her. Any party may call any other party during its case in chief, pursuant to Evidence Code section 776.
(3) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.
(4) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence. If an appropriate objection is made at hearing, hearsay evidence shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
(5) The rules of privilege shall apply in administrative adjudications before the Commission to the extent that they are recognized under the Evidence Code.
(6) The Hearing Officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time because of its collateral or cumulative nature, or create substantial danger of undue prejudice or of confusing the issues.
(7) In any proceeding under subdivisions (a), (h) or (i) of Government Code section 12940, or section 12955, alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery, evidence of specific instances of a complainant's sexual conduct with individuals other than the alleged perpetrator is subject to all of the following limitations:
(A) The evidence is not discoverable unless it is to be offered at a hearing to attack the credibility of the complainant as provided for under (C) below. This paragraph is intended only to limit the scope of discovery; it is not intended to affect the methods of discovery allowed by statute.
(B) The evidence is not admissible at the hearing unless offered to attack the credibility of the complainant as provided for under (C) below. Reputation or opinion evidence regarding the sexual behavior of the complainant is not admissible for any purpose.
(C) Evidence of specific instances of a complainant's sexual conduct with individuals other than the alleged perpetrator is presumed inadmissible absent an offer of proof establishing its relevance and reliability and that its probative value is not substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or confuse the issue.
(8) At the beginning of the hearing, the Department shall introduce into the record, for jurisdictional purposes only, the Pleading File in the case. The Pleading File shall contain, at a minimum, the complaint(s) and accusations(s), any Notice(s) of Defense or other responsive papers filed by the respondent(s) and the proofs of service for each document. If applicable under Government Code section 12980(f), 12981(a), or 12981(c), the pleading file shall also contain a copy of any notifications provided to the complainant and respondent explaining the Department's reason(s) for failing to complete the investigation or issue the accusation within 100 days, or make a final administrative disposition of the complaint within one year.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11440.30, 11440.40, 11512, 11513, 11517(a), 11425.20, 12940, 12955 and 12968, Government Code; and Sections 352, 776 and 777, Evidence Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) At a default hearing, the Hearing Officer may take action based upon the respondent's express admission or upon other evidence introduced at the hearing by the Department. Affidavits or declarations under penalty of perjury may be used as evidence without notice to respondent as allowed by section 7428.
(b) The Hearing Officer and/or Commission may issue an order adversely affecting the respondent in a default hearing if the Department has complied with the rules set forth in section 7407(e).
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11505(c), 11514 and 11520, Government Code.
HISTORY
1. Repealer of former article 3 (sections 7430-7439) and repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any generally accepted technical or scientific matter within the Commission's special field, and of any fact which may be judicially noticed by the courts of this state, pursuant to Evidence Code sections 451 and 452. Parties present at the hearing shall be informed by the Hearing Officer or Commission of the matters to be noticed, and those matters shall be noted in the record, referred to therein, or appended thereto. All parties shall be given a reasonable opportunity to refute the officially noticed matters by evidence or by written or, if requested, oral presentation of authority to the Commission.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Section 11515, Government Code; and Sections 451-52, Evidence Code.
HISTORY
1. New section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Post-hearing briefs. The parties shall be given the opportunity to file post-hearing briefs, as directed at the hearing. Copies shall be served on the parties and on the complainants as provided in section 7407.
(b) Date of submission of matter for decision. The matter will be deemed submitted to the Hearing Officer for decision on the date the Hearing Officer receives the transcripts of the hearing, hears oral argument, or receives the last timely post-hearing brief, whichever event occurs last.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 12935(a) and 12972(a)(2), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Form of decision.
(1) The decision shall be in writing, be based on the record, and include a statement of the factual and legal basis of the decision.
(2) If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination, to the extent that the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.
(3) The statement of the factual basis for the decision shall be based exclusively on the evidence of record in the proceeding and on matters officially noticed in the proceeding. The Hearing Officer's experience, technical competence, and specialized knowledge may be used in evaluating evidence.
(b) Preparation of proposed decision. Within 60 days after the case is submitted, the Hearing Officer shall prepare and serve on the Commission, all parties and the complainant, or their representatives of record, a proposed decision in such a form that it may be adopted by the Commission as the Commission's decision in the case. Failure of the Hearing Officer to deliver a proposed decision within the time required does not prejudice the rights of the Commission in the case.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11425.10(a)(6), 11425.50 and 11517, Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
(a) Adoption or modification of proposed decision. Upon receipt of a proposed decision, the Commission may do any of the following:
(1) Adopt the proposed decision in its entirety.
(2) Reduce or otherwise mitigate the proposed remedy and adopt the balance of the proposed decision.
(3) Make technical or other minor changes in the proposed decision and adopt it as the decision. Action by the Commission under this paragraph is limited to clarifying changes or changes of a similar nature that do not affect the factual or legal basis of the proposed decision.
(b) Non-adoption of proposed decision. If the proposed decision is not adopted as provided in subdivision (a), the Commission may decide the case upon the record, including the transcript, or may refer the case to the same Hearing Officer, if available, to take additional evidence. The parties shall be notified of their ability to order a transcript in the case. If the case is assigned to a Hearing Officer for the taking of additional evidence, he or she shall prepare a proposed decision as provided in section 7433, subdivision (a) upon the receipt of the additional evidence and the transcript and other papers which are part of the record of the prior hearing. A copy of the proposed decision shall be served on the Commission and all parties and complainant, as prescribed below in subdivision (e).
(1) Before deciding any case on the record, the Commission shall give the parties the opportunity to present further written argument and/or, if the Commission so chooses, to present further oral argument before the Commission.
(2) If the analysis of the further argument reveals the need for additional evidence, the Commission may order the taking of additional evidence, either by the Commission or by the Hearing Officer. Following receipt of the additional evidence, the Commission may require further written or oral argument before deeming the case submitted to it for decision. If additional oral evidence is taken by the Commission, no Commissioner may vote unless the member heard the additional oral evidence.
(c) The proposed decision shall be deemed adopted by the Commission 100 days after service to the Commission by the Hearing Officer, unless within that time: (1) the Commission notifies the parties that the proposed decision is not adopted and commences proceedings to decide the case itself upon the record, or (2) the Commission refers the case to the Hearing Officer to take additional evidence.
(d) The decision of the Commission shall be a public record.
(e) Copies of the Commission decision shall be served by the Commission by first class, certified or registered mail on all parties and the complainant or their representatives of record. Proof of service shall be as set forth in section 7407.
(f) Within 15 days after service of a copy of the decision on a party, but not later than the effective date of the decision, the party may apply to the Commission for correction of a mistake or clerical error in the decision, stating the specific ground on which the application is made. Notice of the application shall be given to the other parties to the proceeding. The application is not a prerequisite for seeking judicial review.
(1) The Commission may refer the application to the Hearing Officer who wrote the proposed decision or may delegate its authority under this section to one or more persons.
(2) The Commission may deny the application, grant the application and modify the decision, or grant the application and set the matter for further proceedings. The application is considered denied if the Commission does not dispose of it within 30 days after it is made.
(3) Nothing in this section precludes the Commission on its own motion, or on motion of the Hearing Officer, from modifying the decision to correct a mistake or clerical error. A modification under this subdivision shall be made within 30 days after issuance of the decision.
(4) The Commission shall, within 15 days after correction of a mistake or clerical error in the decision, serve a copy of the correction on each party and complainant on which a copy of the decision was previously served.
(g) The decision shall become effective 30 days after it is mailed to the parties and the complainant, unless a reconsideration of the decision is ordered within that time, or the Commission orders that the decision shall become effective sooner, or a stay of execution is granted by the Commission.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11517, 11518.5 and 11519, Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
§7435. Precedential Decisions.
Note • History
(a) The Commission may designate, as a precedential decision, any decision or part of any decision that contains a significant legal or policy determination of general application that is likely to recur. Once the Commission designates a decision or part of a decision as precedential, the Commission may rely on it or that part of it as precedent and the parties may cite to such decisions in their argument to the Commission and courts.
(b) The Commission shall publish, on an annual basis, an index of significant legal and policy determinations made in its precedential decisions and shall publish annually the availability of this index in the California Regulatory Notice Register. The Commission shall also make the index and precedential decisions available for inspection in its office and shall make the index available to the public by subscription or other on-line means.
NOTE
Authority cited: Sections 12935(a) and (h), and 12972(a)(2), Government Code. Reference: Sections 11425.10(a)(7), 11425.60 and 12935(h), Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
Note • History
(a) The Commission may order a reconsideration of all or part of a Commission decision on its own motion or by petition of any party. A party may petition the Commission for reconsideration within 20 days of the date a decision is mailed to the party. The power to order reconsideration shall expire 30 days after the delivery or mailing of a Commission decision to all parties and the complainant or upon the termination of a stay of not to exceed 30 days which the Commission may grant for the purpose of filing a petition for reconsideration. If the Commission needs additional time to evaluate a timely petition for reconsideration, the Commission may grant a stay of the expiration for no more than 10 days, for the sole purpose of considering the petition.
(b) The decision may be reconsidered by the Commission on all the pertinent parts of the record and such additional evidence and argument as the Commission permits, or the Commission may assign the case back to the Hearing Officer for the taking of additional evidence, pursuant to the rules set forth in section 7435, subdivision (b). If oral evidence is introduced before the Commission, no Commissioner may vote unless he or she heard the evidence.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Section 11521, Government Code.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
Note • History
The Commission incorporates by reference the rules for judicial review which are found in the Administrative Procedure Act, Government Code section 11523, and, for housing discrimination cases, Government Code section 12987.1.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11523 and 12987.1, Government Code; and Section 1094.5, Code of Civil Procedure.
HISTORY
1. Repealer and new section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
Note • History
A. Subpoena and subpoena duces tecum form.
B. Judicial Council Rule 989.3 and Evidence Code section 754.
C. Pre-hearing statement form.
NOTE
Authority cited: Sections 12935(a) and 12972(a)(2), Government Code. Reference: Sections 11450.10, 11435.05 and 11511.5(a)(9), Government Code; Section 754, Evidence Code; and Judicial Council Rule 989.3.
HISTORY
1. Repealer and new section (including appendices A-C) filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12). For prior history, see Register 83, No. 23.
Appendix A
Embedded Graphic 02.0040
Appendix B
RULE 989.3 REQUESTS FOR ACCOMMODATIONS BY
PERSONS WITH DISABILITIES
(a) [Policy] It shall be the policy of the courts of this state to assure that qualified individuals with disabilities have equal and full access to the judicial system. Nothing in this rule shall be construed to impose limitations or to invalidate the remedies, rights, and procedures accorded to any qualified individuals with disabilities under state or federal law.
(b) [Definitions] The following definitions shall apply under this rule:
(1) “Qualified individuals with disabilities” means persons covered by the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.); Civil Code section 51 et seq.; and other related state and federal laws; and includes individuals who have a physical or mental impairment that substantially limits one or more of the major life activities; have a record of such an impairment; or are regarded as having such an impairment.
(2) “Applicant” means any lawyer, party, witness, juror, or any other individual with an interest in attending any proceeding before any court of this state.
(3) “Accommodation(s)” may include, but are not limited to, making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to the qualified individuals with disabilities, auxiliary aids and services, which are not limited to equipment, devices, materials in alternative formats, and qualified interpreters or readers; and making each service, program, or activity, when viewed in its entirety, readily accessible to and usable by qualified individuals with disabilities requesting accommodations. While not requiring that each existing facility be accessible, this standard, known as “program accessibility,” must be provided by methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate sites.
(4) The “rule” means this rule regarding requests for accommodations in state courts by qualified individuals with disabilities.
(5) “Confidentiality” applies to the identity of the applicant in all oral or written communications, including all files and documents submitted by an applicant as part of the application process.
(c) [Process] The following process for requesting accommodations is established:
(1) Applications requesting accommodation(s) pursuant to this rule may be presented ex parte in writing, on a form approved by the Judicial Council and provided by the court, or orally as the court may allow. Applications should be made at the designated Office of the Clerk, or to the courtroom clerk or judicial assistant where the proceeding will take place, or to the judicial officer who will preside over the proceeding.
(2) All applications for accommodations shall include a description of the accommodation sought, along with a statement of the impairment that necessitates such accommodation. The court, in its discretion, may require the applicant to provide additional information about the qualifying impairment.
(3) Applications should be made as far in advance of the requested accommodations implementation date as possible, and in any event should be made no less than five court days prior to the requested implementation date. The court may, in its discretion, waive this requirement.
(4) Upon request, the court shall place under seal the identity of the applicant as designated on the application form and all other identifying information provided to the court pursuant to the application.
(d) [Permitted communication] An applicant may make ex parte communications with the court; such communications shall deal only with the accommodation(s) the applicant's disability requires and shall not deal in any manner with the subject matter or merits of the proceedings before the court.
(e) [Grant of accommodation] A court shall grant an accommodation as follows:
(1) In determining whether to grant an accommodation and what accommodation to grant, the court shall consider, but is not limited by, the provisions of the Americans with Disabilities Act of 1990 and related state and federal laws.
(2) The court shall inform the applicant in writing of findings of fact and orders, as may be appropriate, that the request for accommodations is granted or denied, in whole or in part, and the nature of the accommodation(s) to be provided, if any.
(f) [Denial of accommodation] An application may be denied only if the court finds that:
(1) The applicant has failed to satisfy the requirements of this rule; or
(2) The requested accommodation(s) would create an undue financial or administrative burden on the court; or
(3) The requested accommodation(s) would fundamentally alter the nature of the service, program, or activity.
(g) [Review procedure]
(1) An applicant or any participant in the proceeding in which an accommodation has been denied or granted may seek review of a determination made by nonjudicial court personnel within 10 days of the date of the notice of denial or grant by submitting a request for review to the judicial officer who will preside over the proceeding or to the presiding judge if the matter has not been assigned.
(2) An applicant or any participant in the proceeding in which an accommodation has been denied or granted may seek review of a determination made by a presiding judge or any other judicial officer of a court within 10 days of the date of the notice of denial or grant by filing a petition for extraordinary relief in a court of superior jurisdiction.
(h) [Duration of accommodations] The accommodations by the court shall commence on the date indicated in the notice of accommodation and shall remain in effect for the period specified in the notice of accommodation. The court may grant accommodations for indefinite periods of time or for a particular matter or appearance.
Adopted, eff. Jan. 1, 1996.
EVIDENCE CODE
§ 754. Deaf or Hearing Impaired Persons; Interpreters; . Qualifications; Guidelines; Compensation; Questioning; Use of Statements
(a) As used in this section, “individual who is deaf or hearing impaired” means an individual with a hearing loss so great as to prevent his or her understanding language spoken in a normal tone, but does not include an individual who is hearing impaired provided with, and able to fully participate in the proceedings through the use of, an assistive listening system or computer-aided transcription equipment provided pursuant to Section 54.8 of the Civil Code.
(b) In any civil or criminal action, including, but not limited to, any action involving a traffic or other infraction, any small claims court proceeding, any juvenile court proceeding, any family court proceeding or service, or any proceeding to determine the mental competency of a person, in any court-ordered or court-provided alternative dispute resolution, including mediation and arbitration, or any administrative hearing, where a party or witness is an individual who is deaf or hearing impaired and the individual who is deaf or hearing impaired is present and participating, the proceedings shall be interpreted in a language that the individual who is deaf or hearing impaired understands by a qualified interpreter appointed by the court or other appointing authority, or as agreed upon.
(c) For purposes of this section, “appointing authority” means a court, department, board, commission, agency licensing or legislative body, or other body for proceedings requiring a qualified interpreter.
(d) For the purposes of this section, “interpreter” includes, but is not limited to, an oral interpreter, a sign language interpreter, or a deaf-blind interpreter, depending upon the needs of the individual who is deaf or hearing impaired.
(e) For purposes of this section, “intermediary interpreter” means an individual who is deaf or hearing impaired, or a hearing individual who is able to assist in providing an accurate interpretation between spoken English and sign language or between variants of sign language or between American Sign Language and other foreign languages by acting as an intermediary between the individual who is deaf or hearing impaired and the qualified interpreter.
(f) For purposes of this section, “qualified interpreter” means an interpreter who has been certified as competent to interpret court proceedings by a testing organization, agency, or educational institution approved by the Judicial Council as qualified to administer tests to court interpreters for individuals who are deaf or hearing impaired.
(g) In the event that the appointed interpreter is not familiar with the use of particular signs by the individual who is deaf or hearing impaired or his or her particular variant of sign language, the court or other appointing authority shall, in consultation with the individual who is deaf or hearing impaired or his or her representative, appoint an intermediary interpreter.
(h) Prior to July 1, 1992, the Judicial Council shall conduct a study to establish the guidelines pursuant to which it shall determine which testing organizations, agencies, or educational institutions will be approved to administer tests for certification of court interpreters for individuals who are deaf or hearing impaired. It is the intent of the Legislature that the study obtain the widest possible input from the public, including, but not limited to, educational institutions, the judiciary, linguists, members of the State Bar, court interpreters, members of professional interpreting organizations, and members of the deaf and hearing-impaired communities. After obtaining public comment and completing its study, the Judicial Council shall publish these guidelines. By January 1, 1997, the Judicial Council shall approve one or more entities to administer testing for court interpreters for individuals who are deaf or hearing impaired. Testing entities may include educational institutions, testing organizations, joint powers agencies, or public agencies.
Commencing July 1, 1997, court interpreters for individuals who are deaf or hearing impaired shall meet the qualifications specified in subdivision (f).
(i) Persons appointed to serve as interpreters under this section shall be paid, in addition to actual travel costs, the prevailing rate paid to persons employed by the court to provide other interpreter services unless such service is considered to be a part of the person's regular duties as an employee of the state, county, or other political subdivision of the state. Payment of the interpreter's fee shall be a charge against the county, or other political subdivision of the state, in which that action is pending. Payment of the interpreter's fee in administrative proceedings shall be a charge against the appointing board or authority.
(j) Whenever a peace officer or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or proceeding questions or otherwise interviews an alleged victim or witness who demonstrates or alleges deafness or hearing impairment, a good faith effort to secure the services of an interpreter shall be made, without any unnecessary delay unless either the individual who is deaf or hearing impaired affirmatively indicates that he or she does not need or cannot use an interpreter, or an interpreter is not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted thereunder.
(k) No statement, written or oral, made by an individual who the court finds is deaf or hearing impaired in reply to a question of a peace officer, or any other person having a law enforcement or prosecutorial function in any criminal or quasi-criminal investigation or proceeding, may be used against that individual who is deaf or hearing impaired unless the question was accurately interpreted and the statement was made knowingly, voluntarily, and intelligently and was accurately interpreted, or the court makes special findings that either the individual could not have used an interpreter or an interpreter was not otherwise required by Title II of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted thereunder and that the statement was made knowingly, voluntarily, and intelligently.
(l) In obtaining services of an interpreter for purposes of subdivision (j) or (k), priority shall be given to first obtaining a qualified interpreter.
(m) Nothing in subdivision (j) or (k) shall be deemed to supersede the requirement of subdivision (b) for use of a qualified interpreter for individuals who are deaf or hearing impaired participating as parties or witnesses in a trial or hearing.
(n) In any action or proceeding in which an individual who is deaf or hearing impaired is a participant, the appointing authority shall not commence proceedings until the appointed interpreter is in full view of and spatially situated to assure proper communication with the participating individual who is deaf or hearing impaired.
(o) Each superior court shall maintain a current roster of qualified interpreters certified pursuant to subdivision (f).
(Amended by Stats. 1995, c. 143 (A.B. 1833), §1. eff. July 18, 1995.)
Appendix C
PRE-HEARING STATEMENT
You may, but do not have to, use this form to prepare your Pre-Hearing Statement which must be filed with the Commission no later than five working days before the scheduled date of hearing. Failure to fully disclose all required items in the Pre-Hearing Statement may result in the exclusion or restriction of evidence at the hearing. Please see the Commission's procedural regulations, at California Code of Regulations, Title 2, sections 7400 et seq., for more details.
In the Matter of the Accusation )
of the )
)
DEPARTMENT OF FAIR ) PRE-HEARING STATEMENT
EMPLOYMENT AND ) (Cal. Code Regs. §7422)
HOUSING )
)
v. ) Case No.:
) Hearing Date:
(RESPONDENT'S NAME), )
)
Respondent(s). )
)
(COMPLAINANT'S NAME), )
Complainant(s). )
)
1. Brief summary of any stipulated facts:
2. Pleadings in the case:
Date of accusation:
Date(s) of any amended accusation(s):
Date of Notice of Defense:
Title and date of any other pleading filed in the case:
3. Estimated time necessary to try your case:
4. List of all witnesses as follows:
Name of witnesses/brief statement of anticipated testimony.
5. List of all expert witnesses as follows:
Name of expert witness/brief statement of anticipated testimony.
6. Exhibits
Each exhibit shall be separately listed and shall include a description that is sufficient for identification.
7. Evidence by Affidavit or Deposition (must comply with California Code of Regulations, Title 2, §§7427 and 7428.)
Name of Witness Reason that witness is
unavailable
8. Major evidentiary issues, if any, in the case:
9. Attach copy of any pre-hearing motion, any response to the motion, and any order.
10. Attach any anticipated motions in limine.
11. Other issues or matters.
Date:
Signature:
Typed Name:
Attorney for:
§7439. Filing of Notice of Defense. [Renumbered]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11506 and 12935(a), Government Code.
HISTORY
1. Renumbering of former Section 7439 to Section 7438 filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§7440. Purpose of Motions Before Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12935(a), 12965(a), 12967-12969 and 12981, Government Code.
HISTORY
1. Repealer of former article 4 (sections 7440-7448) and repealer of section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7441. Form of Motions Before Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12935(a), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7442. Procedures for Motions Before Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12935(a), Government Code.
HISTORY
1. New subsection (a) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7443. Decisions and Appeal. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12935(a), 12967, 12968, 12969 and 12981, Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7444. Permissible Motions Before Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Section 12935(a), Government Code.
HISTORY
1. Amendment of subsection (a) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7445. Amended or Supplemental Accusations. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11507 and 12935(a), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7446. Withdrawal of Accusation Prior to Hearing or Intervention by a Complainant. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12935(a), 12965 and 12967, Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11507.5, 11507.6 and 12935(a), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7448. Intervention and Amicus Briefs. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11500(b) and 12935(a), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11506, 12967, 12972 and 12981(b), Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer of former article 5 (sections 7450-7459.4) and repealer of section filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7451. Time and Place of Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11500(a), 11508, 11509, 12935(a) and 12968, Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7452. Continuances. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11524, 12935(a) and 12968, Government Code.
HISTORY
1. Renumbering of former Section 7453 to Section 7452 filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7453. Depositions of Unavailable Witnesses and Evidence by Affidavit. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11514 and 12935(a), Government Code.
HISTORY
1. Renumbering of former Section 7453 to 7452, and renumbering of former Section 7454 to Section 7453 filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7454. Depositions of Unavailable Witnesses and Evidence by Affidavit. [Renumbered]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11514 and 12935(a), Government Code.
HISTORY
1. Renumbering of Section 7454 to Section 7453 filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11510, 12935(a), 12972, and 12981(b), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7456. Pre-Hearing Statement. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7457. Conduct of Hearings. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11512, 11517(a) and 12935(a), Government Code; Feist v. Rowe (1970) 83 Cal. Rptr. 465, 3 Cal.App.3d 404; Cooper v. State Board of Medical Examiners of Dept. of Professional and Vocational Standards of California (1950) 217 630, 35 Cal.2d 242, 18 AL.R.2d 593; Leeds v. Gray (1952) 242 P.2d 48, 109 Cal.App.2d 874; Le Strange v. City of Berkeley (1962) 26 Cal.Rptr. 550, 210 Cal.App.2d 313; International Union of Operating Engineers, Local No. 12 v. Fair Employment Practice Commission (1969) 81 Cal. Rptr. 47, 276 C.A. 2d 504, certiorari denied 90 S. Co. 1356, 397 U.S. 1307, 25 L.Ed. 2d 648.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7458. Withdrawal of Accusation After Intervention by a Complainant or After Commencement of Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11512(b), 12935(a), 12969, 12972 and 12981(b), Government Code.
HISTORY
1. Amendment filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7459. Motions During Hearing. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11512, 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7459.1. Motions for Nonsuit, Dismissal or Judgment. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11517(b), 12935(a), Government Code; Frost v. State Personnel Board (1961) 190 Cal. App.2d 1, 3-6; Kramer v. State Board of Accountancy (1962) 200 Cal.App.2d 163, 175; O'Mara v. State Board of Pharmacy (1966) 246 Cal.App.2d 8, 10-11.
HISTORY
1. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7459.2. Evidence Rules. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11511, 11513, 11514, 11515, 12972 and 12981(b), Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7459.3. Default Hearings. [Repealed]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11520, 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Renumbering of former Section 7459.4 to Section 7459.3 filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Repealer filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
§7459.4. Default Hearings. [Renumbered]
Note • History
NOTE
Authority cited: Section 12935(a), Government Code. Reference: Sections 11520, 12935(a), 12967, 12972 and 12981(b), Government Code.
HISTORY
1. Renumbering of Section 7459.4 to Section 7459.3 filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Article 6. Post-Hearing Matters [Repealed]
HISTORY
1. Repealer of former article 6 (sections 7460-7466) filed 3-15-99; operative 3-15-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 12).
Subchapter 3. Investigative Hearing (Reserved)
Subchapter 4. Advisory Agencies and Councils (Reserved)
Chapter 5. Contractor Nondiscrimination and Compliance
Subchapter 1. General Matters
§8101. Office of Compliance Programs.
Note • History
(a) Creation and Authority. The Department of Fair Employment and Housing (DFEH) is responsible for the administration of policies, the implementation of standards, and the enforcement of the rules and regulations set forth in this chapter. The DFEH has created the Office of Compliance Programs (OCP) to carry out these responsibilities. The OCP will operate under the procedures established in this chapter as well as under other procedures of the Commission as set out in this division.
COMMENT As of the date these regulations were adopted, DFEH headquarters and OCP were located at 1201 I Street, Suite 211, Sacramento, CA 95814, telephone (916) 323-4547.
(b) Administrator. The OCP will operate under the direction of an Administrator of Compliance Programs who shall be appointed by and be responsible to the Director of the Department. The Administrator will have direct responsibility for the appointment of staff and the organization and operation of the OCP consistent with the terms of the Act and the provisions of this chapter.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. Repealer of Chapter 5 (Sections 8317-8323) and new Chapter 5 (Subchapters 1-4, Sections 8101-8502, not consecutive) filed 12-17-82; effective thirtieth day thereafter (Register 82, No. 52). For prior history, see Register 81, No. 3.
Note • History
The words defined in this section shall have the meanings set forth below whenever they appear in this chapter, unless:
(1) the context in which they are used clearly requires a different meaning; or
(2) a different definition is prescribed for a particular subchapter or provision.
The definitions set forth previously in this division in Sections 7285.2, 7286.5, 7287.2, 7290.7, 7291.2(b), 7292.1, 7293.6, and 7295.1 are also applicable to this chapter.
(a) Bid means any proposal or other request by an employer to a contract awarding agency wherein the employer seeks to be awarded a state contract.
(b) Business means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other legal entity.
(c) Construction means the process of building, altering, repairing, improving, or demolishing any public structure or building, or other public improvements of any kind to any State of California real property. It does not include the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property.
(d) Contract or state contract means all types of agreements, regardless of what they may be called, for the purchase or disposal of supplies, services, or construction to which a contract awarding agency is a party. It includes awards and notices of award; contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive type; contracts providing for the issuance of job or task orders. It also includes supplemental agreements or contract modifications with respect to any of the foregoing.
(e) Contract awarding agency or awarding agency means any department, agency, board, commission, division or other unit of the State of California which is authorized to enter into state contracts.
(f) Contractor means any person having a contract with a contract awarding agency or a subcontract for the performance of a contract with such an agency.
(g) Data means recorded information, regardless of form or characteristic.
(h) (Reserved)
(i) Decertification means the decision by OCP that an employer's nondiscrimination program fails to comply with the requirements of the Fair Employment and Housing Act and/or its implementing regulations either because it is poorly designed or because it has not been properly implemented or because of the person's failure to cooperate with OCP it cannot be determined whether the nondiscrimination program meets the requirements of this chapter. Decertification of a program shall continue until OCP certifies that the contractor is in compliance with the requirements of this chapter.
(j) Decision means the decision of the hearing officer regarding the allegations of a show cause notice issued pursuant to Section 8503 of this chapter. A decision shall dismiss, modify, or sustain the allegations of the show cause notice; provide the factual basis for the decision; and include any sanctions to be recommended to the awarding agency together with a statement of the reasons in support thereof.
(k) Employee means an individual under the direction and control of a contractor under any appointment or contract of hire or apprenticeship, express or implied, oral or written.
(l) (Reserved)
(m) May denotes the permissive.
(n) Minority refers to an individual who is ethnically or racially classifiable in one of four major groups: Black, Hispanic. Asian or Pacific Islander; or American Indian or Alaskan Native.
(1) Black includes persons having their primary origins in any of the black racial groups of Africa, but not of Hispanic origin;
(2) Hispanic includes persons of primary culture or origin in Mexico, Puerto Rico, Cuba, Central or South America, or other Spanish derived culture or origin regardless of race;
(3) Asian/Pacific Islander includes persons having primary origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippine Islands, and Samoa; and
(4) American Indian/Alaskan Native includes persons having primary origins in any of the original peoples of North America, and who maintain culture identification through tribal affiliation or community recognition.
(o) Nondiscrimination Clause means the clause to be included in each state contract or subcontract pursuant to these regulations.
(p) Person means any business, individual, union, committee, club, or other organization or group of individuals.
(q) Prime contractor means any individual or organization who directly contracts with the State of California.
(r) Service and supply contract includes any contract except a construction contract.
(s) Services means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include collective bargaining agreements or arrangements between parties which constitute that of employer and employee.
(t) Shall denotes the imperative.
(u) Subcontract means any agreement or arrangement executed by a contractor with a third party in which the latter agrees to provide all or specified part of the supplies, services or construction required in the original state contract. This does not include arrangements between parties which constitute that of employer and employee.
(v) Subcontractor means any individual or organization holding a subcontract for the performance of all or any part of a state contract.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. Amendment filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8102.5. Nondiscrimination Agreement.
Note • History
State contracts exempt from the requirements of Section 8107 shall include, as an express or implied term, the term set out in either Section 8107 Clause (a) or Clause (b). Breach of this term of contract may constitute a material breach of the contract, and may result in the imposition of sanctions by the awarding agency and may result in decertification from future opportunities to contract with the state.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
2. Editorial correction filed 7-5-83; and correction of HISTORY printing error (Register 83, No. 28).
§8103. Requirement of Nondiscrimination Program.
Note
All employers who are, or wish to become, contractors with the state must develop and implement a nondiscrimination program as defined in Section 8104 of this chapter unless specifically exempted pursuant to Section 8115 of this chapter.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8104. Nondiscrimination Program.
Note • History
(a) Definition and Purpose. A nondiscrimination program (hereinafter referred to as “the Program”) is a set of specific and result-oriented procedures to which a contractor or subcontractor commits itself for the purpose of insuring equal employment opportunity for all employees or applicants for employment. It may include an affirmative action component which establishes goals and timetables to remedy any underutilization of minorities and/or women which is identified. The Program shall contain the following elements:
(1) Development or reaffirmation of the contractor's equal employment opportunity policy in all personnel actions.
(2) Formal internal and external dissemination of the contractor's policy.
(3) Establishment of responsibilities for implementation of the contractor's program.
(4) Annual identification of any existing practices which have resulted in disproportionately inhibiting the employment, promotion or retention of those protected by the Act.
(A) Analysis of Employment Selection Procedures. The Program shall include an identification and analysis of contractor promotional and entry-level selection procedures and shall identify any such procedures which have resulted in disproportionately inhibiting the employment, promotion or retention of minorities or women. The retention of such practices so identified can only be justified according to the principles of “business necessity” upon a demonstration that no reasonable alternatives to such practices exist. The prospective contractor shall eliminate any practices which cannot be so justified.
(B) Workforce Analysis. The Program will contain a workforce analysis which shall consist of a listing of each job title which appears in applicable collective bargaining agreements of payroll records ranked from the lowest paid to the highest paid within each department or other similar organizational unit, including departmental or unit supervisory personnel. For each job title, the total number of incumbents, and the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must be given: Blacks, Hispanics, Asian/Pacific Islanders, and American Indian/Native Alaskans. The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles, must be listed. If there are separate work units or lines of progression within a department, a separate list must be provided for each such work unit, or line, including unit supervisors. For lines of progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line. Where there are no formal progression lines or usual promotional sequences, job titles should be listed by department, job families, or disciplines, in order of wage rates or salary ranges.
(C) Utilization Analysis. Employers with 250 or more employees must perform a utilization analysis which shall consist of an analysis of the major job groups at the facility in order to determine whether women and minorities are being underutilized when compared to their availability. A job group for this purpose shall consist of one or more jobs which have similar content, wage rates and opportunities. Underutilization is defined as having a statistically significant lower utilization of minorities or women in a particular job group than their availability. Availability is defined as the availability in the labor force. The labor force for this purpose may vary depending upon the type of job in question, and the contractor's past practice, and could encompass the contractor's existing employees, the area immediately surrounding the facility where the vacancy exists for low-skill jobs or it could encompass the entire nation for highly-skilled managerial positions. The employer shall conduct a separate utilization analysis for each minority group and women.
(5) Development and execution of action oriented programs designed to correct problems and attain equal employment opportunities for all applicants and employees.
(6) Design and implementation of internal audit and reporting systems to measure the effectiveness of the total program.
(b) Employers who have identified a practice or practices which have an adverse impact on one or more groups protected by the Act and which may unlawfully discriminate against members of such groups may wish to include an affirmative action component in their nondiscrimination programs to minimize liability for discrimination, and correct past injustices; such affirmative action may be required of employers who are found to have discriminated in violation of the Act. Such a voluntary affirmative action component might contain, but need not be limited to, the following:
(1) Active support of local and national community action programs and community service programs designed to improve the employment opportunities of minorities and women;
(2) Providing training opportunities to minorities and women within the employer's organization which will qualify them for promotion when openings become available;
(3) Encouraging qualified women and minorities within the employer's organization to seek and accept transfers and promotions which increase their future opportunities;
(4) Actively recruit qualified minorities and women, even those not currently seeking such employment;
(5) Establishing and/or supporting training programs for entry level positions; and
(6) Establishing goals and objectives by organizational units and job groups, including timetables for completion. Establishment and implementation of a nondiscrimination program which contains an effective affirmative action component will create a rebuttable presumption that a contractor is in compliance with the requirements of Government Code, Section 12990 and its implementing regulations.
(c) An employer with multiple facilities may establish a single nondiscrimination program for its organization, but must perform separate analyses pursuant to subsections (a)(4)(A), (B), and (C) above for each establishment.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. Amendment of subsection (a)(4)(A) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8106. Prima Facie Compliance.
Note
Compliance with a nondiscrimination or affirmative action program subject to review and approval by a federal compliance agency shall constitute prima facie evidence that a contractor has complied with the requirements of Sections 8103 and 8104, unless the federal agency has found that the program is not in compliance with federal law, in which case compliance with a current federal commitment letter or conciliation agreement shall constitute prima facie evidence that a contractor has complied with the requirements of Sections 8103 and 8104. Such prima facie evidence can be rebutted by a preponderance of the evidence to the contrary.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8107. Nondiscrimination Clause.
Note • History
Each state contract shall contain a Nondiscrimination Clause unless specifically exempted pursuant to Section 8115. The governmental body awarding the contract may use either clause (a) or clause (b) below. Clause (a) will satisfy the requirements of Section 12990 of the Government Code only; clause (b) contains language which will satisfy the requirements of both the Fair Employment and Housing Act and Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (adopted pursuant to Government Code, Sections11135-11139.5). Standardized state form OCP-1, containing clause (a), and OCP-2, containing clause (b), will be available through the OCP. These forms may be incorporated into a contract by reference and will fulfill the requirement of this section. The contracting parties may, in lieu of incorporating form OCP-1 or OCP-2, include the required clause in the written contract directly.
Clause (a)
1. During the performance of this contract, contractor and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age (over 40) or sex. Contractors and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. Contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Cod, Section 12990, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
2. This Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the contract.
Clause (b)
1. During the performance of this contract, the recipient, contractor and its subcontractors shall not deny the contract's benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age (over 40) or sex. Contractor shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination.
2. Contractor shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, Section 12900 et seq.), the regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Sections 7285.0 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code, Sections 11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article.
3. Contractor or recipient shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause.
4. Recipient, contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
5. The contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the contract.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. Amendment filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Note
The contractor shall include the nondiscrimination clause in its contract in all subcontracts to perform work under the contract, either directly or by incorporation by reference. Any such incorporation by reference shall be specific and prominent.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note • History
The “Nondiscrimination Clause” in state contracts and subcontracts shall be fully and effectively enforced. Any breach of its terms may constitute a material breach of the contract and may result in the imposition of sanctions against the contractor, including but not limited to cancellation, termination, or suspension of the contract in whole or in part, by the contract awarding agency or decertification from future opportunities to contract with the State of California by DFEH.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8112. Contract Awarding Agency, Unresponsive Bids.
Note • History
(a) A contract awarding agency shall refuse to accept a bid or proposal on a state contract subject to this chapter when the bid is unaccompanied by a “Statement of Compliance” pursuant to Section 8113, and shall declare any such bid or proposal unresponsive.
(b) A contract awarding agency shall declare unresponsive any bid or proposal on a state contract that is submitted by a contractor on OCP's list of decertified contractors.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New subsection (b) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8113. Statement of Compliance.
Note
(a) As a part of its bid an eligible prospective contractor which bids on a state contract must submit a statement under penalty of perjury to the awarding agency that it has complied with the requirement of Section 8103 of this chapter.
(b) No state contract, unless otherwise exempted pursuant to Section 8115, shall be awarded by any contract awarding agency unless the prospective contractor has filed with the agency as a part of its bid a statement, made under penalty of perjury, that the prospective contractor has complied with the requirements of Section 8103 of this chapter.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8114. Subcontracting Prohibited with Ineligible Entities.
Note • History
(a) OCP shall establish and maintain a list of decertified contractors, which shall be updated monthly and published in the first California Notice Register published each month.
(b) No contractor with the State of California shall, during the performance of any contract with the State, enter into any subcontract with any person listed on OCP's list of decertified contractors during the month in which the bid is submitted.
(c) Subcontracting with a decertified contractor in violation of the provisions of this section may constitute a material breach of the contract and may result in the imposition of sanctions against the contractor, including but not limited to cancellation, termination, or suspension of the contract, in whole or in part by the awarding agency, or decertification by DFEH. Specific knowledge of the unlawfulness of the subcontract is not required to establish a breach, but will be considered by OCP and the contract awarding agency in their determination of the appropriate sanctions.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Note • History
(a) Licensed rehabilitation workshops which are contractors of state contracting agencies are exempted from the requirements of this chapter.
(b) Contracts of less than $5,000 are automatically exempt from the requirements of Section 8107; contractors holding only such contracts are automatically exempt from the requirements of Section 8103, but are subject to Section 8102.5.
(c) A contractor with fewer than fifty (50) employees in its entire workforce may receive an automatic exemption from the Program requirements of Section 8104, subdivisions (a)(4)(B)-(C) pertaining to workforce and utilization analyses by filing a current “California Employer Information Report” annually with OCP. The OCP may remove any exemption granted under this subsection, in connection with any detailed review or any investigation instituted pursuant to Section 8401 or 8402, or whenever the contractor is found to be in substantial noncompliance with the requirements of this chapter.
(d) Contracts and subcontracts which are awarded pursuant to a declaration of public emergency, a declaration or determination of emergency pursuant to Government Code, Section 14809 or Government Code, Section 14272, subdivision (a), (b), or (c), or a declared threat to the health, welfare or safety of the public are fully exempted from the requirements of Section 8107, and contractors holding only such contracts are exempted from the requirements of Section 8103, but remain subject to Section 8102.5.
(e) A construction contractor with fewer than 50 permanent employees may obtain an exemption from the requirements of Section 8104, subdivision (a)(4)(B)-(C) pertaining to workforce and utilization analyses by filing a CEIR annually with OCP. The OCP may remove any exemption granted under this subsection, in connection with any detailed review or any investigation instituted pursuant to Section 8401 or 8402, or whenever the contractor is found to be in substantial noncompliance with the requirements of this chapter.
(f) Exemptions of subsections (a) and (d) of this section shall be granted only upon application to the state contract awarding agency prior to the date the contract is awarded. The contract awarding agency shall, prior to the grant of any exemption under this section, require proof of satisfaction of the exemption conditions of this section. The OCP may issue opinion letters and guidelines from time to time to assist contact awarding agencies in making determinations under this section.
NOTE
Authority cited: Sections 12935(a) and 12990(d) Government Code. Reference: Section 12990, Government Code.
HISTORY
1. Amendment filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8116. Advertisements for New Employees.
Note
In all written advertisements or recruitment efforts for new employees during the performance of a regulated contract, a contractor is required to prominently identify itself with the phrase “State Equal Opportunity Employer” or similar wording.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note
In the event that any labor organization from which employees are normally recruited and/or with which the contractor has a collective bargaining agreement is unable or unwilling to refer minorities or women the contractor or subcontractor shall take the following steps and, for a period of two years, keep a record thereof:
(a) Notify the California Employment Development Department and at least two minority or female referral organizations of the personnel needs and request appropriate referrals, and
(b) Notify any minority or female persons who have personally listed themselves with the contractor or subcontractor as seeking employment of any existing vacancies for which they may qualify;
(c) Notify minority, women's and community organizations that employment opportunities are available.
(d) Immediately notify OCP of the existence of the historical and present relationship between the contractor and labor organizations and detail the efforts of the contractor to secure adequate referrals through the labor organizations.
Neither the provisions of any collective bargaining agreement, nor the failure by a union with which the contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor's obligations under Government Code, Section 12990, or the regulations in this chapter.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note
Contract awarding agencies shall give written notice to the Administrator within 10 working days of award of all contracts over $5,000. The notice shall include name, address and telephone number of the contractor; federal employer identification number; state contract identification number; date of contract award; contract amount; project location; name of contractor's agent who signed the contract; name of contract awarding agency and contract awarding officer; and brief description of the purpose or subject of the contract.
NOTE
Authority cited: Sections 12935(a) and 12990(d) Government Code. Reference: Section 12990, Government Code.
Note
The State Department of General Services will have printed copies of the forms referred to in this chapter and shall make them available upon request.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8119. Access to Records and Employment Site.
Note
(a) Each contractor shall provide OCP with any relevant information requested and shall permit OCP access to its premises, upon reasonable notice, during normal business hours for the purpose of conducting on-site compliance reviews, employee interviews, and inspecting and copying such books, records, accounts and other material as may be relevant to a matter under investigation for the purpose of determining and enforcing compliance with this chapter.
(b) All information provided to DFEH in response to a request from OCP which contains or might reveal a trade secret referred to in Section 1905 of Title 18 of the United States Code, or other information that is confidential pursuant to Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code, shall be considered confidential, except that such information may be disclosed to other officers or employees of DFEH and may be introduced as evidence in any hearing conducted pursuant to Section 8503 of this Chapter or Section 12967 of the Government Code. The hearing officer or the director shall issue such orders as may be appropriate to protect the confidentiality of such information.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8120. Complaints of Discrimination or Noncompliance.
Note
(a) Any interested person may lodge a written complaint of noncompliance with either DFEH or the contract awarding agency. The complaint shall state the name and address of the contractor, and shall set forth a description of the alleged noncompliance. Complaints lodged with the awarding agency shall be immediately referred to the Administrator of OCP. No complaint may be lodged after the expiration of one year from the date upon which the alleged noncompliance occurred.
OCP shall cause any written complaint lodged under the provisions of this section on which it intends to take action to be served, either personally or by ordinary first class mail, upon the respondent contractor and the awarding agency within 45 days. At the discretion of the Administrator, the complaint may not contain the name of the complaining party.
(b) OCP shall notify the contract awarding agency of any action pursuant to Section 8501 instituted against a contractor of the agency, and permit the agency to become a party to the action, except that the agency shall be fully responsive to any request for information made by OCP in connection with the action.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Subchapter 2. Regulations Applicable to Construction Contracts
Note
This subchapter applies to all nonexempt businesses which seek or hold any state construction contract or subcontract. The regulations in this subchapter are applicable to all of a construction contractor's employees who are engaged in on-site construction including those employees who work on a construction site where no state work is being performed.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8201. Notice of Requirements.
Note
The following notice shall be included in, and shall be a part of, all solicitations for offers and bids on all nonexempt state construction contracts and subcontracts, except that newspaper or trade publication advertisements need only state that the contract is subject to state contractor nondiscrimination and compliance requirements pursuant to Government Code, Section 12990:
NOTICE OF REQUIREMENT FOR NONDISCRIMINATION
PROGRAM (GOV. CODE, SECTION 12990)
Your attention is called to the “Nondiscrimination Clause” set forth or referred to herein, which is applicable to all nonexempt state construction contracts and subcontracts and to the “Standard California Nondiscrimination Construction Contract Specifications” set forth herein. The Specifications are applicable to all nonexempt state construction contracts and subcontracts of $5,000 or more.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8202. Application to Permanent and Temporary Workforce.
Note
A construction contractor's nondiscrimination program established pursuant to Sections 8103 and 8104 of this chapter must ensure nondiscrimination within both its permanent workforce and its temporary on-site workforce. The Section 8104 requirements of workforce and utilization analyses, however, must be prepared only for permanent employees.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8202.5. Transfers Prohibited.
Note • History
It is a violation of the contract, of Government Code Section 12990 and the regulations in Chapter 5 of Division 4 of Title 2 of the California Administrative Code to transfer women and minority employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the contractor's nondiscrimination obligations.
NOTE
Authority cited: Sections 12935(a) and 12990(d) Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8203. Standard California Nondiscrimination Construction Contract Specifications. (Gov. Code, Section 12990.)
Note • History
In addition to the nondiscrimination clause set forth in Section 8107, all non-exempt state construction contracts and subcontracts of $5,000 or more shall include the specifications set forth in this section.
STANDARD CALIFORNIA NONDISCRIMINATION
CONSTRUCTION CONTRACT SPECIFICATIONS (GOV. CODE, SECTION 12990)
These specifications are applicable to all state contractors and subcontractors having a construction contract or subcontract of $5,000 or more.
1. As used in the specifications:
a. “Administrator” means Administrator, Office of Compliance Programs, California Department of Fair Employment and Housing, or any person to whom the Administrator delegates authority;
b. “Minority” includes:
(i) Black (all persons having primary origins in any of the black racial groups of Africa, but not of Hispanic origin);
(ii) Hispanic (all persons of primary culture or origin in Mexico, Puerto Rico, Cuba, Central or South America or other Spanish derived culture or origin regardless of race);
(iii) Asian/Pacific Islander (all persons having primary origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific Islands); and
(iv) American Indian/Alaskan Native (all persons having primary origins in any of the original peoples of North America and who maintain culture identification through tribal affiliation or community recognition).
2. Whenever the contractor or any subcontractor subcontracts a portion of the work, it shall physically include in each subcontract of $5,000 or more the nondiscrimination clause in this contract directly or through incorporation by reference. Any subcontract for work involving a construction trade shall also include the Standard California Construction Contract Specifications, either directly or through incorporation by reference.
3. The contractor shall implement the specific nondiscrimination standards provided in paragraphs 6(a) through (e) of these specifications.
4. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor's obligations under these specifications, Government Code, Section 12990, or the regulations promulgated pursuant thereto.
5. In order for the nonworking training hours of apprentices and trainees to be counted, such apprentices and trainees must be employed by the contractor during the training period, and the contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor or the California Department of Industrial Relations.
6. The contractor shall take specific actions to implement its nondiscrimination program. The evaluation of the contractor's compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The contractor must be able to demonstrate fully its efforts under Steps a. through e. below:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and at all facilities at which the contractor's employees are assigned to work. The contractor, where possible, will assign two or more women to each construction project. The contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the contractor's obligations to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities.
b. Provide written notification within seven days to the director of DFEH when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations.
c. Disseminate the Contractor's equal employment opportunity policy by providing notice of the policy to unions and training, recruitment and outreach programs and requesting their cooperation in assisting the Contractor to meet its obligations; and by posting the company policy on bulletin boards accessible to all employees at each location where construction work is performed.
d. Ensure all personnel making management and employment decisions regarding hiring, assignment, layoff, termination, conditions of work, training, rates of pay or other employment decisions, including all supervisory personnel, superintendents, general foremen, on-site foremen, etc., are aware of the Contractor's equal employment opportunity policy and obligations, and discharge their responsibilities accordingly.
e. Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the equal employment opportunity policy and the Contractor's obligations under these specifications are being carried out.
7. Contractors are encouraged to participate in voluntary associations which assist in fulfilling their equal employment opportunity obligations. The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under these specifications provided that the contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor's minority and female workforce participation, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor's.
8. The Contractor is required to provide equal employment opportunity for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of the Fair Employment and Housing Act (Gov. Code, Section 12990 et seq.) if a particular group is employed in a substantially disparate manner.
9. Establishment and implementation of a bona fide affirmative action plan pursuant to Section 8104 (b) of this Chapter shall create a rebuttable presumption that a contractor is in compliance with the requirements of Section 12990 of the Government Code and its implementing regulations.
10. The Contractor shall not use the nondiscrimination standards to discriminate against any person because of race, color, religion, sex, national origin, ancestry, physical handicap, medical condition, marital status or age over 40.
11. The Contractor shall not enter into any subcontract with any person or firm decertified from state contracts pursuant to Government Code Section 12990.
12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and the nondiscrimination clause, including suspension, termination and cancellation of existing subcontracts as may be imposed or ordered pursuant to Government Code Section 12990 and its implementing regulations by the awarding agency. Any Contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Government Code Section 12990.
13. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company equal employment opportunity policy is being carried out, to submit reports relating to the provisions hereof as may be required by OCP and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status, (e.g., mechanic, apprentice trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in any easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. Amendment filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Note • History
Contractors holding construction contracts of $50,000 or more must submit quarterly utilization reports to OCP on forms to be provided by OCP. In such reports the contractor must provide identifying information and report the number and percentage of journey worker, apprentice, and trainee hours worked in each job classification by sex and ethnic group, together with the total number of employees and total number of minority employees in each classification by sex. The quarterly utilization reports must cover each calendar quarter and must be received by OCP no later than the 15th day of the month following the end of the quarter (April 15, July 15, October 15, and January 15). Contractors who are required to submit utilization reports to the federal government may submit a copy of the federal report to the OCP at the same time they submit the report to the federal government in lieu of the state quarterly utilization report.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8205. Effect on Other Regulations.
Note • History
The Regulations in this subchapter are in addition to the regulations contained in this division which apply to contractors and subcontractors generally. See particularly, California Administrative Code, Title 2, Division 4, Chapter 1 through 5, Sections 7285.0 through 7285.7, 7286.3 through 7296.4, 7400 through 7469.1, 8100 through 8120, and 8400 through 8407.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Subchapter 3. Regulations Applicable to Service and Supply Contracts
Article 1. Small Contracts
Note • History
This subchapter applies to all contractors which seek or hold any nonexempt state service and supply contract or subcontract.
NOTE
Authority cited: Sections 12935(a) and 12990(d) Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8301. Definition of Small Contract.
Note
All state contracts with a dollar value of twenty-five thousand dollars ($25,000) or less are for purposes of this subchapter defined as “small” contracts.
NOTE
Authority cited: Sections 12935(a) and 12990(d) Government Code. Reference: Section 12990, Government Code.
Note
Contractors awarded small contracts need not file any information with OCP after execution of the contract, but must provide OCP access to records required under Section 8303 upon request.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference, Section 12990, Government Code.
Note • History
(a) Each contractor of a “small” contract shall compile and shall maintain for inspection for two years after award:
(1) Information regarding the contractor: Federal Employer Identification number; state contract identification number; legal name of the business organization, parent corporation or other outside ownership interest, if applicable, business telephone number, street address, city, state and zip code; mailing address, if different; total number of employees, identified by sex, race and national origin; name, business phone and mailing address of contractor's EEO/AA officer, if there is one, and name of the person responsible for the maintenance of information required pursuant to subsection (b) below.
(2) Information regarding the contract: Dollar value of contract; time for performance of the contract; date of contract award; name of contract awarding agency, and contract awarding officer; brief description of the purpose or subject of the contract.
(3) A copy, if one was required to be prepared of the prime contractor's current California Employer Identification Report (CEIR), or equivalent federal form (See Section 7287.0(a) of this division regarding the preparation of CEIR's.)
(b) Failure to comply with the requirements of this section may result in a determination that the contractor has materially breached the state contract and the decertification of the contractor from future state contracts.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Sections 12990, Government Code.
HISTORY
1. New subsection (b) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Note
A contract awarding agency shall, upon request by OCP, verify information provided to OCP by an agency contractor performing a small contract. Such requests for verification shall be limited to that information required by OCP on any standardized state forms or other form where such information is specifically required by these regulations, and such information is also contained in the awarding agency's files.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Article 2. Regulated Contracts
§8310. Regulated Contracts, Dollar Value.
Note
All State contracts with a dollar value of more than twenty-five thousand dollars ($25,000) are for the purposes of this subchapter classified as “regulated” contracts.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8311. Post Award Informational Filing.
Note • History
(a) The prime contractor of a “regulated” contract shall file with OCP within twenty-eight (28) days from the date of execution of a “regulated” contract or the effective date of these regulations, whichever occurs later:
(1) Information Regarding the Contractor: Federal Employer Identification Number; state contract identification number; legal name of the business organization; business telephone number, street address, city, state and zip code; mailing address, if different; name, business phone and mailing address of contractor's EEO/AA Officer.
(2) Information Regarding the Contract: Dollar value of contract; date of contract award; name of contract awarding agency, and contract awarding officer; brief description of the purpose or subject of the contract.
(3) (Reserved)
(4) A copy of the prime contractor's current California Employer Identification Report (CEIR) or equivalent federal form (EEO-1). If the prime contractor is not otherwise required to prepare a CEIR, it must do so in order to comply with the requirements of this section. (See Section 7287.0 (a) of this division regarding the preparation of CEIR's.)
This information shall be updated annually thereafter, so long as the contractor remains subject to these regulations.
(b) Contractors awarded more than one state contract in one year may file only the information required in subdivision (a)(2) and (a)(4) above for the second and all subsequent contracts awarded during the year.
(c) The OCP and the contract awarding agency shall make forms available for providing the information required under this section.
(d) Failure to comply with the requirements of this section may result in a determination that the contractor has materially breached the state contract and the decertification of the contractor from future state contracts.
NOTE
Authority cited: Sections 12935(a), and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New subsection (d) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8312. Designating EEO/Affirmative Action Officer.
Note
All contractors of regulated contracts shall designate an individual responsible for the implementation of the contractor's Nondiscrimination Program.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Subchapter 4. OCP Review Procedures
Note
This subchapter sets forth the review procedures to be followed by OCP in implementing this chapter.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note
In order to monitor the equal employment practices of contractors and their compliance with the requirements of this chapter, contractors shall be subject to review. Contractors may be selected for review on the basis of any specific neutral criteria contained in a general administrative plan for the enforcement of this chapter.
(a) Desk Review. All contracts shall be subject to desk reviews conducted by and at the discretion of OCP. A desk review will involve a review of the applicable contract(s), the information required of the contractor pursuant to Section 8303 or 8311 of these regulations, the compliance with and implementation of the Program required by this Chapter, and any additional related information required by OCP. In addition, OCP may review the current and past personnel procedures and practices of a contractor whenever such a review is, within the discretion of OCP, considered appropriate.
(b) Field Review. OCP may conduct a field review of a contractor's workplace. Field reviews will be made during contractor's regular business hours. OCP shall notify the contractor of its intent to conduct a field review under this section and shall arrange a mutually convenient time to conduct it.
(c) A contractor will not be selected for a routine desk or field review if it has been the subject of such a review within the preceding 24 months and was found to be in compliance. Prior review will not exempt a contractor from compliance investigations conducted pursuant to Section 8402, or follow-up desk or field reviews.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
§8402. Compliance Investigations.
Note
(a) OCP may conduct a compliance investigation of a contractor's employment practices for the purpose of determining whether the contractor holding a state contract is acting or has acted in violation of the nondiscrimination and compliance requirements imposed by this chapter. Investigations under this section shall involve a detailed review of the contractor's entire employment practices and procedures. Investigations under this section may be conducted when the Administrator determines a pattern of unlawful discrimination in employment may have occurred within the past twelve months or be ongoing. Such a determination shall be in writing and shall be based upon:
(1) A complaint by a contract awarding agency; or
(2) The results of the regular compliance review activities of the OCP; or
(3) A notice of any complaint of employment discrimination filed pursuant to Section 8120 of this Chapter or Government Code, Section 12960; or
(4) The failure of the contractor to provide compliance information required by this chapter or reasonably requested by OCP.
(b) Whenever a contractor which is the subject of a compliance investigation pursuant to this section is also the subject of a complaint pursuant to Government Code, Section 12960, if possible, OCP and any other unit of DFEH investigating the contractor's employment practices shall coordinate their investigations.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note
If, in the course of a compliance investigation, OCP concludes that a contractor may be in violation of the provisions of this chapter, OCP and the contractor may informally agree to resolve the identified deficiencies through the mechanism of a written letter of commitment. The letter of commitment shall set forth the deficiencies identified by OCP, the action the contractor shall take to correct the deficiencies, and the time by which the corrective action shall be taken and the deficiencies resolved.
NOTE
Authority cited: Sections 12935 (a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Subchapter 5. OCP Enforcement Proceedings
Note
This subchapter sets forth the enforcement procedures to be followed by OCP in implementing this chapter.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note • History
(a) When the Administrator has reasonable cause to believe that a contractor performing under a state contract is in violation of the nondiscrimination and compliance requirements imposed by this chapter or is in violation of a letter of commitment or conciliation agreement, he or she may issue a notice requiring the contractor to show cause before a hearing officer, why appropriate action to ensure compliance should not be instituted. The show cause notice shall specifically state the contractor's noncompliance and any recommended sanctions. The show cause notice shall be dated and served on the contractor personally or by registered mail, and such service shall constitute notice to the contractor of the deficiencies. In addition, the show cause notice shall be served by ordinary first class mail on the contract awarding agency. A hearing on the show cause notice shall be held no sooner than the thirtieth day after the issuance of the show cause notice but shall be at the earliest date OCP can reasonably schedule the hearing.
(b) During the thirty (30) day “show cause” period, OCP and the contractor shall make every effort to resolve the deficiencies which led to the issuance of the show cause notice through conciliation, mediation, and persuasion.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New subsection (a) filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
§8502. Conciliation Agreements.
Note
At the discretion of the Administrator, deficiencies contained in a show cause notice may be resolved through the use of written conciliation agreements. A conciliation agreement shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies noted. In addition, the Administrator may require periodic compliance reports detailing the actions taken by the contractor to correct the deficiencies, and identifying statistical results of such actions.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
Note • History
If the deficiencies listed in the show cause notice are not resolved during the thirty (30) day period, a hearing shall be held before a hearing officer appointed by the Director of the Department of Fair Employment and Housing.
A notice of hearing will be dated and served upon the contractor personally or by registered mail. The hearing may be postponed by OCP for good cause. If the contractor has good cause, the contractor shall contact the OCP within 10 days of receiving notice of hearing.
The procedures of hearing shall include: testimony under oath, the right to cross-examination and to confront adversary witnesses, the right to representation, and the issuance of a formal decision.
In addition to the above requirements of this section, the hearing shall be conducted in accordance with Government Code Sections 11507.6, 11507.7, 11508 (with the exception that the Office of Compliance Programs shall be substituted for the Office of Administrative Hearings), 11510, 11511, 11512(c) and (d), 11513, 11514, 11520, 11523; the sections cited above are incorporated herein by reference.
The hearing officer shall decide whether to dismiss, modify or sustain the allegations of the show cause notice.
The form and content of the decision will be in accordance with the requirements of Government Code Section 11518 herein incorporated by reference.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Note • History
If a violation of this chapter is found at the hearing, the hearing officer may decertify the contractor's nondiscrimination program and may recommend to the contract awarding agency that the existing contract be terminated. Decertification shall continue until the deficiency is corrected and satisfactory evidence thereof is presented to OCP. Other potential remedies include, but are not limited to the imposition of periodic reporting requirements and the withdrawal of exemptions.
NOTE
Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.
HISTORY
1. New section filed 6-2-83; effective thirtieth day thereafter (Register 83, No. 23).
Chapter 1. Procedures of the Department of Fair Employment and Housing
Note • History
These regulations interpret, implement, and supplement the procedures of the Department of Fair Employment and Housing (department) set forth in Article 1 of Chapter 7 (Gov. Code, §12960 et seq.) (applicable to employment discrimination, Unruh Civil Rights Act (Civ. Code, §51 et seq.), Ralph Civil Rights Act (Civ. Code, §51.7), and Disabled Persons Act (Civ. Code, §54 et seq.) complaints filed with the department) and Article 2 of Chapter 7 (Gov. Code, §12980 et seq.) (applicable to housing discrimination complaints filed with the department) of the Fair Employment and Housing Act (FEHA) (Gov. Code, §12900 et seq.). These regulations and provisions of the FEHA shall govern the department's practice and procedure with respect to the filing, investigation and conciliation of complaints alleging practices made unlawful by any law the department enforces.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f), 12948, 12960-12976 and 12980-12989.3, Government Code.
HISTORY
1. New division 4.1 (chapter 1, subchapters 1-2, sections 10000-10066), chapter 1 (subchapters 1-2, sections 10000-10066) and section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) “Accusation” means the charging document issued by the department pursuant to section 12965 or 12981 of the Government Code.
(b) “Authorized signature” means any of the following: (1) the signature of an attorney whom the complainant has identified in writing as his or her legal representative, licensed to practice law in the State of California; (2) the signature of any person other than an attorney whom the complainant has identified in writing as a person authorized to sign a complaint on his or her behalf; (3) the signature of a parent or legal guardian who signs a complaint on behalf of his or her minor child; (4) the signature of a direct relative (parent, child, sibling, etc.) with an interest in the estate of a deceased complainant or the executor of the estate of a deceased complainant.
(c) “Complainant” means a “person,” as that term is defined by Government Code section 12925(d), who files a complaint with the department alleging that the person has been aggrieved by a practice made unlawful by any law the department enforces.
(d) “Complaint” means a complaint filed with the department alleging that a “person,” as that term is defined by Government Code section 12925(d), or class or group of persons, has been aggrieved by a practice made unlawful by any law the department enforces.
(e) “Conciliation” means bringing two opposing sides together to reach a compromise in an effort to resolve a complaint filed with the department, which includes pre-determination settlement negotiations and post-investigation conciliation and/or settlement conferences conducted by the department's enforcement division.
(f) “Department” means the Department of Fair Employment and Housing (DFEH) and includes any officer, employee, or other individual delegated any function, power, or duty of the department.
(g) “Departmental appeal” means a verbal or written appeal or request made to the department by a complainant or respondent seeking reconsideration of the department's determination regarding a complaint filed with the department.
(h) “Director” means the Director of the Department of Fair Employment and Housing and includes any officer, employee, or other individual delegated any function, power, or duty of the director.
(i) “District Administrator” means any employee, officer, or other individual delegated the authority to supervise the staff and day-to-day operations of a department district, satellite, or regional office.
(j) “EEOC” means the United States Equal Employment Opportunity Commission.
(k) “Enforcement Division” means the division of the department responsible for filing, investigating, and conciliating complaints alleging a practice made unlawful by any law the department enforces.
(l) “Filed or to file” means, except for complaints submitted online and/or created on the Internet via the department's automated right-to-sue notice system at www.dfeh.ca.gov, a complaint is “filed” with the department when it is date-stamped “received” by the department.
(m) “HUD” means the United States Department of Housing and Urban Development.
(n) “Legal Division” means the division of the department responsible for issuing and prosecuting accusations and civil complaints alleging a practice made unlawful by any law the department enforces.
(o) “Mediation Division” means the division of the department that employs trained neutrals to mediate complaints filed with the department when the parties to a complaint agree to mediate. The mediation division is separate from the department's enforcement and legal divisions. It utilizes volunteers as well as mediation division staff to facilitate communication between parties to assist them in attempting to reach a mutually acceptable settlement agreement.
(p) “Pre-determination” means the department has not yet determined whether a complaint has merit.
(q) “Protected basis” means any basis or characteristic upon which discrimination is prohibited by the FEHA, the Unruh Civil Rights Act (Civ. Code, §51), the Ralph Civil Rights Act (Civ. Code, §51.7), or any other law the department enforces.
(r) “Regional Administrator” means any employee, officer, or other individual delegated the authority to supervise the staff and operations of a department regional office or multiple district or satellite offices.
(s) “Registered complaint” means a filed complaint to which the department has assigned a department case file number.
(t) “Respondent” means an entity or person alleged to have committed a practice made unlawful by a law the department enforces and against whom a complaint has been filed with the department or an accusation has been issued.
(u) “Verified complaint” means a complaint submitted to the department with the complainant's oath or affidavit stating that to the best of his or her knowledge, all information contained in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true. To be “verified” a complaint filed with the department need not be signed; verification need only confirm the truth of the allegations submitted, including by submitting the allegations under penalty of perjury.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 446, Code of Civil Procedure; Sections 12901-12903, 12925, 12927, 12930-12932, 12940, 12950, 12955-12956, 12960, 12961, 12963.1(a), 12963.7, 12964, 12965, 12971, 12980-12981, 12984-12989.3, 7, 12989 and 12995, Government Code; and Section 7285.5, Title 2, California Code of Regulations (Register 99, No. 12).
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Subchapter 1. Employment, Unruh Civil Rights Act (Civ. Code, §51 et seq.), Ralph Civil Rights Act (Civ. Code, §51.7), and Disabled Persons Act (Civ. Code, §54 et seq.) Complaints
§10002. Filing a Complaint of Employment Discrimination with the Department.
Note • History
(a) Any person claiming to be aggrieved by an employment practice made unlawful by the FEHA may file with the department a verified complaint, in writing, that shall describe the unlawful conduct alleged and include the following, on a form prescribed by the department:
(1) complainant's name and, where available, address, telephone number and e-mail address;
(2) respondent's name, address and, where available, telephone number and e-mail address. If applicable, the job title and/or capacity in which the respondent is being named also shall be included;
(3) a description of the alleged act or acts of discrimination, harassment or retaliation;
(4) the date or dates each alleged act of discrimination, harassment or retaliation occurred, including the date of the last or most recent alleged act;
(5) each protected basis upon which the alleged discrimination or harassment was based;
(6) for retaliation complaints, the date and type of protected activity in which the complainant engaged;
(7) the complainant's declaration, made under penalty of perjury under the laws of the State of California, that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true;
(8) the signature of the complainant, or an authorized signature, and the date signed, unless the complaint is filed electronically; and
(9) complaints filed electronically need not be signed; complaints filed electronically shall state that by submitting the complaint, the complainant declares under penalty of perjury under the laws of the State of California that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true.
(b) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice occurred, except that this period may be extended as set forth in section 12960(d) of the Government Code and section 10018 of the department's regulations.
(c) For all complaints not filed online via the department's Web site, the filing date shall be the date a DFEH office receives a signed complaint, regardless of whether the complaint is signed by the complainant in the office or the complaint is signed elsewhere and transmitted to the office via United States (U.S.) mail, electronic mail, private carrier mail (e.g., FedEx), facsimile, or hand delivery. All complaints not filed online shall be date-stamped received by the department on the same day the department first receives the signed complaint. A limited exception exists where a complainant cannot sign a complaint for investigation before the applicable statute of limitations runs. In this limited circumstance, the department shall file the unsigned complaint and date-stamp it received before the statute of limitations runs. Notwithstanding the foregoing, the department shall obtain a signature on the unsigned complaint before it is served.
(d) The filing date for complaints filed via the department's Web site shall be the date on which the complaint was submitted online, which is printed on the complaint after the words “DATE FILED.”
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12960(b) and 12960(d), Government Code.
HISTORY
1. New subchapter 1 (sections 10002-10034) and section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10003. Liberal Construction of Complaints.
Note • History
The department shall liberally construe all complaints to effectuate the purpose of the laws the department enforces to safeguard the civil right of all persons to seek, obtain and hold employment without discrimination. Where the facts alleged in a discrimination complaint support a claim of retaliation, harassment, or any other claim over which the department has jurisdiction, the department shall construe the complaint to include those claims within the scope of a discrimination claim, regardless of whether such other claims are expressly stated. Likewise, where the facts alleged in a harassment complaint support a claim of discrimination, retaliation, or any other claim over which the department has jurisdiction, the department shall construe the complaint to include those claims within the scope of the harassment claim, regardless of whether such other claims are expressly stated.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12920, 12921(a), 12930(f)(1), 12960(b) and 12993(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10004. Categories of Employment Discrimination Complaints Accepted by the Department for Filing.
Note • History
(a) Complaint filed for investigation. The department shall only accept a complaint for investigation where the conduct alleged, if proven, would be a violation of a law the department enforces, the statute of limitations has not run (except as otherwise provided in the FEHA or these regulations), and each named respondent is an entity or person over whom the department has jurisdiction under the laws the department enforces.
(b) Complaint taken for filing purposes only. A complaint the department accepts for filing purposes only, which the department does not investigate.
(c) Complaint filed to request an immediate right-to-sue notice. A complaint, which the department does not investigate, filed to request an immediate right-to-sue notice.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10005. Obtaining a Right-to-Sue Notice from the Department.
Note • History
(a) Any person claiming to be aggrieved by an employment practice made unlawful by the FEHA may forgo having the department investigate his or her complaint and instead obtain an immediate right-to-sue notice. A right-to-sue notice issued by the department shall state that the aggrieved party may bring a civil action against the person or entity named in the complaint within one year from the date of the notice.
(b) Once the department issues a right-to-sue notice for a particular complaint, the department shall not investigate that complaint. Obtaining an immediate right-to-sue notice and waiving the department's investigation is advisable only if a complainant has been instructed by his or her attorney to obtain a right-to-sue notice.
(c) An immediate right-to-sue notice may be obtained via the department's automated right-to-sue system accessible on the department's Web site at www.dfeh.ca.gov by filing a right-to-sue complaint. An immediate right-to-sue notice also may be obtained by filing a right-to-sue complaint via submission of a completed right-to-sue notice packet to a department district, satellite, or regional office via U.S. or electronic mail or facsimile. A right-to-sue packet may be obtained by telephone or written request (delivered via facsimile or U.S. or electronic mail) to a department district, satellite, or regional office, or by downloading the packet from the department's Web site. With the exception of its automated right-to-sue system, all right-to-sue notices issued by the department shall be delivered by U.S. or electronic mail. A right-to-sue notice shall not be provided to any member of the public who appears in person at any department office without the prior consent of the district or regional administrator.
(d) To obtain an immediate right-to-sue notice via the department's automated right-to-sue system or by submitting a completed right-to-sue notice packet to the department, an aggrieved person shall file a right-to-sue complaint with the department containing the following:
(1) complainant's name and, where available, address, telephone number and e-mail address;
(2) respondent's name, address and, where available, telephone number and e-mail address. If applicable, the job title and/or capacity in which the respondent is being named also shall be included;
(3) a description of the alleged act or acts of discrimination, harassment or retaliation;
(4) the date or dates each alleged act of discrimination, harassment or retaliation occurred, including the date of the last or most recent alleged act;
(5) each protected basis upon which the alleged discrimination or harassment was based;
(6) for retaliation complaints, the date and type of protected activity in which the complainant engaged;
(7) the complainant's declaration, made under penalty of perjury under the laws of the State of California, that to the best of his or her knowledge all information stated is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true;
(8) the signature of the complainant, or an authorized signature, and the date signed, unless the complaint is filed electronically;
(9) complaints filed electronically need not be signed; complaints filed electronically shall state that by submitting the complaint, the complainant declares under penalty of perjury under the laws of the State of California that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true;
(e) A person who files a right-to-sue complaint shall also provide the following information about himself or herself to the department, on a form prescribed by the department, for processing and statistical purposes:
(1) race or ethcicity;
(2) primary language;
(3) age;
(4) national origin or ancestry, if filing on the basis of national origin or ancestry discrimination;
(5) disability, if filing on the basis of disability discrimination;
(6) marital status, if filing on the basis of marital status discrimination;
(7) religion, if filing on the basis of religious discrimination;
(8) type of sex discrimation, if filing on the basis of sex discrimination;
(9) gender;
(10) occupation;
(11) how the complainant heard about the department; and
(12) whether the complainant has an attorney and, if so, the name, address, and telephone number of the attorney.
(f) If a complaint for investigation has been filed with the department and the department does not issue an accusation within one-hundred-fifty (150) days of the filing date of the complaint, the department shall issue a written notice advising complainant of his or her right to request a right-to-sue notice and withdraw the complaint. When a right-to-sue notice has not earlier been requested, the department shall issue a right-to-sue notice at the completion of its investigation or one year after the complaint is filed, whichever occurs first.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12965(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10006. Filing a Complaint with the Department Alleging a Violation of the Unruh Civil Rights Act, Ralph Civil Rights Act, or Disabled Persons Act.
Note • History
(a) Any person claiming to be aggrieved by an alleged violation of the Unruh Civil Rights Act (Civ. Code, §51 et seq.) (also known as a denial of service or public accommodation discrimination), Ralph Civil Rights Act (Civ. Code, §51.7) or Disabled Persons Act (Civ. Code, §54 et seq.) may file a complaint for investigation with the department. The department's procedures for processing employment discrimination complaints set forth in these regulations also shall apply to complaints alleging a violation of the Unruh Civil Rights Act, Ralph Civil Rights Acts or Disabled Persons Act (unless the complaint also alleges housing discrimination over which HUD has concurrent jurisdiction), except that the department shall not issue a right-to-sue notice as none is required to file a civil action alleging a violation of the Unruh Civil Rights Act, Ralph Civil Rights Acts or Disabled Persons Act.
(b) The department's procedures set forth in these regulations for processing housing discrimination complaints dual-filed with HUD shall apply to any Unruh Civil Rights Act, Ralph Civil Rights Act or Disabled Persons Act complaint filed with the department alleging an unlawful housing practice over which HUD has concurrent jurisdiction.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 51, 51.7, 52(f), 54 and 54.3(b), Civil Code; and Sections 12930(f)(2) and 12948, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) To determine whether the department has jurisdiction over the conduct about which a person seeks to complain, or the respondent against whom the person seeks to file a complaint, the department shall screen potential complaints filed for investigation and, where it appears that the department may have jurisdiction, conduct an intake interview.
(b) A person may schedule an appointment for an intake interview for an employment discrimination complaint via the department's Web site at www.dfeh.ca.gov, by sending a request via e-mail to contact.center@ dfeh.ca.gov, or by calling the department's toll-free telephone number listed on its Web site. Individuals also may call the department's toll-free number or send an e-mail to contact.center@dfeh.ca.gov to obtain basic technical assistance or referrals.
(c) Persons whose statute of limitations is about to run on a complaint for investigation, or who seek to file a complaint for investigation alleging a violation of the Unruh Civil Rights Act, Ralph Civil Rights Act, or Disabled Persons Act may schedule an intake appointment with a DFEH office listed on the department's Web site by telephoning the office directly, e-mailing or faxing the office's district or regional administrator, or telephoning the department's toll-free number and requesting the telephone number of the nearest DFEH office. Persons may also send an e-mail to contact.center@dfeh.ca.gov to obtain the telephone number of the nearest DFEH office. Contact shall be made with a department office via telephone, e-mail, facsimile, or other written or electronic means. Service may be denied to any member of the public who appears in person at a department office without the prior consent of the district or regional administrator.
(d) The department shall provide persons for whom an intake appointment has been made written confirmation of the date and time of the intake interview.
(e) Persons for whom an intake appointment has been made shall provide the department the following information in writing prior to the commencement of the intake interview on a form prescribed by the department:
(1) the name and, where available, the address, telephone number, and e-mail address of the person seeking to file the complaint;
(2) the name, address and, where available, telephone number and e-mail address of the entity or person against whom the individual wishes to file a complaint. If applicable, the number of individuals employed by the entity or person against whom the individual wishes to file a complaint also shall be provided;
(3) the name of the employer, if applicable, as it appears on the most recent U.S. Internal Revenue Service form W-2 the person received, against whom the person wishes to file a complaint;
(4) the name and, where known, home address, telephone number, e-mail address, and job title of any person against whom the individual wishes to file a complaint of discrimination;
(5) each protected basis upon which the discriminatory conduct about which the person wishes to complain was based;
(6) the discriminatory conduct or treatment the person experienced and the date or dates such discriminatory conduct or treatment occurred;
(7) for retaliation complaints, the protected activity in which the person engaged and the date of the protected activity;
(8) the reason the person believes the conduct experienced was discriminatory and, if applicable, the name, address, telephone number, e-mail address and job title of any individual the employer treated more favorably;
(9) the name, address, telephone number, e-mail address and job title of each individual believed to have relevant information regarding the complaint of discrimination and a brief summary/description of the information;
(10) whether the person has filed a complaint with the EEOC;
(11) the following additional information for employment discrimination complaints:
A. date of hire or application for job at issue;
B. job title and rate of pay at time the discriminatory treatment or conduct occurred;
C. name and title of immediate supervisor or interviewer;
D. if employment was terminated, name of replacement and his/her protected basis, if any, where known;
E. if employment was terminated or prospective employer failed to hire, whether other employment was subsequently obtained and if so, the date of hire, job title, and rate of pay of replacement job;
F. If not hired for desired position:
a. how information about available position and rate of pay was obtained;
b. whether application for desired position was made orally or in writing;
c. name and/or job title of person to whom application was submitted or made and date of application;
d. date and manner in which decision not to hire was communicated; and
e. name and rate of pay, if known, of person hired for desired job.
(f) The department may cancel the intake appointment of any person who fails to provide the foregoing information by the deadline the department designates.
(g) Intake interviews shall be conducted by telephone or other electronic means unless the department determines that special circumstances, such as the need for a sign language interpreter, require an in-person intake interview.
(h) The department shall liberally construe the facts alleged by a potential complainant when evaluating whether to accept a complaint.
(i) Notwithstanding the foregoing, the department shall only accept complaints for investigation where:
(1) The conduct alleged, if proven, would violate a law the department enforces.
(2) The statute of limitations has not run. For complaints alleging a continuing violation, the most recent act of harm alleged shall have occurred within the applicable limitations period. Where there is doubt about whether the statute of limitations has run, the complaint shall be taken by the department and the issue of timeliness investigated and analyzed during the investigation.
(3) Each named respondent is an entity or person over whom the department has jurisdiction under the laws the department enforces. Where there is doubt about whether the department has jurisdiction over a particular respondent, the complaint shall be taken by the department and the issue of jurisdiction investigated and analyzed during the investigation.
(j) At the conclusion of the intake interview, complainants with claims over which another state agency may have jurisdiction shall be advised accordingly and provided referral information, regardless of whether the department also has jurisdiction over some or all of a complainant's claims.
(k) The department shall not accept complaints where the same protected bases, discriminatory acts, and allegations are or have been included in a complaint the complainant previously filed with the department or the EEOC against the same respondent(s).
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12948, 12960(b) and 12960(d), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) A person who seeks to file a complaint for investigation whose statute of limitations would run in thirty (30) days or less, or who seek to file a complaint for investigation alleging a violation of the Unruh Civil Rights Act or Ralph Civil Rights Act, or a person who is terminally ill, may be given priority for the purpose of scheduling an intake appointment.
(b) The department may file a complaint for investigation solely on the basis of a telephone interview with a complainant, without first obtaining the complainant's signature on the complaint, when doing so is necessary to avoid missing the statute of limitations for filing with the department. Notwithstanding the foregoing, the department shall obtain a signature on a complaint for investigation before the complaint is served.
(c) A person who seeks to file a complaint for investigation with the department that alleges retaliation occurring within one-hundred-eighty (180) days of the person's filing a prior complaint of discrimination with the department, or within one-hundred-eighty (180) days of that person's participation in an investigation conducted by the department, also may be given priority for the purpose of scheduling an intake appointment.
(d) Priority also may be given to a person who calls the department's communication center to reschedule an intake appointment. If the person is unavailable the next regularly scheduled intake day and is prepared with information necessary to conduct an intake interview at the time he or she calls to reschedule, the department may offer to interview the person by phone at that time (“instant intake”), pending staff availability.
(e) Any other person whose situation warrants a priority intake in the department's discretion may be given priority for the purpose of scheduling an intake appointment.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12940(h), 12948, 12960(b) and 12960(d), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10009. Drafting Complaints Filed for Investigation.
Note • History
(a) The department shall draft the language of each complaint filed for investigation on a complaint form prescribed by the department. The complaint shall contain all the information identified in section 12960(b) of the Government Code, and sections 10002 and 10007 of these regulations, and set forth the allegations in ordinary and concise language of the department's choosing, identifying in the body of the complaint material dates, the name and job title of each individual responsible for the alleged unlawful employment practices, and the manner in which they are responsible. Such individuals shall be identified in the body of the complaint regardless of whether they are named as respondents or personally liable for their conduct under the laws the department enforces. The department shall liberally construe the facts alleged by a complainant when drafting a complaint and include all relevant claims supported by the facts alleged.
(b) The department may omit a complainant's address, telephone number, and e-mail address on any complaint alleging that the complainant has been subjected to violence or threats of violence including, but not limited to, sexual assault.
(c) Once drafted, a complaint may be signed by a complainant in person or sent to the complainant for signature via U.S. mail, private carrier mail, facsimile transmission, e-mail, or other electronic means. When requested in writing by an attorney or advocacy organization representing the complainant, the drafted complaint shall be sent to the attorney or advocacy organization for review and to obtain the complainant's signature.
(d) Any complainant or complainant's attorney who or advocacy organization which wishes to propose modifications to the unsigned complaint shall do so in writing submitted to the department via U.S. mail, private mail carrier, facsimile transmission, e-mail, or other electronic means. The department shall consider the proposed modifications and, if accepted, draft a new complaint which may be signed by a complainant in person or sent to the complainant for signature. When requested in writing by an attorney or advocacy organization representing the complainant, the modified complaint shall be sent to the attorney or advocacy organization for review and to obtain the complainant's signature. When modifications are not accepted, the department shall notify the complainant and his or her attorney or advocacy organization, if any, of the reasons for rejection and send to the complainant via U.S. mail, facsimile transmission, e-mail, or other electronic means another copy of the original complaint for signature.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12948 and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10010. Written Statement or Correspondence as Complaint.
Note • History
(a) If the statute of limitations would expire before an intake interview could be scheduled and completed for a complaint filed for investigation, the department may promptly initiate and conduct an intake interview by phone, without an appointment, or waive the intake process and accept a complaint for investigation using a written statement or correspondence from the complainant signed under penalty of perjury. As long as the written statement or correspondence satisfies all the requirements set forth in section 12960 of the Government Code, and section 10002 of these regulations, alleges a claim or claims over which the department has jurisdiction, and the statutory deadline to file with the department is imminent, the department may accept such a written statement or correspondence as a complaint for investigation.
(b) A statement shall be handwritten or typed and may be submitted electronically or by facsimile transmission to the department.
(c) The department may accept a statement from a complainant's attorney as long as the complainant has signed the statement of complaint or submits a signed statement authorizing the attorney to sign the complaint on his or her behalf.
(d) When intake has been waived, an investigator shall interview the complainant as soon as practicable after the complaint is filed and file an amended complaint on the form prescribed by the department. If, during the interview, the complainant presents new facts or raises new issues not included in the original complaint, they may be included in the amended complaint as long as the new facts and/or issues are based on or relate back to the facts stated in the original complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12948, 12960(b) and 12960(d), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10011. Complaints Taken for Filing Purposes Only.
Note • History
(a) Where the department rejects at intake all or some of the allegations presented by a person who seeks to file an employment discrimination complaint for investigation by the department, the department shall explain the reasons for rejection and offer the person the option of filing a complaint taken for filing purposes only. The department may only reject an allegation if it is clear that the statute of limitations has run and/or that the allegation, if proven, would not constitute a violation of the FEHA.
(b) A complaint accepted by the department for filing purposes only shall state the rejected allegations, which shall not be investigated by the department. The department shall not dual-file the complaint with the EEOC, but shall give the complainant contact information for his or her local EEOC office. Where a person rejects the department's offer to take a complaint for filing purposes only, he or she may request that the department provide the reasons for rejection in writing, which the department shall thereafter provide.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10012. Director's Complaints.
Note • History
(a) The director, in his or her discretion, may make, sign, and file a complaint for investigation that satisfies all the requirements of section 12960 of the Government Code, and section 10002 of these regulations.
(b) The director, in his or her discretion, may file a complaint on behalf and as representative of a group or class of persons adversely affected, in a similar manner, by a practice made unlawful by a law the department enforces.
(c) Receipt of an individual complaint alleging a pattern of discrimination, or a request or referral from a source outside the department, including but not limited to other state or federal agencies, may result in the filing of a director's complaint.
(d) Factors for determining whether to file a director's complaint include, but are not limited to:
(1) whether the respondent employs a large workforce that may be affected by the alleged unlawful practice, such that the anticipated remedy would impact a large number of persons or an entire industry; and/or
(2) whether the complaint allegations address an important legal issue in an area where the department seeks to establish case law; and/or
(3) whether resolution of the complaint would impact civil rights in a manner consistent with the department's mission.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12960(b) and 12961, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10013. Class or Group Complaints.
Note • History
(a) The director or an aggrieved person may file a complaint for investigation with the department on behalf of a group or class of persons adversely affected, in a similar manner, by an alleged unlawful practice.
(b) When an aggrieved person wishes to file a class or group complaint, the department shall obtain the following additional information, to the extent available, from the person at intake:
(1) details regarding the manner in which the alleged unlawful practice has adversely affected other persons; and
(2) the name, address, telephone number, e-mail address, and protected status of each person besides the complainant adversely affected by the alleged unlawful practice.
(c) The class complaint shall state that the person is making the complaint on his or her behalf and on behalf of all others who have been, are, or will in the future be similarly aggrieved, or words to that effect.
(d) When a class complaint is accepted for filing, the department shall inform the complainant that, even though class language has been included in the complaint, the department shall later determine whether the complaint will be investigated as a class or group complaint. If the department later determines that neither a class nor group complaint will be pursued, the department may investigate the complaint as an individual complaint if circumstances warrant.
(e) Factors the department considers when determining whether to investigate a complaint as a class or group complaint include, but are not limited to:
(1) whether the alleged unlawful practice or its adverse effects can be articulated as being group or class based; and/or
(2) whether it would be more efficient for the department to investigate a complaint on a class or group basis rather than to investigate multiple single complaints filed by individual complainants; and/or:
(3) whether the respondent employs a large workforce that may be affected by the alleged unlawful practice, such that the anticipated remedy would impact a large number of persons or an entire industry.
(f) The department shall notify the respondent in writing within one year after the filing of a complaint when the department determines that a complaint will be investigated as a class or group complaint. Any such writing also shall be served on the complainant.
(g) For any complaint treated by the department as a class or group complaint for purposes of investigation, conciliation, and accusation, an accusation shall issue, if at all, within two years after the filing of the complaint.
(h) When a complaint is pursued as a class or group complaint, the department shall provide the complainant written notice that includes, at a minimum, the following statements:
(1) the class or group designation extends the investigation period one year;
(2) although the investigative period is extended, the deadline for the department to issue a right-to-sue notice in a class or group complaint alleging an unlawful employment practice remains one year from the date the complaint was filed with the department;
(i) The director, in his or her discretion, may determine whether a director's complaint also shall be filed and pursued in conjunction with a class or group complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12961 and 12965(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10014. Retaliation Complaints -- Special Considerations.
Note • History
(a) When retaliation is included among the allegations a complainant makes at intake, and the department has determined that it will accept the complainant's claims for investigation, all allegations, including retaliation, shall be combined in one complaint.
(b) When retaliation is alleged after a complaint has already been filed with the department, and the department has determined that it will accept the retaliation claim for investigation, the department shall file a separate retaliation complaint, except as follows:
(c) If the one-year statute of limitations has run and the alleged retaliatory conduct is the same conduct complained of in the original complaint (e.g., termination) for which another discriminatory basis was originally alleged (e.g., national origin discrimination), the department shall amend the original complaint instead of taking a separate complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12940(h) and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10015. Medical Information -- Special Considerations.
Note • History
(a) Whenever a complaint includes allegations that require the department to obtain and analyze medical information, such as complaints alleging physical or mental disability discrimination, denial of reasonable accommodation, pregnancy discrimination, and/or a violation of the California Family Rights Act (Gov. Code, §12945.1 et seq.), the complainant shall authorize the department in writing to request and obtain copies of all directly relevant medical records or information reasonably necessary to evaluate and prosecute the complaint.
(b) During the enforcement division's investigation, all medical records the department obtains during the investigation shall be maintained in a section of the case file clearly marked “Confidential.”
(c) If an accusation is issued, all directly relevant medical records or information reasonably necessary to prosecute the accusation or civil complaint, if any, may be disclosed by the department when disclosure is necessary to further prosecution and/or settlement of the claim.
(d) No medical records or information shall be disclosed by the department in response to a request for public records made pursuant to the California Public Records Act. (Gov. Code, §6254(c).)
(e) No medical records or information shall be disclosed by the department in response to a third-party subpoena unless a Notice to Consumer/Employee has been served on the complainant and there has been no objection communicated to the department by the complainant or the complainant's attorney. (Code. Civ. Proc., §§1985.3, 1985.6, and 2020.410.)
(f) The department shall abide by complainant's attorney's requests to protect the privacy of complainant's medical information. However, if the department is unable to obtain the medical information and records it deems reasonably necessary to investigate and/or prosecute a complainant's allegations, the department may discontinue the investigation and close the complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 [174 Cal.Rptr. 160] [discovery of private information requires direct relevance to claim]; Sections 1985.3, 1985.6 and 2020.410, Code of Civil Procedure; and Sections 6253, 6254(c), 12930(f)(1), 12940(a), 12940(m), 12945, 12945.1, 12945.2 and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10016. Standard for Accepting Complaint When Act of Harm Occurred Outside California.
Note • History
Where all other jurisdictional requirements have been met for filing a complaint for investigation with the department, the department shall accept a complaint when the act of harm occurred outside California if a connection can be established between the complainant and some act of the respondent that occurred within California.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12960(b), Government Code; Section 410.10, Code of Civil Procedure; and Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434 [58 Cal.Rptr.2d 899].
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10017. Effect of Prior Waiver Agreement/Release of All Claims.
Note • History
(a) Where all other jurisdictional requirements have been met for filing a complaint for investigation with the department, the department shall accept a complaint where a complainant presents at intake a signed waiver agreement or release of all claims. The investigation shall initially focus on obtaining information necessary to determine whether the complainant has validly waived his or her right to file a complaint with the department. Such information shall include, but not be limited to:
(1) a description of all benefits received in exchange for signing the waiver;
(2) the amount of time the complainant was given to consider the waiver before signing;
(3) whether the complainant was given the opportunity to seek legal counsel before signing;
(4) whether the complainant sought legal advice before signing;
(5) the conditions under which the waiver was signed (e.g. whether the waiver was signed in a non-coercive atmosphere); and
(6) whether the waiver was presented in a language understood by the complainant and/or whether interpretative services were provided.
(b) Where a respondent produces a signed waiver agreement or release of all claims during an investigation, the department shall promptly obtain information necessary to determine whether the complainant has validly waived his or her right to file a complaint with the department. Such information shall include, but not be limited to, the information identified in section 10017(a) of these regulations.
(c) The department shall close any case where it has been determined that a complainant has validly waived his or her right to file a complaint with the department unless the department determines that:
(1) the complaint alleges an unlawful systemic policy or practice that adversely affects a large number of employees; and/or
(2) an anticipated affirmative remedy would impact a large number of employees or an entire industry in a manner consistent with the department's mission; and/or
(3) the complaint allegations address an important legal issue in an area where the department seeks to establish case law.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12920, 12930(f)(1) and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10018. Complaints Taken After Expiration of Statute of Limitations Due to Department Error.
Note • History
The one-year time limit for filing a complaint of discrimination with the department may be tolled in cases where the department misleads the complainant about filing obligations, commits errors in processing the complaint, or improperly discourages or prevents the complainant from filing at all.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12960(d), Government Code; and Dept. Fair Empl. & Hous. v. Cairo (Jan. 6, 1984) No. 84-04, FEHC Precedential Decs.1984-85, CEB 3 [1984 WL 54284 (Cal.F.E.H.C.)].
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10019. Complaints Dual-Filed with the EEOC.
Note • History
(a) Complaints filed with the department that include at least one claim over which the EEOC has concurrent jurisdiction shall be dual-filed with the EEOC, but investigated by the department, unless after preliminary investigation it is determined that the department does not have jurisdiction (e.g., religious employer exempt from coverage under the FEHA that is covered by Title VII of the 1964 Civil Rights Act.)
(b) The department shall not accept complaints where the same protected bases, discriminatory acts, and allegations are or have been included in a complaint the complainant previously filed with the EEOC against the same respondent(s).
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12960(b) and 12963.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10020. Complaints Transferred to the EEOC for Processing.
Note • History
(a) A complaint for investigation filed with the department by a person who alleges retaliation for filing a prior complaint with the EEOC, or participating in an investigation conducted by the EEOC, shall be waived to the EEOC for processing and immediately closed. Where the EEOC does not have jurisdiction because the 300-day federal statute of limitations has passed, the retaliation complaint shall be processed by the department on a non-priority basis.
(b) Mohasco Corp. v. Silver (1980) 447 U.S. 807 [65 L.Ed.2d 532, 100 S.Ct. 2486] (Mohasco) complaints:
(1) Complaints over which the EEOC has concurrent jurisdiction that are filed with the department between two-hundred-forty (240) and three-hundred (300) days of the first alleged act of harm (“Mohasco time frames”) shall be waived to the EEOC for processing.
(2) All primary and co-respondent complaints filed for investigation with the department that fall within the Mohasco time frames shall be waived to the EEOC for processing and immediately closed. The department shall inform the complainant during intake that the EEOC will decide whether it will proceed against the co-respondents, if any.
(3) Complaints that fall within the Mohasco time frames that include claims over which the EEOC does not have concurrent jurisdiction shall be accepted by the department as two separate complaints: One complaint shall be taken that alleges all the claims over which the EEOC has concurrent jurisdiction and shall be dual-filed and waived to the EEOC for processing; another complaint shall be taken that alleges all claims over which the EEOC does not have concurrent jurisdiction, which shall not be dual-filed and shall remain with the department for investigation.
(c) Religious non-profit institutions:
(1) When it is determined at intake that an employer is exempt from the FEHA because it is a non-profit religious corporation, but the EEOC has jurisdiction over the religious employer under Title VII of the 1964 Civil Rights Act, a complaint shall be accepted by the department, registered, and waived to the EEOC for processing;
(2) When it is determined at intake that neither the department nor the EEOC has jurisdiction over a religious employer, the department shall accept a complaint for filing purposes only and promptly close the complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12960(b) and 12963, Government Code; and Mohasco Corp. v. Silver (1980) 447 U.S. 807 [65 L.Ed.2d 532, 100 S.Ct. 2486].
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10021. Service of Complaints.
Note • History
(a) Only verified complaints filed for investigation with the department by complainants not represented by counsel shall be served by the department. The department may, but is not required, to also serve:
(1) verified complaints filed for investigation with the department by complainants represented by counsel;
(2) complaints accepted only for filing purposes from complainants not represented by counsel; or
(3) complaints accepted only for filing purposes from complainants represented by counsel.
(b) The department shall strive to initiate service upon all respondents named in a verified complaint filed for investigation by a complainant not represented by counsel, or any other complaint the department decides to service, within ten (10) working days after the complaint is filed. Whenever service is required or initiated pursuant to the department's discretion, service shall be initiated not more than sixty (60) days after the complaint is filed.
(c) The date of service is the date the complaint is placed in the mail (certified mail only) or personally delivered to the respondent.
(d) All department service documents shall be placed in an envelope clearly marked “PERSONAL AND CONFIDENTIAL: TO BE OPENED BY ADDRESSEE OR DESIGNATE ONLY” regardless of whether the documents are served by personal service or certified mail with return receipt requested.
(e) If a complaint sent via certified mail to a respondent's correct last known address is returned as undeliverable, or if the respondent refused service, the department shall promptly take steps to re-serve the complaint including, but not limited to, initiating personal service of a verified complaint filed for investigation.
(f) The department may forego serving by certified mail and promptly initiate personal service whenever the circumstances warrant.
(g) The department shall not serve complaints issued in response to requests for an immediate right-to-sue notice, regardless of whether or not a complainant is represented by counsel.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12962, Government Code; and Wasti v. Superior Court (2006) 140 Cal.App.4th 667 [44 Cal.Rptr.3d 625].
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) The department may amend an open complaint of discrimination to:
(1) add bases or allegations for which the statute of limitations has not run;
(2) add or delete facts or change the wording of a complaint;
(3) correct the name of a respondent;
(4) add new bases, respondents, or complainants after the expiration of the one-year statute of limitations where the amendment either relates back to the same material facts set forth in the original complaint, or the original complaint contains language that specifically references or identifies the bases, respondents, or complainants to be added;
(5) add an allegation of retaliation after the one-year statute of limitations has run where the alleged retaliatory conduct is the same conduct complained of in the original complaint (e.g., termination) for which another discriminatory basis was originally alleged (e.g., national origin discrimination); and/or
(6) add class or group allegations to an individual complaint and pursue the complaint as a class or group complaint.
(b) When an open complaint of discrimination has been amended:
(1) respondents shall be given sufficient notice and time to respond to new allegations;
(2) the filing date of the amended complaint remains the same as the original filing date.
(c) The department shall not amend an open complaint to add:
(1) allegations that are beyond the one-year statute of limitations if the allegations relate to a different set of facts than those alleged in the original complaint;
(2) bases or allegations that would have been rejected if raised at intake;
(3) bases or allegations refuted by evidence obtained during the investigation.
(4) Under the foregoing circumstances, the department shall offer the complainant a complaint for filing purposes only, which shall not be investigated, and which, if accepted by the complainant, shall contain the new bases and/or allegation(s).
(d) The department shall amend closed employment discrimination complaints as requested by complainants or their counsel.
(e) When the department amends a closed complaint, the department shall neither reopen the complaint nor make an administrative determination on the validity, retroactivity, or merits of the amendment.
(f) When a closed complaint is amended by the department, the original filing date and right-to-sue notice shall remain in effect, as shall the original statute of limitations for filing a private lawsuit.
(g) The department shall handle nonsubstantive changes to an original complaint, such as correcting an incorrect case number, incorrect address or misspelled word, by correcting the original complaint, not by amending it.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12960(b), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10023. Response to Complaint.
Note • History
(a) Unless granted an extension by the department, a written response to a complaint filed for investigation with the department shall be provided to the department within thirty (30) days of service of the complaint, except as follows: The requirement to provide a response shall be temporarily suspended for any complaint referred to the department's mediation division.
(b) No response to the complaint is required while the complaint is pending in mediation. However, unless granted an extension by the department, a response shall be provided to the department no later than twenty-one (21) days after the date the department notifies the respondent that a response is due because mediation was declined or was unsuccessful. After the complaint is returned for investigation, the enforcement division shall in writing notify the respondent or, if the respondent is represented, the respondent's attorney, of the exact date the response is due.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)-(g), 12960(b) and 12963, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) Conciliation efforts undertaken by the department's enforcement division may include post-investigation conciliation and/or settlement conferences as well as pre-determination settlement negotiations. Whenever a complainant or respondent is represented by an attorney or advocacy organization, enforcement staff shall communicate with the party's attorney or advocate regarding settlement.
(b) Pre-determination settlement (PDS) negotiations are confidential; however, any settlement agreement entered into as a result of PDS negotiations that is signed by the department, as well as the terms of settlement, are not confidential.
(c) If the department determines after investigation that a preponderance of evidence exists to prove a complaint's allegations, both the complainant and respondent, as well as their respective attorneys or advocates, if any, shall be invited to participate in a conciliation or mediation conference on equal terms.
(d) Everything that transpires at a post-investigation conciliation conference shall be kept confidential, except as follows:
(1) issues established as fact during the investigation;
(2) any settlement agreement signed by the department, and the final terms of settlement; and/or
(3) new facts presented by the respondent at the conciliation conference that cause the department to re-evaluate the case and determine not to issue an accusation. A respondent providing such information at a conciliation conference shall authorize the department to use the information to close the case.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f) and 12963.7, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10025. DFEH Mediation Division Services.
Note • History
(a) The department may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint before investigation commences (“pre-investigation mediation”). One or both parties to a complaint filed for investigation also may request pre-investigation mediation. Pre-investigation mediation conferences are not attended by any representative of the department's enforcement or legal divisions.
(b) While a pre-investigation complaint is with the mediation division, the requirement to submit a response to the complaint is temporarily suspended. However, if mediation is declined or is unsuccessful, a response shall be provided to the department no later than twenty-one (21) days after the date the department notifies the respondent that a response is due because mediation was declined or was unsuccessful. After the complaint is returned for investigation, the enforcement division shall in writing notify the respondent or, if the respondent is represented, the respondent's attorney, of the exact date the response is due.
(c) The department also may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint after investigation (“post-investigation mediation”). Post-investigation mediation conferences conducted before an accusation is issued (“pre-accusation”) shall be attended by a representative of the department's enforcement division. The enforcement division representative may be the investigating office's assigned staff counsel. If a post-investigation mediated settlement is reached pre-accusation, the enforcement division representative who participated in the mediation shall not sign the settlement agreement. If a settlement is not reached, and the enforcement division's mediation representative was the investigating office's assigned staff counsel, the legal division shall not assign the same staff counsel to issue and prosecute the accusation in the matter.
(d) Post-investigation mediation conferences conducted after an accusation is issued (“post-accusation”) shall be attended by the member of the department's legal division who issued the accusation or who has subsequently been assigned the case. If settlement is reached, the legal division representative shall sign the settlement agreement. If settlement is not reached, the same staff counsel who issued the accusation and mediated the matter may prosecute the case.
(e) If, after investigation, the department determines that the complaint is valid and offers the parties mediation, such offer satisfies the department's obligation under Government Code section 12963.7 to “immediately endeavor to eliminate the unlawful ... practice complained of by conference, conciliation, and persuasion,” regardless of whether the mediation occurs before or after the department issues an accusation.
(f) Regardless of whether the department refers a complaint to the mediation division before or after investigation has commenced, the department shall suspend investigation while the complaint is with the mediation division. After mediation is declined or is unsuccessful, the department shall commence, resume or complete the investigation as necessary.
(g) Mediation is voluntary. Therefore, the department shall not assign a complaint to a mediator unless both the complainant and respondent (or their respective attorneys or advocacy organizations, if any) agree to mediate.
(h) When both sides agree to mediate a complaint pre-accusation, the department may assign the complaint to a trained volunteer mediator or a trained mediator employed by the department's mediation division, or refer the complaint to a Fair Employment and Housing Commission administrative law judge or commissioner, based on mediator availability and the department's discretion. Whenever a complainant or respondent is represented by an attorney or advocacy organization, the assigned mediator shall communicate with the party's attorney or advocate regarding scheduling and settlement.
(i) The mediation process is confidential, including, for pre-accusation mediations, any settlement agreement entered into by a complainant and respondent, and the terms thereof. However, the following are not confidential:
(1) issues established as fact during the investigation;
(2) post-accusation settlement agreements and the final terms of settlement; and/or
(3) new facts presented by the respondent at a post-investigation mediation conference that cause the department to re-evaluate the case and determine not to issue an accusation. A respondent providing such information at a mediation conference shall authorize the department to use the information to close the case.
(j) Any written settlement agreement reached through a DFEH mediation division conference may be used as evidence to enforce the terms of the settlement agreement if the conditions of Evidence Code section 1123 are satisfied and the agreement contains language showing the intent of the parties to be bound by the agreement's terms.
(k) A copy of any settlement agreement executed in connection with a DFEH mediation division conference shall be provided to the department's mediation division.
(l) DFEH complaints resolved through mediation shall be closed by the department.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 1119, 1120 and 1123, Evidence Code; and Sections 12930(f) and 12963.7, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10026. Complaint Investigation.
Note • History
(a) After any employment discrimination complaint alleging facts sufficient to constitute a violation of the FEHA is filed for investigation with the department, the department shall initiate prompt investigation thereof.
(b) Where it is disputed or unclear that the department has jurisdiction over a particular respondent or allegation, the investigation shall initially focus on obtaining the information and documents necessary to determine whether the department has jurisdiction.
(c) During the course of its investigation the department may, but is not required, to issue and serve investigative subpoenas, written interrogatories, and requests for production of books, records and documents. If a person or entity fails to comply with a subpoena, written interrogatories, or requests for production of documents properly issued and served by the department, after requesting compliance in writing and/or by telephone, the department shall file a petition with the superior court, in accordance with section 12965.3 of the Government Code, to compel compliance with its investigative discovery.
(d) The department shall gather during the course of an investigation all relevant evidence necessary to determine whether an unlawful practice has occurred.
(e) For all workplace discrimination complaints, the department shall obtain the complainant's complete personnel file or files from the respondent.
(f) The department shall prioritize early in the investigative process complex cases and cases that appear to have merit to better allocate the department's resources.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)-(g), 12963 and 12963.1-12963.5, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10027. Investigative Subpoenas.
Note • History
(a) During the course of an investigation, the department may issue and serve upon a person, corporation, partnership, association, public entity, or other organization a subpoena, on a form prescribed by the department, to require the attendance and testimony of a witness by deposition or other investigative proceeding or means including, without limitation, an investigative interview.
(b) “Investigative interview” means an in-person or telephonic interview of a witness, which the enforcement division conducts during the investigation of a complaint. Investigative interviews are distinct from investigative depositions. Witnesses examined by the department pursuant to a subpoena for an investigative interview need not be placed under oath and their testimony need not be recorded by stenographic or other means. Objections, if any, made at the time of an investigative interview need not be recorded, and evidence objected to may be considered by the department in its investigation notwithstanding any objection.
(c) A subpoena for an investigative interview or deposition, or other investigative proceeding, also may require the production of books, records, documents, and physical materials in the possession of, or under the control of, the person or organization named on the subpoena.
(d) Service of a subpoena for an investigative interview or deposition, or other investigative proceeding, shall be made in compliance with section 12963.1(b) of the Government Code in such manner as to allow the person or organization named on the subpoena reasonable time for compliance. In no event shall an investigative subpoena indicate a date for appearance or compliance that is less than fifteen (15) days after the date service of the subpoena is completed.
(e) No person named on a subpoena for investigative interview or deposition, or other investigative proceeding, shall be obliged to attend as a witness before the department at a place out of the county in which that person resides, unless the distance is less than 150 miles from the person's place of residence or good cause exists to require attendance of the witness at greater distance. Each witness who has appeared pursuant to an investigative subpoena shall, upon demand, be paid by the department the same fees and mileage allowed by law to witnesses in civil cases.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(g), 12963.1 and 12963.3, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10028. Investigative Requests for Production and Inspection.
Note • History
(a) During the course of an investigation, the department may issue and serve requests for production for inspection and copying of books, records, documents, and physical materials including, but not limited to, land or other commercial or real property such as worksites or housing accommodations, and electronically stored information in the possession or under the control of a person or organization. A request for production may be issued and served on the same persons and organizations and in the same manner as subpoenas may be issued and served by the department under section 12963.1 of the Government Code.
(b) A request for production shall identify with reasonable particularity the things that are to be inspected and specify a reasonable time, place, and manner of making the inspection, performing the copying, or producing copies of the requested books, records, documents, and physical materials.
(c) Within fifteen (15) days after service of a request for production or such longer time as the department may agree to, the recipient of the request shall serve on the department a written response to each item requested, either stating that inspection and copying shall be permitted as requested or objecting to the request and stating the grounds of the objection. Unless a request for production is objected to, the recipient of the request shall comply with the department's requests and permit inspection and copying, or produce copies of the requested books, records, documents, and physical materials, within thirty (30) days after service of the department's requests for production, or such longer time as the department may agree to.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(g), 12963.1 and 12963.4, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10029. Priority Case Processing/Case Grading System.
Note • History
(a) The department shall prioritize investigation of the following complaints: (1) a complaint alleging a violation of the Ralph Civil Rights Act; (2) any employment complaint that is a companion to a Ralph Civil Rights Act complaint; (3) a complaint filed by a terminally ill complainant; (4) a complaint alleging retaliation occurring within one-hundred-eighty (180) days of the complainant filing a prior complaint of discrimination with the department or participating in a FEHA-related investigation, hearing or court process; and/or (5) any other complaint investigation that warrants priority in the department's discretion.
(b) In addition to the foregoing, to better allocate the department's resources, the department shall identify any employment discrimination complaint filed for investigation that likely would be meritorious, or whose successful litigation would impact a large number of employees if its allegations are proven. The department shall initially designate such complaints as priority complaints and process them in the same manner as other priority complaints. At its discretion, the department's legal division may later designate a priority complaint as a high priority complaint, depending upon its strength and potential for impact.
(c) The department shall preliminarily designate all other employment discrimination complaints filed for investigation as standard complaints, which the department shall investigate.
(d) Such initial designations shall continually be re-evaluated by the department throughout the investigative process, particularly after an employer's response is received and analyzed. Thus, a complaint initially designated a standard complaint later may be designated a priority complaint upon receipt and evaluation of additional evidence. Likewise, a complaint originally designated a priority complaint may be designated a standard complaint after reevaluation.
(e) Factors the department considers when determining whether a complaint is a priority or a standard complaint may include, but are not limited to:
(1) whether the alleged unlawful practice affects a group or class of employees or applicants;
(2) strength of the facts alleged;
(3) the severity of the alleged harm;
(4) whether the respondent employs a large workforce that may be affected by the alleged unlawful practice, such that a remedy would impact a large number of persons or an entire industry; and/or
(5) whether the complaint allegations address an important legal issue in an area where the department seeks to establish case law.
(f) Priority complaints may be eligible for allocation of additional department resources and early and on-going collaboration with the department's legal division.
(g) At no time shall the department disclose to any person outside the department the case grade or designation assigned to any complaint. All records of discussions regarding the grade or designation of a complaint shall be marked “Confidential,” and be retained in the confidential section of the department's case file.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12963, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10030. Investigations Not Completed Within Statutory Time Limit.
Note • History
(a) Where an investigation is not completed within the statutory time limit the department may:
(1) continue the investigation;
(2) taking into consideration the complexity of the case, time necessary to complete the investigation, and likelihood of proving discrimination, close the case where continued investigation would be an inefficient use of the department's resources; or
(3) if the case is dual-filed with the EEOC, waive the case to the EEOC for continued investigation.
(b) When an investigation is completed after the statutory time limit and the complaint has been found meritorious, the department shall schedule a conciliation or mediation conference.
(c) The department shall not issue an accusation when an investigation is completed after the statutory time limit and a complaint has been found meritorious. However, the director, in his or her discretion, may issue a director's complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12930(h), 12963 and 12965(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) If, after investigation, it is determined by the department that a complaint has merit, the director, in his or her discretion, may cause a written accusation to be issued in the name of the department. The discretion to issue an accusation may be delegated to the department's chief counsel or his or her designated associate or assistant chief counsel.
(b) An accusation may be issued, if at all, after an unsuccessful post-investigation conciliation or mediation conference or, if circumstances warrant, the department may issue an accusation without holding a conciliation or mediation conference.
(c) The department has discretion not to issue an accusation when circumstances warrant. Factors considered by the department when determining whether to issue an accusation include, but are not limited to: (1) the strength and sufficiency of the evidence of unlawful conduct; (2) the likelihood of prevailing on the merits at hearing or trial; (3) the availability and allocation of department resources; (4) whether the alleged violation addresses an important legal issue in an area where the department seeks to establish case law; (5) whether issuance of an accusation and subsequent litigation thereof are likely to impact civil rights in a manner consistent with the department's mission; and/or (6) whether the respondent has offered the complainant an equitable remedy the complainant has refused.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(h) and 12965(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10032. Notice of Case Closure.
Note • History
(a) Whenever a complaint filed for investigation with the department is withdrawn by the complainant or dismissed by the department, or an investigation is closed or terminated by the department for any reason, the department shall promptly notify the complainant and respondent of the case closure, and the reason for closure, in writing. The department also shall provide the complainant a list of resources for filing a civil complaint in small claims court or locating private counsel.
(b) For complaints alleging unlawful employment practices in violation of the FEHA for which a right-to-sue notice has not already been issued, a notice of case closure shall also constitute a right-to-sue notice.
(c) When closing a complaint dual-filed with the EEOC, the department shall satisfy all reporting requirements arising from the department's work-sharing agreement with the EEOC.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12965(b) and 12971, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) Any person who wishes to appeal the department's decision to reject a complaint or close a case shall direct his or her concerns to the district administrator or, if there is no district administrator, the regional administrator of the office that rejected or closed the complaint. Appeals may be presented verbally by telephone or in writing.
(b) Regardless of whether an appeal is oral or written, the district administrator or, if there is no district administrator, the regional administrator, or other individual delegated any function, power, or duty of the district or regional administrator, shall respond in writing. Where the appeal concerns a complaint rejected for investigation, the district or regional administrator, or his or her designee, also shall draft a complaint for filing purposes only, to be included with the written response.
(c) Any person dissatisfied with the response of the district administrator may direct his or her further appeal to the regional administrator or his or her designee.
(d) Regardless of whether the further appeal is oral or written, the regional administrator, or other individual delegated any function, power, or duty of the regional administrator, shall respond in writing.
(e) Any person dissatisfied with the response of the regional administrator may direct his or her further appeal to the chief of enforcement.
(f) Regardless of whether the further appeal is oral or written, the chief of enforcement, or his or her designee, shall respond in writing.
(g) Any person dissatisfied with the response of the chief of enforcement may direct his or her further appeal to the director.
(h) Regardless of whether the further appeal is oral or written, the director, or his or her designee, shall respond in writing.
(i) The decision of the director is final and may not be appealed to any other department employee, officer, or other individual delegated any function, power, or duty of the department.
(j) Any concerns regarding the handling of an open complaint shall be directed to the district administrator or, if there is no district administrator, the regional administrator of the office where the complaint is being investigated.
(k) Any person dissatisfied with the response of the district administrator may direct his or her concerns to the regional administrator or his or her designee.
(l) Any person dissatisfied with the response of the regional administrator, or his or her designee, may direct his or her concerns to the chief of enforcement.
(m) The response of the chief of enforcement, or other individual delegated any function, power, or duty of the chief of enforcement, is final and may not be appealed to any other department employee or officer while the complaint is open. After the complaint is closed, any remaining concerns may be directed to the director, whose response, and/or the response of his or her designee, shall be final and nonappealable to any other department employee, officer, or other individual delegated any function, power, or duty of the department.
(n) Any respondent who wishes to complain about the issuance of an accusation against the respondent shall direct his or her concerns to the chief counsel of the department's legal division.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12960(b), 12965 and 12971, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10034. EEOC Substantial Weight Review.
Note • History
Any party aggrieved by the department's final action taken on a complaint dual-filed with the EEOC may, within fifteen (15) days of the action, request that the EEOC conduct a review in accordance with the procedures set forth by the EEOC for a Substantial Weight Review.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12960(b), 12965 and 12971, Government Code; and 29 CFR §§1601.76 and 1601.77.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Subchapter 2. Housing Discrimination Complaints
§10035. Filing a Complaint of Housing Discrimination with the Department.
Note • History
(a) Any person claiming to be aggrieved by a housing practice made unlawful by the FEHA, or any other law the department enforces, may file with the department a verified complaint, in writing, that shall describe the unlawful conduct alleged and include the following, on a form prescribed by the department:
(1) complainant's name and, where available, address, telephone number and e-mail address;
(2) respondent's name and, where available, address, telephone number and e-mail address;
(3) a description of the alleged act or acts of housing discrimination, harassment or retaliation;
(4) the date or dates each alleged act of housing discrimination, harassment or retaliation occurred, including the date of the last or most recent act alleged;
(5) a description of the housing accommodation at issue;
(6) the address of the housing accommodation at issue;
(7) each protected basis upon which the alleged housing discrimination or harassment was based;
(8) for retaliation complaints, the date and type of protected activity in which the complainant engaged;
(9) the complainant's declaration, made under penalty of perjury under the laws of the State of California, that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true;
(10) the signature of the complainant, or an authorized signature, and the date signed, unless the complaint is filed electronically;
(11) complaints filed electronically need not be signed; complaints filed electronically shall state that by submitting the complaint, the complainant declares under penalty of perjury under the laws of the State of California that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true.
(b) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice occurred, except that this period may be extended as set forth in section 10052 of the department's regulations.
(c) For all complaints not filed online via the Department's Web site, the filing date shall be the date the department receives a signed complaint, regardless of whether the complaint is signed by the complainant in a department office or the complaint is signed elsewhere and transmitted to the department via U.S. mail, private carrier mail (e.g., FedEx), electronic mail, facsimile, or hand delivery. The filing date for complaints referred by HUD is the date the HUD complaint is received by the department. All complaints shall be date-stamped received by the department on the same day the department first receives the signed complaint. A limited exception exists where a complainant cannot sign a complaint before the applicable statute of limitations runs. In this limited circumstance, the department shall file the unsigned complaint and date-stamp it received before the statute of limitations runs. Notwithstanding the foregoing, the department shall obtain a signature on the unsigned complaint before it is served.
(d) The filing date for complaints filed via the department's Web site shall be the date on which the complaint was submitted online, which is printed on the complaint after the words “DATE FILED.”
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12955(d) and 12980(a)-(b), Government Code.
HISTORY
1. New subchapter 2 (sections 10035-10066) and section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10036. Liberal Construction of Complaint.
Note • History
The department shall liberally construe all complaints to effectuate the purpose of the laws the department enforces to safeguard the civil right of all persons to seek, obtain and hold housing without discrimination. Where the facts alleged in a housing discrimination complaint support a claim of retaliation, harassment, or any other claim over which the department has jurisdiction, the department shall construe the complaint to include those claims within the scope of the discrimination claim, regardless of whether such other claims are expressly stated. Likewise, where the facts alleged in a harassment complaint support a claim of discrimination, retaliation, or any other claim over which the department has jurisdiction, the complaint shall be construed to include those claims within the scope of the harassment claim, regardless of whether such other claims are expressly stated.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12920, 12921(b), 12930(f)(1)-(2), 12960(b), 12980(a) and 12993(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10037. Filing a Housing Discrimination Complaint with the Department Alleging a Violation of the Unruh Civil Rights Act (Civ. Code, §51 et seq.), Ralph Civil Rights Act (Civ. Code, §51.7), or Disabled Persons Act (Civ. Code, §54 et seq.).
Note • History
(a) Any person claiming to be aggrieved by an alleged violation of the Unruh Civil Rights Act (Civ. Code, §51 et seq.), Ralph Civil Rights Act (Civ. Code, §51.7) or Disabled Persons Act (Civ. Code, §54 et seq.) may file a complaint for investigation with the department. The department's procedures for processing employment discrimination complaints set forth in these regulations also shall apply to housing discrimination complaints alleging a violation of the Unruh Civil Rights Act, Ralph Civil Rights Acts or Disabled Persons Act (unless the complaint also alleges housing discrimination over which HUD has concurrent jurisdiction), except that the department shall not issue a right-to-sue notice.
(b) Any Unruh Civil Rights Act, Ralph Civil Rights Act or Disabled Persons Act complaint filed with the department that alleges an unlawful housing practice over which HUD has concurrent jurisdiction shall be processed by the department in the manner set forth in these housing regulations.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(2), 12948, 12955(d) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) To determine whether the department has jurisdiction over the conduct about which a person seeks to complain, or the respondent against whom a person seeks to file, the department shall screen potential housing discrimination complaints and, where it appears that the department may have jurisdiction, conduct an intake interview.
(b) A person may initiate the interview process by calling the department's toll-free telephone number for the housing unit listed on the department's Web site at www.dfeh.ca.gov. Persons also may call the department's toll-free number to obtain basic technical assistance or referrals.
(c) A person who seeks to schedule an intake appointment shall provide the department the following information in writing, prior to the scheduling of an intake interview, on a form prescribed by the department:
(1) the name and, where available, address, telephone number, and e-mail address of the person who seeks to file the complaint;
(2) the name and, where available, address, telephone number, and e-mail address of any other adults who sought housing with the person or who reside or would have resided with the person in the housing accommodation at issue;
(3) the names and ages of any children who sought housing with the person or who reside or would have resided with the person in the housing accommodation at issue;
(4) the name and, where available, address, telephone number, and e-mail address of the person or entity against whom the person seeks to file a complaint (“respondent”);
(5) whether the respondent is an owner, manager, developer, management company, real estate broker, lending institution or other entity;
(6) the address and, if applicable, name of the property where the housing accommodation was sought;
(7) whether the desired housing accommodation was a single family home or an apartment; if an apartment, the number of units at the location;
(8) each protected basis upon which the discriminatory conduct about which the person wishes to complain was based;
(9) the discriminatory conduct or treatment the person experienced and the date or dates such discriminatory conduct or treatment occurred;
(10) for retaliation complaints, the protected activity in which the person engaged and the date of the protected activity;
(11) the reason the person believes the conduct experienced was discriminatory and, if applicable, the name, address, telephone number, and e-mail address of any tenant, applicant, or homebuyer the person believes was treated more favorably;
(12) the name, address, telephone number, and e-mail address of each person believed to have relevant information regarding the complaint of housing discrimination;
(13) whether the person has filed the same complaint with HUD;
(14) the name, address, telephone number and e-mail address of any other agency, organization, or group with which the person has filed the same complaint of discrimination;
(15) whether a civil complaint alleging the same unlawful housing practice(s) has been filed and, if so, a copy of the complaint;
(16) the following additional information for complaints alleging refusal or denial to show, rent, lease, sell or finance a housing accommodation:
A. how information about the vacancy or sale was obtained;
B. the terms of the sale, rental, or financing sought;
C. whether an application was submitted and, if so, the submission date;
D. if an application was not submitted, the reason no application was submitted;
E. the date of the denial or refusal;
F. the reason given for the denial or refusal;
G. the name address, telephone number, e-mail address and title of the person who made the denial or refusal;
H. whether a lease or contract was signed and, if so, a copy of the lease or contract;
I. the name, telephone number, and e-mail address of the person or persons who obtained the housing accommodation sought, if known;
(17) the following additional information for complaints alleging a discriminatory eviction:
A. date of initial notice;
B. date required to vacate;
C. whether the person has been served a Notice of Unlawful Detainer and, if so, the date of the notice and the court date;
D. the reason or reasons given for the eviction; and
E. the name, address, telephone number, and e-mail address of others who have been evicted.
(d) Upon receipt of the foregoing information on the form prescribed by the department, the department shall contact the person and schedule an intake appointment.
(e) Intake interviews shall be conducted by telephone or other electronic means unless the department determines that special circumstances, such as the need for a sign language interpreter, require an in-person intake interview.
(f) The department shall liberally construe the facts alleged by a potential complainant when evaluating whether to accept a complaint.
(g) Notwithstanding the foregoing, the department shall only accept a complaint where:
(1) The conduct alleged, if proven, would violate a law the department enforces.
(2) The statute of limitations has not run. For complaints alleging a continuing violation, the most recent act of harm alleged shall have occurred within the applicable limitations period. Where there is doubt about whether the statute of limitations has run, the complaint shall be taken by the department and the issue of timeliness investigated and analyzed during the investigation.
(3) Each named respondent is an entity or person over whom the department has jurisdiction under the laws the department enforces. Where there is doubt about whether the department has jurisdiction over a particular respondent, the complaint shall be taken by the department and the issue of jurisdiction investigated and analyzed during the investigation.
(h) At the conclusion of the intake interview, complainants with claims over which another state agency may have jurisdiction shall be advised accordingly and provided referral information, regardless of whether the department also has jurisdiction over some or all of a complainant's claims.
(i) The department shall not accept complaints where the same protected bases, discriminatory acts, and allegations are or have been included in a complaint the complainant previously filed with the department or HUD against the same respondent(s).
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)-(2), 12955(d) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) The following may be given priority for the purpose of scheduling an intake appointment for a housing discrimination complaint:
(1) a person whose statute of limitations would run in thirty (30) days or less;
(2) a person alleging a failure to rent where the desired unit is still available;
(3) a person facing an impending and allegedly discriminatory eviction where action by the department may delay the eviction;
(4) a person who is terminally ill;
(5) a homeless person or a person at risk of institutionalization;
(6) a person complaining about conduct that, if proven, would constitute a violation of the Ralph Civil Rights Act; and/or
(7) any other person whose situation warrants a priority intake in the department's discretion.
(b) A person who seeks to file a complaint for investigation with the department that alleges retaliation occurring within one-hundred-eighty (180) days of the person's filing a prior complaint of discrimination with the department, or within one-hundred-eighty (180) days of that person's participation in an investigation conducted by the department, also may be given priority for the purpose of scheduling an intake appointment.
(c) The department may file a complaint solely on the basis of a telephone interview with a complainant, without first obtaining the complainant's signature on the complaint, when doing so is necessary to avoid missing the statute of limitations for filing with the department. Notwithstanding the foregoing, the department shall obtain a signature on the complaint before it is served.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12955(d) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) Department staff may conduct a telephone test during the intake of a housing discrimination complaint, before a complaint is filed, to test for discriminatory selection practices without identifying themselves or the purpose of their inquiry.
(b) No test shall be conducted by department staff in connection with a housing discrimination complaint after the department files the complaint.
(c) Following the filing of a complaint of discrimination, department staff shall not contact a respondent without identifying himself or herself and stating whether the contact is for the purpose of investigation or conciliation.
(d) If testing is desired by the department after a complaint is filed, a test may be conducted by a fair housing agency.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12985, Government Code; Havens Realty Corp. v. Coleman (1982) 455 U.S. 363 [102 S.Ct. 1114, 71 L.Ed.2d 214]; and Inland Mediation Bd. v. City of Pomona (C.D. Cal 2001) 158 F.Supp.2d 1120.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10041. Drafting Housing Discrimination Complaints.
Note • History
(a) With the exception of HUD-generated complaints, the department shall draft the language of each housing discrimination complaint filed with the department on a complaint form prescribed by the department. The complaint shall contain all the information identified in section 12980(a) of the Government Code, and sections 10035 and 10038 of these regulations, and set forth the allegations in ordinary and concise language of the department's choosing, identifying the following in the body of the complaint:
(1) the protected basis or bases for the complaint;
(2) all relevant facts, including pertinent dates, that indicate a causal connection between the protected basis and the act of discrimination alleged;
(3) the reason or reasons the housing provider gave the complainant to explain why the housing benefit was denied; and
(4) the sections of the Government or Civil Code alleged to have been violated.
(b) The department may omit a complainant's address, telephone number, and e-mail address on any complaint alleging that the complainant has been subjected to violence or threats of violence including, but not limited to, sexual assault.
(c) The department shall liberally construe the facts alleged by a complainant when drafting a complaint of housing discrimination and include all relevant claims supported by the alleged facts. Once drafted, a complaint may be signed by a complainant in person or sent to the complainant for signature via U.S. mail, facsimile transmission, e-mail, or other electronic means. When requested in writing by an attorney or advocacy organization representing the complainant, the drafted complaint shall be sent to the attorney or advocacy organization to obtain the complainant's signature.
(d) Any complainant or complainant's attorney who or advocacy organization which wishes to propose modifications to the unsigned complaint shall do so in writing submitted to the department via U.S. mail, private mail, facsimile transmission, e-mail, or other electronic means. The department shall consider the proposed modifications and, if accepted, draft a new complaint which may be signed by the complainant in person or sent to the complainant for signature. When requested in writing by an attorney or advocacy organization representing the complainant, the modified complaint shall be sent to the attorney or advocacy organization for review and to obtain the complainant's signature. When modifications are not accepted, the department shall in writing notify the complainant and his or her attorney or advocacy organization, if any, of the reasons for rejection and send to the complainant via U.S. mail, facsimile transmission, e-mail, or other electronic means another copy of the original complaint for signature.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12955(d) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10042. Written Statement or Correspondence as Complaint.
Note • History
(a) If the statute of limitations would expire before an intake interview could be scheduled and completed for a housing discrimination complaint, the department may promptly initiate and conduct an intake interview by phone, without an appointment, or waive the intake process and accept a complaint for investigation using a written statement or correspondence from the complainant signed under penalty of perjury. As long as the written statement or correspondence satisfies all the requirements set forth in section 12980(a) of the Government Code and section 10035 of these regulations, alleges a claim or claims over which the department has jurisdiction, and the statutory deadline to file with the department is imminent, the department may accept such a written statement or correspondence as a complaint for filing purposes.
(b) A statement shall be handwritten or typed and may be submitted electronically or by facsimile transmission to the department.
(c) The department may accept a statement from a complainant's attorney as long as the complainant has signed the statement of complaint or submits a signed statement authorizing the attorney to sign the complaint on his or her behalf.
(d) When intake has been waived, an investigator shall interview the complainant as soon as practicable after the complaint is filed and file an amended complaint on the form prescribed by the department. If, during the interview, the complainant presents new facts or raises new issues not included in the original complaint, they may be included in the amended complaint as long as the new facts and/or issues are based on or relate back to the facts stated in the original complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12955(d) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10043. Multiple Complainants.
Note • History
(a) The department shall file a separate complaint for each adult party aggrieved by an alleged unlawful housing practice unless both of the following conditions exist:
(1) The complainants are married and have the same last name; and
(2) The allegations and fact situations are identical.
(b) When two separate complaints are taken, any minor children of the adult complainants shall be listed on only one of the complaints.
(1) The department shall determine which of the individual complaints should logically list the minor child complainant on the basis of such considerations as surname or legal custody.
(2) The adult complainant shall sign the complaint on behalf of the minor child.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12930(f)(1)-(2), 12955(d) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10044. HUD-Generated Complaints.
Note • History
All complaints filed with HUD that HUD refers to the department for investigation shall be directed to the department's housing intake unit. Provided all jurisdictional requirements are met, HUD-generated complaints shall immediately be assigned a department case number. A separate intake interview typically will not be conducted by the department before filing a HUD-generated complaint. Notwithstanding the foregoing, all other procedures applicable to housing discrimination complaints filed initially with the department shall apply to complaints filed initially with HUD, which HUD refers to the department for investigation.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10045. Department-Generated Complaints.
Note • History
(a) The department shall refer to HUD for dual-filing all filed housing discrimination complaints not generated by HUD unless HUD lacks jurisdiction over the alleged discriminatory housing practice or the housing accommodation at issue. Unless otherwise directed by HUD, the responsibility for investigating complaints initially filed with the department that HUD accepts for dual-filing shall remain with the department.
(b) The department shall not accept complaints where the same protected bases, discriminatory acts, and allegations are or have been included in a complaint the complainant previously filed with HUD against the same respondent(s).
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1) and 12980(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10046. Director's Complaints.
Note • History
(a) The director, in his or her discretion, may make, sign, and file a housing discrimination complaint that satisfies all the requirements of Government Code section 12980(a) and section 10035 of these regulations.
(b) The director, in his or her discretion, may file a complaint on behalf and as representative of a group or class of persons adversely affected, in a similar manner, by an alleged unlawful housing practice.
(c) Receipt of an individual complaint alleging a pattern of discrimination, or a request or referral from a source outside the department, including but not limited to other state or federal agencies, may result in the filing of a director's complaint.
(d) Factors for determining whether to file a director's complaint include, but are not limited to:
(1) whether the respondent is large enough such that the anticipated remedy would impact a large number of persons; and/or
(2) whether the complaint allegations address an important legal issue in an area where the department seeks to establish case law; and/or
(3) whether resolution of the complaint would impact civil rights in a manner consistent with the department's mission.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12960(b), 12961, 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10047. Class or Group Complaints.
Note • History
(a) The director or an aggrieved person may file a housing discrimination complaint with the department on behalf of a group or class of persons adversely affected, in a similar manner, by an alleged unlawful housing practice.
(b) When an aggrieved person wishes to file a class complaint, the department shall obtain the following additional information, to the extent available, from the person at intake:
(1) details regarding the manner in which the alleged unlawful housing practice has adversely affected other persons; and
(2) the name, address, telephone number, e-mail address, and protected status of each person besides the complainant adversely affected by the practice.
(c) The class complaint shall state that the person is making the complaint on his or her behalf and on behalf of all others who have been, are, or will in the future be similarly aggrieved, or words to that effect.
(d) When a class complaint is accepted for filing, the department shall inform the complainant that, even though class language has been included in the complaint, the department shall later determine whether the complaint will be investigated as a class or group complaint, and inform the complainant of the decision in writing. If the department later determines that neither a class nor group complaint will be pursued, the department may investigate the complaint as an individual complaint if circumstances warrant.
(e) Factors the department considers when determining whether to investigate a complaint as a class or group complaint include, but are not limited to:
(1) whether the alleged unlawful practice or its adverse effects can be articulated as being group or class based; and/or
(2) whether it would be more efficient for the department to investigate a complaint on a class or group basis rather than to investigate multiple single complaints filed by individual complainants; and/or
(3) whether the respondent is a large housing provider in the community or statewide, or the complaint addresses an issue that is unique, critical to the development of the law, or important to the community.
(f) The department shall notify the respondent in writing within one year after the filing of a complaint when the department determines that a complaint shall be investigated as a class or group complaint. Any such writing also will be served on the complainant.
(g) For any complaint treated by the department as a class or group complaint for purposes of investigation, conciliation, and accusation, an accusation shall issue, if at all, within two years after the filing of the complaint.
(h) When a complaint is pursued as a class or group complaint, the department shall provide the complainant written notice that the class or group designation extends the investigation period one year.
(i) The director, in his or her discretion, may determine whether a director's complaint also shall be filed and pursued in conjunction with a class or group complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12961, 12965(a), 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10048. Retaliation Complaints -- Special Considerations.
Note • History
(a) When retaliation is included among the allegations a complainant makes at intake, and the department has determined that it will accept the complainant's claims for investigation, all allegations, including retaliation, shall be combined in one complaint.
(b) When retaliation is alleged after a complaint has already been filed with the department, and the department has determined that it will accept the retaliation claim for investigation, the department shall file a separate retaliation complaint, except as follows:
(c) If the one-year statute of limitations has run and the alleged retaliatory conduct is the same conduct complained of in the original complaint (e.g., termination of lease) for which another discriminatory basis was originally alleged (e.g., request for reasonable accommodation), the department shall amend the original complaint instead of taking a separate complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12955.7, 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10049. Julie Waltz First Amendment Policy.
Note • History
(a) When a complainant seeks to file a housing discrimination complaint against a person who is not an owner within the meaning of section 12927(e) of the Government Code, the department shall screen the complaint at intake to determine whether it implicates protected First Amendment activity as described by the United States Court of Appeals for the Ninth Circuit in White v. Lee (9th Cir. 2000) 227 F.3d 1214 (White).
(b) Protected First Amendment activities described in White include, but are not limited to, writing and distributing signs, flyers, and newspapers or articles; engaging in expressive associational activities that advocate discriminatory policies; and petitioning the government for redress of grievances (e.g., filing of a lawsuit that is not frivolous or participating in the political or legislative process).
(c) Complaints that have been deemed at intake to meet the criteria set forth in paragraphs (a) and (b) above shall be referred to the chief counsel of the department's legal division, or his or her designated associate or assistant chief counsel, to confirm whether the criteria have been met and, if so, determine whether a complaint should be taken under the department's First Amendment policy.
(d) If the chief counsel or his or her designated associate or assistant chief counsel accepts the complaint for investigation, then the chief counsel or designated associate or assistant chief counsel shall draft the complaint. The complaint shall only include the specific allegations that are appropriately subject to the department's investigation under this policy.
(e) When a complaint is accepted for investigation under the department's First Amendment policy, legal advice shall be provided by the chief counsel of the department's legal division, or his or her designated associate or assistant chief counsel, regarding the proper scope of the department's investigation. Such legal advice shall include the following three topics:
(1) Scope of Investigation: The investigation shall be limited in a manner that would permit the department to properly investigate the complaint, but not violate the respondent's First Amendment rights. The chief counsel or chief counsel's designated associate or assistant chief counsel shall provide guidance to department staff on how the specific allegations in the complaint should be investigated. The investigation shall not be overbroad, but instead shall focus on the specific allegations that were approved for an investigation under this policy. In providing this guidance, the chief counsel or his or her designated associate or assistant chief counsel shall be mindful that activities such as distributing flyers and newsletters, lobbying public officials, and petitioning the government are protected by the First Amendment. On the other hand, acts of violence, threats, or intimidation may constitute unlawful housing discrimination that is not protected by the First Amendment. The investigation shall focus on the specific allegations that might prove a FEHA violation.
(2) Communications: The chief counsel or the chief counsel's designated associate or assistant chief counsel shall advise department staff that when communicating with a respondent, the media, or member of the public regarding an investigation under this policy, department representatives shall make clear that protected First Amendment activities do not, by themselves, constitute a violation of the FEHA.
(3) Length of Investigation: The chief counsel or his or her designated associate or assistant chief counsel shall advise department staff on the proper length of the investigation. The department shall strive to complete investigations under this policy within one-hundred (100) days. Any investigation under this policy shall be completed as expeditiously as possible, and may not exceed one-hundred (100) days without the express approval of either the chief counsel or the chief counsel's designated associate or assistant chief counsel. Under no circumstances may an investigation under this policy exceed one-hundred-eighty (180) days.
(f) If the chief counsel or chief counsel's designated associate or assistant chief counsel approves an investigation under this policy, the investigation shall be monitored by the department's legal division. The chief counsel or his or her designated associate or assistant chief counsel shall assign a department staff counsel to monitor the investigation. The monitoring staff counsel shall perform the following tasks:
(1) Case Review Every Thirty (30) Days: At least once every thirty (30) days the assigned staff counsel and the enforcement division staff member assigned to investigate the complaint shall discuss the status of the investigation. Topics to discuss shall include the proper scope of the investigation, and whether the investigation will be completed within one-hundred (100) days.
(2) Formal Discovery: The assigned staff counsel shall review and approve any formal investigative discovery (subpoenas, requests for production of documents, written interrogatories) to ensure that the discovery requests are not overbroad, and are limited to the allegations that have been approved for investigation by the chief counsel or the chief counsel's designated associate or assistant chief counsel.
(3) Settlement/Conciliation: Any settlement discussions or conciliation attempts in an investigation under this policy shall be conducted by the assigned staff counsel. During any such settlement discussions or conciliation attempts, the staff counsel shall take special care to ensure that the respondent is not asked to sacrifice any protected First Amendment activity to settle the action or end the investigation. Additionally, staff counsel shall not discuss protected First Amendment activity in the context of any settlement or conciliation efforts.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12980(a) and 12980(c), Government Code; White v. Lee (9th Cir. 2000) 227 F.3d 1214; and Settlement Agreement and Stipulation of Dismissal with Prejudice, Waltz v. Brumfield, Case No. 5:08-cv-00432-JTM-OP (C.D.Cal., June 2010).
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10050. Medical Information -- Special Considerations.
Note • History
(a) Whenever a complaint includes allegations that require the department to obtain and analyze medical information, such as complaints alleging physical or mental disability discrimination or denial of reasonable accommodation, the complainant shall authorize the department in writing to request and obtain copies of all directly relevant medical records or information reasonably necessary to evaluate and prosecute the complaint.
(b) During the enforcement division's investigation, all medical records the department obtains during the investigation shall be maintained in a section of the case file clearly marked “Confidential.”
(c) If an accusation is issued, all directly relevant medical records or information reasonably necessary to prosecute the accusation or civil complaint, if any, may be disclosed by the department when disclosure is necessary to further prosecution and/or settlement of the claim.
(d) No medical records or information shall be disclosed by the department in response to a request for public records made pursuant to the California Public Records Act. (Gov. Code, §6254(c).)
(e) No medical records or information shall be disclosed by the department in response to a third-party subpoena unless a Notice to Consumer/Employee has been served on the complainant and there has been no objection communicated to the department by the complainant or the complainant's attorney. (Code. Civ. Proc., §§1985.3, 1985.6, and 2020.410.)
(f) The department shall abide by complainant's attorney's requests to protect the privacy of complainant's medical information. However, if the department is unable to obtain the medical information and records it needs to investigate and/or prosecute a complainant's allegations, the department may discontinue the investigation and close the complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 [174 Cal.Rptr. 160] [discovery of private information requires direct relevance to claim]; Sections 1985.3, 1985.6 and 2020.410, Code of Civil Procedure; and Sections 6253, 6254(c), 12927(c)(1), 12930(f)(1), 12955, 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10051. Effect of Prior Waiver Agreement/Release of All Claims.
Note • History
(a) Where all other jurisdictional requirements have been met for filing a housing discrimination complaint with the department, the department shall accept a complaint where a complainant presents a signed waiver agreement or release of all claims at intake. The investigation shall initially focus on obtaining information necessary to determine whether the complainant has validly waived his or her right to file a complaint with the department. Such information shall include, but not be limited to:
(1) a description of all benefits received in exchange for signing the waiver;
(2) the amount of time the complainant was given to consider the waiver before signing;
(3) whether the complainant was given the opportunity to seek legal counsel before signing;
(4) whether the complainant sought legal advice before signing;
(5) the conditions under which the waiver was signed (e.g., whether the waiver was signed in a non-coercive atmosphere); and
(6) whether the waiver was presented in a language understood by the complainant and/or whether interpretative services were provided.
(b) Where a respondent produces a signed waiver agreement or release of all claims during an investigation, the department shall promptly obtain information necessary to determine whether the complainant has validly waived his or her right to file a complaint with the department. Such information shall include, but not be limited to, the information identified in section 10051(a) of these regulations.
(c) The department shall close any case where it has been determined that a complainant has validly waived his or her right to file a complaint with the department unless the department determines that:
(1) the complaint alleges an unlawful systemic policy or practice that adversely affects a large number of tenants or applicants;
(2) an anticipated affirmative remedy would impact a large number of tenants or applicants, or an entire industry, in a manner consistent with the department's mission; and/or
(3) the complaint allegations address an important legal issue in an area where the department seeks to establish case law.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12920, 12930(f)(1), 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10052. Complaints Taken After Expiration of Statute of Limitations Due to Department Error.
Note • History
The one-year statute of limitations for filing a housing discrimination complaint with the department may be tolled in cases where the department misleads the complainant about filing obligations, commits errors in processing the complaint, or improperly discourages or prevents the complainant from filing at all.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12980(a), Government Code; and Dept. Fair Empl. & Hous. v. Cairo (Jan. 6, 1984) No. 84-04, FEHC Precedential Decs.1984-85, CEB 3 [1984 WL 54284 (Cal.F.E.H.C.)].
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10053. Service of Complaints.
Note • History
(a) The department shall initiate service upon all respondents named in a verified housing discrimination complaint within ten (10) working days after the complaint is filed.
(b) The date of service is the date the complaint is placed in the mail (certified mail only) or personally delivered to the respondent.
(c) All department service documents shall be placed in an envelope clearly marked “PERSONAL AND CONFIDENTIAL: TO BE OPENED BY ADDRESSEE OR DESIGNATE ONLY” regardless of whether the documents are served by personal service or certified mail with return receipt requested.
(d) If a complaint sent via certified mail to a respondent's correct last known address is returned as undeliverable, or if the respondent refused service, the department shall promptly initiate steps to re-serve the complaint including, but not limited to, personal service of the verified complaint.
(e) The department may forego serving by certified mail and promptly initiate personal service whenever the circumstances warrant.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12986, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) The department may amend an open housing discrimination complaint to:
(1) add bases or allegations for which the statute of limitations has not run;
(2) add or delete facts or change the wording of a complaint;
(3) correct the name of a respondent;
(4) add new bases, respondents, or complainants after the expiration of the one-year statute of limitations where the amendment either relates back to the same material facts set forth in the original complaint, or the original complaint contains language that specifically references or identifies the bases, respondents, or complainants to be added;
(5) add an allegation of retaliation after the one-year statute of limitations has run where the alleged retaliatory conduct is the same conduct complained of in the original complaint (e.g., termination of lease) for which another discriminatory basis was originally alleged (e.g., request for reasonable accommodation).
(6) add class or group allegations to an individual complaint and pursue the complaint as a class or group complaint.
(b) When an open complaint of discrimination has been amended:
(1) respondents shall be given sufficient notice and time to respond to new allegations;
(2) the filing date of the amended complaint remains the same as the original filing date.
(c) The department shall not amend an open complaint to add:
(1) allegations that are beyond the one-year statute of limitations if the allegations relate to a different set of facts than those alleged in the original complaint;
(2) bases or allegations that would have been rejected if raised at intake;
(3) bases or allegations refuted by evidence obtained during the investigation.
(d) The department shall handle nonsubstantive changes to an original complaint, such as correcting an incorrect case number, incorrect address or misspelled word, by correcting the original complaint, not by amending it.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10055. Response to Complaint.
Note • History
(a) Unless granted an extension by the department, a response to a housing discrimination complaint filed with the department shall be provided to the department within twenty (20) days of service of the complaint, except as follows: The requirement to provide a response shall be temporarily suspended for any complaint referred to the department's mediation division.
(b) No response to the complaint is required while the complaint is pending in mediation. However, unless granted an extension by the department, a response shall be provided to the department no later than twenty-one (21) days after the date the department notifies the respondent that a response is due because mediation was declined or was unsuccessful. After the complaint is returned for investigation, the enforcement division shall in writing notify the respondent or, if the respondent is represented, the respondent's attorney, of the exact date the response is due.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12986, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) Conciliation efforts undertaken by the department's enforcement division may include post-investigation conciliation and/or settlement conferences as well as pre-determination settlement negotiations. Whenever a complainant or respondent is represented by an attorney or advocacy organization, enforcement staff shall communicate with the party's attorney or advocate regarding settlement.
(b) Pre-determination settlement (PDS) negotiations are confidential; however, any settlement agreement entered into as a result of PDS negotiations that is signed by the department, as well as the terms of settlement, are not confidential.
(c) If the department determines after investigation that a preponderance of evidence exists to prove a complaint's allegations, both the complainant and respondent, as well as their respective attorney or advocate, if any, shall be invited to participate in a conciliation or mediation conference on equal terms.
(d) Everything that transpires at a post-investigation conciliation conference shall be kept confidential, except as follows:
(1) issues established as fact during the investigation;
(2) any settlement agreement signed by the department; and/or
(3) new facts presented by the respondent at the conciliation conference that cause the department to re-evaluate the case and determine not to issue an accusation. A respondent providing such information at a conciliation conference shall authorize the department to use the information to close the case.
(g) For cases that are dual-filed with HUD, conciliation and settlement agreements shall meet all requirements specified by HUD.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12980(i) and 12984, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10057. DFEH Mediation Division Services.
Note • History
(a) The department may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint before investigation commences (“pre-investigation mediation”). One or both parties to a complaint filed for investigation also may request pre-investigation mediation. Pre-investigation mediation conferences are not attended by any representative of the department's enforcement or legal divisions.
(b) While a pre-investigation complaint is with the mediation division, the requirement to submit a response to the complaint is temporarily suspended. However, if mediation is declined or is unsuccessful, a response shall be provided to the department no later than twenty-one (21) days after the date the department notifies the respondent that a response is due because mediation was declined or was unsuccessful. After the complaint is returned for investigation, the enforcement division shall in writing notify the respondent or, if the respondent is represented, the respondent's attorney, of the exact date the response is due.
(c) The department also may offer the parties to a complaint filed for investigation the opportunity to mediate the complaint after investigation (“post-investigation mediation”). Post-investigation mediation conferences conducted before an accusation is issued (“pre-accusation”) shall be attended by a representative of the department's enforcement division. The enforcement division representative may be the investigating office's assigned staff counsel. If a post-investigation mediated settlement is reached pre-accusation, the enforcement division representative who participated in the mediation shall not sign the settlement agreement. If a settlement is not reached, and the enforcement division's mediation representative was the investigating office's assigned staff counsel, the legal division shall not assign the same staff counsel to issue and prosecute the accusation in the matter.
(d) Post-investigation mediation conferences conducted after an accusation is issued (“post-accusation”) shall be attended by the member of the department's legal division who issued the accusation or who has subsequently been assigned the case. If settlement is reached, the legal division representative shall sign the settlement agreement. If settlement is not reached, the same staff counsel who issued the accusation and mediated the matter may prosecute the case.
(e) If, after investigation, the department determines that the complaint is valid and offers the parties mediation, such offer satisfies the department's obligation under Government Code section 12963.7 to “immediately endeavor to eliminate the unlawful ... practice complained of by conference, conciliation, and persuasion,” regardless of whether the mediation occurs before or after the department issues an accusation.
(f) Regardless of whether the department refers a complaint to the mediation division before or after investigation has commenced, the department shall suspend investigation while the complaint is with the mediation division. After mediation is declined or is unsuccessful, the department shall commence, resume or complete the investigation as necessary.
(g) Mediation is voluntary. Therefore, the department shall not assign a complaint to a mediator unless both the complainant and respondent (or their respective attorney or advocacy organization, if any) agree to mediate.
(h) When both sides agree to mediate a complaint pre-accusation, the department may assign the complaint to a trained volunteer mediator or a trained mediator employed by the department's mediation division, or refer the complaint to a Fair Employment and Housing Commission administrative law judge or commissioner based on mediator availability and the department's discretion. Whenever a complainant or respondent is represented by an attorney or advocacy organization, the assigned mediator shall communicate with the party's attorney or advocate regarding scheduling and settlement.
(i) The mediation process is confidential, including, for pre-accusation mediations, any settlement agreement entered into by a complainant and respondent, and the terms thereof. However, the following are not confidential:
(1) issues established as fact during the investigation;
(2) post-accusation settlement agreements and the final terms of settlement; and/or
(3) new facts presented by the respondent at a post-investigation mediation conference that cause the department to re-evaluate the case and determine not to issue an accusation. A respondent providing such information at a mediation conference shall authorize the department to use the information to close the case.
(j) Any written settlement agreement reached through a DFEH mediation division conference may be used as evidence to enforce the terms of the settlement agreement if the conditions of Evidence Code section 1123 are satisfied and the agreement contains language showing the intent of the parties to be bound by the agreement's terms.
(k) A copy of any settlement agreement executed in connection with a DFEH mediation division conference shall be provided to the department's mediation division.
(l) DFEH complaints resolved though mediation shall be closed by the department.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 1119, 1120 and 1123, Evidence Code; and Sections 12930(f) and 12963.7, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10058. Complaint Investigation.
Note • History
(a) After any housing discrimination complaint alleging facts sufficient to constitute a violation of the FEHA is filed, the department shall initiate prompt investigation thereof.
(b) Where it is disputed or unclear that the department has jurisdiction over a particular respondent or allegation, the investigation shall initially focus on obtaining the information and documents necessary to determine whether the department has jurisdiction.
(c) During the course of its investigation the department may, but is not required to, issue and serve investigative subpoenas, written interrogatories, and requests for production of books, records and documents. If a person or entity fails to comply with a subpoena, written interrogatories or requests for production of documents properly issued and served by the department, after requesting compliance in writing and/or by telephone, the department shall file a petition with the superior court, in accordance with section 12963.5 of the Government Code, to compel compliance with its investigative discovery.
(d) The department shall gather during the course of an investigation all relevant evidence necessary to determine whether an unlawful housing practice has occurred.
(e) The department shall prioritize early in the investigative process complex cases and cases that appear to have merit to better allocate the department's resources.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)-(g), 12963-12963.5 and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10059. Investigative Subpoenas.
Note • History
(a) During the course of an investigation, the department may issue and serve upon a person, corporation, partnership, association, public entity, or other organization a subpoena to require the attendance and testimony of a witness by deposition or other investigative proceeding or means including, without limitation, an investigative interview.
(b) “Investigative interview” means an in-person or telephonic interview of a witness, which the enforcement division conducts during the investigation of a complaint. Investigative interviews are distinct from investigative depositions. Witnesses examined by the department pursuant to a subpoena for an investigative interview need not be placed under oath and their testimony need not be recorded by stenographic or other means. Objections, if any, made at the time of an investigative interview need not be recorded, and evidence objected to may be considered by the department in its investigation notwithstanding any objection.
(c) A subpoena for an investigative interview or deposition, or other investigative proceeding, also may require the production of books, records, documents, and physical materials in the possession of, or under the control of, the person or organization named on the subpoena.
(d) Service of a subpoena for an investigative interview or deposition, or other investigative proceeding, shall be made so as to allow the individual or organization named on the subpoena reasonable time for compliance. In no event shall an investigative subpoena indicate a date for appearance or compliance that is less than fifteen (15) days after the date service of the subpoena is completed.
(e) No person named on a subpoena for investigative interview or deposition, or other investigative proceeding, shall be obliged to attend as a witness before the department at a place out of the county in which that person resides, unless the distance is less than 150 miles from the person's place of residence or good cause exists to require attendance of the witness at greater distance. Each witness who has appeared pursuant to an investigative subpoena shall, upon demand, be paid by the department the same fees and mileage allowed by law to witnesses in civil cases.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(g), 12963.1, 12963.4 and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10060. Investigative Requests for Production and Inspection.
Note • History
(a) During the course of an investigation, the department may issue and serve requests for production for inspection and copying of books, records, documents, and physical materials including, but not limited to, land or other commercial or real property such as worksites or housing accommodations, and electronically stored information in the possession or under the control of a person or organization. A request for production may be issued and served on the same persons and organizations and in the same manner as subpoenas may be issued and served by the department under section 12963.1 of the Government Code.
(b) A request for production shall identify with reasonable particularity the things that are to be inspected and specify a reasonable time, place, and manner of making the inspection, performing the copying, or producing copies of the requested books, records, documents, and physical materials.
(c) Within fifteen (15) days after service of a request for production or such longer time as the department may agree to, the recipient of the request shall serve on the department a written response to each item requested, either stating that inspection and copying shall be permitted as requested or objecting to the request and stating the grounds of the objection. Unless a request for production is objected to, the recipient of the request shall comply with the department's requests and permit inspection and copying, or produce copies of the requested books, records, documents, and physical materials, within thirty (30) days after service of the department's requests for production, or such longer time as the department may agree to.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(g), 12963.1, 12963.4 and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10061. Priority Case Processing/Case Grading System.
Note • History
(a) The department shall prioritize investigation of the following housing discrimination complaints: (1) a complaint alleging a failure to rent where the desired unit is still available; (2) a complaint filed by a person facing an impending and allegedly discriminatory eviction where action by the department may delay the eviction; (3) a complaint filed by a homeless person or a person at risk of institutionalization; (4) a complaint alleging a violation of the Ralph Civil Rights Act; (5) a complaint filed by a terminally ill complainant; (3) a complaint alleging retaliation occurring within one-hundred-eighty (180) days of the complainant filing a prior complaint of discrimination with the department or participating in a FEHA-related investigation, hearing or court process; (4) any other complaint investigation that warrants priority in the department's discretion.
(b) In addition to the foregoing, to better allocate the department's resources, the department shall identify any housing discrimination complaint filed for investigation that likely would be meritorious, or whose successful litigation would impact a large number of applicants, tenants, or homebuyers if its allegations are proven. The department shall designate such complaints as priority complaints and process them in the same manner as other priority complaints. At its discretion, the department's legal division may later designate a priority complaint as a high priority complaint, depending upon its strength and potential for impact.
(c) The department shall designate all other housing discrimination complaints filed for investigation as standard complaints, which the department shall investigate.
(d) Such designations shall continually be re-evaluated by the department throughout the investigative process, particularly after a response to the complaint is received and analyzed. Thus, a complaint initially designated a standard complaint later could be designated a priority complaint upon receipt and evaluation of additional evidence. Likewise, a complaint originally designated a priority complaint could be designated a standard complaint after reevaluation.
(e) Factors the department considers when determining whether a complaint is a priority or a standard complaint may include, but are not limited to:
(1) whether the alleged unlawful practice affects a group or class of applicants or tenants;
(2) the strength of the facts alleged;
(3) the severity of the alleged harm;
(4) whether the respondent is large enough such that a remedy would impact a large number of persons; and/or
(5) whether the complaint allegations address an important legal issue in an area where the department seeks to establish case law.
(f) Priority complaints shall be eligible for allocation of additional department resources and early and on-going collaboration with the department's legal staff.
(g) At no time shall the department disclose to any person outside the department the case grade or designation assigned to any complaint. All records of discussions regarding the grade or designation of a complaint shall be marked “Confidential,” and be retained in the confidential section of the department's case file.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12963 and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10062. Investigations Not Completed Within Statutory Time Limit.
Note • History
(a) Where an investigation is not completed within the statutory time limit the department may:
(1) continue the investigation;
(2) taking into consideration the complexity of the case, time necessary to complete the investigation, and likelihood of proving discrimination, close the case where continued investigation would be an inefficient use of the department's resources; or
(3) if the case is dual-filed with HUD, waive the case to HUD for continued investigation.
(b) When an investigation is completed after the statutory time limit and the complaint has been found meritorious, the department shall schedule a conciliation or mediation conference.
(c) The department shall not issue an accusation when an investigation is completed after the statutory time limit and a complaint has been found meritorious. However the director, in his or her discretion, may issue a director's complaint.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(f)(1), 12930(h), 12963, 12965, 12980(c), 12980(f) and 12981(a), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) If, after investigation, it is determined by the department that a complaint has merit, the director, in his or her discretion, may cause a written accusation to be issued in the name of the department. The discretion to issue an accusation may be delegated to the department's chief counsel or his or her designated associate or assistant chief counsel.
(b) An accusation may be issued, if at all, after an unsuccessful post-investigation conciliation or mediation conference or, if circumstances warrant, the department may issue an accusation without holding a conciliation or mediation conference.
(c) The department has discretion not to issue an accusation when circumstances warrant. Factors considered by the department when determining whether to issue an accusation include, but are not limited to: (1) the strength and sufficiency of the evidence of unlawful conduct; (2) the likelihood of prevailing on the merits at hearing or trial; (3) whether the alleged violation addresses an important legal issue in an area where the department seeks to establish case law; (4) whether issuance of an accusation and subsequent litigation thereof are likely to impact civil rights in a manner consistent with the department's mission; and/or (5) whether the respondent has offered the complainant an equitable remedy the complainant has refused.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12930(h), 12965, 12981(a) and 12981.1, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10064. Notice of Case Closure.
Note • History
(a) Whenever a complaint of housing discrimination is withdrawn by the complainant or dismissed by the department, the department shall promptly notify the complainant and respondent of the case closure, and the reason for closure, in writing. The department also shall provide the complainant a list of resources for filing a civil complaint in small claims court or locating private counsel.
(b) When closing a complaint dual-filed with HUD, the department shall satisfy all reporting requirements arising from the department's work-sharing agreement with HUD.
(c) The department shall not issue a right-to-sue notice upon the closure of a housing discrimination complaint unless HUD requires the issuance of a right-to-sue notice before an aggrieved party may file a civil action in court alleging housing discrimination.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Sections 12971, 12980(a) and 12980(c), Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Note • History
(a) Any person who wishes to appeal the department's decision to reject a complaint or close a case shall direct his or her concerns to the district administrator or, if there is no district administrator, the regional administrator of the office that rejected or closed the complaint. Appeals may be presented verbally by telephone or in writing.
(b) Regardless of whether an appeal is oral or written, the district administrator or, if there is no district administrator, the regional administrator, or other individual delegated any function, power, or duty of the district or regional administrator, shall respond in writing. Where the appeal concerns a complaint rejected for investigation, the district or regional administrator, or his or her designee, also shall draft a complaint for filing purposes only, to be included with the written response.
(c) Any person dissatisfied with the response of the district administrator may direct his or her further appeal to the regional administrator or his or her designee.
(d) Regardless of whether the further appeal is oral or written, the regional administrator, or other individual delegated any function, power, or duty of regional administrator, shall respond in writing.
(e) Any person dissatisfied with the response of the regional administrator may direct his or her further appeal to the chief of enforcement.
(f) Regardless of whether the further appeal is oral or written, the chief of enforcement, or his or her designee, shall respond in writing.
(g) Any person dissatisfied with the response of the chief of enforcement may direct his or her further appeal to the director.
(h) Regardless of whether the further appeal is oral or written, the director, or his or her designee, shall respond in writing.
(i) The decision of the director is final and may not be appealed to any other department employee, officer, or other individual delegated any function, power, or duty of the department.
(j) Any concerns regarding the handling of an open complaint shall be directed to the district administrator or, if there is no district administrator, the regional administrator of the office where the complaint is being investigated.
(k) Any person dissatisfied with the response of the district administrator, or his or her designee, may direct his or her concerns to the regional administrator.
(l) Any person dissatisfied with the response of the regional administrator, or his or her designee, may direct his or her concerns to the chief of enforcement.
(m) The response of the chief of enforcement, or other individual delegated any function, power, or duty of the chief of enforcement, is final and may not be appealed to any other department employee or officer while the complaint is open. After the complaint is closed, any remaining concerns may be directed to the director, whose response, and/or the response of his or her designee, shall be final and nonappealable to any other department employee, officer, or other individual delegated any function, power, or duty of the department.
(n) Any respondent who wishes to complain about the issuance of an accusation against the respondent shall direct his or her concerns to the chief counsel of the department's legal division.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Reference: Sections 52(f) and 54.3(b), Civil Code; and Sections 12965, 12971, 12980(a), 12980(c), 12981(a) and 12981.1, Government Code.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
§10066. Substantial Equivalence.
Note • History
The provisions of the FEHA affording remedies to victims of housing discrimination shall be construed to afford the same remedies as those afforded under the federal Fair Housing Amendments Act of 1988 (42 U.S.C. §3601 et seq.) and its implementing regulations (24 CFR Parts 100 et seq.), unless those afforded by the FEHA are greater.
NOTE
Authority cited: Section 12930(e), Government Code. Reference: Section 12955.6, Government Code; Broadmoor San Clemente Homeowners Assn. v. Nelson (1994) 25 Cal.App.4th 1, 7-8 [30 Cal.Rptr.2d 316]; 42 U.S.C. §3601 et seq.; and 24 CFR Parts 100 et seq.
HISTORY
1. New section filed 9-7-2011; operative 10-7-2011 (Register 2011, No. 36).
Division 4.5. Local Agency Deposit Security
Chapter 2. Administrator of Local Agency Security
Subchapter 1. General Provisions
Article 1. Citation, Numbering, Construction, Severability
Note • History
This Chapter may be cited as the “Local Agency Deposit Security Regulations.”
NOTE
Authority cited for Chapter 2: Section 53661, Government Code, as operative 7-1-70. Reference: Art. 2, Chap. 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. New Chapter 2 (Sections 16001.1.1 through 16010.1.3--not consecutive) filed 6-17-70 as an emergency; designated effective 7-1-70. Certificate of Compliance--Section 11422.1, Government Code, included (Register 70, No. 25).
2. Editorial redesignation of Chapter 2 (Sections 16001.1.1-16010.1.3, not consecutive) from Division 4 to Division 4.5 (Register 80, No. 29).
The number of each Section in this Chapter consists of three or more units, each separated from the other by a decimal point. The first unit consists of five digits; the first three digits are “160,” and the last two digits correspond with the Subchapter number. The second unit corresponds with the Article number. The third unit represents the sequential order of the Section within the Article. The fourth and succeeding units, if any, represent the sequential order of the Section within the preceding unit. Thus, Section 16001.1.2 is the second Section in Article 1, Subchapter 1 of this Chapter.
In this Chapter, unless the context otherwise requires:
(a) Words in the singular number include the plural, and in the plural include the singular.
(b) Words of the masculine gender include the feminine and the neuter, and when the sense so indicates, words of the neuter gender may refer to any gender.
If any provision or clause of this Chapter or application thereof to any person or circumstances is held invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect other provisions or applications of this Chapter which can be given effect without the invalid, illegal, or unenforceable provision or application, and to this end, the provisions of this Chapter are declared to be severable.
Article 2. Definitions
Note • History
Subject to additional definitions contained in this Chapter which are applicable to specific Subchapters, Articles, or Sections thereof, and unless the context otherwise requires, in this Chapter:
(a) “Active deposit” means a deposit that is payable on demand.
(b) “Addition of a security” means a depository's placement of a security into a security pool without a simultaneous withdrawal of a security from such security pool.
(c) “Administrator” means the Administrator of Local Agency Security of the State of California or any person to whom the Administrator delegates the responsibility to act for him in the particular matter.
(d) “Agent of depository” means:
(1) The Federal Home Loan Bank of San Francisco, if it accepts and holds a security that secures a secured local agency deposit; or
(2) A trust company or the trust department of a state or national bank located in this State which accepts and holds a security that secures a secured local agency deposit.
(e) “Business day” means every day except Saturday or a holiday.
(f) “Deposit contract” means a contract for the deposit of moneys belonging to or in the custody of a local agency which the treasurer of such local agency enters into with a depository in accordance with Government Code Section 53649.
(g) “Depository” means a depository as defined in Government Code Sections 53630(c), (h) and (i), and 53630.5.
(h) “Duly authorized,” when used with respect to an officer or employee of a depository or of an agent of depository, means an officer or employee who is by name authorized by the board of directors of the depository or of the agent of depository, as the case may be, to perform the function referred to.
(i)(1) “Eligible security” means any eligible security (non-REN) or eligible security (REN).
(2) “Eligible security (non-REN)” means any of the securities listed in Government Code Section 53651, except for subdivisions (m) and (p). However, “eligible security (non-REN)” does not include any security which the Administrator pursuant to Government Code Section 53661(g) has determined is not qualified to secure a secured local agency deposit.
(3) “Eligible security (REN)” means any promissory note which is secured by a first lien on improved residential real property located in this State and which meets the following requirements:
(A) The unpaid principal balance of the note (i) does not exceed 80 percent of the fair market value of the real property, as determined by proper appraisal or (ii) is insured or guaranteed by the United States or by an agency of the United States;
(B) The note has been outstanding for not less than six months; and
(C) At the time when the note is placed in a security pool, no payment on the note is more than 30 days past due, and at any time after the note has been placed in a security pool, no payment on the note is more than 60 days past due.
However, “eligible security (REN)” does not include any promissory note which is described in Government Code Section 53651.2(b) or which the Administrator pursuant to Government Code Section 53661(g) has determined is not qualified to secure a secured local agency deposit.
(j) “Holiday” means any day which is designated, in whole or in part, as a holiday in Government Code Sections 6700 or 6701; provided, however, that “holiday” in Subchapter 9 of this Chapter shall have the meaning set forth in Section 16009.1.1 of this Chapter.
(k) “Inactive deposit” means any deposit other than an active deposit.
(l) “Local agency” shall have the meaning set forth in Government Code Section 53630(a).
(m) “Local agency deposit” means a deposit which is subject to or made in accordance with the Local Agency Deposit Security Law.
(n) “Local Agency Deposit Security Law” means Article 2 (commencing with Section 53630), Chapter 4, Part 1, Division 2, Title 5 of the Government Code, as the same or any provision thereof may be amended, added, or repealed.
(o) “Market value,” when used with respect to an eligible security (REN), means the value determined in accordance with regulations adopted by the State Treasurer under Government Code Section 53651.2(e).
(p) “Minus substitution of securities” means a substitution of securities in which the market value of the security added to a security pool is less than the market value of the security withdrawn from such security pool.
(q) “Plus substitution of securities” means a substitution of securities in which the market value of the security added to a security pool equals or exceeds the market value of the security withdrawn from such security pool.
(r) “Secured local agency deposit” means a local agency deposit less any portion thereof (1) for which the treasurer of the local agency has waived security pursuant to Government Code Section 53653 and which is insured by the Federal Deposit Insurance Corporation, (2) which constitutes uncollected funds, or (iii) which is otherwise not required by law to be secured.
(s)(1) “Security pool” includes any security pool (non-REN) or security pool (REN) and shall have the following meaning:
(A) In case an agent of depository holds securities for the purpose of securing two or more secured local agency deposits in a depository and pools such securities, such pooled securities shall be deemed to be a security pool.
(B) In case an agent of depository holds securities for the purpose of securing two or more secured local agency deposits in a depository and does not pool such securities, so many of such securities as are held for the purpose of securing each such secured local agency deposit shall be deemed to be a security pool.
(C) In case an agent of depository holds securities for the purpose of securing a single secured local agency deposit in a depository, such securities shall be deemed to be a security pool.
(2) “Security pool (non-REN)” means a security pool which consists of securities (non-REN).
(3) “Security pool (REN)” means a security pool which consists of securities (REN).
(t) “Substitution of securities” means a depository's simultaneous addition of a security to, and withdrawal of security from, a security pool.
(u) “Treasurer” means the treasurer of a local agency or, if a local agency has no treasurer, the officer or employee of such local agency who performs duties with respect to deposit of moneys usually performed by a treasurer.
(v) “Uncollected funds” shall have the meaning set forth in Section 16001.5.13 of this Chapter.
(w) “Withdrawal of a security” means a depository's withdrawal of a security from a security pool without a simultaneous addition of a security to such security pool.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. Amendment filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
3. Amendment of subsection (h) filed 10-8-76 as an emergency; effective upon filing (Register 76, No. 41).
4. Certificate of Compliance filed 2-4-77 (Register 77, No. 6).
5. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
6. Redesignation of subsections (d)(A)-(B) as (d)(1)-(2), repealer of subsection (e) and subsection relettering, and amendment of newly designated subsections (g), (i)(2), (i)(3)(C), (j), (o) and (r) filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Article 3. Administration
§16001.3.1. Office of Administrator.
Note • History
The office of the Administrator is located at 111 Pine Street, Suite 1100, San Francisco, California 94104 (Telephone: (415) 263-8543.]
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. Amendment filed 11-10-71 as procedural and organizational; designated effective 11-22-71 (Register 71, No. 46).
2. Amendment filed 7-22-75 as procedural and organizational; designated effective 7-23-75 (Register 75, No. 30).
3. Amendment of section and new Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16001.3.2. Payment of Fees and Assessments.
Fees and assessments payable to the Administrator may be paid by means of check made payable to the order of the “Administrator of Local Agency Security.” Such checks need not be certified.
Copies of the forms which are illustrated in Subchapter 10 of this Chapter are available from the Administrator upon request.
§16001.3.4. Waiver of Regulations.
History
HISTORY
1. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Article 4. Hearings
This Article governs the conduct of all hearings held in connection with matters pending before the Administrator.
§16001.4.2. Initiation of Hearing.
The Administrator shall commence a hearing by service of a notice of hearing.
§16001.4.3. Request for Hearing--Form, Contents, and Execution.
Whenever the Local Agency Deposit Security Law or this Chapter provides for the filing of a request for a hearing with the Administrator, such request shall be in writing, addressed to the Administrator, and if made by depository or agent of depository, executed on behalf of such depository or agent of depository by a duly authorized officer thereof. The request shall state the reasons why the person filing the request requests a hearing, specify the issues which such person requests to be considered at the hearing, and summarize the evidence which such person intends to present at the hearing.
§16001.4.4. Notice of Hearing--Contents.
A notice of hearing shall contain the following:
(a) Brief statement of the facts which give rise to the hearing.
(b) Statement of the issues to be considered at the hearing.
(c) Time and place of the hearing.
§16001.4.5. Notice of Hearing--Service and Publication.
A notice of hearing shall be served as provided in this Chapter and, in addition, may be otherwise distributed or published as the Administrator may order.
A notice of hearing shall be served not less than five days nor more than 30 days prior to the date fixed for the hearing, unless the Administrator for good cause shown prescribes a shorter time of notice.
The hearing officer shall be designated by the Administrator and may be the Administrator.
A hearing shall be held at the time and place set forth in the notice of hearing, but may at such time or from time to time be continued by the hearing officer from day to day or adjourned to a later date or to a given place, without notice other than the announcement thereof at the hearing.
§16001.4.9. Procedure and Evidence.
The hearing officer shall determine the order in which evidence may be presented, as required by the circumstances of the particular matter. Witnesses shall give evidence upon oath or affirmation, and each interested party shall have the right to call and examine witnesses and cross-examine opposing witnesses in any manner relevant to the issues. Any relevant evidence shall be admitted if it is the type of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, whether or not admissible over objection in a civil action. The hearing officer shall have authority to rule on the admission or exclusion of evidence and to take all necessary action to insure the fair and orderly conduct of the hearing. The hearing officer may take official notice of any generally accepted technical or scientific matter within the Administrator's special field of competency and also of any fact which may be judicially noticed by the courts.
Article 5. Miscellaneous
A depository may maintain one or more security pools; provided, however, that no depository shall maintain more than one security pool to secure any one secured local agency deposit, and no secured local agency deposit shall be secured by more than one security pool.
§16001.5.2. Placement and Acceptance of Securities in Security Pools.
Note • History
A depository may place, and an agent of depository may accept, only eligible securities (non-REN) in a security pool (non-REN) and only eligible securities (REN) in a security pool (REN).
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. Repealer and new section filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16001.5.3. Release of Security.
No agent of depository shall release a security held by it for the purpose of securing a secured local agency deposit except in accordance with the provisions of the Local Agency Deposit Security Law and this Chapter.
§16001.5.4. Retention of Documents.
An agent of depository shall retain each document relating to an addition of a security, a withdrawal of a security, or a substitution of securities, or a copy thereof, for a period of not less than two years after such addition, withdrawal, or substitution is effected; provided, however, that nothing in this Section shall be deemed to require an agent of depository to retain a security or a copy thereof.
§16001.5.5. Segregation of Securities.
An agent of depository shall segregate securities which it holds for the purpose of securing secured local agency deposits and keep such securities separate and apart from other securities held by it; and whenever an agent of depository holds two or more security pools, such agent of depository shall segregate each security pool and keep each security pool separate and apart from other security pools held by it.
§16001.5.6. Identification of Security Pool.
Note • History
Whenever a depository maintains more than one security pool with an agent of depository, such depository and such agent of depository shall jointly assign an identification number to each such security pool.
Whenever the Local Agency Deposit Security Law or this Chapter requires an identification of a security pool or that a security pool be identified, there shall be furnished with respect to such security pool (i) the name of the agent of depository which holds such security pool, (ii) in case such security pool is one of two or more security pools maintained by a depository with an agent of depository, the identification number of such security pool, and (iii) in case such security pool is a security pool (REN), a statement to that effect.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16001.5.7. Description of Security.
Note • History
Whenever the Local Agency Deposit Security Law or this Chapter requires a description of a security or that a security be described, the following information shall be furnished with respect to such security:
(a) In case the security is a security (non-REN):
(1) Name of obligor.
(2) Type (e.g., bond, debenture, note, etc.).
(3) Date of maturity.
(4) Interest rate, if any.
(5) Par value.
(6) In the case of a security which is a bond, note, certificate of indebtedness, warrant, or other obligation issued by any state of the United States (other than the State of California), the Commonwealth of Puerto Rico, any local agency of such state or Commonwealth, or any department, board, agency, or authority of such state or Commonwealth, the rating of such security and the name of the investment service organization which provided such rating.
(b) In case the security is a security (REN):
(1) Identification or serial number assigned to the security by the depository.
(2) Name of obligor.
(3) Date of the security.
(4) Original principal balance.
(5) Unpaid principal balance.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. New subsection (f) filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
History
HISTORY
1. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16001.5.9. Reports, Statements, and Other Documents.
History
Whenever the Local Agency Deposit Security Law or this Chapter requires that a report, statement, or other document be filed with, served on, or made available to the Administrator or a treasurer, such report, statement, or other document shall be typewritten or otherwise legibly printed in the English language and shall be in the form, contain the information, and be executed as prescribed in this Chapter, unless the Administrator or treasurer, as the case may be, directs or consents otherwise.
HISTORY
1. Amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
§16001.5.10. Execution of Documents.
Note • History
(a) No officer or employee of a depository duly authorized to execute any order of withdrawal or order of substitution required in Subchapter 3 of this Chapter or to execute or verify any statement or agreement relating to securities (REN) required in Subchapter 7 of this Chapter shall be authorized to execute or verify or shall execute or verify any statement of deposits required in Subchapter 3 of this Chapter.
(b) If a depository is authorized to engage in the trust business in this State and is eligible to act as agent of depository, no officer or employee of the trust department of such depository shall be authorized to execute or shall execute any order, statement, certificate, verification, report, or other document required by the Local Agency Deposit Security Law or this Chapter of a depository or of a duly authorized officer or employee of a depository.
(c) If an agent of depository is a depository, no officer or employee of such depository other than an officer or employee of the trust department of such depository, shall be authorized to execute or shall execute any order, statement, certificate, verification, report, or other document, required by the Local Agency Deposit Security Law or this Chapter of an agent of depository or of a duly authorized officer or employee of an agent of depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
HISTORY
1. Amendment of subsection (a) filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
Whenever the Local Agency Deposit Security Law or this Chapter requires a verification or that a document be verified, the verification shall be made by affidavit, in which case the certificate of the officer taking the affidavit shall be attached thereto, or by an unsworn statement made in accordance with Code of Civil Procedure Section 2015.5.
Whenever the Local Agency Deposit Security Law or this Chapter requires that a document be served on a person, it may be served either by delivering the document to such person or by depositing the document in the United States mail, addressed to such person with first-class or airmail postage charges prepaid.
§16001.5.13. Uncollected Funds.
Note • History
For purposes of Government Code Section 53652 and this Chapter, any item (other than cash) deposited with a depositary shall be deemed to be uncollected funds, as follows:
(a) In case the item is a check or draft which is drawn on, payable at, or payable through an office of a bank located in this State or a warrant drawn by a governmental agency located in this State, for the period to and including the second business day after the day of deposit. (For example, if the item is deposited on Monday, it will be uncollected funds to and including the following Wednesday.)
(b) In the case of any other item, for the period to and including the fourth business day after the day of deposit. (For example, if the item is deposited on Monday, it will be uncollected funds to and including the following Friday.)
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53652, Government Code.
HISTORY
1. New section filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
Note • History
In determining for purposes of Government Code Section 53651(m) or this Chapter whether a promissory note is secured by a first lien on real property, the items described in Financial Code Section 766, unless an installment or payment thereunder (other than a rental or royalty under a lease) is due and delinquent, shall be disregarded.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
HISTORY
1. New section filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
Note • History
For purposes of this Chapter, for a person to accept or to continue to accept a statement in good faith requires that such person (i) be and continue to be alert to the circumstances surrounding such statement and (ii) if the person has any information which would cause a prudent man not to accept or to continue to accept the statement without inquiry, he has investigated and is satisfied that the statement is truthful.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5 of the Government Code.
HISTORY
1. New section filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
Subchapter 2. Agent of Depository
Article 1. Eligibility to Act As Agent of Depository
§16002.1.1. Eligibility to Act As Agent of Depository--Requirement.
Note • History
Neither the Federal Home Loan Bank of San Francisco nor any trust company or bank shall act as agent of depository, nor shall any treasurer or any depository name the Federal Home Loan Bank of San Francisco or any trust company or bank to act as agent of depository, nor shall any depository place any security with the Federal Home Loan Bank of San Francisco or any trust company or bank for the purpose of securing a secured local agency deposit, unless the Federal Home Loan Bank of San Francisco or such trust company or bank, as the case may be, is eligible to act as agent of depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Sections 53657 and 53661, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16002.1.2. Eligibility to Act As Agent of Depository-- Qualifications.
Note • History
The Federal Home Loan Bank of San Francisco or a trust company or state or national bank located in this State and authorized to engage in the trust business in this State is eligible to act as agent of depository if it has filed with the Administrator an agreement of agent of depository in accordance with Article 2 of this Subchapter and if it is not declared by the Administrator ineligible to act as agent of depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Sections 53657 and 53661, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
Article 2. Agreement of Agent of Depository
§16002.2.1. Agreement of Agent of Depository--Filing.
Note • History
(a) In case the Federal Home Loan Bank of San Francisco intends to act as agent of depository, it shall file with the Administrator an agreement in form satisfactory to the Administrator.
(b) In case a trust company or state or national bank located in this State and authorized to engage in the trust business in this State intends to act as agent of depository, it shall file with the Administrator an agreement on Form 1. (For an illustration of Form 1, see Section 16010.1.1 of this Chapter.)
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53657, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16002.2.2. Agreement of Agent of Depository--Execution and Acknowledgment.
An agreement of agent of depository shall be executed on behalf of the agent of depository by the duly authorized president or a duly authorized vice president of such agent of depository and by the duly authorized secretary or a duly authorized assistant secretary of such agent of depository (or if there be no secretary or assistant secretary, then in lieu thereof, by a duly authorized officer of such agent of depository who performs duties usually performed by a secretary or assistant secretary). An agreement of agent of depository shall be acknowledged in the manner provided by law for the acknowledgment of an instrument, and the certificate of the officer taking the acknowledgment shall be attached to the agreement. An agreement of agent of depository shall bear the corporate seal of such agent of depository.
Article 3. Declaration of Ineligibility and Transfer Order
§16002.3.1. Declaration of Ineligibility and Transfer Order--Issuance.
History
Whenever the Administrator finds that an agent of depository for any reason has failed to comply with the agreement of agent of depository filed by it in accordance with Article 2 of this Subchapter, or any provision thereof, the Administrator may issue a declaration of ineligibility and transfer order, declaring such agent of depository ineligible to act as agent of depository and ordering such agent of depository, at its own expense and at the time fixed in such order, to transfer each security held by it for the purpose of securing a secured local agency deposit (including any security placed for safekeeping pursuant to Government Code Section 53659 with a bank, a trust company, a federal reserve bank or a branch thereof or the Federal Home Loan Bank of San Francisco) to an agent of depository designated in such order on or before the date specified in such order.
HISTORY
1. Amendment filed 10-8-76 as an emergency; effective upon filing (Register 76, No. 41).
2. Certificate of Compliance filed 2-4-77 (Register 77, No. 6).
§16002.3.2. Declaration of Ineligibility and Transfer Order--Form, Execution, and Contents.
A declaration of ineligibility and transfer order shall be in writing, executed by the Administrator, and shall specify in what respects the agent of depository therein declared ineligible failed to comply with the agreement of agent of depository.
§16002.3.3. Declaration of Ineligibility and Transfer Order--Service.
(a) The original or duplicate original of a declaration of ineligibility and transfer order shall be served on the agent of depository therein declared ineligible.
(b) A copy of a declaration of ineligibility and transfer order shall be served upon each depository for which, according to the latest reports filed with the Administrator, the agent of depository therein declared ineligible holds a security securing a secured local agency deposit, and upon the treasurer of each local agency a deposit of which, according to the latest reports filed with the Administrator, is secured by a security held by the agent of depository therein declared ineligible; provided, however, that any failure to effect service as provided in this Subdivision (b) shall not invalidate any action taken pursuant to this article.
§16002.3.4. Transferred Security.
An agent of depository to which a security securing a secured local agency deposit is transferred in accordance with a declaration of ineligibility and transfer order may hold, pool, place for safekeeping, and release or otherwise dispose of such security as agent of depository in accordance with Local Agency Deposit Security Law and this Chapter, provided, however:
(a) If the treasurer of each local agency a deposit of which is secured by such transferred security enters into an amendment on the deposit contract relating to such deposit, naming another agent of depository, such security shall be transferred to such other agent of depository at the expense of the depository;
(b) If such declaration of ineligibility and transfer order is revoked and if the treasurer of each local agency a deposit of which is secured by such transferred security has not yet entered into an amendment to the deposit contract relating to such deposit, naming another agent of depository, then such security shall be transferred back to the agent of depository declared ineligible in such revoked declaration of ineligibility and transfer order at the expense of such agent of depository.
Article 4. Hearings
Upon request filed with the Administrator by an agent of depository declared ineligible in a declaration of ineligibility and transfer order, the Administrator shall, and upon request filed with the Administrator by any person interested in such a declaration of ineligibility and transfer order, the Administrator may, initiate a hearing.
§16002.4.2. Notice of Hearing--Service.
Notice of a hearing shall be served upon the persons specified in Section 16002.3.3 of this Chapter; provided, however, that any failure to effect service of such notice upon the persons specified in Subdivision (b) of 16002.3.3 of this Chapter shall not invalidate any action taken pursuant to this Article.
§16002.4.3. Revocation of Declaration of Ineligibility and Transfer Order.
If upon the hearing the Administrator finds that the agent of depository declared ineligible in the declaration of ineligibility and transfer order has not failed to comply with the agreement of agent of depository filed by it with the Administrator, the Administrator shall, and if upon the hearing the Administrator finds that, although the agent of depository has failed to comply with the agreement of agent of depository, such agent of depository has cured such failure to comply and that it is reasonably probable that such agent of depository will comply with such agreement of agent of depository in the future, the Administrator may, revoke the declaration of ineligibility and transfer order.
Subchapter 3. Addition, Withdrawal and Substitution of Securities
Article 1. Addition of a Security
§16003.1.1. Addition of a Security.
A depository may effect an addition of a security to a security pool at any time.
Article 2. Plus Substitution of Securities
§16003.2.1. Plus Substitution of Securities.
A depository may effect a plus substitution of securities at any time; provided, however, that no agent of depository shall release a security from a security pool pursuant to such a substitution unless a duly authorized officer thereof first endorses upon or attaches to the documents of substitution a certification that the market value of the security added to such security pool equals or exceeds the market value of the security withdrawn from such security pool.
Article 3. Withdrawal of a Security
§16003.3.1. Withdrawal of a Security--In General.
No depository shall effect a withdrawal of a security from a security pool unless it first presents to the agent of depository an order of withdrawal and statement of local agency deposits in accordance with this Article.
§16003.3.2. Order of Withdrawal--Contents.
Note • History
An order of withdrawal shall describe each security to be withdrawn and shall state the market value thereof; provided, however, that the description of a security to be withdrawn need not contain the information called for in Paragraph (6) of Subdivision (a) of Section 16001.5.7 of this Chapter.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53654, Government Code.
HISTORY
1. Amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16003.3.3. Order of Withdrawal--Execution.
Note • History
An order of withdrawal shall be executed on behalf of the depository by not less than two duly authorized officers or employees of such depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53654, Government Code.
HISTORY
1. Amendment of section and new Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16003.3.4. Statement of Local Agency Deposits-- Contents.
A statement of local agency deposits shall contain the total of local agency deposits and the total of secured local agency deposits held by the depository as of the most reasonably current date; and in case the depository maintains more than one security pool, the total of local agency deposits and the total of secured local agency deposits held on such date which are secured by the security pool from which the withdrawal is to be made; provided, however, that the totals of secured local agency deposits may be omitted, in which case the totals of secured local agency deposits shall be deemed to be the same as the corresponding totals of local agency deposits for purposes of such statement of deposits. For purposes of this Section, the “most reasonably current date” is the latest date as of which the depository, exercising due diligence, can determine the totals of local agency deposits and the totals of secured local agency deposits held by it; provided, however, that in no event shall such date precede by more than five days the day on which the statement of local agency deposits is presented to the agent of depository.
§16003.3.5. Statement of Local Agency Deposits--Execution and Verification.
Note • History
A statement of local agency deposits shall be executed on behalf of the depository by two or more duly authorized officers of the depository, and each of such officers shall endorse upon or attach to such statement of local agency deposits a verification that such statement of local agency deposits is true and correct.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53654, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
2. Amendment filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16003.3.6. Release of Security--Certification.
Note • History
No agent of depository shall release a security from a security pool pursuant to a withdrawal of a security unless it first receives from the depository an order of withdrawal and statement of local agency deposits in accordance with this Article and a duly authorized officer of such agent of depository endorses upon or attaches to such order and statement a certification that he has read the statement, that he has accepted the statement in good faith, that to the best of his knowledge and belief all the information contained in the statement is true and correct, and that the market value of the securities in the security pool from which the withdrawal is to be made, less the market value of the securities to be withdrawn from such security pool, exceeds, in case such security pool is a security pool (non-REN), by at least 10 percent, or in case such security pool is a security pool (REN), by at least 50 percent, the total of secured local agency deposits secured by such security pool, as stated in the statement.
NOTE
Authority cited: Section 53661, Government Code. Reference: Sections 53649, 53651, 53652, and 53654, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16003.3.7. Release of Security--Endorsement of Date.
Whenever an agent of depository releases a security from a security pool pursuant to a withdrawal of a security, a duly authorized officer thereof shall endorse the date of such release upon the order of withdrawal and statement of local agency deposits.
§16003.3.8. Service on Administrator.
History
Whenever a security is released from a security pool pursuant to a withdrawal of a security, the agent of depository, concurrently with such release, shall serve on the Administrator a true and complete copy of the order of withdrawal and statement of local agency deposits relating to such release, including the certification made in accordance with Section 16003.3.6 of this Chapter and the endorsement made in accordance with Section 16003.3.7 of this Chapter.
HISTORY
1. Amendment filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
Article 4. Minus Substitution of Securities
§16003.4.1. Minus Substitution of Securities--In General.
No depository shall effect a minus substitution of securities unless it first presents to the agent of depository an order of substitution and statement of local agency deposits in accordance with this Article.
§16003.4.2. Order of Substitution--Contents.
Note • History
An order of substitution shall describe each security to be withdrawn from, and each security to be added to, the security pool, and shall state the market value thereof; provided, however, that the description of a security to be withdrawn need not contain the information called for in Paragraph (6) of Subdivision (a) of Section 16001.5.7 of this Chapter.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53654, Government Code.
HISTORY
1. Amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16003.4.3. Order of Substitution--Execution.
Note • History
An order of substitution shall be executed on behalf of the depository by not less than two duly authorized officers or employees of such depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53654, Government Code.
HISTORY
1. Amendment of section and new Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16003.4.4. Statement of Local Agency Deposits--Contents, Execution and Verification.
A statement of local agency deposits shall contain the information prescribed in Section 16003.3.4 of this Chapter and shall be executed and verified as prescribed in Section 16003.3.5 of this Chapter.
§16003.4.5. Release of Security--Certification.
Note • History
No agent of depository shall release a security from a security pool pursuant to a minus substitution of securities unless it first receives from the depository an order of substitution and statement of local agency deposits in accordance with this Article and a duly authorized officer of such agent of depository endorses upon or attaches to such order and statement a certification that he has read the statement, that he has accepted the statement in good faith, that to the best of his knowledge and belief all the information contained in the statement is true and correct, and that the market value of the securities in the security pool with respect to which the minus substitution of securities is to be effected, less the market value of the securities to be withdrawn from, and plus the market value of the securities to be added to, such security pool, exceeds, in case such security pool is a security pool (non-REN), by at least 10 percent, or in case such security pool is a security pool (REN), by at least 50 percent, the total of secured local agency deposits secured by such security pool, as stated in the statement.
NOTE
Authority cited: Section 53661, Government Code. Reference: Sections 53649, 53651, 53652, and 53654, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16003.4.6. Release of Security--Endorsement of Date.
Whenever an agent of depository releases a security from a security pool pursuant to a minus substitution of securities, a duly authorized officer thereof shall endorse the date of such release upon the order of substitution and statement of local agency deposits.
§16003.4.7. Service on Administrator.
History
Whenever a security is released from a security pool pursuant to a minus substitution of securities, the agent of depository, concurrently with such release, shall serve on the Administrator a true and complete copy of the order of substitution and statement of local agency deposits relating to such release, including the certification made in accordance with Section 16003.4.5 of this Chapter and the endorsement made in accordance with Section 16003.4.6 of this Chapter.
HISTORY
1. Amendment filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
Subchapter 4. Reports by Treasurer to Administrator
Article 1. General Provisions
§16004.1.1. Reports--Execution.
A report required by this Subchapter shall be executed by a treasurer or by a person authorized to act on his behalf, except that the registration report required by Article 2 of this Subchapter shall be executed personally by the treasurer.
Article 2. Registration Report
§16004.2.1. Registration Report--Filing.
History
HISTORY
1. Repealer of article 2 (sections 16004.2.1 and 16004.2.2) and section filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16004.2.2. Registration Report--Form and Contents.
History
HISTORY
1. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Article 3. Supplemental Registration Report
§16004.3.1. Supplemental Registration Report--Filing.
History
HISTORY
1. Repealer of article 3 (sections 16004.3.1 and 16004.3.2) and section filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16004.3.2. Supplemental Registration Report--Form and Contents.
History
HISTORY
1. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Article 4. Termination Report
§16004.4.1. Termination Report--Filing.
History
HISTORY
1. Repealer of article 4 (sections 16004.4.1 and 16004.4.2) and section filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16004.4.2. Termination Report--Form and Contents.
History
HISTORY
1. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Article 5. Report of Deposits
§16004.5.1. Report of Deposits--Filing.
Whenever the Administrator may require, a treasurer shall file a report of deposits with the Administrator on or before the date designated by the Administrator.
§16004.5.2. Report of Deposits--Form and Contents.
A report of deposit shall be made on Form 3 and shall contain the information therein called for as of the time specified by the Administrator. (For an illustration of Form 3, see Section 16010.1.3 of this Chapter.)
Subchapter 5. Reports by Depository and Agent of Depository to Administrator
Article 1. General Provisions
§16005.1.1. Reports--Execution.
History
(a) A report required of a depository by this Subchapter shall be executed on behalf of such depository by not less than two duly authorized officers thereof.
(b) A report required of an agent of depository by this Subchapter shall be executed on behalf of such agent of depository by a duly authorized officer thereof.
HISTORY
1. New subsection (b) filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
Article 2. Report of Addition, Withdrawal, or Substitution of Securities
§16005.2.1. Report of Addition, Withdrawal, or Substitution of Securities--Service.
History
Within two business days after a depository effects an addition of a security, a withdrawal of a security, or a substitution of a security, the agent of depository which holds the security pool with respect to which such addition, withdrawal, or substitution of securities was effected shall serve on the Administrator a report of addition, withdrawal, or substitution of securities.
HISTORY
1. Amendments filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
§16005.2.2. Report of Addition, Withdrawal, or Substitution of Securities--Form and Contents.
Note • History
A report of addition, withdrawal, or substitution of securities shall be in writing, addressed to the Administrator and clearly designated “report of Addition, Withdrawal, or Substitution of Securities,” and shall obtain the following information:
(a) Name and address of depository which effected the addition, withdrawal, or substitution of securities.
(b) Identification of the security pool with respect to which the addition, withdrawal, or substitution of securities was effected.
(c) In the case of an addition of a security, the description and market value of each security added to the security pool, and the date of the addition.
(d) In the case of a withdrawal of a security, the description and market value of each security withdrawn from the security pool, the date of withdrawal, and the information contained in the statement of local agency deposits presented to the agent of depository by the depository in accordance with Article 3, Subchapter 3 of this Chapter; provided, however, that the description of a security withdrawn need not contain the information called for in Paragraph (6) of Subdivision (a) of Section 16001.5.7 of this Chapter.
(e) In the case of a plus substitution of securities, the description and market value of each security added to, and of each security withdrawn from, the security pool, and the date of the substitution; provided, however, that the description of a security withdrawn need not contain the information called for in Paragraph (6) of Subdivision (a) of Section 16001.5.7 of this Chapter.
(f) In the case of a minus substitution of securities, the description and market value of each security added to, and of each security withdrawn from, the security pool, the date of the substitution, and the information contained in the statement of local agency deposits presented to the agent of depository by the depository in accordance with Article 4, Subchapter 3 of this Chapter; provided, however, that the description of a security withdrawn need not contain the information called for in Paragraph (6) Subdivision (a) of Section 16001.5.7 of this Chapter.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53663, Government Code.
HISTORY
1. Amendment of subsections (d), (e) and (f) filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9). For prior history, see Register 72, No. 24.
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16005.2.3. Report of Addition, Withdrawal or Substitution of Securities--Alternative Forms.
Notwithstanding the provisions of Section 16005.2.2 of this Chapter:
(a) In the case of a withdrawal of a security, the report required by this Article may consist of the copy of the order of withdrawal and statement of local agency deposits which is served on the Administrator in compliance with Section 16003.3.8 of this Chapter, provided that there is endorsed upon or attached to such copy a transmittal, addressed to the Administrator, clearly designated “Report of Addition, Withdrawal, or Substitution of Securities,” and executed in accordance with Section 16005.1.1 of this Chapter.
(b) In the case of minus substitution of securities, the report required by this Article may consist of the copy of the order of substitution and statement of local agency deposits which is served on the Administrator in compliance with Section 16003.4.7 of this Chapter, provided that there is endorsed upon or attached to such copy a transmittal, addressed to the Administrator, clearly designated “Report of Addition, Withdrawal, or Substitution of Securities,” and executed in accordance with Section 16005.1.1 of this Chapter.
Article 3. Weekly Report of Local Agency Deposits
§16005.3.1. Weekly Report of Local Agency Deposits--Filing.
History
Each depository shall file with the Administrator a weekly report of local agency deposits; such weekly report of local agency deposits shall be as of the close of business on Wednesday of each week and shall be filed with the Administrator within five business days of such Wednesday.
HISTORY
1. Amendment filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
3. Amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
4. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
§16005.3.2. Weekly Report of Local Agency Deposits--Form and Contents.
History
A weekly report of local agency deposits shall be in writing, addressed to the Administrator and clearly designated “Weekly Report of Local Agency Deposits,” and shall contain the following information as of the close of business on Wednesday of each week:
(a) Name and address of depository.
(b) Identification of security pool maintained by the depository.
(c) Total of local agency deposits and total of local secured local agency deposits held by the depository, and in case the depository maintains more than one security pool, the total of local agency deposits and the total of secured local agency deposits which are secured by each of such security pools; provided, that the totals of secured local agency deposits may be omitted, in which case the totals of secured local agency deposits shall be deemed to be the same as the corresponding totals of local agency deposits for purposes of the weekly report of local agency deposits.
HISTORY
1. Amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
Article 4. Called Report of Local Agency Deposits and Securities
§16005.4.1. Called Report of Local Agency Deposits and Securities--Filing.
History
A depository shall file a called report of local agency deposits and securities with the Administrator within twenty business days after the Administrator calls for such called report of local agency deposits and securities.
HISTORY
1. Amendment filed 3-2-72 as an emergency; designated effective 3-4-72 (Register 72, No. 10).
2. Certificate of Compliance filed 6-9-72 (Register 72, No. 24).
§16005.4.2. Called Report of Local Agency Deposits and Securities--Form and Contents.
A called report of local agency deposits and securities shall be in writing, addressed to the Administrator and clearly designated “Called Report of Local Agency Deposits and Securities,” and shall contain the following information as of the time specified by the Administrator:
(a) Name and address of depository.
(b) With respect to local agency deposits:
(1) Name of each local agency.
(2) Type of each deposit (i.e., whether active or inactive.)
(3) Amount of each deposit.
(4) Amount of each deposit required to be secured.
(5) Identification of security pool by which each deposit is secured.
(6) Total of items (3) and (4), respectively, for each local agency.
(7) Total of items (3) and (4), respectively, for each security pool.
(8) Total of items (3) and (4), respectively, held by depository; provided, however, that item (4) and any of the totals of item (4) required in this Subdivision (b) may be omitted, in which case item (4) and any of the totals of item (4) so omitted shall be deemed to be the same as item (3) and the corresponding totals of item (3) for purposes of the report.
(c) With respect to each security pool maintained by the depository:
(1) Identification of the security pool.
(2) Description of each security in the security pool.
(3) Name and address of bank or trust company where each such security is located.
(4) Market value of each such security.
(5) Total market value of all such securities.
§16005.4.3. Called Report of Local Agency Deposits and Securities--Verification.
A duly authorized officer of each agency of depository with which a depository maintains a security pool shall endorse upon the called report of local agency deposits and securities of such depository or attach thereto a verification that the information in such report with respect to each security pool which such depository maintains with such agency of depository is true and correct.
§16005.4.4. Called Report of Local Agency Deposits and Securities--Certification.
Note • History
A duly authorized officer of each agent of depository with which a depository maintains a security pool shall endorse upon the called report of local agency deposit and securities of such depository or attach thereto a certification that, as of the time specified by the Administrator, the total market value of all securities in the security pool exceeded, in case such security pool is a security pool (non-REN), by at least 10 percent, or in case such security pool is a security pool (REN), by at least 50 percent, the total of the secured local agency deposits secured by such security pool, as reported by the depository, or if, as of the time specified by the Administrator, the total market value of all securities in the security pool did not exceed by at least 10 percent or 50 percent, as the case may be, the total of the secured local agency deposits secured by such security pool, as reported by the depository, a certification to such effect, specifying the difference, as of the time specified by the Administrator, between the total market value of all securities in the security pool and 110 percent or 150 percent, as the case may be, of the total of the secured local agency deposits secured by such security pool, as reported by the depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2 (commencing with Section 53630), Chapter 4, Part 1, Division 2, Title 5, Government Code as amended by Stats. 1972, Chap. 756.
HISTORY
1. New section filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
Subchapter 6. Report by Agent of Depository to Treasurer
Article 1. General Provisions
§16006.1.1. Report--Requirement.
Note • History
An agent of depository shall make available to the treasurer of a local agency for review by such treasurer at a mutually agreed upon time and location a report with respect to each security pool held by such agent of depository for the purpose of securing a secured local agency deposit of such local agency.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2 (commencing with Section 53630), Chapter 4, Part 1, Division 2, Title 5, Government Code, as amended by Stats. 1972, Chap. 756.
HISTORY
1. Repealer of Subchapter 6 (Sections 16006.1.1, 16006.1.2, 16006.2.1 through 16006.2.5, 16006.3.1 through 16006.3.3) and new Subchapter 6 (Sections 16006.1.1, 16006.1.2, 16006.2.1, 16006.2.2) filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
In this Subchapter, “most recent called time” means the time as of which information is provided in the called report of local agency deposits and securities relating to the security pool most recently filed with the Administrator in accordance with Article 4, Subchapter 5 of this Chapter.
Article 2. Report by Agent of Depository to Treasurer
§16006.2.1. Report--Form and Contents.
Note • History
The report required by this Subchapter shall be in writing, shall identify the security pool to which it relates, and shall contain the following:
(a) The information called for in Subdivision (c) of Section 16005.4.2 of this Chapter, as of the most recent called time. Such information shall be certified to be true and correct by a duly authorized officer of the agent of depository.
(b) The total of the secured local agency deposits secured by the security pool, as of the most recent called time, as reported by the depository.
(c) A certification that, as of the most recent called time, the total market value of all securities in the security pool exceeded, in case such security pool is a security pool (non-REN), by at least 10 percent, or in case such security pool is a security pool (REN), by at least 50 percent, the total of the secured local agency deposits secured by such security pool, as reported by the depository, or if, as of the most recent called time, the total market value of all securities in the security pool did not exceed by at least 10 percent or 50 percent, as the case may be, the total of the secured local agency deposits secured by such security pool, as reported by the depository, a certification to such effect, specifying the difference, as of the most recent called time, between the total market value of all securities in the security pool and 110 percent or 150 percent, as the case may be, of the total of the secured local agency deposits secured by such security pool, as reported by the depository.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53660, Government Code.
HISTORY
1. Amendment of subsection (c) filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16006.2.2. Report--Form and Contents--Alternative.
Notwithstanding the provisions of Section 16006.2.1 of this Chapter, the report required by this Subchapter may consist of a true and complete copy of the called report of local agency deposits and securities relating to the security pool most recently filed with the Administrator in accordance with Article 4, Subchapter 5 of this Chapter; provided that such copy is executed on behalf of the depository by not less than two duly authorized officers thereof and provided, further, that there is endorsed upon or attached to such copy the verification called for in Section 16005.4.3 of this Chapter and the certification called for in Section 16005.4.4 of this Chapter.
Subchapter 7. Security Pools (REN)
Article 1. General Provisions
Note • History
In this Subchapter, “deed of trust” includes a mortgage, and terms relating to deeds of trust include the closest equivalent terms relating to mortgages.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code and Chapter 20, Statutes of 1976.
HISTORY
1. Repealer of Subchapter 7 (Article 1, Sections 16007.1.1-16007.1.2) and new Subchapter 7 (Article 1, Sections 16007.1.1-16007.1.10) filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29). For prior history, see Registers 73, No. 18 and 73, No. 9.
Note
The provisions of this Subchapter relating to securities (REN) and security pools (REN) are in addition to, and are not to be construed as replacing or limiting, provisions of other subchapters of this Chapter relating to securities and security pools. For example, in case a depository effects a minus substitution of securities (REN), such depository and the agent of depository shall comply not only with the provisions of Sections 16007.1.4 and 16007.1.5 of this Chapter but also with the provisions of Article 4 of Subchapter 4 of this Chapter.
NOTE
Authority cited: Section 53661, Government Code. Reference: Article 2, Chapter 4, Part 1, Division 2, Title 5, Government Code.
Note • History
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
HISTORY
1. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16007.1.4. Placing Security (REN) in Security Pool (REN).
Note • History
Whenever a depository places a security (REN) in a security pool (REN) with an agent of depository, such depository shall deliver to such agent of depository each of the following:
(a) The security and, in case the depository is not the payee named in the security, appropriate endorsements or other documentation showing that the depository owns the security.
(b) Endorsement or assignment of the security to the agent of depository.
(c) (1) The deed of trust by which the security is secured;
(2) In case the depository is not the beneficiary named in the deed of trust, appropriate endorsements or other documentation showing that the depository holds the beneficial interest under the deed of trust; and
(3) Appropriate endorsements or other documentation showing that the depository's beneficial interest under the deed of trust has been recorded.
(d) Assignment, in recordable form, of the depository's beneficial interest under the deed of trust to the agent of depository.
(e) (1) Statement stating the following:
(A) That the security is an eligible security (REN).
(B) That the depository's first lien on the real property which secures the security is insured under a title insurance policy which was issued on or after the date of the security by a title insurer admitted to transact the business of title insurance in this State, which was written on the then current standard form of the American Land Title Association Loan Policy or the California Land Title Association Loan Policy, and which is in an amount not less than the unpaid principal balance of the security.
(C) That, except in a case where the security is insured or guaranteed by the United States or by an agency of the United States, the depository has the report of the appraisal on the real property which is required under Subparagraph (A) of Paragraph (3) of Subdivision (j) of Section 16001.2.1 of this Chapter.
(D) That the real property is covered by hazard insurance complying with the requirements set forth in Section 3.203 of the Federal Home Loan Mortgage Corporation's Sellers' Guide Conventional Mortgages, as then in effect.
(E) The unpaid principal balance of the security.
(2) The statement called for in Paragraph (1) of this Subdivision (e) shall be executed on behalf of the depository by two or more duly authorized officers of the depository, and each of such officers shall endorse upon or attach to such statement a verification that the statement is true and correct.
(f) (1) Agreement that, in consideration of the agent of depository's accepting the security in the security pool, the depository shall, if, as, and when ordered by the Administrator, furnish to the agent of depository or to the Administrator additional information and documentation relating to the security.
(2) The agreement called for in Paragraph (1) of this Subdivision (f) shall be executed on behalf of the depository by two or more duly authorized officers of the depository. Such agreement may be combined in the same document with the statement called for in Subdivision (e) of this Section, and both the agreement and the statement, as so combined, may be executed as a single document.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
HISTORY
1. Amendment of subsections (e)(2) and (f)(2) filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16007.1.5. Accepting Security (REN) in Security Pool (REN).
Note
No agent of depository shall accept a security (REN) in a security pool (REN) unless it first receives from the depository the documents called for in Section 16007.1.4 of this Chapter and a duly authorized officer of such agent of depository endorses upon or attaches to the statement called for in Subdivision (e) of Section 16007.1.4 of this Chapter a certification that he has read the statement, that he has accepted the statement in good faith, and that to the best of his knowledge and belief all the information contained in the statement is true and correct.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
Note
An agent of depository which holds a security (REN) in a security pool (REN) shall, if, as, and when ordered by the Administrator, record the assignment called for in Subdivision (d) of Section 16007.1.4 of this Chapter with respect to such security (REN).
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
§16007.1.7. Additional Information and Documentation.
Note
A depository which maintains a security (REN) in a security pool (REN) with an agent of depository shall, if, as, and when ordered by the Administrator, furnish to such agent of depository or to the Administrator information and documentation relating to such security (REN) in addition to the information and documentation called for in Section 16007.1.4 of this Chapter.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
§16007.1.8. Quarterly Statement of Depository to Agent of Depository.
Note • History
(a) (1) Whenever the Administrator calls for a called report of local agency deposits and securities, a depository which maintains a security pool (REN) with an agent of depository shall deliver to such agent of depository a statement containing the following information as of the time specified by the Administrator for information in such called report:
(A) Identification of the security pool.
(B) Description of each security in the security pool.
(C) Statement that each security in the security pool constitutes an eligible security (REN).
(2) The statement called for in Paragraph (1) of this Subdivision (a) shall be executed on behalf of the depository by two or more duly authorized officers of the depository, and each of such officers shall endorse upon or attach to a statement verification that he statement is t and correct.
(b) No agent of depository which holds a security pool (REN) shall make with respect to such security pool the verification called for in Section 16005.4.3 of this Chapter or the certification called for in Section 16005.4.4 of this Chapter unless it first receives from the depository the statement called for in Subdivision (a) of this Section and a duly authorized officer of such agent of depository endorses upon or attaches to such statement a certification that he has read the statement, that he has accepted the statement in good faith, and that to the best of his knowledge and belief all the information contained in the statement is true and correct.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Repealer of subsections (a)(1)(D)-(F) and amendment of subsection (a)(2) and Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16007.1.9. Notification Regarding Ineligible Security (REN).
Note
Whenever a security (REN) in a security pool (REN) which a depository maintains with an agent of depository ceases for any reason to be an eligible security (REN), such depository shall, within 10 business days, serve on such agent of depository a written notice to such effect and remove such security (REN) from such security pool by effecting a withdrawal of the security or, if required by the provisions of Government Code Section 53651(m)(1), a substitution of securities.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
§16007.1.10. Reliance by Agent of Depository.
Note
So long as an agent of depository which holds a security pool (REN) accepts and continues to accept in good faith from the depository the statements called for in Subdivision (e) of Section 16007.1.4 and Subdivision (a) of Section 16007.1.8 of this Chapter, such agent of depository may rely upon such statements in determining for purposes of the Local Agency Deposit Security Law and this Chapter the eligibility as an eligible security (REN) and the market value of any security (REN) covered by the statements.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53651, Government Code.
Subchapter 8. Nonqualification of Security
Article 1. Order to Substitute for Nonqualified Security
§16008.1.1. Order to Substitute for Nonqualified Security--Issuance.
History
Whenever the Administrator determines that a security held by an agent of depository for the purpose of securing a secured local agency deposit in a depository is not qualified to secure a secured local agency deposit, the Administrator shall issue to such depository an order to substitute for nonqualified security.
HISTORY
1. Repealer of former Article 1 (Sections 16008.1.1 through 16008.1.4, renumbering of Article 2 to Article 1 and renumbering of Section 16008.2.1 to 16008.1.1 filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
§16008.1.2. Order to Substitute for Nonqualified Security--Form, Execution, and Contents.
Note • History
An order to substitute for nonqualified security shall be in writing, addressed to the depository and executed by the Administrator, and shall contain the following:
(a) Description of security which the Administrator has determined is not qualified to secure a secured local agency deposit; provided, however, that such description need not contain the information called for in Paragraph (6) Subdivision (a) of Section 16001.5.7 of this Chapter.
(b) Statement of reasons why the Administrator has determined that such security is not qualified to secure a secured local agency deposit.
(c) Identification of security pool in which such security is held.
(d) Order to effect a plus substitution of securities with respect to such security or to show in accordance with Section 16008.1.7 of this Chapter that such substitution is not necessary, on or before the date specified in such order.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Renumbering from Section 16008.2.2 and amendment of subsections (a) and (d) filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment of subsection (a) filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16008.1.3. Order to Substitute for Nonqualified Security--Service.
History
An order to substitute for nonqualified security shall be served on the depository to which it is issued.
HISTORY
1. Renumbering from Section 16008.2.3 filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
History
Upon request filed with the Administrator by a depository to which an order to substitute for nonqualified security is issued, the Administrator shall, and upon request filed with the Administrator by any other person interested in such order, the Administrator may, initiate a hearing.
HISTORY
1. Renumbering from Section 16008.2.4 filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
§16008.1.5. Notice of Hearing--Service.
History
Notice of hearing shall be served on the depository to which the order to substitute for nonqualified security was issued and on any other person who has filed a request for such hearing with the Administrator.
HISTORY
1. Renumbering from Section 16008.2.5 filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
§16008.1.6. Revocation of Order to Substitute for Nonqualified Security.
History
If upon the hearing the Administrator determines that the security described in the order to substitute for nonqualified security is qualified to secure a secured local agency deposit, the Administrator shall revoke such order to substitute for nonqualified security.
HISTORY
1. Renumbering from Section 16008.2.6 filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
§16008.1.7. Order to Substitute for Nonqualified Security--Showing by Depository.
Note • History
A depository to which an order to substitute nonqualified security is issued may show that the plus substitution of securities ordered in such order is not necessary by showing that the total market value of the securities in the security pool in which the security described in the order to substitute for nonqualified security is held, less the market value of such security, exceeds, in case such security pool is a security pool (non-REN), by not less than 10 percent, or in case such security pool is a security pool (REN), by not less than 50 percent, the total of secured local agency deposits secured by such security pool. A depository shall make such showing by filing with the Administrator a statement of local agency deposits, containing the information prescribed in Section 16003.3.4 of this Chapter and executed and verified as prescribed in Section 16003.3.5 of this Chapter, and a report with respect to the security pool in which the security described in the order to substitute for nonqualified security is held, containing the information prescribed in Subdivision (c) of Section 16005.4.2 of this Chapter, executed as prescribed in Section 16005.1.1 of this Chapter, together with the verification prescribed in Section 16005.4.3 of this Chapter and the certification prescribed in Section 16005.4.4 of this Chapter.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Renumbering from Section 16008.2.7 and amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16008.1.8. Order to Substitute for Nonqualified Security--Failure of Depository to Comply.
History
HISTORY
1. Renumbering from Section 16008.2.8 and amendment filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16008.1.9. Order to Substitute for Nonqualified Security--Notice of Failure of Depository to Comply.
Note • History
Whenever a depository to which an order to substitute for nonqualified security has been issued fails to comply with such order, the Administrator shall promptly serve notice of such failure to comply on each treasurer who, according to the latest reports filed with the Administrator, maintains a secured local agency deposit with such depository, and on the appropriate regulatory agencies, as follows:
(a) If the depository is a national bank, on the Comptroller of the Currency of the United States.
(b) If the depository is a state bank, on the Commissioner of Financial Institutions.
(c) If the depository is a federal association, on the Office of Thrift Supervision.
(d) If the depository is a savings association, on Commissioner of Financial Institutions.
(e) If the depository is a federal credit union, on the National Credit Union Administration.
(f) If the depository is a state credit union or a federally insured industrial loan company, on the Commissioner of Financial Institutions.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Renumbering from Section 16008.2.9 filed 3-1-73 as an emergency; designated effective 3-7-73 (Register 73, No. 9).
2. Certificate of Compliance filed 5-2-73 (Register 73, No. 18).
3. Amendment filed 10-8-76 as an emergency; effective upon filing (Register 76, No. 41).
4. Certificate of Compliance filed 2-4-77 (Register 77, No. 6).
5. Amendment of section and new Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
6. Change without regulatory effect amending section filed 8-19-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 34).
Subchapter 9. Default of Depository
Article 1. General Provisions
Note • History
In this Subchapter:
(a) “Default of depository” means a failure by a depository to pay all or part of a secured local agency deposit in accordance with the deposit contract and on demand of the treasurer or other authorized official of such local agency.
(b) “Holiday” means any of the holidays provided for in Government Code Sections 6700 and 6701.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Amendment of subsection (b), repealer of subsection (c) and new Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Article 2. Demand for Payment
§16009.2.1. Demand for Payment--Requirement.
No treasurer shall file with the Administrator a notice of default of depository with respect to a local agency deposit unless such treasurer or other authorized official of such local agency has first presented to such depository a demand for payment of such deposit in accordance with the deposit contract and this Article and the depository has failed to comply with such demand for payment.
§16009.2.2. Demand for Payment--Form and Content.
Unless the deposit contract provides otherwise, a demand for payment shall be in writing, addressed to the depository, and shall contain the following:
(a) Name of local agency.
(b) Address of office of depository where the local agency deposit is maintained.
(c) Account number, if any, assigned to the deposit by the depository.
(d) Demand for payment on account of the deposit.
(e) Amount demanded to be paid.
(f) Notice that, if the depository fails to comply with the demand, the treasurer will file a notice of default with the Administrator.
§16009.2.3. Demand for Payment--Execution.
Unless the deposit contract provides otherwise, a demand for payment shall be executed by the treasurer or other authorized official of the local agency.
§16009.2.4. Demand for Payment--Time of Payment.
Unless the deposit contract provides otherwise, a demand for payment shall be deemed to demand payment on the date such demand is presented to the depository or on the date, if any, specified therein, whichever is later.
§16009.2.5. Demand for Payment--Presentment to Depository.
Unless the deposit contract provides otherwise:
(a) A demand for payment shall be deemed to be presented to a depository when delivered to any officer or employee of such depository at the office of such depository where the local agency deposit is maintained; provided, however, that if such delivery occurs after the close of business hours of such office, then such demand for payment shall be deemed to be presented to the depository on the next succeeding day which is not a holiday.
(b) A demand for payment, if delivered to any officer or employee of a depository at any office of such depository other than the office where the local agency deposit is maintained, shall be deemed to be presented to such depository on the next succeeding day which is not a holiday.
Article 3. Notice of Default of Depository
§16009.3.1. Notice of Default of Depository--Requirement.
In the event of any default of a depository, the treasurer of the local agency shall file with the Administrator a notice of default of depository in accordance with this Article.
§16009.3.2. Notice of Default of Depository--Form and Contents.
A notice of default of depository shall be in writing, in duplicate, addressed to the Administrator and clearly designated “Notice of Default of Depository,” and shall contain the following information:
(a) Name of treasurer of local agency.
(b) Title of treasurer of local agency.
(c) Name of local agency.
(d) Name of depository and address of office of depository where the local agency deposit is maintained.
(e) Account number, if any, assigned to the deposit by depository.
(f) Type of deposit (i.e., active or inactive).
(g) Copy of deposit contract.
(h) Copy of last receipt, certificate of deposit, or other evidence of the local agency deposit taken by the treasurer pursuant to Government Code Section 53641 with respect to the deposit.
(i) Total of the deposit.
(j) Amount of the deposit which is required to be secured.
(k) Amount demanded from the depository on account of the deposit.
(l) Statement of facts showing that a demand for payment was pre- sented to the depository and the time of such presentment.
(m) Statement of facts showing that the depository has failed to comply with the demand for payment.
(n) Copy of demand for payment.
(o) Identification of security pool by which the deposit is secured.
§16009.3.3. Notice of Default of Depository--Execution.
A notice of default of depository shall be executed by the treasurer or by a person authorized to act on his behalf.
§16009.3.4. Notice of Default of Depository--Service of Copy.
Whenever a treasurer files a notice of default of depository with the Administrator, such treasurer shall serve one copy each thereof on the depository and on the agent of depository named therein; provided, however, that any failure to effect such service shall not invalidate any action taken pursuant to this Article.
Article 4. Conversion and Payment Instruction
§16009.4.1. Conversion and Payment Instruction--Issuance.
Whenever a notice of default of depository is filed with the Administrator, he shall issue a conversion and payment instruction to the agent of depository named in such notice of default of depository.
§16009.4.2. Conversion and Payment Instruction--Form, Execution, and Contents.
A conversion and payment instruction shall be in writing, addressed to the agent of depository and executed by the Administrator, and shall contain the following:
(a) A copy of the notice of default of depository.
(b) Instructions forthwith to convert into money such portion of the security pool securing the local agency deposit identified in the notice of default of depository as may be necessary to produce an amount equal to either the amount demanded on account of the local agency deposit or the amount of such local agency deposit which is required to be secured, as stated in the notice of default of depository, whichever is less, and to pay such amount to the treasurer.
§16009.4.3. Conversion and Payment Instruction--Service.
A conversion and payment instruction shall be served on the agent of depository to which it is addressed, and one copy each thereof shall be served on the depository and on the treasurer referred to therein.
§16009.4.4. Conversion and Payment Instruction--Order of Sale.
Note • History
Whenever an agent of depository sells securities in a security pool (non-REN) in accordance with a conversion and payment instruction, such agent of depository shall sell such securities in the order of dates of maturity, commencing with the security bearing the earliest date of maturity.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53665, Government Code.
HISTORY
1. Amendment filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
§16009.4.5. Payment by Agent of Depository--Receipt.
Whenever an agent of depository makes payment to a treasurer in accordance with a conversion and payment instruction, such agent of depository shall obtain from such treasurer a receipt in quadruplicate for such payment, executed by the treasurer or by a person authorized to act on his behalf. The agent of depository shall retain the original of such receipt, serve one copy each thereof on the depository, the treasurer, and the Administrator.
Article 5. Order Not to Release Security
§16009.5.1. Order Not to Release Security--Issuance.
History
The Administrator may order an agent of depository which holds a security for the purpose of securing a secured local agency deposit in a depository not to release any such security whenever:
(a) In case such depository is a state bank, the Superintendent of Banks of the State of California takes possession of the business and property of, or appoints a conservator of, such depository.
(b) In case such depository is a national bank, the Comptroller of the Currency of the United States appoints a receiver or a conservator for such depository.
(c) In case such depository is a state savings and loan association, the Savings and Loan Commissioner of the State of California takes possession of the property, business, and assets of, or appoints a conservator of, such depository.
(d) In case such depository is a federal savings and loan association, the Federal Home Loan Bank Board appoints a receiver or conservator for such depository.
HISTORY
1. Amendment filed 10-8-76 as an emergency; effective upon filing (Register 76, No. 41).
2. Certificate of Compliance filed 2-4-77 (Register 77, No. 6).
§16009.5.2. Order Not to Release Security--Form and Execution.
An order not to release security may be issued in writing, executed by the Administrator, or orally, in which case the order shall be promptly confirmed in writing, executed by the Administrator.
§16009.5.3. Order Not to Release Security--Service.
Note • History
(a) An order not to release security, if issued in writing, shall be served on the agent of depository, and copies thereof shall be served on the depository and on each treasurer, who, according to the latest reports filed with the Administrator, has a local agency deposit in such depository; provided, however, that any failure to effect service on any such treasurer shall not invalidate any action taken pursuant to this Article.
(b) An order not to release security, if issued orally, shall be communicated to the agent of depository either in person or by telephone. The writing confirming such order shall be served in the manner provided in Subdivision (a) of this Section for the service of an order not to release security issued in writing; provided, however, that any failure to effect service on any treasurer shall not invalidate any action take pursuant to this Article.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Amendment of subsection (a) and new Note filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Subchapter 10. Forms
Article 1. Forms
§16010.1.1. Form 1. (Agreement of Agent of Depository.)
The following is an illustration of Form 1:
AGREEMENT OF AGENT OF DEPOSITORY
This agreement is made on _______________ by _____________________
(date) (name)
(hereinafter referred to as “Bank”) with the Administrator of Local Agency Security of the State of California.
RECITALS
A. In this agreement:
1. “Local Agency Deposit Security Regulations” means Chapter 2, Division 4, Title 2 of the California Administrative Code, as effective July 1, 1970, and as the same or any provision thereof may be amended, added, or repealed.
2. Terms defined in the Local Agency Deposit Security Regulations shall have the meanings therein set forth.
3. Words in the singular number include the plural, and in the plural include the singular.
4. Words of the masculine gender include the feminine and the neuter, and when the sense so indicates, words of the neuter gender may refer to any gender.
B. Bank is authorized to engage in the trust business in the State of California.
C. Bank intends to act as agent of Depository.
NOW, THEREFORE, Bank agrees as follows:
1. Bank shall comply in all respects with the provisions of the Local Agency Deposit Security Law and the Local Agency Deposit Security Regulations.
2. Without prejudice to or limiting the provisions of the foregoing paragraph, Bank shall:
(a) File with the Administrator such reports and other documents as may be required by the Local Agency Deposit Security Law, by the Local Agency Deposit Security Regulations, or by the Administrator pursuant to such Law or Regulation.
(b) Accept, hold, pool, place for safekeeping, and release or otherwise dispose of each security which may be placed with it by a depository for the purpose of securing a secured local agency deposit in such manner as may be prescribed by the Local Agency Deposit Security Law, by the Local Agency Deposit Security Regulations, or by the Administrator pursuant to such Law or Regulations.
(c) Comply with any instruction or order which may be issued by the Administrator pursuant to the Local Agency Deposit Security Law or the Local Agency Deposit Security Regulations.
(d) Permit the Administrator, at such times as the Administrator may deem necessary, to verify securities which Bank holds for the purpose of securing a secured local agency deposit; and exhibit to the Administrator and permit him to inspect and copy such books, records, accounts, securities, and other documents in its custody or under its control which pertain to securities which Bank holds for the purpose of securing a secured local agency deposit.
3. No waiver by the Administrator of any failure of Bank to comply with this agreement or any provision thereof shall be deemed a waiver of any failure to comply thereafter occurring.
IN WITNESS WHEREOF Bank has caused this agreement to be executed by its duly authorized officers as of the date first above written and filed with the Administrator.
___________________________________
(name)
By__________________________________
(signature)
___________________________________
(name of signatory)
Its___________________________________
(title of signatory)
By__________________________________
(signature)
___________________________________
(name of signatory)
Its___________________________________
(title of signatory)
§16010.1.2. Form 2. (Registration Report.)
History
HISTORY
1. Amendment file 11-10-71 as procedural and organizational; designated effective 11-22-71 (Register 71, No. 46).
2. Amendment filed 7-22-75 as procedural and organizational; designated effective 7-23-75 (Register 75, No. 30).
3. Repealer filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
§16010.1.3. Form 3. (Report of Deposits.)
Note • History
(a) The following is an illustration of Page 1 of Form 3:
Embedded Graphic 02.0041
(1) List depositories alphabetically. Use a separate line for each deposit.
(2) Give the account number, if any, assigned to the inactive deposit by the depository.
(3) Give the balance as it appears on the treasurer's records.
(4) Give the balance that must be secured in accordance with law.
NOTE
Authority cited: Section 53661, Government Code. Reference: Section 53661, Government Code.
HISTORY
1. Amendment of subsection (a) filed 11-10-71 as procedural and organizational; designated effective 11-22-71 (Register 71, No. 46).
2. Amendment of subsection (a) filed 7-22-75 as procedural and organizational; designated effective 7-23-75 (Register 75, No. 30).
3. Amendment filed 10-8-76 as an emergency; effective upon filing (Register 76, No. 41).
4. Certificate of Compliance filed 2-4-77 (Register 77, No. 6).
5. Repealer and new section filed 7-16-80; effective thirtieth day thereafter (Register 80, No. 29).
6. Amendment of subsection (a) address filed 4-7-97; operative 4-7-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
Division 5. Local Agency Personnel Standards
Chapter 1. Approved Local Merit System Standards
Article 1. Purposes
Note • History
These Standards are adopted by the State Personnel Board to implement Government Code Sections 19800-19810 which require establishment of personnel standards in regulatory form necessary “to assure state conformity with applicable federal requirements”. These standards are intended to be used as broad, flexible guidelines reflecting generally accepted personnel practices. The State Personnel Board Executive Officer will provide necessary interpretations of the standards.
They provide for meeting the federal and state requirements by local agencies and are applicable to both Approved Local Merit Systems and the Interagency Merit System directly administered by the State Personnel Board. These standards must be met by a local agency wishing to establish its own Approved Local Merit System in order to qualify for certain state and federally funded programs. In Approved Local Merit Systems, the State Personnel Board Executive Officer will review each system for sufficient conformity with applicable Federal requirements. If sufficient conformity is found, the approval will be continued.
The departments administering state and federally funded programs in local agencies which have not met the criteria for Approved Local Merit System status constitute the Interagency Merit System directly administered by the State Personnel Board.
NOTE
Authority cited: Sections 19800 and 19801, Government Code. Reference: Sections 19800-19810, Government Code.
HISTORY
1. Repealer of Chapter 1 (Sections 17010-17380, not consecutive) and new Chapter 1 (Sections 17010-17100, not consecutive) filed 1-21-77; effective thirtieth day thereafter (Register 77, No. 4). For prior history see Register 72, No. 20.
2. Repealer of Chapter 1 (Articles 1-7, Sections 17010-17100, not consecutive) and new Chapter 1 (Articles 1-5, Sections 17010-17300, not consecutive) filed 5-29-81; effective thirtieth day thereafter (Register 81, No. 22).
Article 2. Definitions
Note • History
The following definitions apply to both Chapter 1 and Chapter 2 of the Local Agency Personnel Standards. Where more appropriate, definitions are incorporated into the text of a regulation.
(a) Appointing Authority: Local agency legislative body or a department head (or their representative) having authority to appoint and to remove employees from employment.
(b) Career Service: All positions in a local agency that are covered by these rules. See Section 17200 for identification of covered and exempted positions.
(c) Certification: Forwarding of names of eligibles from an appropriate eligible list or lists to the appointing authority.
(d) Discrimination: The adverse effects of a personnel management decision on employees or applicants based on race, color, sex, age, disability, religious creed, national origin, ancestry, marital status, or other category identified by statute, when such decision is not based on job-related criteria.
(e) Executive Officer: The individual appointed by the California State Personnel Board to serve as its executive officer. Under the provisions of Government Code Section 18654, any power, duty, or jurisdiction which the Board may legally delegate is presumed to have been delegated to the executive officer unless the Board has formally reserved the same for itself.
(f) Federal Standards: Those standards contained in the ``STANDARDS FOR A MERIT SYSTEM OF PERSONNEL ADMINISTRATION'' which are filed in regulatory form in the Consolidated Federal Register (CFR) under Title 5, Part 900, Subpart F (Vol. 44, No. 34, Friday, February 16, 1979) or such future revisions which become applicable.
(g) Impartial Process: A dispute resolution procedure wherein a decision is rendered by a group or individual capable of making an objective judgment free of favor or prejudice. Such group or individual may include but is not limited to the following:
(1) A ``civil service commission'' established substantially as set forth in Government Code Sections 31110 through 31113, inclusive, provided no member serves in any other capacity in the local agency; and
(2) Any other group or individual selected:
(A) By mutual agreement of the parties; or
(B) By some other objective method which will ensure impartiality. Examples of those who might satisfy these latter conditions are ad hoc panels, State Hearing Officers, and professional arbiters.
(h) Local Agency: As defined in Government Code Section 19810, local agency means any city, county, city and county, district, or other subdivision of the state or any independent instrumentality thereof.
(i) Permanent Appointment: The status of an employee who has completed a probationary period.
(j) Permanent Status: The employment condition in which an employee has rights in the career service and in a class. Upon satisfactory completion of the probationary period following initial appointment, an employee gains permanent status in the career service, and is subject to removal from the career service only for cause, curtailment of work or lack of funds. Upon satisfactory completion of the probationary period following promotion within the career service, an employee gains permanent status in the class to which promoted, and is subject to removal from the class only for cause, curtailment of work or lack of funds.
(k) Personnel Plan: The personnel plan consists of all documents governing employment in the departments of a local agency administering state and federally funded programs. These include, but are not necessarily restricted to: charter provisions; salary, position budget, and enabling ordinances; rules and regulations; class specifications, examination announcements, and related materials that set forth standards; employee-management memoranda of understanding; and such other reports, minute orders, administrative rules, and procedural instructions that may be specifically requested by the State Personnel Board Executive Officer and necessary to establish a merit system for its grant-in-aid departments in accordance with these standards.
(l) Position: Any office or employment (whether part time or full-time, temporary or permanent, occupied or vacant) calling for the performance of specified and related duties.
(m) Probationary Period: The time limited period of paid service which is an extension of the examination process required before an employee gains permanent status.
(n) Statistically Significant: the degree of underutilization is equal to or greater than the .05 level of significance using the one-tailed Z Test method of statistical analysis outlined in Appendix 4 of the Interim Guidelines for Conducting the Annual Analysis of the State Work Force, issued March 2002, by the State Personnel Board. Using this methodology, a computed Z value of 1.65 or greater is sufficient to conclude that any underutilization is statistically significant.
(o) Status: The condition of an employee's appointment, such as provisional, probationary, permanent, or as defined in the personnel rules adopted by the governing board of a local agency.
(p) Suspension: An enforced leave of absence for disciplinary purposes or pending investigation of charges made against an employee.
(q) Underutilization: Having fewer persons of a particular race/ethnic or gender group in an occupation or at a level in a department than would reasonably be expected by their availability in the relevant labor force.
NOTE
Authority cited: Sections 19801, Government Code. Reference: Sections 19800-19810, Government Code; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16; and Hazelwood School District v. United States (1977), 433 U.S. 299, 308, fn. 14.
HISTORY
1. Amendment of subsections (d) and (l), new subsections (n) and (q), subsection relettering and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Article 3. Merit Principles
Subarticle 1. Merit Principle 1
Note
Recruiting, selecting and advancing employees shall be on the basis of their relative ability, knowledge and skills, including open consideration of qualified applicants for initial appointment.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Note • History
Recruitment efforts shall be planned and carried out in a manner that assures equal employment opportunity and open competition for initial career service appointment for all job applicants. Basic recruitment efforts for entry into the career service shall include posting of examination announcements in appropriate public places for a minimum of five working days to ensure that an adequate number of candidates will apply.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16; and Hazelwood School District v. United States (1977), 433 U.S. 299, 308, fn. 14.
HISTORY
1. Amendment of section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Note • History
(a) Selection procedures, including appropriate ranking for entry to the career service, shall be job related and shall maximize to the extent practicable validity, reliability and objectivity. The Uniform Guidelines on Employee Selection Procedures, as published in the Consolidated Federal Register (at 5 CFR, 900, Subpart F, Appendix B), are incorporated into these rules.
(b) Competition for appropriate positions may be limited to facilitate the employment of persons with a disability or participants in employment or rehabilitation programs authorized by Congress or the California Legislature.
(c) Appointments to permanent career service positions shall be made through selection from appropriately ranked eligible lists. Appointment procedures may not allow appointment either beyond the top ten eligibles or the top ten percent of eligibles or the top predetermined score group of those on an eligible list who are willing to accept the conditions of employment.
(d) Permanent appointment for entry to the career service will be contingent upon satisfactory performance by the employee during a reasonable, time-limited probationary period. As a general rule, probationary periods may not exceed one year.
(e) Non-status appointments shall not be used as a way of defeating the purpose of the career service and shall have a reasonable time limit. As a general rule, reasonable time limit is one year. If lists of eligibles are available, they shall be used for filling temporary positions. Short-term, emergency appointments may be made without regard to the other provisions of this section, to provide for maintenance of essential services in an emergency situation where normal procedures are not practical.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16; and Hazelwood School District v. United States (1977), 433 U.S. 299, 308, fn. 14.
HISTORY
1. Amendment of subsections (b) and (e) and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Note
Formal promotional examination processes are encouraged when filling higher level career service positions. Such processes shall maximize to the extent practicable validity, reliability and objectivity.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Subarticle 2. Merit Principle 2
Note
Equitable and adequate compensation will be provided.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Note
Classification plans shall be maintained on a current basis, and shall:
(a) be the foundation for selection, compensation, training, promotion, demotion, reduction in force, reemployment, and related decisions;
(b) include class specifications formally adopted by the local agency's governing board or its authorized representative; and
(c) include job-related minimum qualifications or employment standards of education, experience, knowledge, and abilities.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802, 19803, Government Code.
Note
To maintain a high quality public work force and to assure equitable compensation for comparable work, the compensation plan shall take into account the responsibility and difficulty of the work, the compensation needed to compete in the labor market, and other pertinent factors.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Subarticle 3. Merit Principle 3
Note
Employees will be trained as-needed to assure high-quality performance. In addition to providing training to improve performance, training should also be provided as needed to prepare employees for more responsible assignments and to implement affirmative action plans for equal employment opportunity.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Subarticle 4. Merit Principle 4
Note
Employees shall be retained on the basis of the adequacy of their performance, and provision shall be made for correcting inadequate performance and separating employees whose inadequate performance cannot be corrected.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
§17141. Separation and Layoff.
Note
Employees who have acquired permanent status shall not be subject to separation except for cause or such reason as curtailment of work or lack of funds. Procedures will be established to provide for the transfer, demotion or separation of employees whose performance continues to be inadequate after reasonable efforts have been made to correct it. Retention of employees in classes affected by reduction in force shall be based upon systematic consideration of type of appointment and other relevant factors.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Note
Local agencies should establish a systematic method of evaluating employee performance which should influence such personnel management decisions as merit salary adjustments, need for training, and order of layoff.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Subarticle 5. Merit Principle 5
Note
Fair treatment of applicants and employees in all aspects of personnel administration will be assured, without discrimination and without regard to political affiliation, and with proper regard to their privacy and constitutional rights as citizens.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803 Government Code.
§17151. Equal Employment Opportunity.
Note • History
(a) Equal opportunity shall exist in recruitment, examination, appointment, training, promotion, retention, discipline, or any other aspect of employment.
(b) Prohibitions against discrimination consistent with the Civil Rights Act of 1964 as amended (42 U.S.C. § 2000e et seq.), the Rehabilitation Act of 1973 as amended (29 U.S.C. § 791 et seq.), the Age Discrimination in Employment Act of 1967 as amended (29 U.S.C. 621 et seq.), the Equal Pay Act of 1963 (29 U.S.C. § 206 (d)(1)) and other relevant statutes shall be established and enforced.
(c) Equal employment opportunity programs shall be developed and implemented to include the following:
(1) Removal of artificial barriers to equal employment opportunity.
(2) Assessment of the local agency's work force, including a comparison of the local agency's work force composition with the relevant labor force composition. Records of such assessments and comparisons shall be provided annually and at such other time as required to the State Personnel Board Executive Officer.
(3) Where there is statistically significant underutilization of any group based on race, ethnicity or gender as shown by the work force-labor force comparison, the local agency shall:
Develop and implement written recruitment plans which will ensure all-inclusive outreach and equal opportunity for all groups. Copies of such recruitment plans shall be made available, upon request, to the State Personnel Board Executive Officer.
Assess selection processes to ensure that they are based solely on job-related criteria and are free of illegal adverse impact as defined in the Uniform Guidelines on Employee Selection Procedures (Guidelines), incorporated in Section 17112, against any group. Such assessments shall be conducted consistent with procedures outlined in the Guidelines. Where illegal adverse impact is found, the local agency shall identify the cause and take appropriate corrective action on a timely basis.
Comply with all equal employment opportunity requirements mandated by federal agencies as a condition for obtaining or maintaining federal funding of programs.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16; and Hazelwood School District v. United States (1977), 433 U.S. 299, 308, fn. 14.
HISTORY
1. Amendment of section heading, section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§17152. Employee/Management Relations.
Note
(a) Nothing in a local agency employee-management relations agreement shall conflict with these standards.
(b) There shall be written procedures for resolving employee grievances and discrimination complaints. To the maximum extent possible, the procedures should include steps to resolve discrimination and all other types of employee grievances without recourse to formal appeals procedures.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Note
(a) In the event of separation for cause or demotion for cause, local agencies shall provide permanent employees in covered programs with the right to appeal through an impartial process that results in timely, enforceable decisions.
(b) Local agencies shall provide for appeals of alleged discrimination, by an applicant or employee, through an impartial process that results in timely, enforceable decisions.
(c) In the event of reduction in force, employees with permanent status shall have the right to appeal the application of reduction in force rules as they relate to the establishment of and certification from layoff and reemployment lists. Such appeals shall be through an impartial process that may be recommendatory or enforceable on the appointing authority. This provision shall not be construed to provide for employee appeals of management rights to identify the classes of layoff, number of positions to be reduced, and effective date of the layoffs.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Subarticle 6. Merit Principle 6
§17160. Political Rights and Prohibitions.
Note
The provisions of the Federal Hatch Act and applicable state statutes shall be followed. All employees shall be informed of their political rights and prohibited practices under the Hatch Act and applicable state laws.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
Article 4. Administration
§17200. Employment Covered and Exempted from Standards.
Note • History
(a) These standards apply to personnel engaged in the administration of federally aided programs which by law or regulation require a merit system of personnel administration that meets standards published by the United States Office of Personnel Management. These rules are applicable to all positions in such programs, irrespective of the source of funds for their individual salaries, except those exempted by this section.
(b) The following positions may be exempted from application of these standards: Members of policy, advisory, review, and appeals boards or similar bodies who do not perform administrative duties as individuals; officials serving ex officio and performing incidental administrative duties; one confidential assistant or secretary to any of the foregoing exempted officials; attorneys serving as legal counsel or conducting litigation; the executive head of an independent local agency or department administering programs covered by these rules; deputies who share with executive head authority over all major functions in covered local agencies or departments; time-limited positions established for the purpose of conducting a special study or investigation; and unskilled labor.
(c) County Welfare Directors and Deputy Directors who had permanent status in such classes on the date these regulations became effective shall continue to retain the rights of permanent status as long as they continue to occupy positions they held on the effective date of these regulations.
(d) Additional exemptions of positions must receive the prior approval of the State Personnel Board Executive Officer.
(e) Waivers from specific provisions of these regulations may be granted by the State Personnel Board Executive Officer, at the request of a local agency, for time-limited experimental or research projects designed to improve merit systems or their operations. To the extent such a waiver also involves waiving provisions of the Federal Standards for a Merit System of Personnel Administration, the State Personnel Board Executive Officer shall review the request and make a recommendation in the manner required by the United States Office of Personnel Management.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
HISTORY
1. Amendment filed 12-11-84; effective thirtieth day thereafter (Register 84, No. 50).
§17201. Extension of Merit System and Changes in Merit System Jurisdictions.
Note
Upon the initial extension of merit system coverage to a program, an employee may obtain status through a noncompetitive qualifying process.
An employee with permanent status under a merit system meeting these standards will retain comparable status if the program is placed under the jurisdiction of another merit system.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
§17210. Procedure for Establishing and Maintaining an Approved Local Merit System.
Note
(a) Any local agency wishing to establish and administer its own Approved Local Merit System for its grant-aided departments shall:
(1) request the State Personnel Board Executive Officer to review and approve its system; and
(2) adopt a personnel plan for its grant-in-aid departments in accordance with these standards. The State Personnel Board Executive Officer shall publish criteria for determining if personnel plans and personnel management practices meet the requirements of these standards.
(b) Amendments to personnel plan materials for an Approved Local Merit System and its continuing administration shall be subject to review on an ongoing basis by the State Personnel Board Executive Officer for conformity and compliance in operation. Materials requested by the State Personnel Board Executive Officer to determine conformity with these standards will be supplied by local agencies.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802 and 19803, Government Code.
§17220. Requirements for Records and Reports.
Note
Appropriate records shall be maintained and available to permit determination by the State Personnel Board that a jurisdiction conforms to these requirements and its own rules and regulations. Decisions on selection, classification and certification require documentation.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19802, 19803, and 19808, Government Code.
Article 5. Assuring Compliance
Note
When corrective action relating to a standards issue is required, the State Personnel Board Executive Officer will negotiate with the appropriate local agency. Technical assistance necessary to comply with these rules will be provided by the State Personnel Board Executive Officer at the request of the local agency. In the event the issue is not resolved within a reasonable period of time, the State Personnel Board Executive Officer may take any or a combination of the following actions:
(a) Require the local agency to use approved Interagency Merit System procedures.
(b) Withdraw approval of the local merit system. The agency will revert to Interagency Merit System status.
(c) Recommend that the funding department or the State Controller withhold from the local agency funding that applies to the procedure in question.
Local agencies may appeal such action to the State Personnel Board.
The State Personnel Board may also conduct a hearing under Government Code Sections 19805 and 19806 to determine whether a particular merit system is in compliance with the standards. When the Board, after hearing, determines that a local merit system is not in conformity with the Standards, it shall notify such local agency and the appropriate State officers in writing of its decision.
NOTE
Authority cited: Section 19801, Government Code. Reference: Sections 19805-19808, Government Code.
Chapter 2. Merit System Regulations
Article 1. Administration
§17400. Interagency Merit System Regulations.
Note • History
The provisions of Local Agency Personnel Standards Chapter 1 apply to all local agencies, including those in the Interagency Merit System (IMS), subject to the requirements of Government Code Sections 19800-19810.
The provisions of Chapter 2 are the regulations for the Interagency Merit System. They are adopted by the State Personnel Board in accordance with the provisions of Government Code Section 19803, which provides for State Personnel Board administration of a merit system for local agencies not administering their own merit systems, in order to assure State conformity with applicable Federal requirements.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Repealer of Chapter 2 (Articles 1-6, Sections 17400-17592, not consecutive) and new Chapter 2 (Articles 1-9, Sections 17400-17592, not consecutive) filed 10-14-80; effective thirtieth day thereafter (Register 80, No. 42).
§17402. Applicability of Specific Portions of Chapter 1.
Note • History
The following sections of Chapter 1 are not repeated in Chapter 2, but apply in the Interagency Merit System: Employment Covered and Exempted (17200), Definitions (17030), Equal Employment Opportunity and Affirmative Action (17151), Employee/Management Relations (17152), Political Rights and Prohibitions (17160), and Extension of Merit System and Changes in Merit System Jurisdiction (17201).
NOTE
Authority cited: Section 19801, Government Code. Reference: Section 19803, Government Code.
HISTORY
1. Amendment filed 5-29-81; effective thirtieth day thereafter (Register 81, No. 22).
§17403. Delegation to the State Personnel Board Executive Office and State Personnel Board Staff.
Note
The provisions of Government Code 18654 and 18654.5 are reprinted in these regulations, and are applicable in the Interagency Merit System: ``18654. The intention of the Legislature is hereby declared to be that the executive officer shall perform and discharge under the direction and control of the board the powers, duties, purposes, functions, and jurisdiction vested in the board and delegated to him by it.
``Any power, duty, purpose, function, or jurisdiction which the board may lawfully delegate shall be conclusively presumed to have been delegated to the executive officer unless it is shown that the Board by affirmative vote recorded in its minutes specifically has reserved the same for its own action. The executive officer may redelegate to his subordinates unless by board rule or express provision of law he is specifically required to act personally.
``18654.5. The executive officer shall administer the civil service statutes under rules of the board, subject to the right of appeal to the board.''
Whenever it is stated in these rules that the ``State Personnel Board'' may or shall act, the State Personnel Board specifically has reserved the same for its own exclusive action. Whenever it is stated that the ``State Personnel Board Executive Officer'' may or shall act, the Executive Officer of the State Personnel Board has the authority to act thereon. Nothing herein prohibits the Executive Officer from redelegating to subordinates as provided in Section 18654 of the Government Code. Any party in interest may appeal to the State Personnel Board for review of the actions and decisions of the Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17404. Authorized Use of Local Agency Regulations.
Note
Upon local agency request, the State Personnel Board Executive Officer ay, in lieu of one or more IMS regulations, authorize the use of local agency regulations which:
(a) Meet the requirements of Chapter 1; and
(b) Meet conditions which may be more specifically set forth in these IMS regulations.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17405. Delegation to Local Agency.
Note
Upon mutual agreement between the State Personnel Board Executive Officer and a local Interagency Merit System agency, and subject to appropriate audit and controls, authority for administering portions of these regulations may be delegated to a local agency personnel office or program department.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17406. Availability of Local Agency Personnel Standards.
Note
Each agency within the IMS shall have copies of these LAPS regulations readily available for employee reference.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17408. Adequate Notice of Action Taken.
Note
Where provisions of these regulations require that a party or parties concerned be notified of actions taken, notification by letter to that party's or parties' last known address(es) shall constitute adequate notice of such action.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 2. Classification
§17412. Establishment of Classification Plan.
Note
The State Personnel Board Executive Officer shall establish and maintain a classification plan for all positions covered by these regulations. The classification plan shall be the basis for selection, compensation, training, promotion, demotion, reduction in force, reemployment and related decisions. The classification plan shall include class specifications which shall be established and maintained by the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Every position within the Interagency Merit System shall be allocated to an appropriate class within the classification plan. The allocation of positions to classes within the classification plan is the responsibility of the State Personnel Board Executive Officer. Those positions which meet the following criteria shall be included within the same class:
(a) The duties and responsibilities are sufficiently similar that they may be described by the same title;
(b) Within a given local agency the same salary rate or range may equitably apply;
(c) The knowledge and abilities required are the same;
(d) Substantially the same tests of fitness are required. The local appointing authority shall report to the State Personnel Board Executive Officer any intention to establish new positions and material changes in the duties of any position under that person's jurisdiction in order that such positions may be classified and allocated.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17416. Use of Local Agency Classifications.
Note
The State Personnel Board Executive Officer may authorize the use of local agency classification plans for clerical, staff services and other agencywide class series. Such classification plans shall:
(a) Be the basis in other departments of the local agency for the personnel management decisions listed above in Section 17412.
(b) Include written class specifications formally adopted by the local agency governing board or its authorized representative.
(c) Include in the written class specifications job-related minimum qualifications of education, experience, knowledge and abilities.
(d) Be the basis for position allocation, using the criteria listed above in Section 17414.
Copies of local agency class specifications authorized under this section for use in the Interagency Merit System shall be filed with and retained by the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17418. Status of Incumbent of Reallocated Position.
Note
The incumbent of a reallocated position may be moved to the new class only in accordance with the regulations governing promotions, demotions, transfers, and reinstatements except as otherwise provided for by the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The appointing authority may, with the employee's agreement, and with the prior approval of the State Personnel Board Executive Officer, assign an employee duties allocable to another class for the purpose of training. Such an assignment shall not be to another class in the same class series, nor shall it require the layoff or demotion of another employee. Such an assignment shall initially be for no more than one year. Extension of such a training assignment may be made for up to one additional year when the parties concerned are in agreement. An employee participating in such an arrangement shall have the right to return to a position in the former class upon completion of the training assignment.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 3. Compensation
Note
Each local agency shall have a compensation plan which shall include: (a) a salary rate or range for each class; and (b) salary rates or ranges based on difficulty of work with reasonable differentials between classes; and (c) salary rates or ranges which take into consideration prevailing compensation for comparable positions in the geographic area of recruitment. The compensation plan shall apply equitably and uniformly to all employees. The local agency compensation plan, approved by the local legislative body or its designated representative, shall be forwarded to the State Personnel Board Executive Officer, showing the date of adoption or change and the effective date of implementation.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Employees in a class shall be paid the salary established for the class, except as otherwise provided in these regulations.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
At the recommendation of the appointing authority, and with the concurrence of the State Personnel Board Executive Officer, an employee's salary may remain above the maximum for the employee's class if the salary would be reduced through no fault of the employee.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 4. Examining
§17430. Entry to Career Service.
Note
Entry into the Interagency Merit System career service covered by these regulations shall be through open competitive examination. Subject to approval by the State Personnel Board Executive Officer, competition for positions identified by the appointing authority may be limited to facilitate the employment of the handicapped or participants in employment or rehabilitation programs authorized by Congress or the California Legislature.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Public notice of all examinations for establishment of eligible lists shall:
(a) Be given in sufficient time to allow potential applicants to make application for competition. Announcements shall be posted for a minimum of five working days unless the State Personnel Board Executive Officer determines that a shorter posting period is necessary to meet the needs of the appointing authority; and
(b) Provide the following minimum information: title, salary, minimum and special qualifications for the class, place, scope, and approximate date of the examination.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note • History
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Repealer filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§17435. General Qualifications.
Note
The following general qualifications shall be deemed to be a part of the personal characteristics included in the minimum qualifications of each class specification and need not be specifically set forth therein: integrity, honesty, sobriety, dependability, industry, thoroughness, accuracy, good judgment, initiative, resourcefulness, courtesy, ability to work cooperatively with others, willingness and ability to assume the responsibilities and to conform to the conditions of work characteristic of the employment.
A valid California driver's license is required where the position requires the driving of an automobile.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17436. Minimum Qualifications.
Note
All candidates for employment within the Interagency Merit System shall possess the minimum qualifications established for the class.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17440. Special Qualifications.
Note
When required by the needs of the service, special qualifications in specific skill or knowledge areas may be prescribed by the State Personnel Board Executive Officer for specified positions within a class.
When such special qualifications are needed, examinations will test the special skill or knowledge area, and only eligibles possessing such special qualifications will be certified for vacancies in positions requiring them.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Application for examination shall be made on forms furnished or approved by the State Personnel Board Executive Officer. Applicants shall certify the truth of statements made on the application by their signature.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Eligible lists shall be established as the result of competitive examinations open to all persons who lawfully may be appointed to positions within the class for which such examinations are held.
Examinations shall fairly test and determine the qualifications, fitness and ability of competitors to perform the duties of the class to which they seek appointment.
Examinations shall be held at such times and places and be conducted under such procedures as the State Personnel Board Executive Officer may determine. Written examinations shall be so managed that no examination paper will disclose the name of any applicant until all the examination papers are scored objectively and both the key answers and the passing score have been determined.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17446. Promotional Examinations.
Note • History
(a) The State Personnel Board Executive Officer may announce and hold promotional examinations for the purposes of establishing promotional eligible lists for specified areas, local agencies, or subdivisions of local agencies.
Participation in promotional examinations shall be limited to permanent or probationary or other employees who are designated in advance of the examination by the State Personnel Board Executive Officer as eligible to participate. Local agency employees other than those with permanent or probationary Interagency Merit System appointments must have obtained their initial local agency appointments through a job-related competitive selection process in order to compete in a promotional IMS examination under this rule.
(b) Upon request of the appointing authority, the State Personnel Board Executive Officer may decide to not require a publicly announced promotional examination in case of reclassification of a position or when the size of the potential candidate group is less than the number of eligibles that would be certified. In such cases, all of the following conditions shall be met:
(1) Only individuals having permanent or probationary Interagency Merit System status within the department where the vacancy exists shall be allowed to compete.
(2) All individuals eligible for consideration shall be notified of the vacancy in writing, and if interested, shall be interviewed for it by the appointing authority.
(3) The individual appointed shall meet the minimum qualifications for the class.
(c) In order to facilitate promotion from aid classes, as defined in the class specifications, the State Personnel Board Executive Officer may authorize use of a scored evaluation of work experience in such class to be used in lieu of one of the parts of the competitive examination. This provision applies only where there are two or more scored parts of the competitive examination.
(d) Promotion from trainee to first journey level classes, as defined in the class specifications, shall be made on the basis of:
(1) The employee meeting the minimum qualifications for the first journey level class, and
(2) A written statement from the appointing power or an official designated by the appointing power that the employee's job performance meets the department's requirements for promotion to the first journey level class.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Amendment filed 12-11-84; effective thirtieth day thereafter (Register 84, No. 50).
Note
All examinations, and any papers submitted by competitors, are property of the State Personnel Board and are confidential records which shall be opened for inspection only as follows or under such conditions as are further specified by the State Personnel Board Executive Officer:
(a) On written request to the State Personnel Board Executive Officer, competitors may, within 14 calendar days after the date on which the Notifications of Test Results of such examination were mailed to them, compare their answer sheets with a scoring key at such time and place and under supervision of such person as the State Personnel Board Executive Officer may designate.
(b) A competitor's papers shall be open to inspection only by the competitor, or a representative upon written authorization of such competitor. The application form of eligibles certified to fill vacancies may be inspected by the appointing authority to whom such eligibles have been certified or by an authorized representative.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The State Personnel Board Executive Officer shall determine the results of each applicant's examination in conformance with these regulations and the examination announcement. All applicants in the same examination shall be accorded equal treatment in all phases of the examination procedure in accordance with these regulations.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17452. Disqualification of Applicants.
Note
The State Personnel Board Executive Officer may refuse to examine an applicant, or, after examination, may disqualify such applicant or remove the applicant's name from an eligible list, or refuse to certify any eligible on an eligible list for any of the following reasons:
(a) Failure to meet the requirements prescribed for participation in the examination as announced in the public notice;
(b) Failure to file the application correctly or within the prescribed time limits;
(c) False statements of material facts or attempted deception in the application or examination;
(d) Disability which renders the applicant unfit for performance of the principal duties of the class (however, candidates who otherwise meet the qualifications and pass the examination may be appointed to certain positions);
(e) Conviction of any crime which renders the person unsuitable for a position in the class;
(f) Dismissal from prior employment for a cause rendering the applicant unfit for a position in the class;
(g) Participating in the compilation, administration, or correction of the examination;
(h) Use or attempted use of political pressure or bribery to secure an advantage in an examination or appointment;
(i) Any other action of the applicant that renders the applicant unsuitable for employment.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17454. Selection Process Appeal Procedures.
Note
Examination appeals may be filed in accordance with the provisions of Article 8, Appeals, Grievances and Complaints.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 5. Certification
§17458. Establishment of Eligible Lists.
Note
An eligible list consisting of names of persons who qualified shall be established after each examination. Names shall be placed on the eligible list in order of their final rating, starting with the highest.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The State Personnel Board Executive Officer may merge eligible lists for a class. Names shall be placed on a merged list in order of their scores on the original lists, starting with the highest. Persons whose names appear on merged lists shall retain their eligibility until the date the original list on which they appeared would have expired.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17461. Certification from Comparable List.
Note • History
If an eligible list is exhausted, as provided in Section 17468, the State Personnel Board Executive Officer may certify names from an eligible list or lists for a related class. Waiver of certification from such comparable lists does not affect the eligible's standing on the original list for the class for which the eligible was examined.
NOTE
Authority cited: Section 19801, Government Code. Reference: Section 19803, Government Code.
HISTORY
1. Amendment filed 5-29-81; effective thirtieth day thereafter (Register 81, No. 22).
§17463. Order of Eligible Lists.
Note • History
As provided in Sections 17518 and 17519, reemployment lists shall take precedence over all other Eligible Lists. In the absence of an appropriate reemployment list, the order of Eligible Lists shall be:
(a) Departmental promotional list
(b) Local agency promotional list
(c) Open lists
If fewer than ten names of persons willing to accept appointment are on a list, additional eligibles shall be certified from the list or lists next in order until ten names are certified.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Amendment of first and last paragraphs filed 12-15-2008; operative 1-14-2009. Exempt from the Administrative Procedure Act and OAL review pursuant to Government Code sections 18211 and 18213 and submitted to OAL for printing only (Register 2008, No. 51).
§17464. Removal of Name from Promotional Eligible List.
Note
A person who terminates employment within the IMS shall be considered as having relinquished the right to be considered for promotion, and the person's name shall be removed from any promotional eligible lists on which it appears. If the person is reemployed by an IMS agency, the name shall, upon written request to the State Personnel Board Executive Officer, be returned to the promotional list or lists on which it appeared, providing that such list or lists are still in existence.
If an employee who is competing in a promotional examination resigns before the date the eligible list is established, the employee shall not attain any promotional eligibility from such examination.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17466. Transfer of Eligibility.
Note
The State Personnel Board Executive Officer may transfer an individual's eligibility from one local agency's eligible list to another local agency's eligible list for the same class if requested by the receiving local agency's appointing authority.
A competitor unsuccessful in an examination for a given local agency will not be permitted to transfer eligibility established elsewhere for the same class to the list resulting from the examination that the competitor failed.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17468. Exhaustion of Eligible Lists.
Note
If there are fewer than five eligibles available to an appointing authority, the State Personnel Board Executive Officer may consider an eligible list to be exhausted for that appointing authority.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17470. Certification of Names.
Note • History
When a local agency notifies the State Personnel Board Executive Officer that it anticipates it will have a vacant position, the State Personnel Board Executive Officer shall certify to the appointing authority the names and addresses of the ten persons who stand highest on the Eligible List for the class to which the position belongs and who have indicated a willingness to accept the conditions of employment.
The number of names to be certified to the appointing authority shall be on the basis of the number of appointments to be made plus nine, except that when the score for the last certifiable name on an eligible list is the same as one or more scores following it, all names having that same score shall be certified.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code
HISTORY
1. Amendment filed 12-15-2008; operative 1-14-2009. Exempt from the Administrative Procedure Act and OAL review pursuant to Government Code sections 18211 and 18213 and submitted to OAL for printing only (Register 2008, No. 51).
§17471. Use of Local Agency Certification Rule.
Note
Upon request of a local agency, the State Personnel Board Executive Officer may approve the use of the local agency's certification rule in lieu of the rule in Section 17470 if such local agency certification rule meets all of the following criteria:
(a) It has been formally approved by the governing board for use in all the agency's nongrant-aided departments.
(b) It includes a specific limitation on the number of names to be certified.
(c) Application of the rule is not likely to result in certification of the entire eligible list, or in referral of more eligibles than the appointing authority can reasonably interview for the available vacancies.
When a local agency certification rule is to be used in connection with an IMS examination, the rule shall be described in the examination announcement.
A local agency certification rule may not be used in cases of certification from reemployment lists unless the State Personnel Board Executive Officer has approved the use of the local agency's procedures for layoff and reemployment as provided in Section 17521.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Eligibles contacted to ascertain their interest in appointment shall be given a reasonable time to respond. The appointing authority shall inform all eligibles contacted of the class, salary, location, nature of appointment special conditions of the position, and the nature of response required.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17475. Acceptable Conditions of Employment.
Note
The State Personnel Board Executive Officer shall ascertain from each eligible the acceptable conditions, tenure, location, and other pertinent conditions of employment under which the eligible will accept appointment. Such statement of acceptable conditions of employment by the eligible shall constitute an automatic waiver of certification to positions having less acceptable conditions of employment. Conditions of employment acceptable to an eligible may be changed at the eligible's written request to the State Personnel Board Executive Officer, but in such event the eligible shall not be retroactively certified.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
An eligible may voluntarily waive the right of appointment or the right to be considered for appointment. No person shall cause or attempt to cause an eligible to waive these rights. Written evidence of waiver shall be submitted by the appointing authority, upon request, to the State Personnel Board Executive Officer.
An eligible's name shall be removed from an eligible list when the eligible indicates no interest to three offers of employment or to three inquiries sent by the appointing authority to determine interest in employment.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17478. Placement on Inactive List.
Note
(a) Lists Resulting From Open and Promotional Examinations. An eligible's name shall be placed on the inactive list when the eligible:
(1) Fails to respond within stated time limits to a communication regarding availability for employment;
(2) Fails to appear for a job interview;
(3) Accepts a job offer but fails to report to work;
(4) Requests in writing to the State Personnel Board Executive Officer to be temporarily withdrawn from the eligible list;
(5) Cannot be located by postal authorities.
(b) Reemployment Lists. An eligible's name shall be placed on the inactive reemployment list upon written request from the eligible to the State Personnel Board Executive Officer.
An eligible's name may be restored to the active eligible list or reemployment list upon written request from the eligible to the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 6. Appointments, Transfers and Nonpunitive Separations and Demotions
Subarticle 1. Appointments
Note • History
All appointments to positions in the Interagency Merit System shall be as a result of certification from eligible lists or reemployment lists, or as provided in Sections on employment covered and exempted from standards (17200), provisional appointments (17482), emergency appointments (17485), promotional examinations (17446), transfer (17498, 17500, 17515, and 17590), reinstatement (17528 and 17590), extension of merit system coverage (17201), and demotion (17525). The provisions of these listed sections shall not be applied in a manner which circumvents the general requirement that appointments shall be made on the basis of competition.
NOTE
Authority cited: Section 19801, Government Code. Reference: Section 19803, Government Code.
HISTORY
1. Amendment filed 5-29-81; effective thirtieth day thereafter (Register 81, No. 22).
§17482. Provisional Appointments.
Note
If no eligible list exists for a class, or the list is exhausted as provided in Section 17468, the State Personnel Board Executive Officer may authorize the appointing authority to make provisional appointments to that class. The provisional appointee must meet the minimum qualifications for the class. No person may serve in a provisional appointment for more than 60 calendar days after an eligible list has been established for the class, and in no event for more than six months from the date of appointment unless an extension is authorized by the State Personnel Board. Prompt notice of provisional appointment shall be given to the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17483. Reinstatement to Former Position upon Termination of Provisional Appointment.
Note
Permanent or probationary employees who have accepted provisional appointments in higher classes within the same local agency have the right, at the termination of the provisional appointments, to be reinstated to positions in their former classes.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17485. Emergency Appointments.
Note
Whenever an emergency exists which requires immediate services, and it is not possible to secure persons from appropriate eligible lists, the appointing authority may appoint without regard to other provisions of these rules governing appointments. In no case, however, shall an individual serve under an emergency appointment for more than a total of 30 working days in any 12-month period.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17486. Limited-Term Appointment.
Note
If an employee is needed for a limited period, a certification of names shall be made by the State Personnel Board Executive Officer of those eligibles who have indicated willingness to accept limited-term employment. The duration of limited-term appointments shall be for no longer than one day less than the probationary period.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17488. Intermittent Appointments.
Note
Extra-help or on-call positions which require work on an intermittent basis shall be filled by people on eligible lists willing to work on that basis. If there is not a sufficient number of eligibles willing to work on that basis, the eligible list shall be considered exhausted for that type of appointment, as provided in Section 17468, and a provisional appointment may be made. The employment of persons on an irregular or extra-help basis shall not be used as a way of circumventing the requirements in these regulations. The State Personnel Board Executive Officer shall establish procedures to control the use of intermittent appointments.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code. Probationary Periods
Note
(a) The probationary period is considered an extension of the selection process. Each appointment to a permanent position from an eligible list shall include a probationary period as a condition of appointment. The probation period shall not exceed one year, and shall be the same for each position within a class.
(b) Reports of probationers' overall performance shall be made to them at sufficiently frequent intervals to keep them adequately informed of their progress on the job. A written appraisal of performance shall be made to the employee at least twice during the probationary period, the first being no later than upon completion of the first half of the probationary period and the second being prior to the completion of the last month of the probationary period. The final probationary report shall be made available, on request, to the State Personnel Board Executive Officer. If the required performance report is not prepared, a probationer automatically acquires permanent status at the end of the probationary period unless formally rejected under Section 17493.
(c) Provisional or limited-term employment, or employment in the same agency in employment or rehabilitation programs authorized by Congress or the California Legislature, may be credited as part of the probationary period when such employment is immediately followed by probationary appointment to the same class.
(d) An employee in a permanent position who is working less than a normal work week shall remain on probation for an hourly equivalent of the probationary period.
(e) The appointing authority may require an employee who receives an appointment either through permissive reinstatement or transfer to serve a new probationary period.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17491. Use of Local Agency Rules on Probationary Periods.
Note
The State Personnel Board Executive Officer may authorize use of local agency rules governing probationary periods if such rules meet all of the following criteria:
(a) Probationary periods must be time limited and must be the same for all positions in a class.
(b) If the local agency rules provide that probationary periods may be extended, extensions shall be allowed only for extended absence of the employee or for other similar reasons written into the rules and approved by the State Personnel Board Executive Officer.
(c) There shall be a written report of probationary performance at the end of the probationary period and such report will document whether the probationer is to be given permanent status. If the required performance report is not prepared, a probationer automatically acquires permanent status at the end of the probationary period unless formally rejected under Section 17493.
(d) Provisions shall be written into the rules to cover length of probationary periods for other than full-time employees.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17493. Rejection During Probationary Period.
Note
At any time an employee may be rejected from a probationary appointment without right of appeal or hearing, except that such rejection shall not be based on political affiliation or discrimination. A statement of cause for rejection shall be delivered to the employee in writing before the rejection shall be finally effective.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Subarticle 2. Performance Appraisal
§17495. Performance Appraisal.
Note
Each IMS agency should establish a systematic method of evaluating employee performance, which should influence such personnel management decisions as merit salary adjustment, need for training, performance improvement and order of layoff.In order to be recognized under these rules, such a system should meet all of the following criteria:
(a) It must be applied systematically to all employees in the department.
(b) It must require regular, periodic reports, at least once each year.
(c) Reports must be in writing, and there must be a system for retaining written reports.
(d) Performance rating criteria must be job related and objective and applied consistently to all employees in a class. (e) The employee shall have an opportunity to review and respond to each written performance evaluation before it becomes an official part of that employee's record.
(f) There must be a local agency administrative complaint process through which employees can challenge performance evaluations which are overall below standard or lower.(g) Employees must be made aware of the purposes for which performance reports are made and the personnel management decisions which will be influenced by employee performance reports.
(h) Performance reporting forms must be designed in such a way that overall performance which is superior and overall performance which is unacceptable are clearly distinguished from other possible ratings of overall performance.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Subarticle 3. Transfer
§17498. Transfer of Employee in the Same Class.
Note
The appointing authority may transfer an employee from a position in one organizational subdivision to another position in the same class in the same or another organizational subdivision. An employee may transfer from a position in one local agency to a position in the same class in another local agency upon mutual agreement of the employee and the receiving local agency and providing there is no reemployment list for the class of transfer in the receiving agency.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
(a) Transfer of an employee from a position in one class to a position in another class at substantially the same level shall be made only with the prior approval of the State Personnel Board Executive Officer. The knowledge and abilities of the classes must be so closely related that the employee can reasonably be expected to discharge the duties of the new class by the end of the probationary period.
(b) Transfers within the same local agency shall not result in salary increases that equal or exceed the difference between the salary for the class from which transfer is proposed and the salary for the next logical promotional class. Typically, the higher promotional class is the next higher class in a series.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Subarticle 4. Reduction in Force
Note • History
(a) Whenever it is necessary because of lack of funds or whenever it is otherwise in the best interests of the appointing authority to reduce staff, the appointing authority may lay off employees including those who have been granted an approved leave of absence. The order in which employees would be separated or demoted in a reduction in force shall be based upon type of appointment, seniority and to the extent practical, relative efficiency. If a performance reporting system is used to determine relative efficiency, it must meet the requirements of Section 17495.
(b) When a layoff is imminent in a local agency, the State Personnel Board Executive Officer may prohibit appointments, except from reemployment lists, to classes of potential layoff, lower level classes in the same series, and classes to which transfer under Section 17500 or 17515 could be made.
(c) If federal law or the United States Constitution requires the adjustment of the order of layoff pursuant to Government Code Section 19798, or if the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, a local agency may not proceed with a seniority-based layoff, but may have to adjust the order of layoff in accordance with Section 17520.
NOTE
Authority cited: Section 19803, Government Code. Reference: Sections 19798 and 19800, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.
HISTORY
1. New subsection (c) and amendment of Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
Note
The classes and geographic areas of layoff are to be determined by the appointing authority, subject to concurrence by the State Personnel Board Executive Officer.
Employees laid off in designated programs or geographic areas of a department shall have the right to displace employees in other programs or geographic areas of the department who are lower on the seniority list as determined by Section 17510.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17508. Seniority Score Computation.
Note • History
(a) Persons with permanent or probationary appointments in an IMS agency shall receive credit for all employment in agencies governed by LAPS Chapter 1 and Chapter 2 if that employment has not been broken by a permanent separation of 6 months. When there has been a permanent separation of 6 months or more, credit shall be given only for employment following such break in service. Persons hired from a reemployment list regain all previously earned seniority on the date of reemployment. An employee who transfers from a department covered by these rules to another department in the same local agency, and who subsequently returns without a permanent separation, retains seniority earned prior to the transfer from the IMS-covered department.
(b) Notwithstanding the provisions of 17508(a), employees on approved leaves of absence such as educational leave, military leave, maternity leave, and disability leave shall retain seniority accumulated before the leave of absence. The time on such approved leave of absence is not included in the seniority score computation. Time on industrial disability leave shall be included in the seniority score computation.
(c) One point seniority credit shall be given for each qualifying month of service.
(d) Twelve points shall be added to the seniority score of an employee with an overall rating of superior, outstanding or similar term denoting the highest rating category in the local agency performance appraisal system, on the last two regularly scheduled written performance reports. This provision applies only if the local rating system meets the provisions of Section 17495.
(e) When two or more employees have the same total seniority score, the tie shall be broken and preference given in the following sequence: employee with the greatest seniority in the class in which layoff is being made and in higher level classes; employee with the greatest seniority in the department of layoff; employee with the greatest seniority in agencies covered by LAPS Chapter 1 and Chapter 2; employee with the greatest seniority in the local agency; employee whose name is drawn by lot by the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Amendment filed 12-11-84; effective thirtieth day thereafter (Register 84, No. 50).
§17510. Order of Separation in Reduction in Force.
Note • History
(a) Separation of employees shall be in order in which their names appear on the seniority list for the affected class. Persons having the least seniority credit shall be separated first, except as otherwise provided in these rules.
(b) Employees in the same class shall be separated during a reduction in force in the following appointment sequence:
(1) Emergency
(2) Provisional
(3) Intermittent
(4) Limited term
(5) Permanent part time and permanent full time Within limited-term and permanent part-time and permanent full-time appointments, employees with probationary status in a class shall be laid off before employees with permanent status in the same class.
Exceptions to 17510(b) may be approved by the State Personnel Board Executive Officer upon request of the local agency.
(c) Employees who have been selectively certified by examination for special qualifications, or who have been employed from an examination given only for positions requiring special qualifications, shall be considered to be in separate classifications for purposes of reduction in force.
(d) The following provisions apply only if the local agency performance reporting system meets the provisions of Section 17495.
(1) Within each of the permanent appointment groups, probationary employees whose last recorded overall performance rating is unsatisfactory, unacceptable or similar term denoting the lowest rating category in the local agency performance appraisal system, shall be laid off before any other permanent or probationary employee.
(2) Within each of the permanent appointment groups, permanent employees whose last two recorded overall performance ratings are unsatisfactory, unacceptable or similar term denoting the lowest rating category in the local agency performance appraisal system, shall be laid off before any other permanent or probationary employee with satisfactory performance.
(e) Notwithstanding seniority provisions of these rules, employees in trainee level classes, as defined in the class specifications, shall be laid off or demoted in lieu of layoff before employees in first journey level classes in the same class series.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Editorial correction of subsection (d)(2) (Register 95, No. 40).
§17512. Notice to Affected Employee in Reduction-in-Force Situation.
Note
The State Personnel Board Executive Officer, or local agency to which such authority has been delegated, shall send written notice to each employee affected by a reduction in force at least 21 calendar days prior to the effective date of the action. The notice shall include the:
(a) Reason for layoff;
(b) Classes to which the employee has rights under Section 17514 to demote in lieu of layoff;
(c) Effective date of the action;
(d) Seniority score of the employee;
(e) Location of the seniority list so that employees may compare their scores with others;
(f) Formula by which the seniority score is computed;
(g) Appeal rights of the employee;
(h) Conditions governing retention on and reinstatement from reemployment lists;
(i) Rules regarding waiver of reinstatement and voluntary withdrawal from the reemployment list; and
(j) Other relevant information provided by the local agency or the State Personnel Board.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17514. Demotion in Lieu of Layoff.
Note
In lieu of being laid off, employees may elect demotion to:
(a) Any class with substantially the same or lower maximum salary in which they had permanent or probationary status; or
(b) A class in the same line of work as the class of layoff, but of lesser responsibility if such classes are designated by the State Personnel Board Executive Officer.
Demotion rights to specified classes may be applicable only within the department of layoff.
To be considered for demotion in lieu of layoff, employees must notify their appointing authority in writing of their election no later than seven calendar days after receiving the notice of layoff.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17515. Interdepartmental Transfer.
Note
When a local agency is experiencing layoffs in departments not covered by the Interagency Merit System the State Personnel Board Executive Officer may approve local agency requests for appointments of individuals being laid off from other departments to vacant positions in departments in the Interagency Merit System. The State Personnel Board Executive Officer shall determine, after consideration of the selection plans under which such individuals were hired, if the knowledge and abilities of the classes involved are sufficiently related that such employees can reasonably be expected to discharge the duties of the new class by the end of the probationary period. This section cannot be used for classes where there is a reemployment list in the Interagency Merit System department.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17516. Qualifying Month of Service.
Note
(a) When computing seniority for full-time employees the starting and ending months of a period of service shall be considered a complete month if the employee has 15 or more calendar days of service in the appropriate calendar month. No credit is given for less than 15 days of service. The State Personnel Board Executive Officer may approve a different method of computing months of full-time service to be consistent with the method used in the local agency for departments not covered by these regulations.
(b) For other than full-time employees, 160 hours worked shall be equivalent to one month's service and seniority credit shall be given upon the completion of each 160 hours worked. The State Personnel Board Executive Officer may approve a different method of computing months of part-time service to be consistent with the method used in a local agency for departments not covered by these regulations.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17518. Departmental Reemployment Lists.
Note
(a) The State Personnel Board Executive Officer shall establish departmental reemployment lists, and certify names from them, for all classes in which reduction in force occurs in local agency departments covered by these rules. Such reemployment list establishment and certification may be delegated to local agencies. Departmental reemployment lists shall remain in effect for three years. Reemployment lists may be extended by the State Personnel Board Executive Officer.
(b) Departmental reemployment lists shall contain the names of permanent employees who were laid off or demoted in lieu of layoff for each class. Local agencies shall fill all vacancies in affected classes with persons on appropriate class departmental reemployment lists based on type of appointment at time of layoff. Names shall be certified in inverse order of separation, the most senior first.
The highest available eligible who has expressed a willingness to accept employment shall be appointed. An employee whose name appears on an active departmental reemployment list will be allowed three waivers to offers of employment.
(c) Individuals may have their names removed from a departmental reemployment list and placed on an inactive list in accordance with the provisions of 17478(b). When an employee fails to reply to an offer of reemployment within 10 calendar days after mailing of the offer or, after accepting a job offer, fails to appear for work as scheduled, the employee's name will be placed on the inactive list. An employee's name may be restored to the active departmental reemployment list upon written request to the State Personnel Board Executive Officer or to the local agency to which certification for reemployment was delegated.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17519. Reemployment Lists from Other Departments Covered by These Regulations.
Note • History
Where there exists a reemployment list for the same class for another department covered by these rules in the same local agency, the State Personnel Board Executive Officer may require the use of the reemployment list to fill vacancies.
The provisions of Sections 17518(b) and (c) regarding waivers and placement on inactive lists apply. An appointment shall be made from among the highest ten available eligibles who have expressed a willingness to accept employment. If such a reemployment list has fewer than three names, however, the State Personnel Board Executive Officer may grant authority to make other types of appointments.
Employees appointed under these conditions may be required by the new appointing authority to serve a new probationary period. Such an appointment shall not remove a name from the reemployment list for the department from which the employee was laid off or demoted in lieu of layoff.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Amendment of second paragraph filed 12-15-2008; operative 1-14-2009. Exempt from the Administrative Procedure Act and OAL review pursuant to Government Code sections 18211 and 18213 and submitted to OAL for printing only (Register 2008, No. 51).
§17520. Modified Reduction-in-Force Process.
Note • History
(a) If a local agency is required by federal law or the United States Constitution to adjust the order of layoff pursuant to Government Code Section 19798, or if the failure to adjust the order of layoff in accordance with Government Code Section 19798 would result in ineligibility for a federal program and a loss of federal funds, the local agency shall be subject to the provisions of Government Code Section 19798 and regulations of the State Personnel Board governing the adjustment of layoff pursuant to that statute.
(b) Where the State Personnel Board, after a hearing, finds that past discriminatory hiring practices have occurred in a covered local agency department, that is subject to the provisions of Government Code Section 19798, the State Personnel Board may authorize modification of the layoff, demotion, or reemployment process of the departments under Interagency Merit System jurisdiction to remedy the effects of the discriminatory hiring practices.
NOTE
Authority cited: Section 19803, Government Code. Reference: Sections 19800 and 19798, Government Code; and Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16.
HISTORY
1. Amendment of section and Note filed 5-7-2003 subject to partial compliance with the Administrative Procedure Act and limited review by the Office of Administrative Law pursuant to Government Code section 18215; effective on filing pursuant to Government Code section 11343.4 (Register 2003, No. 19).
§17521. Alternate Procedure for Layoff and Reemployment Following Layoff.
Note
The State Personnel Board Executive Officer may approve alternate local agency systems for conducting a layoff in departments subject to these regulations. In order for such an alternate system to be approved, it must meet all of the following conditions:
(a) Be included in a charter provision, formal memorandum of understanding, or have been approved by the local governing board following public hearing.
(b) Give employees credit for all employment in all agencies governed by LAPS Chapters 1 and 2 on the same basis as credit is given for service in the local agency.
(c) Provide that employees with probationary or permanent status in a class shall be laid off after all other employees in that class.
(d) Provide a method for breaking tie scores.
(e) Be based on the factors identified in 17502(a) or other objective factor.
(f) Provide a minimum of 14 days' notice to affected employees.
(g) Establish a mechanism for appeals to be heard by an impartial body whose decisions are binding on the appointing authority.
(h) Include a provision which allows affected employees to demote in lieu of layoff.
(i) Include a provision that demoted or laid off employees have first priority, for a specified period of time, for vacancies in classes from which they were laid off or demoted in lieu of layoff.
Such alternate system approved by the State Personnel Board Executive Officer will be administered by the local agency, subject to review by the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code. Demotion, Reinstatement and Leaves
Subarticle 5. Demotion, Reinstatement and Leaves
Note
An appointing authority may demote an employee for disciplinary or medical reasons. An employee may demote in lieu of layoff. An employee may demote voluntarily with appointing authority approval. In all cases demotion shall be to a position in:
(a) A class determined by the State Personnel Board Executive Officer to be in the same series as the present class; or
(b) A class in which the employee has previously held permanent or probationary status; or
(c) A class, the knowledge and abilities of which, are determined by the State Personnel Board Executive Officer to be closely related to those of the employee's present class.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17527. Medical Demotion, Transfer or Termination.
Note
The provisions of this rule apply to employees with permanent or probationary appointments. An appointing authority may require an employee to submit to a medical examination by a physician or physicians designated by the appointing authority to evaluate the capacity of the employee to perform the work of the position. When such a requirement is made of an employee, fees for the examination shall be paid by the appointing authority. When the appointing authority, after considering the conclusions of the medical examination provided for by this section, or medical reports from the employee's physician, and other pertinent information, concludes that the employee is unable to perform the work of the present position, but is able to perform the work of another position including one of less than full time, the appointing authority may demote or transfer the employee to such a position.
When the appointing authority concludes that the employee is unable to perform the work of the present position, or any other available position in the agency, the appointing authority may terminate the employee. The appointing authority shall make reasonable job restructuring and other accommodation before demoting or terminating an employee under this section.
The appointing authority may demote, transfer, or terminate an employee, without requiring the employee to submit to a medical examination, when the appointing authority relies upon a written statement submitted to the appointing authority by the employee as to the employee's condition, or upon medical reports submitted to the appointing authority by the employee.
The employee shall be given written notice 15 calendar days prior to the demotion, transfer or termination. No later than 30 calendar days following the notification of action, the employee may file an employment rights appeal as provided in Article 8 of these rules.
If it is determined by the appointing authority, or the State Personnel Board upon petition of the employee, that the employee who was terminated, demoted, or transferred in accordance with this section is no longer incapacitated for duty, the employee shall be reinstated to a vacant position in the class from which he or she was originally removed, in a comparable class, or in a lower related class. If there is no vacant position in the class from which the employee was originally removed, the name of the employee shall be placed upon the reemployment list for that class and upon such other reemployment lists as are determined to be appropriate by the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note • History
(a) Permissive Reinstatement. Upon request of an appointing authority to the State Personnel Board Executive Officer, a person who has held permanent or probationary status in the IMS shall be eligible for reinstatement. Reinstatement may be made to any class in which the employee previously had permanent or probationary status, or to another class with substantially the same duties as determined by the State Personnel Board Executive Officer. An appointing authority may require a reinstated employee to serve the probationary period for the class to which the employee is reinstated.
(b) Mandatory Reinstatement After a Nonpermanent Appointment. A permanent or probationary employee who has accepted an emergency, limited-term or provisional appointment in a higher class within the same agency shall, if the employee so desires at the termination of that appointment, be reinstated to a position in the former class.
(c) Mandatory Reinstatement After an Exempt Appointment. An employee with permanent status in the IMS who has accepted an exempt appointment as county welfare director or deputy director in the same or another IMS agency shall, if the employee so desires at the termination of that appointment, be reinstated to a position in the former class.
(d) Mandatory Reinstatement After Rejection During Probation. A permanent appointee who has vacated a position within a department or subdivision that is in IMS in a county to accept another position within the same or another department or subdivision that is in IMS in the same county, and who is rejected during the probationary period, shall be reinstated to a position in the former class, except if dismissed under Section 17544. Reinstatement shall be reported to the State Personnel Board Executive Officer by the appointing authority on the appropriate personnel document.
NOTE
Authority cited: Section 19801, Government Code. Reference: Section 19800, Government Code; and Karen Patchin (1998) SPB Dec. No. 98-06.
HISTORY
1. Amendment of subsection (d) and Note filed 3-24-2000; operative 3-24-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 12).
§17530. Absence Without Leave.
Note
Absence without leave, whether voluntary or involuntarily, for five consecutive working days may be considered an automatic resignation by the local agency.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
An approved absence from duty without pay of an employee for a period not exceeding 20 working days will not be considered a break in service.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17534. Approved Leaves of Absence.
Note
With the approval of the appointing authority, a permanent or probationary employee may be granted a leave of absence without pay or with partial or full pay. Except for military, education and disability leaves, the provisions of Section 17508 regarding loss of previously earned seniority credit apply to leaves that exceed six months. The State Personnel Board Executive Officer may waive this provision in order to be consistent with the rules regarding leaves of absence used by a local agency for departments not covered by these regulations.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The State Personnel Board Executive Officer shall establish and maintain a service record for each employee in the Interagency Merit System.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 7. Disciplinary Action
Note
As used in these regulations, disciplinary action means dismissal, demotion, reduction in compensation, suspension, or any other disciplinary action that affects the employee's present status. The appointing authority, or a designated representative of that authority, may take disciplinary action against an employee for the causes specified in this Article. Under these rules rejection during probation is not a disciplinary action.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17544. Cause for Disciplinary Action.
Note
The action of an employee which reflects discredit upon a public service, or is a hindrance to the effective performance of the department in which the employee is employed shall be considered good cause for discipline. Such actions are:
(a) Incompetency
(b) Inefficiency
(c) Neglect of duty
(d) Insubordination
(e) Absence without leave
(f) Conviction of a felony
(g) Discourteous treatment of the public or other employees
(h) Improper political activity
(i) Willful disobedience
(j) Willful concealment or misrepresentation of material facts in applying for or securing employment
(k) Other conduct either during or outside of duty hours which causes discredit to the agency or the employment
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17546. Notice of Disciplinary Action.
Note
Written notice of disciplinary action shall be served on the recipient personally, or by certified mail.
For employees with permanent status in the class of employment or another class in the Interagency Merit System, such written notice shall be served at least five calendar days prior to the effective date of any disciplinary action, and shall include:
(a) A description of the action taken and its effective date or dates;
(b) A clear and concise statement of the reasons for such action including the acts or omissions on which the disciplinary action is based;
(c) A statement advising the employee of the right to appeal to the State Personnel Board and the time within which the appeal must be made;
(d) A statement that a copy of the materials upon which the action is based is attached or available for inspection upon request; and
(e) A statement advising the employee of the right to respond either verbally or in writing, to the authority proposing the action prior to its effective date.
For employees without permanent status in the class of employment or another class in the Interagency Merit System, such written notice shall be served no later than 15 calendar days after the effective date of any disciplinary action, and shall include items (a), (b) and (c) above.
The notice of disciplinary action shall conform to standards approved by the Executive Officer.
A copy of the notice of disciplinary action shall be filed with the State Personnel Board Executive Officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17548. Disciplinary Action Becomes Final.
Note
If the employee fails to appeal a disciplinary action within the time specified, or, after appealing, withdraws his appeal, the disciplinary action taken by the appointing power shall be final.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 8. Appeals, Grievances and Complaints
Note
(a) Employment Rights Appeals--As provided in Government Code Section 19803, the State Personnel Board shall hear and decide employment rights appeals. The following actions, when taken against employees with permanent status in the Interagency Merit System, are appealable to the State Personnel Board: Involuntary demotion, dismissal, suspension, medical termination or transfer, automatic resignation, reduction in pay for disciplinary reasons, other disciplinary action that affects the employee's present status, layoff, refusal to hire from a reemployment list, and grievances involving discrimination or political affiliation. Grievances involving discrimination or political affiliation shall be processed as provided in Sections 17570-17575, and be filed with the State Personnel Board only if not resolved locally.
Rejection during probation is not appealable to the State Personnel Board unless such rejection is alleged to be on the basis of discrimination or political affiliation.
Employment rights appeals shall be processed as provided for in Sections 17552-17567 of these rules.
(b) Selection Process Appeals--Employees and applicants may appeal selection process decisions as provided in Sections 17580-17582 of these rules.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
(a) Where the term grievance is defined in a local memorandum of understanding, ordinance or resolution applicable to employees in positions covered by these rules, that definition shall be used in lieu of the definition in Section 17571. Where the term grievance is not defined in a local memorandum of understanding, ordinance or resolution applicable to employees in covered positions, the definition in Section 17571 shall be used.
(b) Grievances shall be processed as provided in applicable local memoranda of understanding, ordinances or resolutions. If there is no memorandum of understanding, ordinance or resolution for covered positions, the Interagency Merit System grievance procedure described in Sections 17571-17572 shall be used.
(c) If an employee grievance alleges the improper act or failure to act was due to discrimination in terms of race, color, sex, age, handicap, religious creed, national origin, ancestry, marital status or other categorization identified by statute; the employee shall be allowed to use either the applicable grievance procedure or the discrimination complaint procedure described in Section 17575. The employee shall not use both procedures for the same complaint.
Under either procedure the employee has the further right of appeal to the State Personnel Board.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Subarticle 1. Processing Employment Rights Appeals
§17552. Initiation of Employment Rights Appeals.
Note
Except as otherwise provided in Section 17567, all employment rights appeals shall be filed in writing with the State Personnel Board within 30 calendar days from the date of the action, or notification of action against which the appeal is made.
Appeals shall state the facts upon which they are based, and the relief requested in sufficient detail to enable the State Personnel Board to understand the nature of the proceeding and the parties concerned.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17553. Referral to Hearing Officer.
Note
When there is filed with the State Personnel Board an employment rights appeal; such filing shall automatically operate as the reference of every such proceeding to the hearing officer for hearing, or investigation without hearing as appropriate; but no such reference shall preclude the State Personnel Board from recalling the proceeding for hearing or investigation by it. Any proceeding may be assigned by the State Personnel Board or its president to the hearing officer for hearing or investigation. In any case, when a proceeding has been assigned to the hearing officer, the hearing officer is the authorized representative of the State Personnel Board and is fully authorized and empowered to grant or refuse extensions of time, to set such proceeding for hearing, to conduct a hearing or investigation in every such proceeding, and to perform any and all other acts in connection with such proceeding that may be authorized by law or these rules.
The State Personnel Board Hearing Officer shall mail to or serve on the respondent a copy of the appeal.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17554. Amended Notice of Disciplinary Action.
Note
At any time before an employee's appeal is submitted to the State Personnel Board or its authorized representative for decision, the appointing authority may, with the consent of the Board, or its authorized representative serve on the employee and file with the Board an amended or supplemental notice of disciplinary action.
If the amended or supplemental notice presents new causes or allegations, the employee shall be afforded a reasonable opportunity to prepare a defense thereto, but he shall not be entitled to file a further appeal unless the State Personnel Board or its authorized representative so orders. Any objections to the amended or supplemental causes or allegations may be made orally at the hearing and shall be noted in the record.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The employee and local agency shall be given written notice of hearing.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17556. Scope of Hearing Involving Convictions.
Note
In the case of dismissal under the provisions of Section 17544(f), the scope of the appeal shall be limited to the issues of the nature of the offense and the jurisdiction of the court.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17557. Evidence Submitted in Hearing.
Note
Oral evidence shall be taken only on oath or affirmation.
Each party shall have these rights: to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issue, even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called the witness to testify; and to rebut the evidence.
If appellants do not testify in their own behalf they may be called and examined as on cross-examination.
The hearing need not be conducted according to technical rules of evidence. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
Hearsay evidence shall be admitted and may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a dismissal, suspension, or demotion unless it is the type of hearsay admissible over objection in a civil action. The rules of privilege shall be effective to the same extent to which they are now or may hereafter be recognized in civil actions.
Irrelevant and unduly repetitious evidence shall be excluded.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17558. Right of Representation.
Note
The appellant and local agency may be represented by counsel or other representation.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The State Personnel Board shall issue at the request of the parties, subpoenas and subpoenas duces tecum in accordance with the provisions of Section 1985 of the Code of Civil Procedure.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
The State Personnel Board may order the taking of depositions in the manner prescribed in Section 11511 of the Government Code.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
In all appeals involving dismissal or demotion the proceedings shall be recorded.
Proceedings involving other issues need not be recorded but either party may at its own expense provide a recorder for the hearing.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
All hearings shall be public except when the parties stipulate otherwise.
At the request of either party and in the sound discretion of the hearing officer, witnesses who have not testified may be excluded from the hearing room until such time as they are called to testify.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Whenever the decision of the local agency is found to be supported by substantial evidence it shall be affirmed; provided, however, that the State Personnel Board may reduce the severity of the action and make such other orders as are just and proper under the circumstances.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
In all cases referred or assigned to the hearing officer for hearing or investigation, the hearing officer shall submit to the State Personnel Board a proposed decision in such form that it may be adopted as the decision of the State Personnel Board.
The proposed decision shall include findings of fact. The findings may be stated in the language of the pleadings or by reference thereto and shall include determination of all relevant issues presented. A copy of the proposed decision shall be filed with the State Personnel Board as a public record. Upon the filing of the proposed decision, the State Personnel Board may adopt it in its entirety; may take action in accordance with Section 17563; or may itself decide the case upon the record, including the transcript, with or without taking additional evidence, except in appals where no transcript shall be required, and where in the absence of a transcript the Board may act upon its own investigation of the facts.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Note
Any party to the appeal, within 30 calendar days after service of a copy of the decision on such party, may apply for a rehearing by filing with the State Personnel Board a written petition therefor. Within 30 calendar days after such filing, a copy of the petition shall be served upon the other party to the proceedings. Within 60 calendar days after such service of the petition for rehearing, the State Personnel Board itself shall either grant or deny the petition in whole or in part. Failure to act upon a petition for rehearing within this 90-day period shall constitute a denial of the petition. If a rehearing is granted, the State Personnel Board may either rehear the case itself, decide the case on the pertinent parts of a prior hearing and such additional evidence and argument as the State Personnel Board shall in its discretion permit, or may refer the matter to a hearing officer.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17566. Decision Becomes Final.
Note
Unless proper application for rehearing is made, the decision on every Interagency Merit System appeal shall become final 30 calendar days after service of a copy of the decision on the parties to the proceedings.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17567. Use of Local Agency Process.
Note • History
The State Personnel Board may permit use of a local agency procedure, rather than the procedures in Sections 17553-17566, to resolve an employment rights appeal; if such is requested by the employee and the local agency prior to the beginning of formal hearing officer proceedings. When the Board permits use of a local agency procedure for resolving an employment rights appeal, the following is required:
(a) The appellant shall formally waive the right to decision by the State Personnel Board on a waiver form provided by the Executive Officer.
(b) The resolution procedure to be used shall be an impartial procedure that meets the requirements of Section 17030(g).
(c) The decision resulting from the local procedure shall be binding upon the parties to the dispute.
NOTE
Authority cited: Section 19801, Government Code. Reference: Section 19803, Government Code.
HISTORY
1. Amendment of subsection (b) filed 5-29-81; effective thirtieth day thereafter (Register 81, No. 22). Grievance Procedures
Subarticle 2. Grievance Procedures
Note
Grievances shall be defined and processed as provided in local memoranda of understanding, ordinances or resolutions applicable to employees in positions covered by these rules. If there is no such memorandum of understanding, ordinance or resolution for covered positions, the Interagency Merit System grievance procedure described in Sections 17571-17572 shall be used.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17571. General Provisions of Interagency Merit System Grievance Procedure.
Note
(a) A grievance exists whenever an employee feels adversely affected by any action or failure of action by the employee's appointing authority, a supervisor, or another employee in the same department.
(b) Except in the informal part of the first level of review in the grievance procedure, a written decision shall be rendered to an employee at each level of review. The decision at each level, unless the time limit is extended by mutual agreement, shall be given within 10 calendar days of receipt of the grievance. An employee who is not satisfied with the decision may, within 10 calendar days after receiving such decision, submit the grievance to the next level of review.
If no agreement on extension of time for rendering a decision has been made, and if the decision has not been given within the stipulated time, an employee may submit the grievance to the next level of review within 10 calendar days of the date such decision was due.
Failure by an employee to submit the grievance to a level of review within the time limit, unless that limit is extended by mutual agreement, shall terminate the grievance process.
Any level of review may be omitted if it is jointly agreed to by the employee and the appointing authority.
(c) The grievance procedure shall consist of a maximum of four levels of review. Another person or body of persons may be substituted for any level of review if mutually agreed to by the employee and the appointing authority.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17572. Steps in the Interagency Merit System Grievance Procedure.
Note
(a) First Level of Review. The employee grievance shall be discussed on an informal basis with the immediate supervisor within 21 calendar days from the date of the action or the employee's knowledge of the action causing the grievance. Every effort shall be made to resolve the grievance at this level and, if necessary, should include conferences among supervisory or administrative personnel.
In this first step of the grievance process, the immediate supervisor shall, at the time the verbal decision is rendered, advise the employee of the right to file a written grievance within 10 calendar days for further consideration.
If a grievance is not resolved informally between the employee and supervisor, a written grievance may be prepared. It should be on an appropriate form; shall be definitive, identify the action requested, and shall be submitted to the immediate supervisor for review and written response.
(b) Second Level of Review. This level shall consist of any of the following persons who have been designated by the appointing authority to hear employee grievances:
(1) Second-line supervisor or administrator within the agency; or
(2) The agency personnel officer.
(c) Third Level of Review. This level shall be the appointing authority.
(d) Final Level of Review. This level shall be the local governing board or its designated representative. The decision rendered at this level is the final administrative remedy provided for within the grievance procedure.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17575. Alternate Process for Resolving Grievances Involving Allegated Discrimination.
Note • History
If an employee grievance alleges the improper act or failure to act was due to discrimination in terms of race, color, sex, age, handicap, religious creed, national origin, ancestry, marital status, or other categorization identified by statute; the employee shall be allowed to use either the grievance procedure or the following discrimination complaint procedure. The employee shall not use both procedures for the same complaint.
(a) First Step. The aggrieved employee may discuss the complaint informally with an Equal Employment Opportunity (EEO) Counselor. The EEO Counselor shall be a person trained in EEO procedures and counseling techniques to provide informal counseling on matters pertaining to discrimination. Such discussion and counseling shall be initiated within 21 calendar days of the alleged discriminatory action.
(b) Second Step. No later than 10 calendar days following conclusion of informal counseling, the aggrieved employee may file a formal written discrimination complaint with an Equal Employment Opportunity (EEO) Investigator. The EEO Investigator shall be a person trained in EEO procedures and investigative techniques to provide formal investigation of matters pertaining to discrimination. The EEO Investigator shall submit to the appointing authority, within 21 calendar days, a formal written report covering the specific complaint, relief sought, findings of fact, and recommend action.
(c) Final Step. If the aggrieved employee and appointing authority agree with the recommended action in the EEO Investigator's written report, and the appointing authority has the authority to implement it, it shall be implemented. Otherwise a decision on the formal complaint shall be made by the local governing board or its designated representative within 21 calendar days from the time it was filed with the governing board.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
HISTORY
1. Editorial correction of subsection (a) (Register 95, No. 40).
§17576. Further Appeal of Grievances.
Note
Regardless of whether the grievance was processed under Section 17570, 17572, or 17575, a grievance alleging discrimination or adverse treatment due to political affiliation may be appealed to the State Personnel Board if not satisfactorily resolved through local agency processes.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Subarticle 3. Examination Appeals
§17580. Selection Process Appeal Procedures.
Note
The State Personnel Board Executive Officer shall establish procedures for the timely hearing of examination appeals prior to final review and decision by the State Personnel Board. Any correction in ratings shall not affect appointments which may have already been made from the eligible list.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17581. Processing of Examination Appeals.
Note
Employees and applicants may appeal selection process decisions on the following grounds:
(a) For alleged irregularity, discrimination, bias, or fraud in one or more steps in an examination, or
(b) For alleged improper acts or circumstances resulting in erroneous interpretation and application, by the examiners, of the skills, knowledge and abilities considered to be essential for satisfactory performance in the class for which the candidate is being examined.
Appeals of decisions from selection procedures must be filed with the State Personnel Board within 30 calendar days after the date on which notification of the results of such procedure was mailed to the candidate.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17582. Examination Material Available to Appellant.
Note
Sufficient examination material shall be made available to an appellant to explain the basis for the examination decision, and to confirm the computation of the appellant's score. No access to examination items will be allowed if in the judgment of the State Personnel Board Executive Officer such access would result in unfair advantage to a competitor in a future examination.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Article 9. Cooperation with Other Merit System Agencies
§17588. Certification from Eligible Lists of Other Merit Systems.
Note
At the request of an Interagency Merit System appointing authority, and with the approval of the agency for which the eligible list was prepared, the State Personnel Board Executive Officer may authorize that appointing authority to use an existing eligible list for a comparable class established in conformity with these standards but under another recognized merit system.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17590. Transfer or Reinstatement from Other Merit Systems.
Note
Upon the request of an Interagency Merit System appointing authority, a person who has held permanent status in another recognized merit system shall be eligible for reinstatement or transfer to an appropriate vacant position in the same class, comparable class or in a lower related class in the Interagency Merit System in accordance with standards established by the State Personnel Board Executive Officer. This section shall not be used for a class for which the receiving agency has a reemployment list.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
§17592. Interagency Assignments.
Note
For the purpose of training or to obtain maximum utilization of available staff, employees may be temporarily assigned or loaned between agencies. Each such temporary assignment or loan must be agreed to by the employee concerned and shall not initially exceed a period of two years. Extensions are subject to the approval of the State Personnel Board Executive officer. Employees from other jurisdictions will not gain status in the Interagency Merit System through such training assignments or loans. The assignment may be terminated by any of the parties involved at any time. Employees participating in such assignments shall be considered for all purposes of this Article and these regulations as employees of the agency from which they were loaned or assigned except that their salary may be paid as agreed upon by the participating agencies.
NOTE
Authority cited: Section 19803, Government Code. Reference: Section 19800, Government Code.
Division 6. Fair Political Practices Commission
(Originally Printed 1-11-75)
Chapter 1. General
§18109. Storage of Originals and Copies of Reports (81009). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 81009, Government Code.
HISTORY
1. New section filed 4-30-76; effective thirtieth day thereafter (Register 76, No. 18). For prior history of Chapter 1, see Register 75, No. 45.
2. Repealer filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
§18110. Duties of Filing Officers--Campaign Statements.
Note • History
(a) It shall be the duty of a filing officer pursuant to Government Code section 81010(b) in connection with the filing of candidate and committee campaign statements pursuant to Chapter 4 or 5 of the Political Reform Act to determine whether required documents have been filed.
(1) In order to fulfill his or her duty to determine whether required documents have been filed, if the filing officer is aware that a candidate or committee has an obligation to file a campaign statement and has failed to do so, the filing officer shall notify the candidate or committee of the obligation to file a statement.
(2) In determining whether required documents have been filed, the filing officer shall not be required to conduct any investigation to determine whether a committee or candidate has an obligation to file a campaign statement. This subdivision is not intended to prevent the filing officer from performing such an investigation.
(b) It shall be the duty of the filing officer pursuant to Government Code section 81010(b) in connection with the filing of candidate and committee campaign statements to determine whether original documents filed conform on their face with the requirements of the Political Reform Act and regulations adopted pursuant to the Act.
(1) The filing officer, in determining whether campaign statements conform on their face with the Political Reform Act and the regulations adopted pursuant to the Act, shall not be required to:
(A) Seek or obtain information to verify entries on a campaign statement.
(B) Examine previously filed statements, copies of statements filed, or statements filed in other jurisdictions in order to verify the accuracy of current statements.
(C) Review copies of statements where the original is filed with another agency. This subdivision (1) is not intended to prevent the filing officer from performing the tasks specified in this subdivision.
(2) In determining whether original documents filed conform on their face, the filing officer shall review:
(A) All statements to insure that they contain the full name, residential or business address and phone number of the filer or if a committee is the filer, the name, street address and phone number of the committee and of the committee treasurer.
(B) All statements to insure that they have been signed and dated by the proper person as outlined below:
1. Statements of recipient committees signed and dated by the treasurer, and statements of all other committees signed and dated by the filer or his or her designated agent.
2. Statements of controlled committees signed and dated by the treasurer and the candidate or state measure proponent.
3. Candidate statements signed and dated by the candidate.
(C) All statements to insure that they are legible, are printed in ink or typewritten, and that readable reproductions can be made.
(D) All statements to insure that beginning and closing dates for the statement which are prescribed by law are accurate.
(E) All statements to insure that the following information is contained in the statement:
1. The total amount of contributions received during the period and the cumulative total amount of contributions. Government Code section 84211(a).
2. The total amount of expenditures made during the period and the cumulative total amount of expenditures. Government Code section 84211(b).
3. The total amount of contributions received from persons who have given $100 or more. Government Code section 84211(c).
4. The total amount of contributions received from persons who have given less than $100. Government Code section 84211(d).
5. The total amount of expenditures disbursed to persons who have received $100 or more. Government Code section 84211(i).
6. The total amount of expenditures disbursed to persons who have received less than $100. Government Code section 84211(j).
7. The balance of cash and cash equivalents on hand at the beginning and end of the period. Government Code section 84211(e).
8. For each person listed as contributor or lender of a cumulative amount of $100 or more, the complete name, address, occupation and employer, if any (or name of business if described as self-employed), cumulative amount contributed, date and amount of contribution, and if the contribution is a loan, the interest rate for the loan. Government Code section 84211(f).
9. For each recipient committee listed as a contributor or lender of a cumulative amount of $100 or more, in addition to the information specified in subdivision 8, above, the identification number assigned to the committee by the Secretary of State or, if no identification number has been assigned, the full name and address of the treasurer of the committee. Government Code section 84211(m).
10. For each person listed as a recipient of expenditures of $100 or more during the period, the complete name of the payee, the address, the amount of each expenditure, a brief description of the consideration for which the expenditure was made and, if the statement indicates a person other than the payee provided the consideration, the complete name and address of the person providing the consideration. Government Code section 84211(k).
11. For each committee listed as a recipient of an expenditure of $100 or more, in addition to the information specified in subdivision 10, above, the identification number assigned to the committee by the Secretary of State or, if no identification number has been assigned, the full name and address of the treasurer of the committee. Government Code section 84211(m).
12. If the statement is filed by a candidate, the name and street address of committees which are primarily formed to make contributions or expenditures on behalf of the candidate, along with the name, street address and phone number of the treasurer of each such committee and whether such committee is controlled by the candidate and the same information for any other committee controlled by the candidate. Government Code section 84211(p).
13. In a campaign statement filed by a candidate who is a candidate in both a state primary and general election, his or her controlled committee, or a committee primarily formed to support or oppose such a candidate, the total amount of contributions received and the total amount of expenditures made for the period January 1 through June 30 and the total amount of contributions received and expenditures made for the period July 1 through December 31. Government Code section 84211(n).
(F) All statements to insure that there are no gross or readily apparent errors in arithmetical calculations.
(c) It shall be the duty of the filing officer pursuant to Government Code section 81010(c) in connection with the filing of candidate and committee campaign statements:
(1) To accept for filing any campaign statement which the Act requires to be filed with the filing officer.
(2) To datestamp on the day of receipt, any campaign statement or report required to be filed with the filing officer.
(3) In those cases where the filing officer discovers in his or her review of campaign statements that a candidate or committee has filed an incorrect, incomplete or illegible campaign statement or a campaign statement which cannot be reproduced, he or she shall promptly notify the candidate or committee of the error or omission. However, no notification is required in those cases in which the errors or omissions are minor ones which do not recur throughout the campaign statement. An error or omission is minor if it does not result in omission of the amount of an individual contribution or expenditure. An error or omission in connection with the identification of a donor or intermediary is minor if such person is identified by name and either street address, occupation, employer or principal place of business. An error or omission in connection with the identification of the recipient of an expenditure or person providing consideration for an expenditure is minor if such person is identified by name.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 81010, Government Code.
HISTORY
1. New section filed 3-31-78; effective thirtieth day thereafter (Register 78, No. 13).
2. Amendment of subsection (b)(2)(E) filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
3. Amendment filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2).
4. Editorial correction of subsection (b)(2)(E) (Register 81, No. 9).
5. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
6. Amendment filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
7. Amendment filed 11-13-85; effective thirtieth day thereafter (Register 85, No. 46.).
8. Editorial correction filed 12-13-85 (Register 85, No. 50). Ed. Note: No change in text.
9. Amendment of subsection (c) filed 10-24-88; operative 11-23-88 (Register 88, No. 45).
10. Editorial correction of subsection (b)(2)(E)8.-9. (Register 96, No. 43).
11. Amendment of subsections (a)(2), (b)(2)(A), (b)(2)(B)1.-2., (b)(2)(E), (b)(2)(E)9., and (b)(2)(E)11., and repealer of subsection (b)(2)(F) and subsection relettering, filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
12. Amendment of subsection (a) filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
13. Amendment filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
§18115. Duties of Filing Officers and Filing Officials-- Statements of Economic Interests.
Note • History
The filing officer is the person or agency which receives and retains original statements of economic interests (Section 87500). The duties of filing officers are set forth in subsection (a) of this regulation. Subsection (b) of this regulation describes the duties of agency officials who receive original statements of economic interests and are required to make and retain a copy of such statements and forward the original to the filing officer.
An official who is both a filing officer and an official who receives statements and forwards the originals to the filing officer will have duties under subsections (a) and (b) of this regulation.
(a) Filing officers who are responsible for statements of economic interests shall:
(1) Supply the necessary forms and manuals prescribed by the Fair Political Practices Commission;
(2) Determine whether the proper statements have been filed and whether:
(A) The cover sheet includes the name and address of the filer, the period covered and type of statement;
(B) The summary page is completed, and the required schedules are attached as indicated;
(C) All information is legible, and readable reproductions of the statement can be made.
(3) Promptly notify the filer if a statement does not satisfy the requirements of subsection (a)(2).
(4) Review the information contained in at least 20 percent of the statements which are filed on time, at least half of which must be selected on a random basis, and the information contained in all statements which are filed late, to determine whether:
(A) The summary page is completed correctly, and all schedules applicable to the filer are either attached or checked “no reportable interests.”
(B) The attached schedules include all required descriptive information for each financial interest.
(C) Information contained on one schedule suggests that required information is omitted on either that schedule or another schedule.
(5) Promptly notify the filer if the review of the schedules indicates that the filing is incomplete or incorrect in any material respect.
(6) Report apparent violations of the Political Reform Act to the appropriate agencies. An apparent violation exists when:
(A) The filing officer knows or has reason to believe that the statement contains material inaccuracies or omissions;
(B) A filer fails to file all or part of his statement or refuses to file all or part of his statement after reasonable notice has been provided by the filing officer.
(7) Compile and maintain a current list of all statements filed with the office.
(b) Agency officials who receive statements of economic interests and forward those statements, as required by Government Code Section 87500, to the filing officer shall:
(1) Forward the statements to the filing officer no later than five days after the filing deadline or five days after receipt in the case of a statement filed late. The official shall indicate the date of the agency's receipt on the face of the statement and shall also make and retain a copy of each statement forwarded to the filing officer;
(2) Supply the necessary forms and manuals prescribed by the Fair Political Practices Commission;
(3) Notify the filing officer of the following events within ten days of their occurrence:
(A) An election held in the jurisdiction, the names of the candidates, the persons elected, and the office to which each person was elected;
(B) A vacancy in an office;
(C) Any other event affecting filing obligations.
(4) Notify the filing officer no later than February 1 of each year of the names and positions of every person whose statements must be forwarded to the filing officer;
(5) Compile and maintain a current list of all statements forwarded to the filing officer.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81010 and 87500, Government Code.
HISTORY
1. New Chapter 1 (Section 18115) filed 11-4-75; effective thirtieth day thereafter (Register 75, No. 45).
2. Amendment of section title filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
3. Amendment filed 10-2-78; effective thirtieth day thereafter (Register 78, No. 40).
4. Amendment filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
5. Amendment of section heading and NOTE filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
6. Editorial correction of section heading filed 10-29-82 (Register 82, No. 44).
7. Amendment of subsection (a) filed 7-16-85; effective thirtieth day thereafter (Register 85, No. 29).
§18116. Reports and Statements; Filing Dates.
Note • History
(a) Except as set forth in subdivision (b), whenever the Political Reform Act requires that a statement or report be filed prior to or not later than a specified date or during or within a specified period, and the deadline falls on a Saturday, Sunday, or official state holiday, the filing deadline for such a statement or report shall be extended to the next regular business day.
(b) This extension does not apply to any of the following:
(1) Contribution reports required by Sections 84203, 84203.3(b), or 85309 or notice by the contributor of a late in-kind contribution required by Section 84203.3(a) when the due date for these types of reports falls on a Saturday, Sunday, or official state holiday immediately prior to an election.
(2) Independent expenditure reports required by Sections 84204 or 85500.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82036, 82036.5, 84203, 84203.3, 84204, 85309 and 85500, Government Code.
HISTORY
1. New section filed 12-27-77; effective thirtieth day thereafter (Register 77, No. 53).
2. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
3. Amendment of subsections (b) and (c) filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
4. Amendment of subsection (a) and repealer of subsection (a) designator and subsections (b) and (c) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment of section and Note filed 2-17-2011; operative 3-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 7).
§18117. Duties of Filing Officers and Filing Officials -- Effect of Non-Compliance on Filing and Disclosure Obligations.
Note • History
The failure of a filing officer or filing official to comply with any duty or provide notice of any filing or disclosure obligation shall not affect the duty of a person to file statements and reports disclosing information as required by this title or any conflict of interest code enforceable under this title.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81010, 82015(b)(2)(B)(iii), 84101, 84103, 84108, 84200-84209, 84218, 84220, 84225, 84511, 84605, 85304, 85309, 85310, 85500, 86100-86117, 87200-87205, 87302 and 87302.6, Government Code.
HISTORY
1. New section filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
Chapter 2. Definitions
Note • History
As used in this Division, the following terms have the following meanings:
(a) “Act” refers to the Political Reform Act as set forth in Title 9 (commencing with Section 81000) of the Government Code.
(b) “Regulation” refers to this Division, Division 6 of Title 2 of the California Code of Regulations, unless otherwise specified.
(c) “Section” refers to the Government Code, unless otherwise specified.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81000, 83111 and 83112, Government Code.
HISTORY
1. Change without regulatory effect adding section filed 10-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 44).
2. Change without regulatory effect amending section heading and section filed 3-19-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 12).
§18202. Quasi-Legislative Administrative Action.
Note • History
(a) A proceeding of a state agency is not a quasi-legislative proceeding for the purposes of Government Code Section 82002 if it is any of the following:
(1) A proceeding to determine the rights or duties of a person under existing laws, regulations or policies.
(2) A proceeding involving the issuance, amendment or revocation of a permit or license.
(3) A proceeding to enforce compliance with existing law or to impose sanctions for violations of existing law.
(4) A proceeding at which an action is taken involving the purchase or sale of property, goods or services by such agency.
(5) A proceeding at which an action is taken which is ministerial in nature.
(6) A proceeding at which an action is taken awarding a grant or contract.
(7) A proceeding involving the issuance of a legal opinion.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82002, Government Code.
HISTORY
1. New section filed 9-18-75; effective thirtieth day thereafter (Register 75, No. 38). For prior history of Chapter 2, see Register 75, No. 27.
2. Amendment filed 11-10-83; effective thirtieth day thereafter (Register 83, No. 46).
§18204.5. Substantial or Regular--Local Government Employees. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82039 and 86105-86109, Government Code.
HISTORY
1. New section filed 3-3-75 as an emergency; effective upon filing (Register 75, No. 10).
2. Repealer filed 6-30-75 as an emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 27).
§18208.5. Lobbyist Firms--Definitions and Reporting Requirements. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86108, Government Code.
HISTORY
1. New section filed 4-10-75 as an emergency; effective upon filing (Register 75, No. 15).
2. Repealer filed 8-1-75 as an emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 31).
Note • History
(a) A contribution is any payment made for political purposes for which full and adequate consideration is not made to the donor. A payment is made for political purposes if it is:
(1) For the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate or candidates, or the qualification or passage of any measure; or
(2) Received by or made at the behest of the following or any agent thereof:
(A) A candidate;
(B) A controlled committee;
(C) An official committee of a political party, including a state central committee, county central committee, assembly district committee or any subcommittee of such committee; or
(D) An organization formed or existing primarily for political purposes, including, but not limited to, a political action committee established by any membership organization, labor union or corporation.
(b) The term “contribution” includes:
(1) Certain Payments to Nonprofit Organizations and Federal or Out-of-State Political Organizations Active in California Elections. Any payment made to a person or organization other than a candidate or committee, when, at the time of making the payment, the donor knows or has reason to know that the payment, or funds with which the payment will be commingled, will be used to make contributions or expenditures. If the donor knows or has reason to know that only part of the payment will be used to make contributions or expenditures, the payment shall be apportioned on a reasonable basis in order to determine the amount of the contribution.
There shall be a presumption that the donor does not have reason to know that all or part of the payment will be used to make expenditures or contributions, unless the person or organization has made expenditures or contributions of at least $1,000 in the aggregate during the calendar year in which the payment occurs, or any of the immediately preceding four calendar years. A donor to such a person or organization shall be identified and reported as provided in Regulation 18412.
(2) Candidate's Own Money. A candidate's own money or property used on behalf of his or her candidacy.
(3) Discounted Goods or Services. Any goods or services received by or behested by a candidate or committee at no charge or at a discount from the fair market value, unless the discount is given in the regular course of business to members of the public.
(c) Notwithstanding any other provision of this section, the term “contribution” does not include:
(1) An expenditure made at the behest of a candidate in connection with a communication directed to voters or potential voters as part of voter registration activities or activities encouraging or assisting persons to vote, if the expenditure does not constitute express advocacy.
(2) Volunteer personal services or payments made by a person for his or her own travel expenses, if such payments are made voluntarily without any understanding or agreement that he or she will be repaid.
(3) A payment made by an occupant of a home or office for costs related to any meeting or fundraising event held in the occupant's home or office, if the total cost of the meeting or fundraising event is $500 or less, exclusive of the fair rental value of the premises.
(4) A payment made at the behest of a candidate, which is for a communication by the candidate or any other person, that meets all of the following:
(i) Does not contain express advocacy;
(ii) Does not make reference to the candidate's candidacy for elective office, the candidate's election campaign, or the candidate's or his or her opponent's qualifications for office; and
(iii) Does not solicit contributions to the candidate or to third persons for use in support of the candidate or in opposition to the candidate's opponent.
(5) A payment made by a candidate or committee for another candidate to attend the paying candidate's or committee's fundraiser.
(6) A payment made by a candidate for a communication publicizing his or her endorsement by another candidate, provided that the communication does not expressly advocate the nomination or election of the endorsing candidate or the defeat of an opponent of the endorsing candidate.
(7) A payment made by a ballot measure committee for a communication in which the ballot measure supported or opposed by the committee is endorsed or opposed by a candidate, and the communication does not expressly advocate the nomination or election of the endorsing candidate or the defeat of an opponent of the endorsing candidate.
(8) A payment made by any broadcasting station (including a cable television operator, programmer or producer), website, or a regularly published newspaper, magazine or other periodical of general circulation, including any Internet or electronic publication, that routinely carries news and commentary of general interest, for the cost of covering or carrying a news story, commentary or editorial.
(9) A payment by an organization for its regularly published newsletter or periodical, if the circulation is limited to the organization's members, employees, shareholders, other affiliated individuals and those who request or purchase the publication. This exception applies only to the costs regularly incurred in publication and distribution. Any additional costs incurred are contributions, including, but not limited to, expanded circulation; substantial alterations in size, style, or format; or a change in publication schedule, such as a special edition.
(10) A payment for a debate or other forum sponsored by a nonpartisan organization in which at least two candidates appearing on the ballot for the same elective office were invited to participate.
(11) A payment for a debate or other forum in which the proponent of a ballot measure and at least one opponent, or their respective representatives, were invited to participate in equal numbers.
(12) A payment for a debate or other forum sponsored by a political party or affiliated committee in which a majority of the candidates for that party's nomination were invited to participate.
(13) A payment made by a bona fide service, social, business, trade, union or professional organization or group for reasonable overhead expenses associated with the organization's regularly scheduled meeting at which a candidate or an individual representing either side of a ballot measure speaks, if the organization pays no additional costs in connection with the speaker's attendance.
(14) A payment received by, directed by, or made at the behest of a candidate for personal purposes. [NOTE: Such payments may constitute gifts, income, or honoraria, and as such may be limited or prohibited, under other provisions of the Act. See also Regulation 18941.1 regarding payments for food.]
(15) A payment made by a candidate for a communication in support of or opposition to a ballot measure, if the communication features the endorsing candidate or clearly identifies him or her as the sponsor of the communication. [NOTE: this exception does not include a monetary contribution from a candidate or his or her controlled committee to a ballot measure committee.]
(16) A payment by a sponsoring organization for the establishment and administration of a sponsored committee, provided such payments are reported. Any monetary payment made under this subdivision to the sponsored committee shall be made by separate instrument. A “sponsoring organization” may be any person (see Section 82047) except a candidate or other individual (see Section 82048.7). “Establishment and administration” means the cost of office space, phones, salaries, utilities, supplies, legal and accounting fees, and other expenses incurred in setting up and running a sponsored committee.
(17) A payment by a non-partisan organization, that is not affiliated with any candidate, political party, or committee and has not endorsed or contributed to candidates or measures in the election, to create and operate a website that posts political information designed to encourage individuals to vote or to register to vote and presents any candidate or measure-related content in a nonpartisan manner, giving reasonably equal treatment to candidates for the same office or to both sides of a measure.
(18) Uncompensated Internet activity by an individual supporting or opposing a candidate or measure as stated in Regulation 18215.2.
(d) A contribution made at the behest of a candidate for a different candidate or to a committee not controlled by the behesting candidate is not a contribution to the behesting candidate.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015 and 85312, Government Code.
HISTORY
1. New section filed 4-30-76; effective thirtieth day thereafter (Register 76, No. 18).
2. Amendment of subsection (e) filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2).
3. Amendment filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
4. Amendment filed 7-12-84; effective thirtieth day thereafter (Register 84, No. 28).
5. Relettering of subsection (d) to subsection (e) and new subsection (d) filed 11-26-90; operative 12-26-90 (Register 91, No. 1).
6. Amendment filed 11-7-95; operative 11-7-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 45).
7. Editorial correction of subsection (b)(1) (Register 96, No. 43).
8. New subsection (c)(16) and amendment of Note filed 1-29-97 as an emergency; operative 1-29-97. Submitted to OAL for printing only (Register 97, No. 5).
9. Permanent regulation filed 6-26-97; operative 6-26-97. Submitted to OAL for printing only (Register 97, No. 26).
10. Repealer of subsections (c)(8)-(c)(8)(ii), new subsection (c)(8), amendment of subsections (c)(14) and (c)(16) and new subsections (c)(17)-(18) filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52).
11. Amendment of subsections (b)(1)-(3) filed 4-19-2012; operative 5-19-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 16).
§18215.1. Contributions; When Aggregated.
Note • History
(a) Definitions. For purposes of determining when contributions are aggregated under the provisions of this title:
(1) “Entity” means any person, other than an individual;
(2) “Majority owned” means an ownership of more than fifty percent.
(b) The contributions of an entity whose contributions are directed and controlled by any individual shall be aggregated with contributions made by that individual and any other entity whose contributions are directed and controlled by the same individual;
(c) If two or more entities make contributions that are directed and controlled by a majority of the same persons, the contributions of those entities shall be aggregated;
(d) Contributions made by entities that are majority owned by any person shall be aggregated with the contributions of the majority owner and all other entities majority owned by that person, unless those entities act independently in their decision to make contributions.
Comment: See section 18428 regarding aggregation of contributions under Chapter 4 and Chapter 5 of this title. Also see In re Lumsdon (1976) 2 FPPC Ops. 140 and In re Kahn (1976) 2 FPPC Ops. 151.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82015, Government Code.
HISTORY
1. New section filed 4-4-2006; operative 5-4-2006 (Register 2006, No. 14). For prior history, see Register 97, No. 46.
§18215.2. Uncompensated Internet Activity by Individuals that is not a Contribution or Expenditure.
Note • History
(a) Definitions:
(1) Internet activities. For the purposes of this regulation, the term “Internet activities” includes, but is not limited to, the following activities conducted over or related to the Internet: sending or forwarding electronic messages; social networking; providing a hyperlink or other direct access to another person's website; blogging; creating, maintaining or hosting a website; paying a nominal fee for the use of another person's website; and any other form of communication distributed over the Internet.
(2) Equipment and services. For the purposes of this regulation, the term “equipment and services” includes, but is not limited to: computers, handheld communication devices that provide access to the Internet, software, routers, servers, Internet access purchased from an Internet Service Provider (ISP), subscription fees, blog hosting services, bandwidth, licensed graphics used on the Internet, Internet domain name services, e-mail services, and any other technology that is used to provide access to or use of the Internet.
(b) When an individual or a group of individuals, acting independently or in coordination with any candidate, committee, or political party committee, engages in Internet activities for the purpose of supporting or opposing a candidate or measure under the Act, neither of the following is a contribution or an expenditure by that individual or group of individuals:
(1) The individual's uncompensated personal services related to such Internet activities;
(2) The individual's use of equipment or services for uncompensated Internet activities, regardless of who owns the equipment and services.
(c) The exemption in subdivision (b) of this Regulation does not apply to an individual blogger who receives a majority of his or her advertisement revenue from a single candidate or committee, because he or she is not considered to be providing uncompensated personal services.
(d) This Regulation does not exempt the following from the definition of contribution or expenditure and accordingly such payments count towards the committee qualification thresholds of Section 82013:
(1) Any payment for any general or public advertisement, as described in Section 84501, which is authorized and paid for by a person or committee for the purpose of supporting or opposing a candidate for elective office or a ballot measure.
(2) Any payment for a communication supporting or opposing a candidate or ballot measure placed for a fee (other than a nominal amount) on another person's website.
(3) Any payment for the purchase or rental of an e-mail address list made at the direction of a political committee; or any payment for an e-mail address list that is transferred to a political committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 82025 and 85312, Government Code.
HISTORY
1. New section filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52). For prior history, see Register 2007, No. 35.
§18215.3. “Behested Payments” Reporting.
Note • History
(a) Except as provided in subdivisions (b) and (c) below, for purposes of behested payment reporting as required by Sections 82015(b)(2) and (b)(3), “made at the behest of” means made under the control or at the direction of, in cooperation, consultation, coordination, or concert with, at the request or suggestion of, or with the express, prior consent of the elected officer, Public Utilities Commission (“PUC”) member, or his or her agent.
(b) A payment is not “made at the behest of” an elected officer under Section 82015(b)(2)(B)(iii) or a PUC member under Section 82015(b)(3) and is not subject to behested payment reporting if the payment is made in response to a fundraising solicitation from a charitable organization requesting a payment where the solicitation does not feature an elected officer or PUC member.
(1) For purposes of this regulation, “features an elected officer or PUC member” has the same meaning as found in Regulation 18901(c)(2): “`Features an elected officer' means that the item mailed includes the elected officer's photograph or signature, or singles out the elected officer by the manner of display of his or her name or office in the layout of the document, such as by headlines, captions, type size, typeface, or type color.”
(2) An elected officer or PUC member is also featured in a solicitation if the roster or letterhead listing the governing body contains a majority of elected officers (Section 82015(b)(2)(B)(iii)) or PUC members (Section 82015(b)(3)).
(c) A payment is not “made at the behest” of an elected officer under Section 82015(b)(2)(B)(iii) or PUC member under Section 82015(b)(3) and is not subject to reporting if the elected officer or PUC member makes a request for a payment 1) from a local, state, or federal governmental agency and 2) that payment will be used in the regular course of official agency business of the elected officer or PUC member's agency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82015, Government Code.
HISTORY
1. New section filed 4-10-2012; operative 5-10-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 15).
2. Change without regulatory effect amending subsections (b) and (c) filed 7-16-2012; operative 7-16-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 29).
§18216. Enforceable Promise to Make a Payment.
Note • History
(a) A person who makes an enforceable promise to make a payment to or at the behest of a candidate or committee makes a contribution to the candidate or committee, except to the extent the person receives full and adequate consideration, and unless it is clear from the surrounding circumstances that the enforceable promise is not made for political purposes.
(b) A person makes an “enforceable promise to make a payment,”as that term is used in subdivision (a), if he or she:
(1) Guarantees a loan.
(2) Furnishes security for a loan.
(3) Endorses a loan.
(4) Cosigns a loan.
(5) Makes and delivers a post-dated check.
(6) Establishes a line of credit at a bank or other commercial lending institution for a candidate or committee.
(7) Promises in writing to make a payment for specific goods or services, and the candidate or committee, based on the promise, expends specific funds or enters into an enforceable contract with a third party.
(c) A person does not make an “enforceable promise to make a payment,” as that term is used in subdivision (a), if he or she signs a pledge card or similar document, agrees to make installment payments through wire transfer, credit card transaction, debit account transaction or similar electronic payment or otherwise agrees, orally or in writing, to make a future payment except as provided in subdivision (b).
(d) A candidate or committee shall report receipt of an enforceable promise to make a payment using the forms furnished by the Commission. This reporting shall be consistent with the requirements for reporting of contributions contained in chapter 4 (commencing with section 84100) of title 9 of the Government Code.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82015, Government Code.
HISTORY
1. New section filed 2-18-88; operative 3-19-88 (Register 88, No. 9). For history of former Section 18216, see Register 86, No. 10.
2. Amendment of subsections (b), (c) and (d) filed 11-6-2006; operative 12-6-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 45).
§18217. Nonprofit Organization as Controlled Committee.
Note • History
(a) A nonprofit organization, as defined in subdivision (f), shall be considered a controlled committee, if both of the following apply:
(1) A candidate, his or her agent, or any committee he or she controls, exercises significant influence over the actions and decisions of the organization, or acts jointly with the organization in connection with the making of expenditures.
(2) The organization qualifies as a committee under Government Code section 82013(a), and the organization is operated for political purposes. For purposes of this regulation, and organization is “operated for political purposes” if either of the following applies:
(A) The organization receives or expends funds for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate or the qualification or passage of any measure.
(B) The organization makes contributions to candidates or their controlled committees.
(b) For purposes of subdivision (a)(1), a nonprofit organization which is tax-exempt under section 501 of the Internal Revenue Code, and which is not an organization described in section 527 of the Internal Revenue Code, is presumed not to be significantly influenced by a candidate, his or her agent, or any committee he or she controls, if the organization complies with all of the factors set forth below:
(1) The candidate is not substantially involved in the day-to-day operations of the organization, and the organization is controlled by a board of directors with 3 or more members, two-thirds of whom are not:
(A) Candidates;
(B) Agents, campaign staff, employees, or persons otherwise under the control of a candidate; or
(C) Brothers, sisters, parents, children, spouses, brothers-in-law, sisters-in-law, sons-in-law, daughters-in-law, mothers-in-law or fathers-in-law of a board member who is a candidate.
(2) The name of the organization does not include the name of the candidate. For purposes of this subdivision (b)(2) the term “name of the candidate” means the candidate's first and last name or some other unambiguous reference to the candidate.
(c) For purposes of subdivision (a)(2), a nonprofit organization which is tax-exempt under section 501 of the Internal Revenue Code, and which is not an organization described in section 527 of the Internal Revenue Code, is presumed not to be operated for political purposes if the organization complies with all of the factors set forth below:
(1) The organization does not make contributions to candidates.
(2) The name of the organization does not include the name of the candidate. For purposes of this subdivision (c)(2) the term “name of the candidate” means the candidate's first and last name or some other unambiguous reference to the candidate.
(3) The organization does not spend funds in excess of the amount permitted under section 501(h) of the Internal Revenue Code to influence or attempt to influence legislative action.
(4) The organization does not spend funds to influence or attempt to influence the qualification or passage of any measure in an amount sufficient to qualify the organization as a committee under section 82013 of the Government Code.
(5) This subdivision (c) shall not be construed to prevent the organization from forming a separate and independent political committee which is not controlled by any person described in subdivision (b)(1)(A)-(C).
(d) The presumptions set forth in subdivisions (b) and (c) can be rebutted by clear and convincing evidence that, notwithstanding compliance with all of the factors set forth in subdivisions (b) and (c), the organization is controlled by a candidate and operated for political purposes.
(e) A person who makes a donation to a nonprofit organization which is tax-exempt under section 501 of the Internal Revenue Code, and which is not an organization described in section 527 of the Internal Revenue Code, in reliance upon the organization's tax-exempt status, is not making a contribution unless the person knows or has reason to know that the organization is operated for political purposes.
(f) For purposes of this regulation, “nonprofit organization” means an organization which is characterized as an exempt organization under section 501 of the Internal Revenue Code, but which is not an organization formed or existing primarily for political purposes.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82016, Government Code.
HISTORY
1. New section filed 8-31-90; operative 9-30-90 (Register 90, No. 43).
Note • History
For purposes of Section 82019 the term “designated employee” includes a consultant as defined under Regulation 18701(a)(2) and an employee in a newly created position that makes or participates in the making of decisions and whose specific position is not yet listed in an agency's conflict-of-interest code.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82019, Government Code.
HISTORY
1. New section filed 11-12-2009; operative 1-1-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 46).
Note • History
(a) An expenditure is any monetary or nonmonetary payment made for political purposes. A payment is made for political purposes if it is:
(1) For the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate or candidates, or the qualification or passage of any measure; or
(2) Made by:
(A) A candidate, unless it is clear from surrounding circumstances that the payment was made for personal purposes unrelated to his or her candidacy or status as an office holder;
(B) A controlled committee;
(C) An official committee of a political party, including a state central committee, county central committee, assembly district committee or any subcommittee of such committee; or
(D) An organization formed or existing primarily for political purposes as defined in subsection (a)(1), including but not limited to a political action committee established by any membership organization, labor union or corporation.
(b) “Expenditure” includes any monetary or non-monetary payment made by any person, other than those persons or organizations described in subsection (a), that is used for communications which expressly advocate the nomination, election or defeat of a clearly identified candidate or candidates, or the qualification, passage or defeat of a clearly identified ballot measure.
(1) “Clearly identified” has the following meaning:
(A) A candidate is clearly identified if the communication states his name, makes unambiguous reference to his office or status as a candidate, or unambiguously describes him in any manner.
(B) A group of candidates is clearly identified if the communication makes unambiguous reference to some well-defined characteristic of the group, even if the communication does not name each candidate. A communication that clearly identifies a group of candidates and expressly advocates their election or defeat is reportable as an expenditure, but the expenditure need not be allocated among all members of the class or group on the campaign statement reporting the expenditure.
(C) A measure that has qualified to be placed on the ballot is clearly identified if the communication states a proposition number, official title or popular name associated with the measure. In addition, the measure is clearly identified if the communication refers to the subject matter of the measure and either states that the measure is before the people for a vote or, taken as a whole and in context, unambiguously refers to the measure.
(D) A measure that has not qualified to be placed on the ballot is clearly identified if the communication refers to the subject matter of the measure and to the qualification drive.
(2) A communication “expressly advocates” the nomination, election or defeat of a candidate or the qualification, passage or defeat of a measure if it contains express words of advocacy such as “vote for,” “elect,” “support,” “cast your ballot,” “vote against,” “defeat,” “reject,” “sign petitions for” or, within 60 days prior to an election in which the candidate or measure appears on the ballot, the communication otherwise refers to a clearly identified candidate or measure so that the communication, taken as a whole, unambiguously urges a particular result in an election.
(A) Except for those communications paid for with public monies by a state or local government agency and subject to Regulation 18420.1, a communication, taken as a whole, unambiguously urges a particular result in an election if it is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate or measure. A communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate or measure when, taken as a whole, it could only be interpreted by a reasonable person as containing an appeal to vote for or against a specific candidate or measure because:
1. The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
2. Reasonable minds could not differ as to whether it encourages a vote for or against a clearly identified candidate or measure, or encourages some other kind of action on a legislative, executive or judicial matter or issue.
(B) The following non-exhaustive examples, referring to candidates or measures on the ballot in an upcoming election, illustrate statements that in most contexts would be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate or measure:” “Smith's the One;” “No Measure A;” “Rally `round O'Malley;” “Create jobs with Measure X;” “Only Nancy Brown can clean out City Hall;” “Proposition 123 -- your last chance to save California;” “Joe Green will earn your trust;” “Bob Boone is an unqualified, special-interest puppet;” “Shirley Hall -- bad for California, bad for you.”
(C) The following non-exhaustive examples, referring to candidates or measures on the ballot in an upcoming election, illustrate statements that would be susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate or measure: “Assemblymember Nancy Brown needs to be tough on criminals. Call her and tell her to stand firm on AB 100:” “Poor children need a home too. Support the Mayor's stance against more budget cuts:” “Thank you, Supervisor Smith, for continuing to support our farmers.”
(D) Safe Harbor. A communication does not “expressly advocate” the nomination, election or defeat of a candidate or the qualification, passage or defeat of a measure, within the meaning of this regulation, if:
1. It does not mention an election, candidacy, political party (unless required by law), opposing candidate, voting by the general public, and does not take a position on the character, qualifications or fitness for office of a candidate or officeholder, or the merits of a ballot measure, and;
2. it focuses on a legislative, executive or judicial matter or issue, either urging a candidate to take a particular position or action with respect to the matter or issue, or urging the public to adopt a particular position and to contact the candidate with respect to the matter or issue.
(E) Rules of Interpretation. If a communication does not qualify for the safe harbor defined above, the Commission shall consider whether the communication has an interpretation other than as an appeal to vote for or against a clearly identified candidate or measure, in order to determine whether, on balance, the communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate or measure.
(3) Reporting expenditures.
(A) The amount of an expenditure reportable pursuant to this subsection shall include all costs directly attributable to the communication, including but not limited to salaries, production, postage, space or time purchased, agency fees, printing and any additional administrative or overhead costs attributable to the communication. The expenditure does not include any of the regular ongoing business overhead which will be incurred in similar amounts regardless of the communication.
(B) When printed or broadcast communications circulate outside the State of California, the expenditure may be calculated on the basis of the fraction of the total cost attributable to circulation within California.
(C) Costs directly traceable to the communication are reportable when the communication is made, or when payments are made in connection with the development, production or dissemination of the communication, whichever is earlier.
(D) The costs of printing and distributing petitions, recruiting, training and paying expenses of petition circulators, and other costs incurred in connection with qualification of a measure are reportable “expenditures.”
(4) Notwithstanding the provisions of this subsection, the term expenditure does not include costs incurred for communications which expressly advocate the nomination, election or defeat of a clearly identified candidate or candidates or the qualification, passage or defeat of a clearly identified measure or measures by:
(A) Any broadcasting station (including a cable television operator, programmer or producer), website, or a regularly published newspaper, magazine or other periodical of general circulation, including any Internet or electronic publication, that routinely carries news and commentary of general interest, for the cost of covering or carrying a news story, commentary or editorial.
(B) A regularly published newsletter or regularly published periodical, other than those specified in paragraph (b)(4)(A), whose circulation is limited to an organization's members, employees, shareholders, other affiliated individuals and those who request or purchase the publication. This paragraph applies only to the costs regularly incurred in publishing and distributing the newsletter or periodical. If additional costs are incurred because the newsletter or periodical is issued on other than its regular schedule, expanded in circulation, or substantially altered in style, size or format, the additional costs are expenditures.
(5) In addition, the term expenditure does not include uncompensated Internet activity by an individual supporting or opposing a candidate or measure as stated in Regulation 18215.2.
(c) Any payment used to make contributions, as defined in Section 82015 and Regulation 18215, is an expenditure.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82025, Government Code.
HISTORY
1. New section filed 4-30-76; effective thirtieth day thereafter (Register 76, No. 18).
2. Amendment of subsection (c)(3)(D) filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
3. Amendment filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
4. Editorial correction of subsection (b)(4)(C) filed 4-28-83 (Register 83, No. 18).
5. Amendment of subsection (a) filed 3-8-84; effective thirtieth day thereafter (Register 84, No. 10).
6. Amendment of subsection (b)(2), new subsections (b)(2)(A)-(E) and amendment of subsection (c) filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
7. Repealer of subsections (b)(4)(A)-(C), new subsection (b)(4)(A), subsection relettering and new subsection (b)(5) filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52).
§18225.4. Independent Expenditures; When Aggregated.
Note • History
(a) Definitions. For purposes of determining when independent expenditures are aggregated under the provisions of this title:
(1) “Entity” means any person, other than an individual;
(2) “Majority owned” means an ownership of more than fifty percent.
(b) The independent expenditures of an entity, whose independent expenditures are directed and controlled by any individual, shall be aggregated with independent expenditures made by that individual and any other entity whose independent expenditures are directed and controlled by the same individual;
(c) If two or more entities make independent expenditures that are directed and controlled by a majority of the same persons, the independent expenditures of those entities shall be aggregated;
(d) Independent expenditures made by entities that are majority owned by any person shall be aggregated with the independent expenditures of the majority owner and all other entities majority owned by that person, unless such entities act independently in their decisions to make independent expenditures.
Comment to Section 18225.4: See section 18428 regarding the aggregation of independent expenditures under Chapter 4 and Chapter 5 of this title. Also see In re Lumsdon (1976) 2 FPPC Ops. 140 and In re Kahn (1976) 2 FPPC Ops. 151.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82025, Government Code.
HISTORY
1. New section filed 5-2-95; operative 5-2-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 18).
2. Amendment of subsections (b)-(c) filed 7-5-95; operative 7-5-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 27).
3. Amendment filed 4-4-2006; operative 5-4-2006 (Register 2006, No. 14).
§18225.7. Made at the Behest of.
Note • History
(a) “Made at the behest of” means made under the control or at the direction of, in cooperation, consultation, coordination, or concert with, at the request or suggestion of, or with the express, prior consent of. Such arrangement must occur prior to the making of a communication described in Government Code section 82031.
(b) Expenditures “made at the behest of” a candidate or committee include expenditures made by a person other than the candidate or committee, to fund a communication relating to one or more candidates or ballot measures “clearly identified” as defined at Title 2, California Code of Regs. section 18225(b)(1), which is created, produced or disseminated,
(1) After the candidate or committee has made or participated in making any decision regarding the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement of the communication, or
(2) After discussion between the creator, producer or distributor of a communication, or the person paying for that communication, and the candidate or committee, regarding the content, timing, location, mode, intended audience, volume of distribution or frequency of placement of that communication, the result of which is agreement on any of these topics.
(c) An expenditure is presumed to be made at the behest of a candidate or committee if it is:
(1) Based on information about the candidate's or committee's campaign needs or plans provided to the expending person by the candidate or committee, or
(2) Made by or through any agent of the candidate or committee in the course of the agent's involvement in the current campaign, or
(3) For a communication relating to a clearly identified candidate or ballot measure when:
(A) The person making the expenditure retains the services of a person who provides either the candidate or the committee supporting or opposing the ballot measure with professional services related to campaign or fundraising strategy for that same election, or
(B) The communication replicates, reproduces, republishes or disseminates, in whole or in substantial part, a communication designed, produced, paid for or distributed by the candidate or committee.
(d) An expenditure is not made at the behest of a candidate or committee merely when:
(1) A person interviews a candidate on issues affecting the person making the expenditure, or
(2) The person making the expenditure has obtained a photograph, biography, position paper, press release, or similar material from the candidate or the candidate's agents, or
(3) The person making the expenditure has made a contribution to the candidate or committee, or
(4) The person making the expenditure is responding to a general, non-specific request for support by a candidate or committee, provided that there is no discussion with the candidate or committee prior to the expenditure relating to details of the expenditure, or
(5) The person making the expenditures has invited the candidate or committee to make an appearance before the person's members, employees, shareholders, or the families thereof, provided that there is no discussion with the candidate or committee prior to the expenditure relating to details of the expenditure, or
(6) A person informs a candidate or committee that the person has made an expenditure, provided that there is no other exchange of information, not otherwise available to the public, relating to details of the expenditure, or
(7) An expenditure is made at the request or suggestion of the candidate or committee for the benefit of another candidate or committee.
(e) Notwithstanding any other provision of this section, if two or more committees exchange information between or among themselves, subsequent expenditures by each committee shall not, merely by reason of that exchange, be considered to be “made at the behest of” the other committee(s), where the committees are (i) all general purpose committees, (ii) all committees primarily formed to support or oppose the same candidate or candidates, or (iii) all committees primarily formed to support or oppose the same measure or measures.
(f) Throughout this section the terms “candidate” and “committee” include their agents, when the agent is acting within the course and scope of his or her agency. The term “expenditure” refers to a payment defined as an “expenditure” by Government Code section 82025 and Title 2, California Code of Regs. section 18225. A determination that an expenditure has been “made at the behest of” a candidate or committee does not establish that the expenditure is a “contribution” as defined by Government Code section 82015 or Title 2, California Code of Regs. section 18215. However, expenditures governed by Title 2, California Code of Regs. section 18550.1 may be treated as contributions pursuant to the provisions of that section.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 82025 and 82031, Government Code.
HISTORY
1. New section filed 11-7-95; operative 11-7-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 45).
2. Amendment of section and Note filed 4-9-2003; operative 4-9-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 15).
Note • History
Every filing officer shall assign to a specific official the responsibility for receiving and forwarding or retaining reports filed pursuant to Government Code Sections 84215 and 87500.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82027, 84215 and 87500, Government Code.
HISTORY
1. New section filed 9-29-76; effective thirtieth day thereafter (Register 76, No. 39).
2. Amendment filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
3. Amendment filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
4. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
§18227.5. General Purpose Committees: State, County or City.
Note • History
(a) A “general purpose” committee is defined in Section 82027.5 to include all committees formed under Sections 82013(b) and (c), and recipient committees formed under Section 82013(a) that support or oppose multiple candidates or ballot measures, except as provided in Section 82047.5. (In contrast, a “primarily formed” committee, as defined in Section 82047.5 and Regulation 18247.5, supports or opposes a single candidate or measure, or a group of specific measures or local candidates on the same ballot.)
(b) Filing. Under Section 84215 and other provisions contained in Chapter 4, general purpose committees file their semi-annual and preelection statements as follows:
(1) A state general purpose committee files with the Secretary of State's office.
(2) A county general purpose committee files with the county elections official.
(3) A city general purpose committee files with the office of the city clerk.
(c) State, County or City. Under this regulation a committee is considered a state committee unless it qualifies as a city or county committee. To determine whether a general purpose committee is a state, county or city committee under Section 82027.5, the following definitions apply:
(1) City General Purpose Committee. A “city general purpose committee” is a committee that makes more than 70 percent of its contributions or expenditures to support or oppose candidates or measures voted on in only one city, or in one consolidated city and county, including contributions to city general purpose committees in the same city or the same consolidated city and county.
(2) County General Purpose Committee. A “county general purpose committee” is a committee that makes more than 70 percent of its contributions or expenditures to support or oppose candidates or measures voted on in only one county, or in more than one jurisdiction within one county, including contributions to county general purpose committees in the same county.
(3) State General Purpose Committee. A “state general purpose committee” is a committee that meets the criteria in subparagraph (c)(3)(A), (c)(3)(B) or (c)(3)(C):
(A) The committee makes contributions or expenditures to support or oppose candidates or measures voted on in state elections, including making contributions to other state general purpose committees, or in more than one county, and does not meet the criteria for a city or a county committee set forth in subdivisions (c)(1) or (c)(2) above.
(B) The committee is a political party committee, as defined in Section 85205.
(C) The committee is a major donor or independent expenditure committee under Section 82013(c) or (b) that has made any amount of contributions or expenditures during the calendar year to support or oppose candidates or measures voted on in state elections, including contributions to other state committees.
(d) Review.
(1) A general purpose committee shall verify its filing jurisdiction quarterly at the end of March, June, September and December. An existing general purpose committee that has not made contributions and/or expenditures of $5,000 or more to support or oppose candidates or measures in the preceding quarterly time period is not required to review or change its status.
(2) Newly organized committees. A recipient committee under Section 82013(a) that files its initial statement of organization within six months of an election in connection with which the committee makes contributions or expenditures shall verify its filing jurisdiction at the end of each month prior to the election, unless the committee has not made contributions and/or expenditures of $1,000 or more to support or oppose candidates or measures during that month.
(3) For purposes of determining where to file under subdivision (c), a recipient committee formed pursuant to Section 82013(a) shall count contributions and expenditures made to support or oppose candidates or measures during whichever of the following time periods most accurately reflects the current and upcoming activities of the committee:
(A) The immediately preceding 24 months; or
(B) The current two-year period, beginning with January 1 of an odd-numbered year and ending with December 31 of the following even-numbered year.
(4) For purposes of determining where to file under subdivision (c), a major donor or independent expenditure committee formed under Sections 82013(c) or (b) qualifies anew as a committee each year, and accordingly shall count contributions or expenditures made to support or oppose candidates or measures during the current calendar year.
(5) In determining its status, a contributing committee may rely on the jurisdiction stated in the receiving committee's most recent statement of organization on file with the California Secretary of State's office at the time the contribution is made.
(e) Change of Status.
(1) Amend Statement of Organization. A recipient committee whose status changes from one jurisdiction to another, or between general purpose and primarily formed shall amend its statement of organization pursuant to Section 84103 to reflect the change. If, after filing reports with one jurisdiction, a committee changes jurisdiction, in addition to filing reports with a new filing officer, the committee must continue filing reports with the original filing officer through the end of the calendar year under Section 84215(g).
(2) Local Committee Contributing to State Candidates from its Area. A city or county general purpose committee that makes up to four contributions per calendar year to candidates for elective state office whose districts include part of that jurisdiction, but which committee would otherwise still qualify as a local committee, is not required to change its status to a state committee based on those contributions.
(f) Avoidance of Disclosure. A committee shall not knowingly file in an incorrect jurisdiction or as an incorrect type of committee, with the intention of avoiding the appropriate legal disclosure of campaign contributions and expenditures to the public.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82027.5, Government Code.
HISTORY
1. New section filed 1-5-2012; operative 2-4-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 1).
§18228. Gifts--Payments for Food, Accommodations or Transportation. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015 and 82028, Government Code.
HISTORY
1. New section filed 12-7-88; operative 1-6-89 (Register 88, No. 52).
2. Renumbering of former section 18228 to section 18950.4 filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
§18229. Inclusion of Registered Domestic Partners.
Note • History
For purposes of this title and implementing regulations, the term “spouse” shall include registered domestic partners recognized by state law.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 82029, 82030, 82030.5, 84211, 87103, 87460, 87461 and 89511, Government Code.
HISTORY
1. New section filed 12-31-2004; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2004, No. 53).
§18229.1. Definition of “Dependent Children.”
Note • History
For purposes of the Act and Commission Regulations, “dependent child” or “dependent children” means a child, (including an adoptive child or stepchild) of a public official who is under 18 years old and whom the official is entitled to claim as a dependent on his or her federal tax return.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 82029, 82033, 82034, 82045, 84211, 84219, 84305.5, 86111, 87103, 87450, 89511, 89513, 89515, 89516, 89517 and 89519, Government Code.
HISTORY
1. New section filed 1-11-2010; operative 2-10-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 3).
§18230. Doing Business in the Jurisdiction.
Note • History
A person is “doing business in the jurisdiction” if that person has business contacts on a regular or substantial basis with a person who maintains a physical presence in the jurisdiction of a public official. “Business contacts” include, but are not limited to, manufacturing, distributing, selling, purchasing, or providing services or goods. “Business contacts” do not include marketing via the Internet, telephone, television, radio, or printed media.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82030, 82034 and 87209, Government Code.
HISTORY
1. New section filed 1-10-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2).
§18232. Salary and Reimbursement for Expenses or Per Diem Received from a State, Local, or Federal Government Agency.
Note • History
For purposes of Government Code section 82030(b)(2), the following definitions apply:
(a) “Salary” from a state, local, or federal government agency means any and all payments made by a government agency to a public official, or accrued to the benefit of a public official, as consideration for the public official's services to the government agency. Such payments include wages, fees paid to public officials as “consultants” as defined in California Code of Regulations, Title 2, section 18701(a)(2), pension benefits, health and other insurance coverage, rights to compensated vacation and leave time, free or discounted transportation, payment or indemnification of legal defense costs, and similar benefits.
(b) “Per diem” received from a state, local, or federal government agency means payment of a fixed sum of money, accruing daily to a public official when the public official is required to incur increased daily living expenses.
(c) “Reimbursement for expenses” received from a state, local, or federal government agency means a payment to a public official, in compensation for otherwise uncompensated actual expenses incurred or to be incurred within 60 days by the public official in the course of his or her official duties.
COMMENT: Cross-references: For the definition of “income,” see Government Code section 82030. For the definition of “public official,” see Government Code section 82048.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82030, 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
2. Amendment filed 1-16-2002; operative 2-15-2002 (Register 2002, No. 3).
Note • History
The terms “interest in real property” and “leasehold interest” as used in Government Code Section 82033 shall not include the interest of a tenant in a periodic tenancy of one month or less.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82033 and 87206, Government Code.
HISTORY
1. New section filed 12-1-77; effective thirtieth day thereafter (Register 77, No. 49).
2. Amendment of subsection (b)(3) filed 11-10-83; effective thirtieth day thereafter (Register 83, No. 46).
3. Amendment of subsection (a) filed 8-2-85; effective thirtieth day thereafter (Register 85, No. 33).
4. Amendment filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
Note • History
(a) An official has an economic interest in the pro rata share of the interests in real property, sources of income, and investments of a trust in which the official has a direct, indirect, or beneficial interest of 10 percent or greater.
(b) For purposes of this section, the interests of the official include those of the official, spouse, and dependent children regarding interests in real property and investments and those of the official and spouse regarding sources of income.
(c) For purposes of determining whether an official has an economic interest in interests in real property, sources of income, and investments of a trust, the official has a direct, indirect, or beneficial interest in a trust if the official is:
(1) A trustor and:
(A) Can revoke or terminate the trust;
(B) Has retained or reserved any rights to the income or principal of the trust, or retained any reversionary or remainder interest; or
(C) Has retained or reserved any power of appointment, including but not limited to the power to change the trustee, or the power to amend, alter or designate, either alone or in conjunction with anyone else, the person or persons who shall possess or enjoy the trust property or income.
(2) A beneficiary and:
(A) Presently receives income; or
(B) Has an irrevocable future right to receive income or principal. For purposes of this subsection, an individual has an irrevocable future right to receive income or principal if the trust is irrevocable, unless one of the following applies:
(i) Powers exist to consume, invade, or appoint the principal for the benefit of beneficiaries other than the official and such powers are not limited by an ascertainable standard relating to the health, education, support, or maintenance of the beneficiaries; or
(ii) Under the terms of the trust, someone other than the official can designate the persons who shall possess or enjoy the trust property or income.
(d) For the purposes of this section, an official does not have a direct, indirect, or beneficial interest in a trust solely because the official is a trustee or co-trustee. However, income received for the performance of trustee services is income as defined in Government Code Section 82030.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82029, 82030, 82033 and 82034, Government Code.
HISTORY
1. New section filed 4-17-78; effective thirtieth day thereafter (Register 78, No. 16).
2. Amendment filed 8-16-84; effective thirtieth day thereafter (Register 84, No. 33).
3. Amendment filed 2-18-99; operative 2-18-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 8).
§18235. Reporting Interests in a Blind Trust (82030, 82033 and 82034).
Note • History
(a) Notwithstanding the provisions of 2 Cal. Adm. Code Section 18234(c), a filer who has a direct, indirect or beneficial interest in a blind trust which meets the standards set forth in subsection (b) is not required to disclose the pro rata share of the trust's interests in real property or investments, or income deriving from any such interests or investments, if those interests or investments are acquired by the trustee after the trust complies with subsection (b).
However, nothing in this section relieves the filer from his or her obligation (1) to disclose the pro rata share of the trust's interests in real property or investments, or income deriving from any such interests or investments, if the interests or investments were originally transferred into the trust, and (2) to disqualify himself or herself from participating in decisions which may have a foreseeable and material effect on financial interests which are reportable under this regulation.
(b) A blind trust must comply with the following conditions:
(1) the trustee must be a disinterested party other than the filer's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, aunt, uncle, or first cousin or the spouse of any such person;
(2) the trustee must be given complete discretion to manage the trust including, but not limited to, the power to dispose of and acquire trust assets without consulting or notifying the filer;
(3) the trustee must be required to notify the filer of the date of disposition and value at disposition of any original investments or interests in real property so that information can be reported on the filer's next Statement of Economic Interests;
(4) the trustee must be prohibited from disclosing to the filer any information concerning the replacement assets except for information required under this subsection or the minimum tax information which lists only the totals of taxable items from the trust and does not describe the source of any individual item of income; and
(5) if the trust is revoked while the filer is a public official, or if the filer learns of any replacement assets of the trust, the filer must file an amendment to the most recent Statement of Economic Interests disclosing the date of revocation and the previously unreported pro rata share of the trust's interests in real property or investments or income deriving from any such interests in real property or investments and disqualify himself or herself, as necessary. For purposes of this regulation, any replacement assets of which the filer learns shall thereafter be treated as though they were original assets of the trust.
(c) If a filer has an interest in a blind trust which meets the requirements of subsection (b), the filer shall indicate the existence of the blind trust, its date of creation and the name of the trustee on the Statement of Economic Interests and attach a copy of a statement signed by the trustee, under penalty of perjury, that he or she has not revealed any information to the filer, except what is required under subsections (b)(3) and (4), and that the trust is in conformance with subsection (b).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82030-82034, Government Code.
HISTORY
1. New section filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
2. Amendment of subsection (a) filed 8-25-78; effective thirtieth day thereafter (Register 78, No. 34).
§18236. Parent, Subsidiary, Otherwise Related Business Entity. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code, Reference: Section 82034, Government Code.
HISTORY
1. New section filed 8-16-84; effective thirtieth day thereafter (Register 84, No. 33).
2. Repealer filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Editorial correction of History 2 (Register 2000, No. 25).
§18237. Definition of “Investment.”
Note • History
(a) For purposes of Section 82034, the term “investment” does not include a fund, including an exchange traded fund (ETF), closed-end fund or fund held in a plan qualified under Sections 401(k), 403(b), 457 or similar provision of the Internal Revenue Code (qualified plan), that is substantially similar to a “diversified mutual fund registered with the Securities and Exchange Commission under the Investment Company Act of 1940” if all the following are met:
(1) The fund is a bona fide investment fund that pools money from more than 100 investors and invests the money in stocks, bonds, or other securities.
(2) The fund holds securities of more than 15 issuers.
(3) The public official did not influence or control the decision to purchase or sell the specific fund on behalf of his or her agency during the applicable reporting period.
(4) The public official does not influence or control the selection of any specific investment purchased and sold on behalf of the fund.
(5) The fund does not have a stated policy of concentrating its holdings in the same industry or business.
(b) For purposes of subdivisions (a)(1) and (a)(2), an ETF, closed-end fund or qualified plan is presumed to have more than 100 investors and hold securities of more than 15 issuers.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82034, Government Code.
HISTORY
1. New section filed 10-26-2011; operative 11-25-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 43).
§18238.5. Definition of Lobbying Firm; Individual Contract Lobbyist.
Note • History
(a) A business entity is a lobbying firm pursuant to Government Code Section 82038.5(a)(2) if it receives or becomes entitled to receive at least $5,000 in compensation in any calendar quarter for the purpose of influencing legislative or administrative action on behalf of any other person, and any partner, owner, officer, or employee of the business entity engages in direct communication for the purpose of influencing legislative or administrative action.
(b) The definitions in Section 18239(d) apply to this section.
(c) An “individual contract lobbyist” as used in the definition of a “lobbying firm” pursuant to Government Code Section 82038.5, does not include an individual lobbyist if:
(1) The lobbyist contracts exclusively with one lobbying firm;
(2) The lobbyist's certification is included with the lobbying firm's registration statement; and
(3) The lobbyist does not file a lobbying firm registration statement independent of the lobbying firm.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82038.5, Government Code.
HISTORY
1. New section filed 5-28-86 as an emergency; operative 5-28-86 (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
2. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
3. Amendment filed 7-9-87; operative 8-8-87 (Register 87, No. 29).
4. New subsection (c) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
§18239. Definition of Lobbyist.
Note • History
(a) Introduction.
(1) If an individual engages in direct communication, other than administrative testimony, with a qualifying official for the purpose of influencing legislative or administrative action on behalf of any person other than his or her employer, apply Section 82039 and subdivision (b) of this regulation to determine if the individual is a lobbyist.
(2) If an individual engages in direct communication, other than administrative testimony, with a qualifying official for the purpose of influencing legislative or administrative action only on behalf of his or her employer, apply Section 82039 and subdivision (c) of this regulation to determine if the individual is a lobbyist.
(3) Except as provided in Section 86300, if an individual is a “placement agent” as defined in Section 82047.3, he or she is a lobbyist for purposes of the Act, regardless of the definitions in subdivisions (b) through (d), below.
(b) A lobbyist is an individual who receives or becomes entitled to receive $2,000 or more in compensation in any calendar month for engaging in direct communication, other than administrative testimony, with one or more qualifying officials for the purpose of influencing legislative or administrative action.
(c) A lobbyist is an individual who spends one-third or more of the time, in any calendar month, for which he or she receives compensation from his or her employer, engaging in direct communication, other than administrative testimony, with one or more qualifying officials for the purpose of influencing legislative or administrative action.
(d) Definitions.
(1) “Administrative testimony” means either of the following:
(A) Influencing or attempting to influence administrative action by acting as counsel in, appearing as a witness in, or providing written submissions, including answers to inquiries, that become part of the record of any regulatory or administrative agency proceeding:
(i) That is conducted as an open public hearing for which public notice is given;
(ii) Of which a record is created in a manner that makes possible the creation of a transcript; and
(iii) Where full public access is provided to the record or transcript and to all written material that is submitted as part of the record.
(B) Any communication made at a public hearing, public workshop, public forum, or included in the official record of any proceeding, as defined in Section 82002(b) or (c), before the California Public Utilities Commission.
(2) “Compensation” means any economic consideration, other than reimbursement for reasonable travel expenses, i.e., expenses for transportation plus a reasonable sum for food and lodging.
(3) “Direct communication” means appearing as a witness before, talking to (either by telephone or in person), corresponding with, or answering questions or inquiries from, any qualifying official, either personally or through an agent who acts under one's direct supervision, control, or direction.
(A) Direct communication does not include any request for or provision of purely technical data or analysis to an administrative agency by a person who does not otherwise engage in direct communication for the purpose of influencing legislative or administrative action.
(B) For the purpose of determining whether an individual qualifies as a lobbyist pursuant to subdivisions (b) or (c), an individual does not engage in “direct communication” when he or she meets or speaks with a qualifying official in the company of a registered lobbyist retained by the individual or individual's employer or by a bona fide trade association or membership organization of which the individual or individual's employer is a bona fide member.
(4) “Influencing legislative or administrative action” means communicating directly or taking any other action for the principal purpose of supporting, promoting, influencing, modifying, opposing, delaying, or advancing any legislative or administrative action.
(5) “Qualifying official” means:
(A) Any elected state official;
(B) Any legislative official;
(C) Any appointed, elected, or statutory member or director of any state agency;
(D) Any staff member of any state agency who makes direct recommendations to the persons listed in subdivision (5)(C) of this subdivision, or who has decision-making authority concerning such recommendations.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82039, Government Code.
HISTORY
1. New chapter 2 (section 18239) filed 6-30-75 as an emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 27).
2. Amendment of subsection (e) filed 9-18-75; effective thirtieth day thereafter (Register 75, No. 38).
3. Amendment filed 11-24-78; designated effective 1-1-79 (Register 78, No. 47).
4. Amendment filed 8-27-81; effective thirtieth day thereafter (Register 81, No. 35).
5. Amendment filed 1-25-83; effective thirtieth day thereafter (Register 84, No. 4).
6. Amendment filed 5-7-84 as an emergency; effective upon filing (Register 84, No. 19). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-4-84.
7. Certificate of Compliance transmitted to OAL 7-17-84 and filed 8-21-84 (Register 84, No. 33).
8. Amendment of section and Note filed 3-15-94; operative 3-15-94 (Register 94, No. 11).
9. Repealer and new subsections (a)-(c), new subsection (d)(3)(A) designator and new subsection (d)(3)(B) filed 7-28-97; operative 7-28-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only (Register 97, No. 31).
10. Editorial correction of subsection (d)(1)(C) (Register 2002, No. 22).
11. Amendment filed 6-17-2002; operative 7-17-2002 (Register 2002, No. 25).
12. Amendment of subsections (a)(1)-(2), new subsection (a)(3) and amendment of subsections (d)(1)(A)-(B) and Note filed 2-17-2011; operative 3-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 7).
Note • History
When a lobbyist or lobbying firm is employed by a bona fide association, including any bona fide federation, confederation or trade, labor or membership organization, that association is a lobbyist employer. The members of the association are not lobbyist employers under Government Code Section 82039.5 merely because of such membership.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82039.5, Government Code.
HISTORY
1. New section filed 5-28-86 as an emergency, operative 5-28-86; (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
2. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
§18241. Cumulation Period for Mass Mailings (82041.5). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82041, Government Code.
HISTORY
1. New section filed 2-20-76; effective thirtieth day thereafter (Register 76, No. 8).
2. Repealer filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
§18247.5. Primarily Formed Committees.
Note • History
(a) A “primarily formed” committee, as defined in Section 82047.5 and this regulation, is a recipient committee under Section 82013(a) that supports or opposes a single candidate or measure, or a specific group of measures or local candidates on the same ballot. (In contrast, a “general purpose” committee, defined in Section 82027.5 and Regulation 18227.5, supports multiple candidates or ballot measures.)
(b) Filing. Under Section 84215, a primarily formed committee files in the jurisdiction where the candidate(s) or measure(s) it is primarily formed to support or oppose normally file(s) their campaign statements.
(c) Special Requirements for Primarily Formed Committees. In addition to other applicable provisions of the Act and regulations, a primarily formed committee must automatically file preelection statements under Section 84200.5 and 84200.7 or 84200.8; must comply with the committee name and identification of donors requirements of Sections 84107, 84503 and 84504, if supporting or opposing a ballot measure; must comply with the committee name rules of Regulation 18402(c)(3) if supporting or opposing candidate(s); must file online 90-day reports under Section 85309 if supporting or opposing a state ballot measure; must file 16-day reports of contributions received under Section 82036; and is subject to mandatory audit if a state committee.
(d) Definition. For purposes of Section 82047.5, a recipient committee under Section 82013(a) is considered to be “formed or existing primarily to support or oppose” a candidate or measure if:
(1) The committee is created for the purpose of or is involved in running the principal campaign for or against the candidate(s) or measures(s) as listed in subdivision (d)(4) below; or
(2) The committee's primary purpose and activities are to support or oppose candidate(s) or measure(s) as listed in subdivision (d)(4) below; or
(3) The committee makes more than 70 percent of its total contributions and expenditures on all candidates and measures (not including administrative overhead) on those specific candidates(s) or measure(s) as listed in subdivision (d)(4) below, during the time period specified in subdivision (e)(3).
(4)(A) A single candidate. A committee formed or existing primarily to support or oppose a single candidate includes a committee that makes contributions and expenditures for a particular candidate and against that candidate's opponent(s).
(B) A single measure.
(C) A group of specific candidates being voted upon in the same city, county, or multicounty election.
(D) Two or more measures being voted upon in the same city, county, multicounty, or state election.
(e) Review.
(1) A committee that has reason to know it is close to triggering the applicable threshold for changing status because its spending is concentrated on candidate(s) or measure(s) as listed in subparagraphs (d)(4)(A), (B), (C) or (D), shall determine whether it is primarily formed quarterly at the end of March, June, September and December.
(2) Newly organized committees.
(A) A committee that files its initial statement of organization within six months of an election in connection with which the committee makes contributions and expenditures shall determine whether it is primarily formed at the end of each month prior to the election unless the committee has not made contributions and/or expenditures of $1,000 or more to support or oppose candidates or measures during that month.
(B) A committee that files its initial statement of organization within six months of a statewide primary or general election or within 30 days after a declaration calling a special election for a state elective office or measure and makes at least $25,000 in independent expenditures to support or oppose a state candidate or state measure(s) as listed in subparagraphs (d)(4)(A), (B), or (D), is presumed to be, and shall report as, a primarily formed committee. This presumption can be rebutted when the committee's contributions and expenditures on multiple candidates or measures in different jurisdictions or elections demonstrate that it is not primarily formed and the committee may amend its statement of organization to identify itself as a general purpose committee pursuant to Regulation 18227.5.
(3) For purposes of determining whether it is primarily formed under subdivision (d)(3), a committee shall count contributions and expenditures made to support or oppose candidates or measures during whichever of the following time periods most accurately reflects the current and upcoming activities of the committee:
(A) The immediately preceding 24 months; or
(B) The current two-year period, beginning with January 1 of an odd-numbered year and ending with December 31 of the following even-numbered year.
(f) File as Primarily Formed through the Election. A committee that is or becomes primarily formed within 90 days prior to an election shall maintain that status and file disclosure reports as a primarily formed committee up to the date of that election and continuing until the end of the post-election reporting period.
(g) Change of Status.
(1) Amend Statement of Organization. A recipient committee whose status changes from one jurisdiction to another, or between general purpose and primarily formed shall amend its statement of organization pursuant to Section 84103 to reflect the change. If, after filing reports with one jurisdiction, a committee changes jurisdiction, in addition to filing reports with a new filing officer, the committee must continue filing reports with the original filing officer through the end of the calendar year under Section 84215(g).
(2) An existing general purpose committee is not required to change its filing status to a primarily formed committee unless it meets the requirements in subdivision (d) and it makes at least $100,000 of contributions and/or expenditures if supporting or opposing a state candidate or measure(s) listed in subparagraphs (d)(4)(A), (B), or (D), or at least $10,000 of contributions and/or expenditures if supporting or opposing local candidate(s) or measure(s) listed in subparagraphs (d)(4)(A), (B), (C), or (D).
(3) Contributions from a general purpose committee to a primarily formed ballot measure or candidate committee shall not be included in the calculations required under subdivision (d)(3) if the sponsor of the general purpose committee is also a sponsor of the primarily formed committee.
(4) A committee that was primarily formed for the election of a candidate or measure, but after that election continues to exist to support or oppose different candidates or measures in the future, may remove the candidate or measure name from the committee name and change its status following the election, as long as the committee is not raising funds to pay debt from the election, except as provided in subdivision (f).
(h) Avoidance of Disclosure. A committee shall not knowingly file in an incorrect jurisdiction or as an incorrect type of committee, with the intention of avoiding the appropriate legal disclosure of campaign contributions and expenditures to the public.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82047.5, Government Code.
HISTORY
1. New section filed 1-30-2009; operative 3-1-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 5).
2. Amendment of section heading, repealer and new section and amendment of Note filed 1-5-2012; operative 2-4-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 1).
§18249. State Agency (82004, 86100-86300).
Note • History
An agency is a state agency within the provisions of Government Code Sections 82004 and 86100-86300 only if all the following criteria are met:
(a) The agency is authorized by statute, executive order or the California constitution.
(b) At least one voting member is an elected state officer or is appointed by an elected state officer or an agency official or a state agency.
(c) The agency is financed in part by any state funds or is subject to appropriation in the state budget.
(d) An area larger than one county is included in its jurisdiction.
NOTE
Authority cited: Sections 82113 and 83112, Government Code. Reference: Sections 82004, 82049 and 86100-86300 Government Code.
HISTORY
1. New section filed 9-18-75; effective thirtieth day thereafter (Register 75, No. 38).
2. Amendment filed 12-26-80; effective thirtieth day thereafter (Register 80, No. 52).
3. Editorial Correction (Register 81, No. 7).
Chapter 3. Fair Political Practices Commission
§18306. Compensation and Reimbursement for Members of the Fair Political Practices Commission. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83106, Government Code.
HISTORY
1. New section filed 3-31-77; effective thirtieth day thereafter (Register 77, No. 14). For prior history of Chapter 3, see Register 75, No. 27.
2. Amendment of subsection (a) filed 6-21-79; effective thirtieth day thereafter (Register 79, No. 25).
3. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
4. Repealer filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
§18307. Honoraria for Members of the Fair Political Practices Commission.
Note • History
Members of the Fair Political Practices Commission shall not accept honoraria or fees for speeches, public appearances, interviews or similar services arising primarily out of the members' positions on the Commission. For purposes of this regulation, honoraria or fees include only payments which exceed actual expenses incurred.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83106, Government Code.
HISTORY
1. New section filed 3-31-77; effective thirtieth day thereafter (Register 77, No. 14).
2. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
Note • History
(a) Regular Meeting. There shall be regular meetings of the Commission.
(b) Special meetings may be called by the Chairman, by resolution of the Commission or by written request of any two commissioners addressed to the Chairman or Executive Director.
(c) Requests for Notice. Notice of meetings and notice of cancellation or changes in the starting time and/or date of any meeting shall be mailed to persons who request such notice in writing.
(d) Changes. The Chairman for any reasonable cause may cancel any regular meeting or change the starting time and/or date of any meeting to another time and date.
(e) Recording. Commission meetings shall be recorded. Any person may record the proceedings in any reasonable manner.
(f) Minutes. The Commission shall keep full and accurate minutes of its meetings and make them available to the public.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83110, Government Code.
HISTORY
1. New Chapter 3 (Sections 18310 and 18315) filed 6-30-75 as a emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 27).
2. Amendment of subsection (b) filed 2-20-76; effective thirtieth day thereafter (Register 76, No. 8).
3. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
4. Amendment filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
Note • History
(a) Definitions.
(1) Administrative Procedure Act: All references in this regulation to the “Administrative Procedure Act” are to the provisions of the “Administrative Procedure Act” that were in effect as of June 4, 1974 (former Government Code title 2, division 3, part 1, chapter 4.5, section 11371 et seq.).
(2) California Administrative Register: All references in this regulation to the “California Administrative Register” are to the California Administrative Register as set forth in Government Code section 11409 as that section existed on June 4, 1974, or to any successor publication of the Office of Administrative Hearings, as defined in subdivision (a)(4) of this regulation.
(3) Notice: The notice of the adoption, repeal, or amendment of any Commission regulation shall include all of the following:
(A) A statement of the time, place, and nature of the proceedings;
(B) Reference to the authority under which the regulation is proposed and reference to particular code sections or other provisions of law which are being implemented, interpreted, or made specific;
(C) Either the express terms or an informational summary of the proposed action.
(D) A cost estimate prepared as prescribed by the Department of Finance.
(4) Office of Administrative Hearings: All references in this regulation to the “Office of Administrative Hearings” are to the Office of Administrative Hearings as set forth in Government Code sections 11371 et seq., as those sections existed on June 4, 1974, and to any state agency that succeeds the Office of Administrative Hearings, including the Office of Administrative Law.
(5) Regulatory Action: “Regulatory action” includes the adoption, repeal, or amendment of any Commission regulation.
(6) Trade or Industry Publication: “Trade or industry publication” includes the California Administrative Register.
(b) Adoption, Amendment, and Repeal of Regulations.
(1) The Commission or Commission staff may schedule a public “interested persons” meeting to solicit comment from the public on any topic within the jurisdiction of the Commission, in advance of either a prenotice hearing, if any, or an adoption hearing on a proposed regulation. Announcement of this meeting shall be posted on the Commission website and mailed (either in tangible form or electronically) to every person who has filed a request to be included on the applicable mailing list and to such other persons or groups the Commission believes may be interested in the matter.
(2) The Commission or Commission staff may schedule a prenotice hearing on any regulation that will be the subject of Commission regulatory action in the future. The purpose of the prenotice hearing is to permit the Commission to consider and accept public comment regarding regulatory action proposed by the Commission staff. Any regulatory action to be considered at a prenotice hearing shall be publicized consistent with Government Code sections 11120-11132.
(3) At least 30 days prior to the adoption, amendment, or repeal of any regulation, notice shall be provided as follows:
(A) Publication in a newspaper of general circulation or in a trade or industry publication as prescribed by the Commission.
(B) Filing with the Rules Committee of each house of the Legislature.
(C) Mailing (either in tangible form or electronically) to every person who has filed a request for notice thereof with the Commission. At the discretion of the Commission, notice may be mailed to other persons or groups the Commission believes may be interested in the proposed action.
(D) Delivered to the Office of Administrative Hearings for publication in the next issue of the California Administrative Register as prepared by that office.
The failure to mail notice to any person as provided in section 11423 as that section existed on June 4, 1974, shall not invalidate any action taken by the Commission.
(4) The Commission shall consider the regulatory action on or after the date and time designated in the notice, and shall afford interested persons an opportunity to comment. Written comments should be submitted to the Commission no later than 12:00 p.m. of the business day preceding the day of the hearing to afford them adequate time to fully consider the comments. Any regulatory action to be considered shall be publicized consistent with Government Code sections 11120-11132.
(5) Where consideration of Commission regulatory action is continued to another meeting date, announcement of the change in date shall be posted on the door of the hearing room or announced at the Commission meeting. No additional notice pursuant to subdivision (b)(2) of this regulation is required.
(6) The Commission or Commission staff may schedule additional Interested Persons Meetings, Prenotice Hearings, or Adoption Hearings on any given item.
(7) Once the Commission has approved the adoption, repeal, or amendment of any Commission regulation, the Commission shall submit to the Office of Administrative Hearings, for filing with the Secretary of State, one certified copy of any regulation adopted, repealed, or amended with a citation to the statutory authority pursuant to which the regulation was adopted, and four additional copies of the regulation. The Commission shall also submit one certified copy of the regulation to the Rules Committee of each house of the Legislature.
(8) The Commission shall retain a rulemaking file pertaining to each Commission regulatory action. The file shall contain the record of the hearing at which the Commission took the regulatory action and other materials pertinent to the regulatory action.
(c) Adoption of Emergency Regulations. The Commission may adopt, amend, or repeal regulations on an emergency basis. The procedures set forth below, and not the procedures contained in subdivision (b) of this regulation, shall apply to Commission emergency regulatory action.
(1) In order to adopt an emergency regulation, or to make an emergency amendment or repeal of a regulation, the Commission shall make a written finding of emergency, which shall include a statement of facts constituting the emergency and a statement that the Commission's regulatory action is necessary for the immediate preservation of the public peace, health and safety, or general welfare.
(2) The Commission shall file a copy of the emergency regulation and the documents set forth in subdivision (c)(1) of this regulation with the Office of Administrative Hearings, to be filed with the Secretary of State, and shall file a copy with the Rules Committee of each house of the Legislature.
(3) Unless otherwise provided by the Commission in a written instrument filed with, or as part of, the regulation or order of repeal, any emergency regulatory action shall become effective upon filing and shall remain in effect for 120 days.
(4) The Commission may make the emergency regulation, amendment, or repeal permanent pursuant to subdivision (b) of this regulation. Where the Commission makes an emergency regulatory action permanent pursuant to subdivision (b) of this regulation prior to the expiration of the 120 days set forth above, the Commission shall transmit to the Office of Administrative Hearings and the Rules Committee of each house of the Legislature a certification that the action has been made permanent.
(d) Review by the Office of Administrative Hearings.
(1) The Office of Administrative Hearings shall review any Commission regulation subject to Commission regulatory action for compliance with the form and style requirements of the Secretary of State.
(2) If the Commission's regulatory action complies with the prescribed form and style requirements of the Secretary of State, the Office of Administrative Hearings shall file the regulation, amendment, or repeal promptly with the Secretary of State.
(e) Effective Date of Commission Regulatory Actions.
(1) Commission regulatory actions shall become effective 30 days after filing with the Secretary of State, except for the following:
(A) Where the Commission provides in a written instrument filed with, or as part of, the regulation or order of repeal, a specific effective date, the regulatory action shall be effective on that date.
(B) Any emergency regulatory action shall become effective upon filing with the Secretary of State and the Rules Committee of each house of the Legislature pursuant to subsection (c)(2) of this regulation, unless subsection (e)(1)(A) of this regulation applies.
(C) Regulations prescribing the Commission's organization or procedures shall become effective upon filing with the Secretary of State, unless subsection (e)(1)(A) or (e)(1)(B) of this regulation applies.
Comment: On March 6, 1991, in the case of Fair Political Practices Commission v. Office of Administrative Law and Linda Stockdale Brewer, Sacramento County Superior Court, Case No 512795 (affirmed by Court of Appeal, Third District (April 27, 1992), Case No. C010924 [unpub. opn.]), the court determined that the Fair Political Practices Commission's procedures for adopting, amending, or repealing regulations are subject only to those provisions of the Administrative Procedure Act in effect on June 4, 1974, which was the date on which the voters adopted the Political Reform Act of 1974. This regulation is therefore based on the requirements of the provisions of the Administrative Procedure Act existing on that date. On June 4, 1974, the pertinent provisions of the Administrative Procedure Act were located in former Government Code, Title 2, Division 3, Part 1, Chapter 4.5, section 11371 et seq.
NOTE
Authority cited: Sections 81014 and 83112, Government Code. Reference: Sections 11371 et seq., Government Code, as those sections existed on June 4, 1974; Sections 81013, 81014, and 83112, Government Code; Fair Political Practices Commission v. Office of Administrative Law and Linda Stockdale Brewer, Sacramento County Superior Court, Case No. 512795 (affirmed by Court of Appeal, Third District (April 27, 1992), Case No. C010924 [unpub. opn.]).
HISTORY
1. Repealer and new section filed 2-5-93; operative 2-5-93 (Register 93, No. 6). For prior history, see Reg. 88, No. 41.
2. Editorial correction of History 1 (Register 2001, No. 34).
3. New subsections (b)(1) and (b)(6), subsection renumbering, and amendment of newly designated subsections (b)(2), (b)(3)(C), (b)(4) and (b)(5) filed 2-24-2003; operative 2-24-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
4. Amendment of section and Note filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
Note • History
(a) The Commission shall maintain a list of persons interested in its forms and manuals.
(b) No later than 30 days prior to considering a new form or manual, or a revision or supplement to an existing form or manual, the Commission shall notify everyone on its interested persons lists and make the new or revised documents available for review. The changes shall be clearly noted. The Commission may make the form, manual, revision or supplement available for review by posting it on the Commission's website, or sending it by electronic mail or postal service mail to interested persons.
(c) The form, manual, revision or supplement shall appear on the next regular meeting agenda of the Commission for adoption.
(d) At that meeting, the Commission may, if three commissioners agree:
(1) Adopt the form, manual, revision or supplement with or without discussion.
(2) Make changes to the form, manual, revision or supplement and adopt it as modified.
(3) Reject the form, manual, revision or supplement.
(4) Schedule an interested persons meeting.
(e) For greater outreach and accessibility, certain of the Commission's most widely used forms or manuals may, at the discretion of the Commission, be translated into Spanish. In the event of an inconsistency between the English version and the translation, the English version shall control, and this will be stated on the translated forms or manuals.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83113, Government Code.
HISTORY
1. New section filed 10-28-96; operative 10-28-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 44).
2. Amendment of subsection (b) and new subsection (e) filed 4-10-2003; operative 4-10-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 15).
Note • History
(a) Not later than 10 days after issuance or receipt by the Commission, the Commission shall post the following information on its website:
(1) Commission opinions issued pursuant to subdivision (a) of Section 83114.
(2) Staff advice letters issued pursuant to subdivision (b) of Section 83114.
(3) Warning, advisory, and closure letters issued by the Enforcement Division.
(4) Behested payments reports filed with the Commission pursuant to subdivision (b)(2)(B)(iii) and (b)(3) of Section 82015.
(b) The Commission shall also post on its website all statements of economic interests required to be filed with the Commission on or after January 1, 2010, by elected officers in their elected capacity. The address, telephone number, and signature block of the elected official's statement will be redacted from the cover page of the document before posting to the website. The statement of economic interests will be posted as soon as possible after the document is filed with the Commission.
(c) The information required to be posted on the Commission's website under subdivisions (a) and (b) shall remain posted on the website until the members of the Commission approve its removal.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 81002 and 83113, Government Code.
HISTORY
1. New section filed 6-17-2010; operative 7-17-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2010, No. 25).
2. Change without regulatory effect amending subsection (c) filed 7-8-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 28).
§18313.6. Online Posting: Redacting Personal Information.
Note • History
(a) At the request of an elected officer, Commission Staff shall redact the following information from the official's statement of economic interest for purposes of the online posting under Regulation 18313.5(b) if the elected officer has a reasonable privacy concern related to an individual's address, or a family member's name or other personally identifiable information:
(1) The address of the individual.
(2) The name of the family member.
(3) The address of an entity at which the family member is employed.
(4) The name of any entity if the name of the entity would reveal the name of the family member or the address at which the family member lives or is employed.
(b) For purposes of this regulation a family member includes an official's spouse or former spouse including a registered domestic partner or former registered domestic partner; child or step-child; parent; grandparent; grandchild; brother; sister; current or former parent-in-law, brother-in-law, or sister-in-law; nephew; niece; aunt; uncle; grand nephew; grand niece; grand aunt; grand uncle; first cousin; first cousin once removed; or spouse or former spouse of these persons other than a former in-law.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81002 and 83113, Government Code.
HISTORY
1. New section filed 6-4-2012; operative 7-4-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 23).
§18315. Special Meetings. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code.
HISTORY
1. Repealer filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
2. Change without regulatory effect adding Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
§18316.5. Application of Government Code Section 83116.5.
Note • History
(a) The Commission will not apply Government Code Section 83116.5 to find a violation of this title1 by a person who provides incorrect advice interpreting any provision of this title which causes the advisee to violate this title under any of the following circumstances:
(1) Government Employees or Contractors. If the person is an employee of or under contract to a state or local government agency and is giving advice interpreting the provisions of this title as part of the person's government contract or employment.
(2) Private Sector Filers. If the person is not exempted by subdivision (1), and the person has filing or reporting obligations under this title, if either of the following applies:
(A) There is no direct relationship between the advice given and the duties or activities of the position for which the person has filing or reporting obligations; or the client being advised is not the client for whom the filing occurs; or
(B) If the person's conduct in giving the advice was not grossly negligent. “Grossly negligent” means that the person giving an incorrect interpretation failed both to diligently research the subject related to the advice given and to use his or her informed judgment in providing the advice, and the advice was clearly erroneous.
A person will be deemed to have “diligently researched” the subject related to the advice given if he or she has reviewed the applicable provisions of this title and the regulations, opinions, and manuals of the Commission, including the compilation of such documents contained on the agency website at www.fppc.ca.gov, as well as any applicable reported appellate court decisions and the California Code of Regulations.
(3) Attorneys in Private Capacity. If the person is not a government employee or contractor, as defined in subdivision (a)(1), or a private sector filer, as defined in subdivision (a)(2), and the person is an active member of the State Bar of California whose only service in connection with the violation was providing legal advice and who was not also engaged in the planning, organizing, or directing of an activity from which the violation occurred. “Legal advice” means the rendering of oral or written advice including the preparation of documents and reports incidental to the rendering of such advice, but shall not include the preparation of any report or document required to be filed under this title by the person providing the advice.
(b) This regulation is not applicable where a person renders advice which is intended to result in a violation of this title. Furthermore, nothing in this regulation shall be construed to exempt a person from liability for a violation of any other provision of this title.
---------
1All references to “this title” are references to Title 9, Sections 81000-91015 of the Government Code.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83116 and 83116.5, Government Code.
HISTORY
1. New section filed 2-4-93; operative 2-4-93 (Register 93, No. 6).
2. Amendment of subsection (a)(2)(B) filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18316.6. Treasurer Liability.
Note • History
(a) A treasurer may be held liable for a violation of the Act for failing to abide by his or her duties as specified in Sections 84100 and 84104, and Regulation 18427.
(b) Consistent with the provisions of Section 83116.5, a treasurer may be held jointly and severally liable for a violation of the Act where he or she failed to abide by his or her duties as specified in Regulation 18427, caused another person to violate the Act, or aided and abetted a person to violate the Act.
(c) For purposes of subdivisions (a) and (b) of this regulation, where a duty is applicable to a candidate, the Commission may determine that the treasurer is not liable for the violation if the candidate does not have a controlled committee, and the treasurer did not cause or aid and abet the candidate to violate the Act.
(d) Notwithstanding subdivisions (a) and (b) of this regulation, where a treasurer of a committee performs any duty specified in Regulation 18427 on behalf of a major donor committee, as defined in Section 82013, subdivision (c), and he or she causes that committee to violate the Act, the Enforcement Division may propose to the Commission that the treasurer be held solely responsible for the violation within meaning of Section 91006. Evidence of negligence or intentional conduct by any person who violated the Act will be considered by the Enforcement Division in making the recommendation.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81004, 83116, 83116.5, 84100 and 91006, Government Code.
HISTORY
1. New section filed 12-7-2011; operative 1-6-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 49).
§18319. Delegation of Authority.
Note • History
Except as otherwise provided, any authority imposed upon the Executive Director by regulations adopted by the Fair Political Practices Commission may be delegated in writing to any member of the Commission staff or any person contracting with the Commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83108, Government Code.
HISTORY
1. New section filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
2. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
§18320. Requests for Opinions.
Note • History
(a) Opinion requests may be submitted to the Commission by any person whose duties under the Act are in question or by that person's representative.
(1) The identity of the person whose duties are in question shall be provided with the opinion request. If the opinion request is submitted by the representative of several persons similarly situated, the identity of at least one such person shall be provided with the opinion request.
(2) The immunity provided by Government Code section 83114 shall extend only to the person or persons identified in the opinion request.
(b) Opinion requests shall present all material facts as concisely as possible and shall state the question or questions based on the facts.
(c) The Commission staff shall maintain a master file containing all opinion requests. This file shall be open to public inspection.
(d) The Executive Director shall determine whether to grant or deny opinion requests.
(e) Within 14 days after the request is submitted, the person making the opinion request shall be notified in writing of the decision of the Executive Director. If the opinion request is denied, the notification shall state the reason for the denial and shall advise the person submitting the request of his right to appeal to the Commission pursuant to 2 Cal. Code Regs. section 18321.
(f) Among the criteria upon which denial of an opinion request may be based are the following:
(1) The question raised is covered by Commission regulations.
(2) The question raises no substantial question of interpretation and, therefore, requires only a routine reply more appropriately made by staff.
(3) The person who made the request does not have sufficient interest (standing) in the question to justify an opinion being issued.
(4) The question is hypothetical. However, opinion requests may be granted if the hypothetical facts stated represent an intended course of conduct which is contingent on the Commission's opinion.
(5) The question is overbroad in that it asks for an interpretation of the Act in general terms.
(6) The request does not present material facts and does not state a question based on the facts presented.
(7) The question is outside the scope of the Political Reform Act.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114, Government Code.
HISTORY
1. New section filed 8-1-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer and new section filed 5-10-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 20).
3. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
4. Amendment filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
5. Amendment of subsection (d) filed 6-29-84; effective thirtieth day thereafter (Register 84, No. 26).
6. Change without regulatory effect amending subsections (a)(2) and (e) filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
§18321. Review of Requests Denied by the Executive Director.
Note • History
Any member of the Commission or any interested person may request a review of an opinion request denied by the Executive Director at the next meeting of the Commission following issuance of the denial. If a majority of the Commission approves the granting of an opinion request, the denial shall be rescinded, the person submitting the opinion request shall be notified in writing, and the opinion shall be issued as provided in 2 Cal. Code Regs. sections 18322 and 18324.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114, Government Code.
HISTORY
1. New section filed 8-1-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer and new section filed 5-10-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 20).
3. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
4. Change without regulatory effect amending section filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
§18322. Procedures for Issuing Opinions.
Note • History
When the Commission has agreed to issue an opinion, the following procedures shall apply:
(a) The Commission shall hold a hearing on the opinion request.
(b) The Commission staff shall prepare a memorandum which discusses the issues and includes any staff recommendations. At least two weeks prior to the hearing on the opinion request, the staff memorandum shall be provided to the members of the Commission, the Attorney General, the Franchise Tax Board, the Secretary of State, the person requesting the opinion, and other interested persons and shall be made available to the public.
(c) Any interested person may submit memoranda, briefs, arguments or other relevant material regarding the opinion no later than 5 days prior to the scheduled hearings on the opinion request. An original and five copies of briefs or arguments shall be submitted unless the person submitting the material declares he is financially unable to supply copies.
(d) The person requesting the opinion may present oral testimony at the hearing on the opinion request. Any other interested person may, upon request, be permitted to present oral testimony.
(e) The Commission shall adopt the opinion at a public meeting. Prior to the meeting, a draft of the opinion shall be provided to the members of the Commission, the Attorney General, the Franchise Tax Board, the Secretary of State, the person requesting the opinion, and other interested persons and shall be made available to the public.
(f) The time limits in this section may be waived or extended by the Commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114, Government Code.
HISTORY
1. New section filed 8-1-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer and new section filed 5-10-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 20).
3. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
4. Amendment filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
5. Amendment filed 6-29-84; effective thirtieth day thereafter (Register 84, No. 26).
6. Amendment filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
§18323. Hearing on Draft Opinions (83114). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114, Government Code.
HISTORY
1. New section filed 8-1-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer and new section filed 5-10-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 20).
3. Repealer and new section filed 7-28-76; effective thirtieth day thereafter (Register 76, No. 31).
4. Repealer filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
Note • History
(a) Opinions adopted by the Commission shall be effective upon adoption and shall be published along with any dissenting or concurring opinions by Commissioners submitted within thirty days after the adoption.
(b) The time for the effective date or for the publication of an opinion may be shortened or extended by the Chairman, subject to appeal by any interested person to the Commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114(a), Government Code.
HISTORY
1. New section filed 8-1-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer and new section filed 5-10-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 20).
3. Repealer and new section filed 7-28-76; effective thirtieth day thereafter (Register 76, No. 31).
4. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
§18325. Time Periods for Preparing Opinions (83114). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114, Government Code.
HISTORY
1. New section filed 8-1-75; effective thirtieth day thereafter (Register 75, No. 31).
2. Repealer and new section filed 5-10-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 20).
3. Repealer filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
§18326. Petition for Rehearing.
Note • History
(a) Within 14 days after the adoption or rejection of a formal opinion by the Commission, the person who submitted the opinion request, a Commissioner or the Executive Director may petition the Commission to grant a rehearing. The petition, if submitted by the person who submitted the opinion request, shall be in writing and shall set forth, with specificity, the reasons for the request.
(b) Whenever the Commission grants a petition for rehearing, the Commission shall suspend the opinion pending the rehearing.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114(a), Government Code.
HISTORY
1. New section filed 3-30-76; effective thirtieth day thereafter (Register 76, No. 14).
2. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
3. Amendment of subsection (a) filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18327. Voting Requirements for Formal Action by the Commission.
Note • History
Except as otherwise provided by regulation, the concurring votes of at least three Commissioners shall be required to authorize any formal action by the Commission.
(a) Formal action includes, but is not limited to: the adoption of opinions, regulations or resolutions; the granting of petitions for rehearing; the approval of manuals or forms; and the issuance of any decision, order or declaration pursuant to Government Code Section 83116.
(b) Formal action does not include decisions: to approve conflict of interest codes; to hear testimony; to convene, adjourn or recess a meeting; or to conduct discussions.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83107-83117, Government Code.
HISTORY
1. New section filed 4-30-76; effective thirtieth day thereafter (Register 76, No. 18).
2. Amendment filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
3. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
4. Amendment filed 5-18-87; operative 5-18-87 (Register 87, No. 21).
§18329. Formal Written Advice and Informal Assistance.
Note • History
(a) The Commission will assist persons in complying with the Political Reform Act. The Commission will make every reasonable effort to provide formal written advice pursuant to Government Code Section 83114(b) or informal assistance without unnecessary delay and in sufficient time to facilitate compliance with the Act.
(b) Formal Written Advice.
(1) Formal written advice may be requested in writing pursuant to Government Code Section 83114(b) by any person whose duties under the Act are in question or by that person's authorized representative.
(2) Requests for formal written advice will not be acted upon unless the following requirements are met:
(A) The name, title or position, and mailing address of the person whose duties are in question are provided. In addition, if the request is submitted by an authorized representative, it shall contain a specific statement that such authorization has been made.
(B) All the facts material to the consideration of the question or questions presented have been provided in a clear and concise manner.
(3) The time period specified in Government Code Section 83114(b) does not commence until the requirements of subsection (2) have been satisfied.
(4) If a formal written advice request does not meet the requirements in subsection (2) the requestor shall promptly be notified of that fact in writing and shall be provided with a copy of this regulation.
(5) When a request for formal written advice is received which complies with the requirements in subsection (2) the request shall promptly be acknowledged in writing. In addition, the acknowledgement shall provide the requestor with the name of the staff person to whom the request has been assigned, the staff person's office phone number, and the date on which the period specified in Government Code Section 83114(b) expires. If the request is from an authorized representative, a copy of the foregoing acknowledgement shall also be sent to the person on whose behalf the advice is being requested. If the request is received directly from a member of an agency a copy of the request and the acknowledgement may also be sent to the agency's counsel and/or the head or clerk of the agency.
(6) With the exception of advice that a person need not disclose specific private economic interests, copies of the advice request and the formal written advice shall be public records. Summaries of the advice provided may be published from time to time in the Commission's Bulletin newsletter.
(7) Formal written advice provided pursuant to Government Code Section 83114(b) does not constitute an Opinion of the Commission issued pursuant to Government Code Section 83114(a) nor a declaration of policy by the Commission. Formal written advice is the application of the law to a particular set of facts provided by the requestor. While this advice may provide guidance to others, the immunity provided by Government Code Section 83114(b) is limited to the requestor and to the specific facts contained in the formal written advice.
(8) Subsection (a) notwithstanding, the Commission may decline to give formal written advice. The requestor shall be notified if the request for formal written advice is declined. Formal written advice may be declined in any of the following circumstances:
(A) The requestor is seeking advice relating to past conduct.
(B) The requestor is seeking advice about another person's duties under the Act and has not been authorized to do so by that person.
(C) It appears that the material facts provided in the request may be inaccurate, incomplete, or in dispute.
(D) The request does not present a question under the Political Reform Act, or is purely hypothetical.
(E) The request presents issues requiring a policy interpretation best made through a Commission Opinion under Government Code Section 83114(a) or by adoption of a regulation pursuant to Government Code Section 83112.
(F) A response rendering formal written advice would be inappropriate or otherwise not in the public interest.
(9) A request for formal written advice under Government Code Section 83114(b) and this regulation may be treated as a request for an Opinion under Government Code Section 83114(a), or as a request for informal assistance under subsection (c).
(c) Informal Assistance.
(1) Informal assistance may be requested by any person whose duties under the Act are in question or by that person's authorized representative. In addition, informal assistance may be requested by any person with a duty to advise other persons relating to their duties or actions under the Act. Informal assistance may also be requested by any agency whose members or employees are subject to the provisions of the Act.
(2) Informal assistance may be requested or rendered orally or in writing.
(3) Informal assistance rendered pursuant to this regulation does not provide the requestor with the immunity set forth in either Government Code Section 83114(a) or (b).
(4) The Commission may decline to provide informal assistance or may limit such assistance to the explanation, in general terms, of the requirements of the Act in any of the following circumstances:
(A) Assistance or advice is being sought regarding past conduct, unless the advice or assistance sought is related to possible amendment of previous reports filed by the person requesting the advice.
(B) The requestor is seeking advice anonymously.
(C) Assistance or advice is being sought regarding the duties of another person and the requestor does not appear to be authorized to make the request as the person's representative, or does not provide the identity of the person on whose behalf the assistance is being sought.
(D) The question presented is purely hypothetical.
(E) The question presented is too complex or is otherwise inappropriate for resolution by informal assistance and should be resolved by formal written advice or an Opinion.
(F) The facts presented are insufficient or too vague to render specific informal assistance or do not appear to present a question under the Act.
(G) Rendering informal assistance would be inappropriate or otherwise not in the public interest.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83114(b), Government Code.
HISTORY
1. New section filed 5-10-76 as an emergency; effective upon filing (Register 76, No. 20).
2. Certificate of Compliance filed 7-28-76 (Register 76, No. 31).
3. Repealer and new section filed 3-31-77; effective thirtieth day thereafter (Register 77, No. 14).
4. Amendment of subsections (c)-(g) filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
5. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
6. Amendment of subsection (g) filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
7. Repealer and new section filed 7-16-85; effective thirtieth day thereafter (Register 85, No. 29).
§18329.5. Commission Advice Procedure -- Government Code Sections 87300-87306.
Note • History
(a) The Commission shall not render formal written advice or informal assistance regarding the interpretation of an agency's conflict of interest code or the application of that code to a specific individual unless the following criteria are satisfied:
(1) The individual, agency, or authorized representative requesting advice must comply with all the requirements of 2 Cal. Code Regs. section 18329 regarding requests for formal written advice or informal assistance; and
(2) The Commission is the Code Reviewing Body.
Where the Commission is the code reviewing body for the conflict of interest code in question, the individual or his or her authorized representative requesting the advice or assistance must first request a determination from the agency adopting the conflict of interest code; or
(3) The Commission is not the Code Reviewing Body.
(A) Where the Commission is not the code reviewing body for the conflict of interest code in question, and the requesting party is an individual or his or her authorized representative, he or she must first request a determination from the agency and the code reviewing body for such conflict of interest code.
(B) Where the Commission is not the code reviewing body for the conflict of interest code in question, and the requesting party is an agency, the agency must first request a determination from the code reviewing body for such conflict of interest code.
(b) The Commission may, upon request, provide technical assistance to an individual regarding technical compliance with his or her reporting requirements under the individual's current conflict of interest code.
(c) The Commission may, upon request, provide advice or technical assistance to a party for the purpose of determining whether that party is an agency as defined in Government Code sections 82041 and 82049, and is therefore required to adopt and promulgate a Conflict of Interest Code pursuant to Government Code Section 87300. The Commission may also, upon request, provide advice or assistance to an agency concerning which positions should be designated in the agency's Conflict of Interest Code through application of 2 Cal. Code Reg. section 18701. However, a request by an agency to be relieved of the duty to adopt a Conflict of Interest Code may only be processed as a request for exemption pursuant to 2 Cal. Code Reg. section 18751.
(d) Section 87200: “Other Public Officials Who Manage Public Investments”
(1) Notwithstanding subdivision (a) above, the Commission may provide advice or assistance to an individual concerning whether he or she is subject to Government Code section 87200 at any time.
(2) When the Commission determines that an individual is not a “public official who manages public investments” pursuant to Government Code section 87200, the individual's agency or code reviewing body must then determine whether that individual has filing obligations pursuant to Chapter 7 of the Act. The agency or code reviewing body may request advice or assistance in making that determination pursuant to the procedures in subdivision (a) above.
(e) Requests.
A requestor may be asked to provide the following information when requesting advice or assistance pursuant to this regulation:
(1) A copy of all pertinent agency determinations regarding an individual's obligations under Chapter 7 of the Act.
(2) A copy of an individual's employment contract;
(3) A copy of an individual's duty statement;
(4) A copy of the applicable conflict of interest code; and
(5) Any other pertinent information.
COMMENT: An individual potentially subject to a conflict of interest code may petition the agency to amend its code. An individual may appeal a denied petition to the code reviewing body and may also seek judicial review of an action taken by the code reviewing body (Government Code sections 87307 and 87308). The code reviewing body has the authority to modify or suspend the disclosure obligations pending resolution of the appeal (2 Cal. Code Regs. section 18737).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83114(b) and 87300-87306, Government Code.
HISTORY
1. New section filed 6-12-2003; operative 6-12-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 24).
2. New subsection (c) and subsection relettering filed 12-29-2005; operative 1-28-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 52).
§18350. Moscone Governmental Conflict of Interest Act. Disclosure of Economic Interests by Fair Political Practices Commission and Staff. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 3700-3710, Government Code.
HISTORY
1. New Chapter 5 (Section 18350) filed 5-30-75 as an emergency; effective upon filing (Register 75, No. 22).
2. Certificate of Compliance filed 8-14-75 (Register 75, No. 33).
3. Repealer filed 9-28-76; effective thirtieth day thereafter (Register 76, No. 40).
§18351. Conflict-of-Interest Code of the Fair Political Practices Commission.
(a) The Political Reform Act, Sections 81000, et seq., requires state and local government agencies to adopt and promulgate Conflict-of-Interest Codes. The Fair Political Practices Commission has adopted a regulation, Regulation 18730, which contains the terms of a standard model Conflict-of-Interest Code, which can be incorporated by reference, and which may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act after public notice and hearings. Therefore, the terms of Regulation 18730 and any amendments to it duly adopted by the Fair Political Practices Commission along with the attached Appendix in which officials and employees are designated and disclosure categories are set forth, are hereby incorporated by reference and constitute the Conflict-of-Interest Code of the Fair Political Practices Commission.
Individuals in designated positions shall file statements of economic interests with the Fair Political Practices Commission which will make the statements available for public inspection and reproduction. (Gov. Code Section 81008.) Statements filed by all individuals in designated positions will be retained by the Fair Political Practices Commission. For informational purposes only: Statements for Fair Political Practices Commissioners are filed with the Office of the Attorney General.
(b) Appendix
Assigned
Disclosure
Designated Positions Category
EXECUTIVE OFFICE
Executive Director 1
Communications Director 1
Legislative Coordinator 1
Executive Fellow 3
Consultant *
LEGAL DIVISION
General Counsel 1
Assistant General Counsel 1
FPPC Counsel 1
Political Reform Consultant 3
Staff Services Analyst/Legal Analyst 4
ENFORCEMENT DIVISION
Division Chief 1
Assistant Division Chief 1
Chief Investigator 1
FPPC Counsel 1
All Investigators (except Chief Investigator) 2
All Program Specialists 2
Political Reform Consultant 2
Staff Services Analyst/Associate Governmental Program Analyst 2
TECHNICAL ASSISTANCE DIVISION
Division Chief 1
Assistant Chief 1
Manager, Filing Officer Programs 3
Political Reform Consultant 3
Staff Services Analyst 3
ADMINISTRATION DIVISION
Division Chief 1
Data Processing Manager 4
Associate Information Systems Analyst (Network Operations) 5
Personnel Officer 4
Budget Officer 4
----------
* Consultants shall disclose pursuant to the broadest disclosure category in the code subject to the following limitations:
The Executive Director may determine in writing that a particular consultant, although a “designated position” is hired to perform a range of duties that are limited in scope and thus is not required to comply with the disclosure requirements described in this section. Such determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The determination of the Executive Director is a public record and shall be retained for public inspection in the same manner and location as this Conflict-of-Interest Code. Nothing herein excuses any such consultant from any other provision of this Conflict-of-Interest Code.
Disclosure Categories
Category 1
A designated position in this category must report all investments, business positions, interests in real property, and sources of income, including gifts, loans, and travel payments.
Category 2
A designated position in this category must report:
Interests in real property.
Investments and business positions in business entities, and income, including gifts, loans, and travel payments, from sources that:
(A) Are, or were, during the previous two years a “candidate,” “public official,” “committee,” “lobbyist,” “lobbying firm,” or “lobbyist employer” within the meaning of the Political Reform Act, or file periodic reports pursuant to Sections 86114 and 86116; or
(B) Are attorneys that represent persons described in Category 2(A) in matters directly related to their status as described in Category 2(A); or
(C) Are committee treasurers; or
(D) Were the subject of a complaint to, investigation by, or enforcement action of, the Commission, that was acted upon or participated in by the filer during the period covered by the statement.
Category 3
A designated position in this category must report investments and business positions in business entities, and income, including gifts, loans, and travel payments, from sources that:
(A) Are, or were, during the previous two years a “candidate,” “public official,” “committee,” “lobbyist,” “lobbying firm,” or “lobbyist employer” within the meaning of the Political Reform Act, or file periodic reports pursuant to Sections 86114 and 86116; or
(B) Are attorneys that represent persons described in Category 3(A) in matters directly related to their status as described in Category 3(A); or
(C) Are committee treasurers.
Category 4
A designated position in this category must report investments and business positions in business entities and income, including gifts, loans, and travel payments, from sources that are of the type that within the previous two years has provided services, equipment, leased space, materials, or supplies to the Commission.
Category 5
A designated position in this category must report investments and business positions in business entities, and income, including gifts, loans, and travel payments, from sources that manufacture, distribute, supply, or install computer hardware or software of the type utilized by the Commission, as well as entities providing computer consultant services.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87300, 87302, 87303, 87306 and 87311, Government Code.
HISTORY
1. New section filed 9-28-76; effective thirtieth day thereafter (Register 76, No. 40).
2. Amendment filed 5-2-79; effective thirtieth day thereafter (Register 79, No. 18).
3. Repealer and new section filed 4-22-81; effective thirtieth day thereafter (Register 81, No. 17).
4. Amendment filed 2-10-82; effective thirtieth day thereafter (Register 82, No. 7).
5. Amendment filed 10-10-86; effective thirtieth day thereafter (Register 86, No. 41).
6. Amendment filed 9-11-90; operative 10-11-90 (Register 90, No. 43). Submitted to OAL for printing only pursuant to Government Code section 11343.8.
7. Amendment of section and Appendix filed 8-28-95; operative 8-28-95 pursuant to Government Code Section 11343.4(d). Approved by Fair Political Practices Commission (Register 95, No. 35).
8. Editorial correction deleting previously repealed text (Register 95, No. 39).
9. Change without regulatory effect amending second paragraph in subsection (a) and Appendix filed 10-2-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 40).
10. Amendment of Appendix and Reference citations filed 2-26-99; operative 3-28-99 (Register 99, No. 9). Submitted to OAL for printing only pursuant to Government Code section 11343.8. This regulatory action was approved on 1-21-99 by the Attorney General of the State of California as required by Government Code section 82011.
11. Amendment of Appendix filed 5-10-2002; operative 6-9-2002 (Register 2002, No. 19). Submitted to OAL for printing only pursuant to Government Code section 11343.8. This regulatory action was approved on 4-2-2002 by the Attorney General of the State of California as required by Government Code section 82011.
12. Amendment of section and Appendix filed 1-23-2006; operative 2-22-2006 (Register 2006, No. 4). Submitted to OAL for printing only pursuant to Government Code section 11343.8. This regulatory action was approved on 12-8-2005 by the Attorney General of the State of California as required by Government Code section 82011.
13. Amendment of section and Appendix filed 12-17-2007; operative 12-17-2007 (Register 2007, No. 51). Submitted to OAL for printing only pursuant to Government Code section 11343.8. This regulatory action was approved on 11-8-2007 by the Attorney General of the State of California as required by Government Code section 82011.
14. Amendment of section heading, section and Appendix filed 3-23-2010; operative 3-23-2010 (Register 2010, No. 13). Submitted to OAL for printing only pursuant to Government Code section 11343.8. This regulatory action was approved on 1-22-2010 by the Attorney General of the State of California as required by Government Code section 82011.
Note • History
(a) Pursuant to Section 83115, a person may submit a sworn complaint to the Commission or the Commission may on its own initiative investigate an alleged violation of the Act.
(b) A sworn complaint shall be filed on a form made available by the Commission and shall comply with all of the following requirements:
(1) Be in writing.
(2) Identify the person or persons who allegedly violated the Act and, if known, the specific provision or provisions of the Act allegedly violated.
(3) Describe with as much particularity as possible the facts constituting each alleged violation.
(4) Be based on facts of which the complainant has personal knowledge, or based on information and belief supported by documentary or other evidence included or described in the complaint.
(5) Include or describe with as much particularity as possible evidence or means of obtaining evidence in support of the complaint.
(6) Include names and addresses of potential witnesses, if known.
(7) Be signed by the complainant under penalty of perjury.
(c) This regulation does not prevent a person from complaining by telephone to the Commission or requesting anonymity when doing so, but only a sworn complaint filed substantially in conformity with subdivision (b) entitles the complainant to the procedural rights set forth in Section 83115 and in this regulation.
(d) Prior to each regularly scheduled Commission meeting, the Commission staff shall provide each member of the Commission a report with the information specified in paragraphs (1) and (2):
(1) With respect to sworn complaints received since the last report:
(A) The name of the complainant unless the complainant is a confidential informant.
(B) The name of the person or persons complained against.
(C) The date the sworn complaint was received.
(D) The alleged violation or violations of the Act.
(2) With respect to a staff-initiated investigation commenced since the last report:
(A) The name of the person who is the subject of the investigation.
(B) The date the staff initiated the investigation.
(C) The alleged violation or violations of the Act.
(3) The Commission staff shall also provide additional information a Commissioner requests to that Commissioner, including a copy of a sworn complaint, unless the Executive Director determines, in consultation with the Chief of Enforcement, the information will compromise the impartiality of the Commissioner on matters alleged in a complaint.
(e) The Chief of Enforcement, with the authorization of the Executive Director, shall provide information about sworn complaints and staff-initiated investigations to other governmental agencies that have an official and specific interest in the information, and make every effort to cooperate with other governmental agencies in a position to assist the Commission with an investigation. However, the Commission may decline to disclose the identity of a confidential informant.
(f) The Executive Director shall take the following actions with respect to complaints:
(1) Notify the complainant in writing within 14 calendar days of receipt of a sworn complaint that the Commission will do one or more of the following:
(A) Investigate the allegations of the complaint, in which case the response shall inform the complainant the commencement of an investigation only indicates the complaint alleges a violation of the Act, and the culpability of the person complained against, if any, has not been determined.
(B) Refer the complaint to another governmental agency.
(C) Take no action on the complaint because, on the basis of the information provided, the Commission does not appear to have jurisdiction to investigate, but the complainant may provide additional information.
(D) Take no action on the complaint because the allegations of the complaint, absent the Commission receiving additional information, do not warrant the Commission's further action for the reason stated.
(E) Take additional time to evaluate the complaint to determine whether an investigation should ensue and provide an appropriate explanation for the delay. This information shall be provided within successive intervals of no more than 14 calendar days per interval until the Commission notifies the complainant it has acted on the complaint under subparagraphs (A) through (D).
(2) Ensure that Commission staff does not disclose information relating to the contents of the 14-day notification required by subdivision (f)(1), to anyone other than Commission staff and those listed in subdivision (e) of this Regulation, except for purposes of investigation of the initial complaint, until at least 5 business days have passed from the time the 14-day notification letter is sent by the Commission to the complainant and the subject of the complaint. The limitation in this subdivision does not apply in cases where the Executive Director rejects the formal complaint.
(3) Provide the subject of the sworn complaint with a copy of the complaint within three business days of receipt. A cover letter shall be included with the copy of the complaint informing the subject of the complaint of the Executive Director's obligations listed in subdivision (f)(1) of this regulation and the subject's opportunity to respond to the allegations in the complaint before the Executive Director makes a final determination on any items listed in subdivisions (f)(1)(A-E) of this regulation. The Executive Director shall not make a final determination on any items listed in subdivisions (f)(1)(A-E) until 14 calendar days have passed from the date the complaint was received by the Enforcement Division, unless the final determination is to take no action. Any additional correspondence sent to the complainant pursuant to subdivision (f)(1) must be provided to the subject of the complaint at the same time it is provided to the complainant. However, upon the recommendation of the Chief of Enforcement and provided withholding the information is otherwise consistent with law, the Executive Director may decline to provide a copy of, or may redact information from, the complaint or the correspondence sent to the complainant. If all or part of a complaint or correspondence is withheld from the subject of the complaint, what is withheld may not be disclosed to another person except to a law enforcement agency on a confidential basis. If the sworn complaint is otherwise made public, a copy of the complaint shall be promptly sent to the subject of the complaint.
(4) Send notification of a potential staff-initiated investigation to the subject of the potential investigation and inform the subject of the potential staff-initiated investigation that the subject may respond in writing to any allegations set forth in the notification within 10 calendar days from the date the notification is sent. The notification shall also inform the subject of the potential staff-initiated investigation that no final determination on full investigation of the allegations set forth in the notification will be made until at least 10 calendar days have passed from the date the notification was sent. Notification of a potential staff-initiated investigation must be sent to the subject of the potential staff-initiated investigation at the same time information of the potential investigation is provided to the Commissioners. The Executive Director shall ensure that Commission staff does not disclose information relating to the staff-initiated investigation, to anyone other than Commission staff and those listed in subdivision (e) of this Regulation, except for purposes of investigation, until at least 5 business days have passed from the time the subject of the investigation is informed or sent notification of the investigation. However, upon the recommendation of the Chief of Enforcement that providing the information would jeopardize the investigation, the Executive Director may decline to inform the subject of the complaint. If the Executive Director makes this determination, he or she shall prepare a memorandum setting forth justification for the declination, which shall be retained in the enforcement case file. If the subject of the complaint is not informed of the complaint, the existence of the complaint may not be disclosed except to a law enforcement agency on a confidential basis.
(g) If the Commission investigates the allegations of a sworn complaint, the Executive Director shall notify the complainant in writing of the following:
(1) The time, date, and location of any public hearing or public meeting on the complaint scheduled to be heard by an administrative law judge or the Commission.
(2) The date, time, and location of any public proceeding on the complaint scheduled to be heard by a court.
(3) The Commission's or a court's final resolution of the complaint.
(h) If the person who filed the sworn complaint disagrees with the response sent pursuant to subdivision (f)(1)(C) or (D), he or she may submit in writing, within 20 calendar days of receipt of the response, a request for reconsideration that shall be directed to the Executive Director, who shall forward the correspondence to each member of the Commission for consideration.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83115, Government Code.
HISTORY
1. New section filed 10-9-75 as an emergency; effective upon filing. Certificate of Compliance included (Register 75, No. 41).
2. Amendment filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
3. Amendment of subsection (g) filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
4. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
5. Editorial correction of subsection (f) filed 10-29-82 (Register 82, No. 44).
6. Amendment of subsection (g) filed 9-24-2007; operative 10-24-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 39).
7. Amendment filed 6-11-2008; operative 6-11-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 24).
8. New subsection (f)(2), subsection renumbering and amendment of newly designated subsections (f)(3)-(4) filed 7-6-2011; operative 8-5-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 27).
9. Amendment of subsections (f)(1), (f)(1)(E), (f)(3)-(4) and (h) filed 12-7-2011; operative 1-6-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 49).
§18361. Delegation by the Executive Director Pertaining to Enforcement Proceedings and Authority to Hear Probable Cause Proceedings.
Note • History
(a) If the Executive Director is unavailable, or believes he or she cannot be fair or impartial, the Executive Director may delegate in writing his or her authority under Regulations 18360, 18361.1 through 18361.3, and 18361.5 through 18361.8, to the General Counsel or to an attorney from the Legal Division. The Executive Director may also delegate his or her authority under Regulations 18361.1 and 18361.7, in writing, to an administrative law judge.
(b) Probable cause proceedings under Regulation 18361.4 shall be heard by the General Counsel or an attorney from the Legal Division. The General Counsel may delegate the authority to hear probable cause proceedings, in writing, to an administrative law judge.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 9-24-2007; operative 10-24-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 39). For prior history, see Register 2004, No. 44.
2. Amendment filed 6-11-2008; operative 6-11-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 24).
3. Amendment of section heading and section filed 12-7-2011; operative 1-6-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 49).
§18361.1. Administrative Subpoenas.
Note • History
The staff, under the direction of the Executive Director, shall seek to assure voluntary compliance with the Political Reform Act and shall investigate possible violations of the Act. The staff shall make reasonable efforts to obtain information on a voluntary basis prior to the issuance of an administrative subpoena. The Executive Director, in the exercise of his or her discretion. may forego this procedure with respect to an investigation in progress. The staff shall periodically report to the members of the Commission on the status of all investigations, including the reasons for the issuance of any administrative subpoena without first making reasonable efforts to obtain the information voluntarily. Failure to report to the Commission concerning the issuance of subpoenas shall not affect the validity of any administrative subpoena.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116. Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18361.2. Memorandum Respecting Civil Litigation.
Note • History
(a) If the Executive Director concludes civil litigation should be initiated, he or she shall submit to the Commission a written memorandum, which shall be first reviewed by the General Counsel, or an attorney from the Legal Division, summarizing the facts and the applicable law of the case and recommending the initiation of a lawsuit. The memorandum shall include all exculpatory and mitigating information known to the staff.
(b) The Commission shall review the memorandum at an executive session. The General Counsel, or an attorney from the Legal Division, and the Commission Assistant shall be in attendance. No other member of the staff may be present unless the Commission meets with a member of the staff for that person to answer questions. The Commission may not resume its deliberations until the person is no longer present. Any communication between the Commission and the person during the executive session shall be recorded. After review of the memorandum, the Commission may direct the Executive Director to do any of the following:
(1) Initiate civil litigation.
(2) Decide whether probable cause proceedings should be commenced pursuant to 2 Cal. Code of Regulations Section 18361.4.
(3) Return the matter to the staff for further investigation.
(4) Take no further action on the matter or take any other action it deems appropriate.
(c) If the Commission decides to initiate civil litigation, the Commission may then permit other members of the staff to attend the executive session.
(d) If the Executive Director deems it necessary, he or she may call a special meeting of the Commission to review a staff memorandum recommending the initiation of civil litigation.
(e) It is the intent of the Commission in adopting this section to preserve for the members of the Commission the authority to decide whether alleged violations should be adjudicated in administrative hearings or in civil litigation, while at the same time avoiding the possibility that discussions with members of the staff might cause members of the Commission to prejudge a case that might be heard by the Commission under Government Code Section 83116.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
2. Amendment filed 7-18-2007; operative 8-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 29).
§18361.3. Referral of Questions of Law to the Commission.
Note • History
If the Executive Director or any Commissioner believes that an enforcement decision should not be made until a question of law involving an interpretation of the Political Reform Act is resolved, the Executive Director or any Commissioner may submit the question to the entire Commission. The Commission shall consider the question in general terms at a regular public session. Prior to resolving the question of law, the Commission or the Executive Director may request the staff or any other interested party to submit a legal analysis of the question of law.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18361.4. Probable Cause Proceedings.
Note • History
(a) Probable Cause Report. If the Chief of the Enforcement Division decides to commence probable cause proceedings pursuant to Sections 83115.5 and 83116, he or she shall direct the Enforcement Division staff to prepare a written report, hereafter referred to as “the probable cause report.” The probable cause report shall contain a summary of the law and evidence gathered in connection with the investigation, including any exculpatory and mitigating information of which the staff has knowledge and any other relevant material and arguments. The evidence recited in the probable cause report may include hearsay, including declarations of investigators or others relating the statements of witnesses or concerning the examination of physical evidence.
(b) No probable cause hearing will take place until at least 21 calendar days after the Enforcement Division staff provides the following, by service of process or registered or certified mail with return receipt requested, to all proposed respondents:
(1) A copy of the probable cause report;
(2) Notification that the proposed respondents have the right to respond in writing to the probable cause report and to request a probable cause conference at which the proposed respondent may be present in person and represented by counsel, and;
(3) If the Commission met in executive session on this matter pursuant to Regulation 18361.2, a copy of any staff memoranda submitted to the Commission at that time along with the recording of any discussion between the Commission and the staff at the executive session as required in subdivision (b) of Regulation 18361.2.
(c) Response to Probable Cause Report.
(1) Each proposed respondent may submit a written response to the probable cause report. The response may contain a summary of evidence, legal arguments, and any mitigating or exculpatory information. A proposed respondent who submits a response must file it with the Commission Assistant who will forward the response to the General Counsel or an attorney in the Legal Division (the “hearing officer”) and provide a copy, by service of process or registered or certified mail with return receipt requested, to all other proposed respondents listed in the probable cause report not later than 21 days following service of the probable cause report.
(2) Within 21 calendar days following the service of the probable cause report, a proposed respondent may request discovery of evidence in the possession of the Enforcement Division. This request must be sent by registered or certified mail to the Commission Assistant. Upon receipt of the request, the Enforcement Division shall provide discovery of evidence relied upon by the Enforcement Division sufficient to lead a person of ordinary caution and prudence to believe or entertain a strong suspicion that a proposed respondent committed or caused a violation, along with any exculpatory or mitigating evidence. This is not a right to full discovery of the Enforcement Division file. The Enforcement Division shall provide access to documents for copying by the Respondent, or upon agreement among the parties, the Enforcement Division will provide copies of the requested documents upon payment of a fee for direct costs of duplication. The Enforcement Division shall provide such evidence by service of process or registered or certified mail with return receipt requested to all respondents, with a copy to the Commission Assistant. A respondent may submit a written response to the probable cause report described in subsection (1) no later than 21 calendar days after service of discovery.
(3) The Commission staff may submit any evidence or argument in rebuttal to the response. When the Commission staff submits evidence or argument in rebuttal to the response, it shall provide a copy, by service of process or registered or certified mail with return receipt requested, to all proposed respondents listed in the probable cause report not later than 10 calendar days following the date the response was filed with the Commission Assistant. The hearing officer may extend the time limitations in this section for good cause. At any time prior to a determination of probable cause, the hearing officer may allow additional material to be submitted as part of the initial response or rebuttal.
(d) Probable Cause Conference. Any proposed respondent may request a probable cause conference. The request shall be served upon the Commission Assistant and all other proposed respondents not later than 21 days after service of the probable cause report unless the hearing officer extends the time for good cause. The Commission Assistant shall fix a time for the probable cause conference and the hearing officer shall conduct the conference informally. The conference shall be closed to the public unless a proposed respondent requests and all other proposed respondents agree to a public conference. If the conference is not public, only members of the Commission staff, any proposed respondent and his or her legal counsel or representative shall have the right to be present and participate. The hearing officer may allow witnesses to attend and participate in part or all of the probable cause conference. In making this determination, the hearing officer shall consider the relevancy of the witness' proposed testimony, whether the witness has a substantial interest in the proceedings, and whether fairness requires that the witness be allowed to participate. Representatives of any civil or criminal prosecutor with jurisdiction may attend the conference at the discretion of the hearing officer if they agree to respect the confidential nature of the proceedings. If the conference is not open to the public and none of the parties and the presiding officer object, the conference may be conducted in whole or in part by telephone. The probable cause conference shall be recorded. The hearing officer may determine whether there is probable cause based solely on the probable cause report, any responses or rebuttals filed and any arguments presented at the probable cause conference by the interested parties. If the hearing officer requires additional information before determining whether there is probable cause, he or she may permit any party to submit additional evidence at the probable cause conference.
(e) Finding of Probable Cause. The hearing officer may find there is probable cause to believe a violation has occurred if the evidence is sufficient to lead a person of ordinary caution and prudence to believe or entertain a strong suspicion that a proposed respondent committed or caused a violation. A finding of probable cause by the hearing officer does not constitute a finding that a violation has actually occurred. The hearing officer shall not make a finding of probable cause if he or she is presented with clear and convincing evidence that, at a time prior to the alleged violation, the violator consulted with the staff of the Commission in good faith, disclosed truthfully all the material facts, and committed the acts complained of either in reliance on the advice of the staff or because of the staff's failure to provide advice. If the hearing officer makes a finding of probable cause, the Enforcement Division shall prepare an Accusation pursuant to Section 11503 and have it served upon the person or persons who are subjects of the probable cause finding. The hearing officer shall publicly announce the finding of probable cause. The announcement shall contain a summary of the allegations and a cautionary statement that the respondent is presumed to be innocent of any violation of the Act unless a violation is proved in a subsequent proceeding. The Chief of the Enforcement Division shall be responsible for the presentation of the case in support of the Accusation at an administrative hearing held pursuant to Section 83116.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
2. Amendment filed 7-18-2007; operative 8-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 29).
3. Amendment filed 12-7-2011; operative 1-6-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 49).
§18361.5. Administrative Hearings.
Note • History
(a) Administrative Hearing Brief. Not later than one week prior to a contested administrative hearing that is to be heard by the Commission itself, the Executive Director shall and any respondent may submit to the Commission a written brief describing the evidence to be presented at the hearing and outlining significant legal arguments expected to be raised. Prior to the contested hearing, when a brief is submitted by any party pursuant to this section, a copy shall be provided to all other parties to the administrative action.
(b) Preliminary Matters and Hearing on Merits. If the Executive Director determines that a hearing on the merits should be conducted before an administrative law judge alone pursuant to Government Code section 11512(a), he or she shall provide a copy of the accusation as well as a memorandum describing the issues involved to each member of the Commission. If, at the next regularly scheduled meeting, two or more Commissioners indicate a desire to participate in the hearing, the matter will be scheduled for a hearing before the Commission when an administrative law judge is available.
When the Commission decides to participate in a hearing on the merits, the Chairman of the Commission may decide that any or all motions as to procedural matters, validity or interpretation of the Political Reform Act, disqualification of any member of the Commission, or any other matters not related to the truth or falsity of the factual allegations in the accusation shall be heard by an administrative law judge alone prior to the hearing on the merits. Any such motions or matters shall be noticed in a timely fashion. Any person requesting reconsideration by the Commission of any decision of the administrative law judge shall submit, at least 14 days prior to the hearing on the merits, a written request for reconsideration setting forth the reasons for the request and including any appropriate points and authorities or affidavits.
(c) Standard of Proof. When an administrative hearing is conducted under Government Code section 83116, findings shall be made on a preponderance of the evidence and it shall require the concurrence of at least three members of the Commission to find a violation or impose any order.
(d) Factors to be Considered by the Commission. In framing a proposed order following a finding of a violation pursuant to Government Code section 83116, the Commission and the administrative law judge shall consider all the surrounding circumstances including but not limited to:
(1) The seriousness of the violation;
(2) The presence or absence of any intention to conceal, deceive or mislead;
(3) Whether the violation was deliberate, negligent or inadvertent;
(4) Whether the violator demonstrated good faith by consulting the Commission staff or any other government agency in a manner not constituting a complete defense under Government Code section 83114(b);
(5) Whether the violation was isolated or part of a pattern and whether the violator has a prior record of violations of the Political Reform Act or similar laws; and
(6) Whether the violator, upon learning of a reporting violation, voluntarily filed amendments to provide full disclosure.
(e) Stipulated Orders. At any time before or during an administrative hearing and in lieu of such a hearing, the Executive Director and the person who is the subject of the investigation may stipulate to the entry of an order. The order must be approved by the Commission, which may consider the matter in executive session. The stipulated order shall set forth the pertinent facts and may include an agreement as to anything that could be ordered by the Commission under Government Code section 83116. The stipulated order shall be released publicly and shall have the force of an order of the Commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116. Government Code.
HISTORY
1. New section filed 3-15-94; operative 3-15-94 (Register 94, No. 11).
2. Renumbering of former section 18361.5 to section 18361.9 and new section 18361.5 filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18361.6. Probable Cause Presentation by Civil or Criminal Prosecutor.
Note • History
The Executive Director may permit any civil or criminal prosecutor, within the meaning of Government Code sections 91001 and 91001.5, to present a case for determination of probable cause under the procedures of regulation 18361.4 and to present such a case to the Commission at an administrative hearing if probable cause is found. When the Executive Director authorizes such a presentation, he or she may require that the prosecutor prepare the probable cause report described in subdivision (a) of regulation 18361.4 and present the case at any probable cause conference or administrative hearing that is held.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18361.7. Executive Director Subpoena Authority.
Note • History
Notwithstanding 2 Cal. Code Regs. Section 18319:
The Executive Director has the authority to issue a subpoena on behalf of the Commission pursuant to Government Code Sections 83118 and 11510. The Executive Director may authorize the issuance of a subpoena duces tecum if he or she finds, based on information submitted to him or her in writing, that the information requested in the subpoena is material to a specific matter under investigation, and the Executive Director reasonably believes the person or entity has the desired information under its control.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
2. Amendment filed 9-24-2007; operative 10-24-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 39).
§18361.8. Inapplicability of Regulations 18361.1 Through 18361.8 to Other Enforcement Procedures.
Note • History
None of the procedures described in regulations 18361.1 through 18361.8 and none of the provisions of Government Code sections 83115.5 and 83116 need be followed in connection with the disposition of any enforcement matter other than by way of an administrative hearing conducted pursuant to Government Code section 83116.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18361.9. Briefing Procedure of Proposed Decision by an Administrative Law Judge; Reconsideration.
Note • History
(a) Service of Process.
Within 14 days of receipt of a proposed decision by an administrative law judge following a hearing held pursuant to Government Code section 83116, the Executive Director shall serve a copy of the proposed decision on the Commission's Enforcement Division and the respondent(s). The Executive Director shall include notification of the date, time and place the matter will be heard by the Commission.
(b) Briefing Procedure.
(1) No later than 14 days after the date of service of the proposed decision, the Enforcement Division shall file an opening brief. The Enforcement Division shall file the original of the opening brief, with proof of service attached, and six copies with the Executive Director of the Commission. The Enforcement Division shall serve a copy of the brief, with proof of service, on the respondent. The opening brief may address the following:
(A) Whether the facts stated in the proposed decision are consistent with the evidence presented;
(B) Whether the proposed decision contains an accurate statement and/or application of the law;
(C) Whether there is additional material evidence that could not, with reasonable diligence, have been discovered and presented at the administrative hearing;
(D) Which of the dispositions provided for in Government Code section 11517 is recommended by the Enforcement Division and why; and
(E) Any other issue the Enforcement Division determines to be relevant.
(2) No later than 14 days after the date of service of the Enforcement Division's opening brief, the respondent may file a response brief. The respondent shall file the original of the response brief, with proof of service attached, and six copies with the Executive Director of the Commission. The respondent shall serve a copy of the response brief, with proof of service, on the Enforcement Division.
(3) No later than 14 days after the date of service of the respondent's brief, the Enforcement Division may file a reply brief. The Enforcement Division shall file the original of the reply brief, with proof of service attached, and six copies with the Executive Director of the Commission. The Enforcement Division shall serve a copy of that reply brief, with proof of service, on the respondent.
(4) The Executive Director may, for good cause, extend the time requirements set forth in this subdivision.
(5) After receipt of all of the briefs, the Executive Director shall submit a copy of each brief to each Commissioner in a timely manner.
(c) Petitions for Reconsideration.
(1) Any party to the proceeding may petition the Commission for reconsideration within 15 days of service of the decision. The petition shall be served on all parties of record. A petition shall be deemed filed with the Commission on the date indicated on the proof of service; or, if there is no proof of service, the postmark date or date of hand delivery to the Commission's office.
(2) The petition shall set forth in full detail the issues to be considered by the Commission and contain specific references to the record and applicable principles of law. The petition shall be based upon one or both of the following grounds:
(A) The petitioner has discovered new material evidence that the petitioner could not, with reasonable diligence, have discovered and produced at the administrative hearing;
(B) The decision contains prejudicial errors of law or fact.
(3) An opposing party may file an answer within 10 days of service of a petition for reconsideration. The answer shall be served on all parties of record.
(4) A petition for reconsideration is deemed denied unless it is granted or denied in writing no later than 30 days after service of the Commission's decision. The Commission may extend the time for considering a petition for up to 10 days.
(5) The Chairperson or the Executive Director may grant or deny a petition for reconsideration or extend the time in which to consider the petition.
(6) If the petition is granted, the case shall be assigned to the full Commission or to an administrative law judge, either of whom may order the taking of additional evidence, or may affirm, rescind, alter or amend the decision on the basis of the record previously submitted. The decision after reconsideration shall be in writing and shall specify the reasons for the decision. If assigned to an administrative law judge, the decision is a proposed decision subject to the procedure set forth in Government Code section 11517.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83108 and 83116, Government Code.
HISTORY
1. Renumbering and amendment of former section 18361.5 to new section 18361.9 filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18361.10. Administratively Adjudicated Enforcement Decisions As Precedent.
Note • History
(a) This regulation applies to administratively adjudicated enforcement decisions, not resulting from a default judgment, pursuant to Government Code section 11425.60, and which issue as proposed decisions after the adoption of this regulation. The Commission may designate as a precedent decision part or all of a decision that contains a significant legal or policy determination of general application that is likely to recur. The Commission may also overrule its prior precedent designations. Such a designation or overruling thereof may be made upon the Commission's own motion, or at the request of any person.
(b) The Commission shall maintain an index of significant legal and policy determinations contained in precedent decisions.
(1) The index shall be updated at least annually, unless no new precedent decisions were designated or overruled that year.
(2) The index shall be made available to the public by subscription and on its website.
(3) The availability of the index shall be publicized annually in the California Regulatory Notice Register.
(c) In determining whether all or part of a decision should be designated or overruled as a precedent decision, the Commission may consider whether the decision:
(1) Addresses a legal or factual issue of general public interest;
(2) Resolves a conflict in the law;
(3) Provides an overview of existing law or policy;
(4) Clarifies existing law or policy;
(5) Establishes a new rule of law or policy; or
(6) Would be more appropriately addressed by regulatory amendment, the advice process, or the opinion process.
(d) At the Commission's meeting at which a proposed decision is considered for adoption on the merits, the Commission may make a tentative ruling regarding whether all or part of the proposed decision should be deemed precedent, and whether all or part of a previous related precedent should be overruled. In their briefs on the merits of a proposed decision, the parties to the action may include argument regarding precedent and overruling. Any tentative ruling issued shall be acted upon by the Commission within 120 days after a decision on the merits becomes final. A tentative ruling is not final and shall have no precedential effect until it is separately acted upon. For purposes of this regulation, and with reference to 2 Cal. Code Regs. section 18361.9(c), a decision becomes “final” when the Commission has made a decision on the merits and, either the time to file a petition for reconsideration has expired, or a petition for reconsideration has been granted or denied and the reconsideration process has concluded.
(e) After a decision on the merits is final, any person may submit a request, in the form of a concise written brief stating the reasons for the request and pursuant to this regulation, that all or part of such a decision be deemed precedent, not be deemed precedent, or that all or part of a previous related precedent be overruled. Requests regarding precedent shall be delivered to the Executive Director no later than 30 days after a decision on the merits is final. Within 14 days after a request is submitted, the person making the request shall be notified in writing of the Executive Director's decision to grant or deny the request.
(f) The grant or denial of a request by the Executive Director shall be based upon one or more of the following criteria:
(1) The timeliness of the request;
(2) Whether the request is clear and unambiguous; and
(3) The factors contained in subdivisions (c)(1) through (c)(6).
(g) If a request is granted, the Executive Director shall deliver copies of the request pursuant to subdivision (h) of this regulation. If the request is denied, the Executive Director shall inform the Commission of the denial, state the reason for the denial and advise the requestor of the requestor's right to appeal the denial to the Commission. Any member of the Commission, or person who has submitted a request that was denied, may ask the Commission to review a denied request at the next meeting of the Commission following the issuance of a denial. If a majority of the Commission approves the granting of a request, the denial shall be rescinded, the requestor shall be notified in writing that the request is granted, and the Executive Director shall deliver copies of the request pursuant to subdivision (h) of this regulation.
(h) The Executive Director will deliver all granted requests to the Commissioners, the Chief of the Enforcement Division, and parties to the decision, within seven days of the request having been granted.
(i) Within 60 days of delivery of a granted request by the Executive Director, the Commission shall decide which part or parts, if any, of the final decision will be designated as precedent and what portions, if any, of previous precedent will be overruled.
(j) Notwithstanding subdivisions (e) through (i) of this regulation, a Commissioner may request that all or part of a final decision be deemed precedent, not be deemed precedent, or that the Commission's designation of all or part of a final decision as precedent be overruled, by formal motion and approval by a majority of the Commission.
(k) The designation or overruling of all or part of a decision as precedent is not rulemaking. The Commission's designation of all or part of a decision, or the lack of such designation, as precedent is not subject to judicial review.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83111 and 83116, Government Code.
HISTORY
1. New section filed 2-21-2006; operative 3-23-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil CO10924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 8).
§18361.11. Default Proceedings.
Note • History
(a) Notice of Default
(1) Where a respondent has failed to timely file a notice of defense pursuant to Section 11506, and the Enforcement Division pursues a default judgment from the Commission pursuant to Section 11520, the Enforcement Division shall send notice, a copy of the proposed Default Decision and Order, and a copy of the proposed Exhibit in Support of a Default Decision and Order, by first class mail, to the respondents against whom the default judgment has been entered at least 15 calendar days before the Commission hearing at which the default is scheduled to be heard.
(2) Notice shall be considered served from the date the default notice is postmarked.
(b) Briefing Procedure
(1) The Enforcement Division shall provide to the Commission a proposed Default Decision and Order, along with a proposed Exhibit in Support of a Default Decision and Order no later than 10 calendar days before the Commission hearing at which the default is scheduled to be heard.
(2) The respondent may provide a response brief, along with any supporting materials, no later than five calendar days before the Commission hearing at which the default is scheduled to be heard. The response brief shall be served on the Commission Assistant, who shall provide a copy to the Enforcement Division.
(c) Default Hearing Procedure
(1) The Commission, in its discretion, may choose whether or not to consider any argument, evidence or material of any kind from respondents that is not provided more than five calendar days before the Commission hearing at which the default is scheduled to be heard.
(2) The Commission has full discretion to consider and take action based on any evidence without notice to the respondents, consistent with Section 11520.
(d) Motion to Vacate Default Judgments
(1) If a default judgment is entered into against a respondent, the Enforcement Division shall serve, by first class mail, notice of the default judgment, signed Default Decision and Order, an Exhibit in Support of a Default Decision and Order and a copy of this regulation to the respondent.
(2) Within seven calendar days after service on the respondent of a decision based on the respondent's default, the respondent may serve, by first class mail or in person, a written motion requesting that the decision be vacated and stating the grounds relied on. The Commission in its discretion may vacate the decision and grant a hearing on a showing of good cause consistent with Section 11520.
(3) The Motion to Vacate a Default Judgment shall be the only administrative remedy available to a respondent after entry of a default judgment.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83116, Government Code.
HISTORY
1. New section filed 12-7-2011; operative 1-6-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 49).
§18362. Access to Complaint Files.
Note • History
(a) Access to complaints, responses thereto, and investigative files and information shall be granted in accordance with the requirements of the Public Records Act (Government Code Section 6250, et seq.).
(b) When release of material is requested pursuant to subdivision (a), the Executive Director, or his or her designee, shall review the material prior to its release or prior to a claim of exemption to determine that the requirements of the Public Records Act have been satisfied.
(c) Any person requesting copies of material pursuant to subdivision (a) shall reimburse the Commission $0.10 per page for each page copied or supply copying equipment and make copies in the offices of the Commission. Documents may not be removed from the offices of the Commission. If the request is for copies totaling ten pages or less, the copies shall be provided without charge for copying since the administrative costs do not warrant collection of $1.00 or less. If the request is for copies totaling more than ten pages, reimbursements of copying costs shall include the cost for the first ten pages. Charges imposed pursuant to this subdivision are for the purpose of recovering the cost of copying.
(d) Requests for access and copies pursuant to subdivision (a) shall be made in writing and shall specifically identify the documents sought.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 6250, et seq., 83115, 83115.5 and 83116, Government Code.
HISTORY
1. New section filed 11-13-75; effective thirtieth day thereafter (Register 75, No. 47).
2. Amendment of subsections (a) and (c) filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
3. Amendment filed 6-21-79; effective thirtieth day thereafter (Register 79, No. 25).
4. Amendment of section heading and NOTE filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
5. Amendment filed 7-14-83; effective thirtieth day thereafter (Register 83, No. 29).
6. Repealer and new section filed 2-18-88; operative 3-19-88 (Register 88, No. 9).
§18363. Administering Oaths and Affirmations.
Note • History
The Executive Director, or any member of the Commission staff to whom the Executive Director has delegated authority pursuant to 2 Cal. Code Regs. Sections 18319, shall have the authority to administer oaths and affirmations on behalf of the Commission pursuant to Government Code Section 83118.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83108 and 83118, Government Code.
HISTORY
1. New section filed 11-13-85; effective thirtieth day thereafter (Register 85, No. 46).
2. Amendment filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
§18370. State Agency Ethics Training.
Note • History
(a) Core content topics. The topics enumerated in subdivisions (a)(1) to (a)(16) of this regulation are considered by the Commission to be the core content of an ethics orientation course conducted by a state agency pursuant to Government Code section 11146.1. The course should include instruction in each of the following topics:
(1) Conflicts of Interest under the Political Reform Act (Gov. Code §§87100, 87103).
(2) Limitations on the Receipt of Gifts (Gov. Code §§86203, 89503, 89506).
(3) Honoraria Ban (Gov. Code §89502).
(4) Contractual Conflicts of Interest: All Contracts (Gov. Code §1090 et seq.) and Contractual Conflicts of Interest: State Contracts (Pub. Contract Code §10410).
(5) Ban on Free Transportation (Cal. Const. art. XII, §7).
(6) Incompatible Activities of State Officers and Employees (Gov. Code §19990).
(7) Doctrine of Incompatible Offices.
(8) Misuse of Public Funds (Pen. Code §424; Gov. Code §8314; Fair Political Practices Commission v. Suitt (1979) 90 Cal. App. 3d 125; Stanson v. Mott (1976) 17 Cal. 3d 206).
(9) Conflicts of Interest and Campaign Contributions (Gov. Code §84308).
(10) Special Restrictions on Personal Loans (Gov. Code §87460 et seq.).
(11) Common Law Doctrine Against Conflicts of Interest.
(12) Government Code §8920 et seq. (the Code of Ethics).
(13) Conflicts of Interest When Leaving Office (Gov. Code §§87400-87407; Pub. Contract Code §10411).
(14) The state agency's incompatible activities statement.
(15) Other government ethics laws specific to the state agency.
(16) Any other material that the agency or the Commission considers appropriate.
(b) In cooperation with the Attorney General of California, the Commission shall maintain an ethics training program which provides an orientation to the core content topics identified in subdivision (a) of this regulation.
(c) Compliance with Government Code §11146.4(c).
(1) A state agency conducting an ethics orientation course as required by Government Code §11146.1 may request the Commission's consultation on the substantive content of its orientation course with regard to the following core content topics:
(A) Conflicts of Interest under the Political Reform Act (Gov. Code §§87100, 87103).
(B) Limitations on the Receipt of Gifts (Gov. Code §§86203, 89503, 89506).
(C) Honoraria Ban (Gov. Code §89502).
(D) Conflicts of Interest and Campaign Contributions (Gov. Code §84308);
(E) Special Restrictions on Personal Loans (Gov. Code §87460 et seq.)
(F) Conflicts of Interest When Leaving Office (Gov. Code §§87400-87407; Pub. Contract Code §10411).
(2) A state agency conducting an ethics orientation course may request the Commission's consultation on the substantive content by submitting a copy of the proposed course materials to the Executive Director at least thirty (30) working days prior to the date on which the state agency proposes to conduct the ethics orientation course. The Executive Director shall respond in writing to the state agency not more than twenty-one (21) working days after the submission is received.
(d) A state agency conducting an ethics orientation course may, in lieu of consultation with the Commission pursuant to subdivision (c) of this regulation, incorporate the ethics training program jointly provided by the Commission and the Attorney General (see subdivision (b), above) into its course and require each participant in the course to complete the program. A state agency complying with this subdivision shall be considered to have consulted with the Commission pursuant to Government Code §11146.4(c).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 11146.1 and 11146.4(c), Government Code.
HISTORY
1. New section filed 8-16-99; operative 8-16-99 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 99, No. 34).
2. Change without regulatory effect amending subsections (a), (c), (d) and Note filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
§18371. Local Agency Ethics Training.
Note • History
(a) Core Content Topics. The topics enumerated in subdivisions (a)(1) through (a)(4) of this regulation are considered to be the core content of the ethics law component of an ethics orientation course conducted by a local agency pursuant to Government Code section 53235. The course should include instruction on each of the following topics to the extent they are relevant to the official's public duties:
(1) Laws relating to personal financial gain by public servants, including, but not limited to:
(A) Laws prohibiting bribery (Penal Code § 68).
(B) Conflicts of Interest under the Political Reform Act (Gov. Code §§ 87100, 87103).
(C) Contractual Conflicts of Interest (Gov. Code § 1090 et seq.).
(D) Conflicts of Interest and Campaign Contributions (Gov. Code §84308).
(E) Conflicts of Interest When Leaving Office (Gov. Code §§87406.1, 87406.3, 87407).
(2) Laws relating to claiming perquisites of office, including, but not limited to:
(A) Limitations on the Receipt of Gifts (Gov. Code §§ 86203, 89503, 89506).
(B) Honoraria Ban (Gov. Code § 89502).
(C) Misuse of Public Funds (Pen. Code § 424; Gov. Code § 8314; Fair Political Practices Commission v. Suitt (1979) 90 Cal.App.3d 125; Stanson v. Mott (1976) 17 Cal.3d 206).
(D) Prohibitions against gifts of public funds (Cal. Const., art. XVI, §6).
(E) Mass mailing restrictions (Gov. Code § 89001).
(F) Prohibitions against acceptance of free or discounted transportation by transportation companies (Cal. Const., art. XII, § 7).
(3) Government transparency laws, including, but not limited to:
(A) Economic interest disclosure under the Political Reform Act (Gov. Code §§ 87200 et seq.).
(B) Brown Act (Gov. Code §§ 54950 et seq.).
(C) Public Records Act (Gov. Code §§ 6250 et seq.).
(4) Laws relating to fair processes, including, but not limited to:
(A) Common law bias prohibitions.
(B) Due process requirements.
(C) Doctrine of Incompatible Offices.
(D) Competitive bidding requirements for public contracts.
(E) Disqualification from participating in decisions affecting family members (anti-nepotism laws).
(b) Core Content Ethics Law Topics Under Political Reform Act. Of the core content topics set forth in subdivision (a) above, the topics enumerated below ((b)(1) through subdivision (b)(7)) are considered to be the core content of the “ethics laws” component that pertain to the Political Reform Act, and regarding which, the Commission will provide consultation. The course should include instruction on each of the following topics if relevant to the official's public position:
(1) Conflicts of Interest under the Political Reform Act (Gov. Code §§87100, 87103).
(2) Conflicts of Interest and Campaign Contributions (Gov. Code §84308).
(3) Limitations on the Receipt of Gifts (Gov. Code §§ 86203, 89503, 89506).
(4) Honoraria Ban (Gov. Code § 89502).
(5) Conflicts of Interest When Leaving Office (Gov. Code §§87406.1, 87406.3, 87407).
(6) Mass Mailing Restrictions (Gov. Code § 89001).
(7) Economic Interest Disclosure Under the Political Reform Act (Gov. Code § 87200 et seq.).
(c) A person conducting an ethics orientation course shall be considered to have consulted with the Commission pursuant to Government Code section 53235(c) if the person:
(1) Has reviewed the materials specified by the Commission for core content topics covered by the Political Reform Act on the Commission's website no more than 60 days in advance of the date the training is conducted or training program is developed, and every year thereafter.
(2) Develops and presents a training that includes the core content topics covered by the Political Reform Act and sufficiently and accurately reflects the Commission's statutes and regulations. The training may be in separate segments so long as all of the required training is completed by January 1, 2007, and every two years thereafter.
(d) Nothing in this regulation shall limit the requirement of Government Code sections 53234 et seq., and 53235.2 to include in the mandated ethics training any topics which are not within the Political Reform Act, such as “general ethics principles,” “local ethics policies,” or those ethics laws under the purview of the Office of the Attorney General.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 53234, 53235, 53235.1 and 53235.2, Government Code.
HISTORY
1. New section filed 2-21-2006; operative 2-21-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil CO10924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 8).
2. Editorial correction designating first paragraph as subsection (a) (Register 2006, No. 15).
Chapter 4. Campaign Disclosure
§18401. Required Recordkeeping for Chapter 4.
Note • History
(a) Maintenance of Documents
A candidate, treasurer, and elected officer has a duty to maintain detailed accounts, records, bills, and receipts as necessary to prepare campaign statements and comply with the provisions of Chapter 4 (commencing with Section 84100) of the Act. This duty includes maintenance of detailed information and original source documentation, as follows:
(1) For a contribution received or other receipt of less than $25, or an expenditure made of less than $25:
(A) The accounts and records shall contain a continuous computation of campaign account balances, and include a listing reflecting the dates and daily totals of the contributions, other receipts, or expenditures on the dates of the contributions, other receipts, or expenditures.
(B) The original source documentation shall consist of all bank statements, check registers, check stubs, bank or passbooks, and any other records reflecting a continuous computation of campaign account balances in any savings or checking account, money market account, certificate of deposit, credit card account, or any other campaign account, in any bank or other financial institution.
(2) For a contribution received of $25 or more, but less than $100, and for other receipts of $25 or more:
(A) The accounts and records shall contain all information required in subdivision (a)(1)(A), and include the date of each contribution or other receipt, the amount, and the full name and street address of the contributor or the source of the other receipt. In the case of a contribution, the accounts and records shall also contain the cumulative amount received from the contributor and specify whether the contribution is monetary or nonmonetary. In the case of a nonmonetary contribution, the fair market value shall also be recorded, along with a description of the goods or services received. If a contribution is received through an intermediary or agent, as defined in Regulation 18432.5, the accounts and records shall also contain the full name and street address, occupation, and employer (or, if self-employed, the name of the principal place of business) of the intermediary or agent and of the true source of the contribution.
(B) The original source documentation shall consist of all items required in subdivision (a)(1)(B), and copies of contributor checks, cashier's checks, money orders, wire transfers, deposit or duplicate deposit slips, and any other documents, reflecting all items deposited, and all deposits made, to any campaign account, in any bank or other financial institution. Original source documentation shall also include contributor cards, letters of transmittal, and notices received from contributors. In the case of a nonmonetary contribution, if the contributor has not provided the value of the nonmonetary contribution, the original source documentation shall also include a memorandum or other record describing the method used to determine the value of the goods or services contributed. In the case of contributions made through wire transfer, credit card transaction, debit account transaction, or similar electronic payment option (including those made via the Internet), the original source documentation shall also include all credit card receipts, transaction slips or other writings signed by the contributor, credit card vouchers, and other documentation of credit card transactions, including credit card confirmation numbers and itemized transaction reports, as well as any other information collected when debiting the contributor's account. In the case of contributions made through electronic transactions via the Internet, original source documentation shall also include a record of the transaction created and transmitted by the cardholder including the name of the cardholder, the cardholder's address and the card number.
(3) For a contribution received of $100 or more:
(A) The accounts and records shall contain all information required in subdivisions (a)(1)(A) and (a)(2)(A), and include the occupation and employer (or, if self-employed, the name of the principal place of business) of the contributor. Section 85700 requires the return, not later than 60 days from receipt, of a contribution of $100 or more for which the candidate or committee does not have on file the name, address, occupation and employer of the contributor. Regulation 18570 sets forth additional recordkeeping requirements concerning occupation and employer information.
(B) The original source documentation shall consist of all items required in subdivisions (a)(1)(B) and (a)(2)(B), and all communications caused to be sent by the candidate, treasurer, elected officer, or committee to secure this information.
(4) For an expenditure of $25 or more, or a series of payments for a single product or service totaling $25 or more:
(A) The accounts and records shall contain the date the expenditure was made (or, for an accrued expense, the date the goods or services were received), the amount of the expenditure, the full name and street address of the payee, and a description of the goods or services for which each expenditure was made. If the person or vendor providing the goods or services is different from the payee, the accounts and records shall also contain the same detailed information for that person or vendor. For an expenditure that is a contribution to another candidate or committee, or an independent expenditure, the records shall also contain the cumulative amount of the contributions to, or independent expenditures to support or oppose, each candidate, committee, or ballot measure.
(B) The original source documentation shall consist of cancelled checks, wire transfers, credit card charge slips, bills, receipts, invoices, statements, vouchers, and any other documents reflecting obligations incurred by the candidate, elected officer, campaign treasurer, or committee, and disbursements made from any checking or savings account, or any other campaign accounts, in any bank or other financial institution. In lieu of cancelled checks, the original source documentation may consist of copies of cancelled checks that contain a legible image of the front and back of the cancelled check, provided the copy was obtained from the financial institution.
(5) For an itemized expenditure under Section 84211(k) or Section 84303 by a committee controlled by a candidate for a gift, a meal, or travel, the original source documentation in addition to the requirements of subdivisions (a)(4)(A) and (a)(4)(B) shall include a dated memorandum, or other dated written record, containing the information required to be reported under Regulation 18421.7 and the names of all individuals for whom an expenditure for a meal or travel was paid.
(6) For an expenditure of $100 or more made by a general purpose ballot measure committee controlled by a candidate for elective state office, the original source documentation in addition to the requirements of subdivisions (a)(4)(A) and (a)(4)(B) shall include a dated memorandum, or other dated written record, as follows:
(A) Identifying each measure that has been assigned a ballot designation for which the expenditure is made to support or oppose by its assigned designation.
(B) Briefly describing the purpose of each potential measure that has not yet been assigned a ballot designation for which the expenditure is made to support or oppose.
(C) Specifying the amount of the expenditure that is attributed to the support or opposition of each measure or potential measure if the expenditure is made to support or oppose more than one measure or potential measure and requires additional disclosure under Regulation 18421.8(b).
(7) For a loan made or received:
(A) The accounts and records shall contain the detailed information set forth in subdivisions (a)(1)(A), (a)(2)(A), and (a)(3)(A), and include the interest rate and due date, if any, of the loan, and the full name and street address of any guarantor, or any person liable directly, indirectly, or contingently for the loan.
(B) The original source documentation shall consist of all promissory notes, extensions of credit, security agreements, loan guarantees, and any other documents reflecting the indebtedness.
(8) For receipt of an enforceable promise to make a payment, as defined in Regulation 18216:
(A) The accounts and records shall contain the detailed information required for a contribution set forth in subdivisions (a)(1)(A), (a)(2)(A), and (a)(3)(A).
(B) The original source documentation shall consist of written contracts and any other documents reflecting the enforceable promise to pay.
(9) For each mass mailing, as defined in Section 82041.5, sent or delivered pursuant to Regulation 18435:
(A) The accounts and records shall contain the date of the mailing, the number of pieces mailed, and the method of postage.
(B) The original source documentation shall consist of an original sample of each mass mailing caused to be sent by the candidate, treasurer, elected officer, or committee.
(10) For all written notices sent to all contributors of $5,000 or more, pursuant to Section 84105 and Regulation 18427.1:
(A) The accounts and records shall contain the date of each notice and the name and address of the person to whom each notice is sent.
(B) The original source documentation shall consist of a copy of each notice sent.
(b) Retention of Documents
(1) A filer, as defined in Section 82026, has a duty to retain the accounts, records, bills and receipts, and other original source documentation required to be maintained pursuant to subdivision (a).
(2) A filer shall maintain the accounts, records, bills and receipts, and original source documentation for a period of four years following the date the campaign statement to which they relate is filed. However, in the case of an elected state officer serving a four-year term, the records for campaign statements filed during the first year following his or her election must be kept for five years following the date the campaign statement to which they relate is filed.
Comment: In addition to other recordkeeping requirements in the Act or applicable regulations, candidates and committees shall keep the records required in Regulation 18428 regarding contributions from affiliated entities. Additional recordkeeping requirements for candidates for the Legislature and statewide elective office are found in Regulation 18536 concerning the transfer and attribution of contributions, and Regulation 18540 concerning the allocation of expenditures to the primary, general, special or runoff election for purposes of the voluntary expenditure limits.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84104, 84100-84400 and 85700, Government Code.
HISTORY
1. Repealer and new section filed 2-3-78 as an emergency; effective upon filing. Certificate of Compliance included (Register 78, No. 5). For prior history see Register 77, No. 14.
2. Amendment of subsection (b)(3) filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
3. Amendment filed 1-23-79 as an emergency; effective upon filing. Certificate of Compliance included (Register 79, No. 4).
4. Amendment filed 8-30-79; effective thirtieth day thereafter (Register 79, No. 35).
5. Amendment of subsection (b) filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2).
6. Amendment of section heading filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
7. Amendment of subsection (a), repealer of subsections (a)(1)-(2), new subsections (a)(1)-(8), and amendment of subsection (b) including new subsection (b)(1) and designation of subsection (b)(2) filed 6-16-92; operative 7-16-92 (Register 92, No. 25).
8. Amendment of subsections (a)(2)(A), (a)(3)(A), (a)(6), (a)(7), (a)(8) and (b)(1), new (b)(2) Comment and amendment of Note filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
9. Amendment of subsections (a)(2)(A)-(B) and (a)(3)(B) filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
10. Amendment of subsections (a), (a)(2)-(a)(2)(B), (a)(3)(A)-(a)(3)(B), (a)(5)(A) and (a)(6)(A) filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
11. Amendment of subsection (a)(2)(B) filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
12. Amendment of subsection (a)(4)(B) filed 4-16-2007; operative 5-16-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 16).
13. Amendment filed 6-11-2008; operative 7-1-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 24).
14. New subsections (a)(6)-(a)(6)(C) and subsection renumbering filed 1-30-2009; operative 3-1-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 5).
§18401.1. Required Recordkeeping for Slate Mailer Organizations.
Note • History
(a) A slate mailer organization has a duty to maintain detailed accounts, records, bills, and receipts as necessary to prepare campaign statements and comply with the provisions of Chapter 4 (commencing with Section 84100) of the Act.
(b) In respect to each distinct slate mailer sent by a slate mailer organization, the organization's duty as specified in subdivision (a) includes the duty to maintain the following:
(1) The date of the mailing, the number of pieces mailed, and the method of postage or delivery.
(2) An original sample of the mailer, an electronic copy of the mailer, or a copy of the data base from which the mailer was produced so that the mailer may be printed by or for the slate mailer organization.
(3) Cancelled checks or copies of canceled checks containing legible images of the front and back of the checks obtained from a financial institution, wire transfers, credit card charge slips, bills, receipts, invoices, statements, vouchers, and any other documents reflecting the receipt of payments or obligations incurred by the organization relating to the mailer.
(c) A slate mailer organization shall maintain the accounts, records, bills and receipts specified in subdivision (a) and (b) for a period of four years following the date the campaign statement to which they relate is filed.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82048.3, 82048.4, 84218, 84219, 84220 and 84305.5, Government Code.
HISTORY
1. New section filed 2-17-2011; operative 3-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 7).
2. Change without regulatory effect amending Note filed 2-16-2012; operative 2-16-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 7).
Note • History
(a) A committee shall use only one name on its statement of organization.
(b) The Secretary of State shall not issue an identification number to any committee with the same name as any existing committee that already has an identification number. The name of one committee shall be considered the same as that of another committee if the same words are used in the same order, excluding articles. If two or more different committees file a statement of organization listing the same name, the Secretary of State shall issue an identification number to the first committee to file a statement of organization after it qualifies as a committee and that indicates on the form that the committee has qualified as a committee and includes the date it qualified.
(c) Whenever identification of a committee is required by law, the identification shall include the full name of the committee as required in the statement of organization.
(1) The name of a committee controlled by one or more candidates shall include the last name of each candidate that controls the committee.
(2) The name of a committee controlled by one or more candidates for purposes of the election of the controlling candidate or candidates shall include, in addition to the last name of the controlling candidate(s), the office sought and year of the election. This paragraph only applies to a committee formed for an election held on or after January 1, 2009, or redesignated by a candidate for local elective office for an election held on or after January 1, 2009.
(3) The name of a non-candidate controlled committee primarily formed to support or oppose one or more candidates shall include the last name of each candidate whom the committee supports or opposes as listed on its statement of organization, the office sought and year of the election, and shall state whether the committee supports or opposes the candidate.
(4) The statement of organization of the following types of committees shall include the name of the committee as specified in the Section or Regulation listed below:
(A) Sponsored Committee -- Regulation 18419(b)(1).
(B) Officeholder Committee -- Regulation 18531.62(c)(2).
(C) Legal Defense Fund Committee -- Regulations 18530.4(b) and 18530.45(c).
(D) Recall Committee -- Regulation 18531.5(c)(1) and (3).
(E) Ballot Measure Committee -- Sections 84107, 84504 and Regulation 18450.3 apply to committee primarily formed to support or oppose a ballot measure. In addition, Regulation 18521.5(a) applies to candidate controlled ballot measure committees.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84102, 84503, 84504 and 84506, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Amendment of subsection (c), new subsections (c)(1)-(4) and amendment of Note filed 1-24-2002 as an emergency; operative 1-24-2002 (Register 2002, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-24-2002 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 1-24-2002 order, including redesignation and amendment of former subsections (c)(3)-(4) as subsections (c)(2)(A)-(B), transmitted to OAL 5-15-2002 and filed 6-27-2002 (Register 2002, No. 26).
4. Editorial correction of History 3 (Register 2002, No. 45).
5. Amendment of subsections (b) and (c)(1), new subsection (c)(2), subsection renumbering and amendment of newly designated subsection (c)(3) filed 5-21-2007; operative 6-20-2007 (Register 2007, No. 21).
6. Amendment filed 2-2-2009; operative 3-4-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 6).
7. Amendment of subsection (b) filed 5-8-2009; operative 6-7-2009 (Register 2009, No. 19).
8. Editorial correction of subsection (c)(3) (Register 2009, No. 28).
Note • History
(a) A committee, other than a committee controlled by a candidate, shall disclose the full name, street address, and telephone number of the principal officer of the committee in its statement of organization required by Section 84101(a) and any 24-hour statement required by Section 84101(b) or (c).
(b) For purposes of subdivision (a), the “principal officer” of a committee is the individual primarily responsible for approving the political activity of the committee including, but not limited to, the following activities:
(1) Authorizing the content of the communications made by the committee.
(2) Authorizing expenditures, including contributions, on behalf of the committee.
(3) Determining the committee's campaign strategy.
(c) If more than one individual shares in the primary responsibility for approving the political activities of the committee as set forth in subdivision (b), each individual is a principal officer. As required in subdivision (a), committees with more than one principal officer shall disclose the following in any filing required by Section 84101:
(1) A committee with three or fewer principal officers shall identify all principal officers.
(2) A committee with more than three principal officers shall identify no fewer than three principal officers.
(d) If no individual other than the committee treasurer has the primary responsibility for approving the political activity of the committee as set forth in subdivision (b), the treasurer shall be identified as both the committee treasurer and the principal officer in any filing required by Section 84101.
(e) In the event of a change in the principal officer or officers identified in a statement of organization, the committee shall file an amendment to the statement within 10 days of the change, pursuant to Section 84103.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 84102, 84103 and 84108, Government Code.
HISTORY
1. New section filed 10-31-2008; operative 1-1-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
2. Editorial correction of effective date in History 1 (Register 2008, No. 49).
§18402.5. Supplemental Pre-Election Statements.
Note • History
(a) A supplemental pre-election statement required by Government Code Section 84202.5 shall contain all the information required by Government Code Section 84211. In addition, a supplemental pre-election statement shall include the jurisdiction and date of, and the total of all contributions made in connection with, the election for which it is filed.
(b) A supplemental pre-election statement shall cover the period from the day after the closing date of the last semi-annual statement through 17 days before the election for which the statement is filed.
(c) “Contributions made in connection with an election” means all contributions made to all candidates and their controlled committees, and to all committees primarily formed to support or oppose candidates or measures, being voted on in one jurisdiction on one day, during the period beginning six months prior to the election and ending 17 days before the election.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84202.5, Government Code.
HISTORY
1. New section filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
§18404. Termination of Candidate's and Committees' Filing Requirements.
Note • History
(a) Major Donor and Independent Expenditure Committees. The filing obligations of a committee which qualifies pursuant to Government Code Section 82013(b) or (c) terminate at the end of the calendar year in which the committee qualified, except to the extent that additional campaign statements are required by Government Code Sections 84200, 84203, 84203.5, and 84204. If additional campaign statements are filed after the beginning of a new calendar year because the committee files a statement in connection with the qualification of a measure or a semi-annual statement covering activity for the period July 1 through December 31, the committee's filing obligations terminate when such statements have been filed.
(b) Recipient Committees. A treasurer of a committee which qualifies pursuant to Government Code Section 82013(a) may terminate the committee's status as a committee, only by completing the termination section on the Form 410 (Statement of Organization) declaring, under penalty of perjury, that the committee:
(1) Has ceased to receive contributions and make expenditures and does not anticipate receiving contributions or making expenditures in the future;
(2) Has eliminated or has declared that it has no intention or ability to discharge all of its debts, loans received and other obligations;
(3) Has no surplus funds; and
(4) Has filed all required campaign statements disclosing all reportable transactions.
(c) Filing of Committee Terminations.
As specified in Government Code Section 84101(a), the committee shall file the original of the statement of organization declaring the committee's termination with the Secretary of State, and shall also file a copy of the statement of organization with the local filing officer, if any, with whom the committee is required to file the originals of its campaign reports pursuant to Section 84215.
(d) Candidates and Officeholders. Pursuant to Government Code Section 82007, a candidate (which term includes an officeholder) is obligated to file campaign statements under the Act until his or her status as a candidate is terminated. An officeholder must file campaign statements required under the Act during the entire time the individual holds office. The filing obligations of a candidate or officeholder terminate as follows:
(1) Candidates or Officeholders with Committees. The filing obligations of a candidate or officeholder who has one or more controlled committees terminate when the individual has terminated all his or her controlled committee(s) and has left office.
(2) Candidates or Officeholders without Committees. The filing obligations of a candidate or officeholder who does not have a controlled committee, and who received contributions and made expenditures of less than $1,000 in the calendar year and filed a Form 470, terminate at the end of the calendar year for which the Form 470 was filed if:
(A) the candidate lost, withdrew, or was not on the ballot in the election; or
(B) the individual left office during the calendar year; and
(C) the individual has ceased to receive contributions and make expenditures and has filed all required campaign statements.
(e) A candidate or a committee whose filing obligations have terminated remains subject to all civil and criminal penalties and remedies for any violations of this title or any other provision of law.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82007, 84101 and 84214, Government Code.
HISTORY
1. New section filed 3-31-77; effective thirtieth day thereafter (Register 77, No. 14).
2. Amendment of subsection (a) filed 5-22-78; effective thirtieth day thereafter (Register 78, No. 21).
3. Amendment filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
4. Amendment of subsection (a) filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
5. Amendment of section and Note filed 9-30-99; operative 9-30-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 40).
§18404.1. Termination and Reopening of Committees.
Note • History
(a) When a candidate controlled committee organized for elective state office has no “net debts outstanding” as defined in Regulations 18531.6(d) and 18531.61(d), the committee must be terminated as set forth in Regulation 18404 no later than 24 months after the earliest of the date the candidate is defeated, leaves office or the term of office for which the committee was formed ends or, for withdrawn candidates, no later than 24 months after the election from which the candidate withdrew.
(b) Campaign Bank Accounts. On or before termination of the candidate controlled committee, the campaign bank account associated with that committee must be closed. No further activity, including receipt of contributions or making of payments, is allowed after the date of the termination of the committee unless the committee and a campaign bank account are reopened pursuant to this regulation or the committee is accepting a refund under subdivision (g)(1)(A)-(C) of this regulation. Contributions received while a committee is closed must be returned to the contributors. Contributions received by a committee reopened in accordance with this regulation are subject to the limits applicable to the election for which the committee was originally formed as well as Regulations 18531.6, 18531.61 and 18536.
(c) Local Committees. Candidates who are elected to an elective state office must terminate any controlled committees formed for local elections held concurrent with or prior to their election to state office. Such termination shall be pursuant to Regulation 18404 within 24 months of the candidate's election to state office.
(d) Creditors' Notice. The committee shall give at least 60 days notice of its impending termination to all creditors. Such notice shall include the date upon which the committee expects to file its terminating statement of organization.
(e) Requests for Extensions. A committee may, for good cause, seek from the Executive Director an extension of time to comply with the committee termination requirements of this regulation. Such a request shall be submitted to the Executive Director prior to the original due date for the committee's termination, and shall include evidence of good cause for the request.
(f) Local Candidate Controlled Committees. This regulation does not apply to local candidate controlled committees, except as provided in subdivision (c) and subdivision (g)(1)(A)-(C) of this regulation.
(g) Reopening of Terminated Committees. A committee subject to the requirements of this regulation may submit a request to the Executive Director of the Fair Political Practices Commission to reopen for any of the following reasons:
(1) To receive a refund or similar payment received after termination of the committee, except as provided in subdivision (g)(1)(A)-(C);
(A) A state or local candidate controlled committee that has terminated may accept a refund from a governmental entity without reopening. A state or local committee that has terminated may accept a refund from a vendor or other person without reopening if the committee did not know of its entitlement to the refund prior to termination and the refund or refunds total no more than $10,000.
(B) A refund allowed by subdivision (g)(1)(A) may only be transferred to a committee that would have been lawfully allowed to receive funds from the terminated committee prior to termination. A committee receiving a refund under subdivision (g)(1)(A) is not required to place the refund in its bank account if transferring the refund to another committee.
(C) A refund allowed by subdivision (g)(1)(A) must be reported as follows: The terminated committee must file a campaign statement for the period in which any refund was received by the committee and report the refund as a miscellaneous increase to cash on the campaign statement and as an expenditure when the funds are used. In the case that the funds are transferred to a new committee, this transfer must be reported as an expenditure on the terminated committee's campaign statement. If attribution is required under Section 85306, the committee to which a refund is transferred must report the receipt of funds as a contribution and attribute as required by Section 85306. If attribution is not required, the committee to which a refund is transferred must report the receipt of funds as a miscellaneous increase to cash on its campaign statement covering the period in which the funds were transferred.
(2) To pay a fine as permitted under Section 89513(c);
(3) To pay expenses incurred in connection with an audit or investigation of the committee under this title;
(4) To pay litigation expenses as permitted under Sections 89513 and 89514, other than expenses subject to Section 85304 and Regulation 18530.4; or
(5) For any other good cause shown that would further the disclosure requirements or contribution limits of this title.
(h) Expenditure of a refund or similar payment under this regulation must be made consistent with Sections 89510-89519, as applicable, including payment of debts that the committee declared it had no intention or ability to discharge under Regulation 18404. In addition, the reopening of a committee to receive payments and make expenditures must be in compliance with Sections 85316 and 85321 and Regulations 18531.6 and 18531.61. A determination by the Executive Director under this regulation does not constitute a determination regarding the applicability of the statutes and regulations referenced in this subdivision.
(i) Procedures for Reopening Terminated Committees. In order for the committee's reopening to be effective, the committee must:
(1) Request and receive approval to reopen the committee from the Executive Director as specified in this subdivision. The purpose(s) for requesting the reopening of the committee must be included in the request. Within 15 days after a request is received by the Executive Director, the requestor shall be notified in writing of the decision of the Executive Director. In denying or granting the request, the Executive Director shall consider whether the proposed purpose(s) for reopening the committee are as specified in subdivision (g) of this regulation, and specify the purpose(s) for reopening the committee in the notification if the request is granted. If the request is denied, the notification shall state the reason for the denial and advise the requestor of the right to appeal the decision to the Chairman within 10 days after the date of the transmittal of the denial notification. Any such appeal shall:
(A) Be submitted to the office of the Executive Director either in person, by fax, or by overnight delivery service;
(B) Include all material, if any, submitted with the original request to reopen supporting any of the permissible reasons for reopening as set forth in subdivision (g) of this regulation upon which the committee is basing its request; and
(C) Directly address the reasons for the denial of the request stated in the Executive Director's notification to the committee.
The Chairman's decision shall be final, and may not be appealed to the Commission.
(2) File an amendment to Form 410 (Statement of Organization) declaring the committee's reopening with the Secretary of State along with written authorization from the Executive Director granting the reopening of the committee;
(3) Mark “Amendment” on the Form 410 and list the committee's original identification number and name;
(4) Include the word “Reopened” in parentheses after the committee name on the Form 410; and
(5) File a copy of the amended statement of organization with the local filing officer, if any, with whom the committee is required to file the originals of its campaign reports pursuant to Section 84215.
(j) Filing Requirements. A reopened committee is subject to all of the committee filing requirements of this title including those specified in subdivision (i) of this regulation.
(k) Termination of Reopened Committees. Unless the Executive Director specifies a date of termination in his or her notification, a reopened committee must terminate pursuant to the requirements of Regulations 18404(b) and (c) within 30 days of the date the specified purpose(s) for which the committee was reopened ceases to exist. The Executive Director may specify in his or her notification the projected date of completion and the date of termination for the reopened committee. If the reopened committee requires additional time before terminating for a purpose or purposes other than specified in its initial request for reopening under subdivision (i), or the Executive Director specifies a date of termination in his or her notification and the reopened committee requires additional time to complete the original reopening purpose, then the committee must reapply for and receive approval of the Executive Director under the same procedures and timelines set forth in subdivision (i)(1) prior to the termination date for the reopened committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84102, 84103, 84214 and 84215, Government Code.
HISTORY
1. New section filed 2-14-2002; operative 2-15-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 7).
2. Amendment of subsections (a)-(a)(2) filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
3. Amendment of subsections (f), (f)(1)(B) and (f)(1)(D), new subsections (g)-(g)(3) and subsection relettering filed 7-29-2003; operative 7-29-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 31).
4. Amendment of section heading and subsections (b)(1)-(f), (f)(1)(B), (g) and (h), new subsections (i)-(m) and amendment of Note filed 7-27-2004; operative 7-27-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 31).
5. Amendment filed 3-7-2011; operative 4-6-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 10).
6. Amendment of subsections (b), (f) and (g)(1) and new subsections (g)(1)(A)-(C) filed 10-27-2011; operative 11-26-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 43).
§18404.2. Administrative Termination.
Note • History
(a) The Executive Director, or any person to whom this authority is delegated by the Executive Director, may administratively terminate a recipient committee, as defined under Section 82013(a), if all of the following conditions are met:
(1) The committee has not filed campaign statements pursuant to Chapter 4 of the Act in the previous 12 months;
(2) The ending cash balance on the committee's last filed campaign statement is $3,000 or less;
(3) The committee is provided notice of the proposed administrative termination at least 90 days prior to the termination, and;
(4) The committee fails to file a written objection to the administrative termination with the Commission within 90 days of receiving a notice of the proposed termination.
(b) A committee that has been administratively terminated shall not receive any subsequent contributions, and shall not make expenditures exceeding the ending cash balance on the committee's last filed campaign statement, unless the committee's status is reinstated. A committee may reinstate its committee status after an administrative termination by filing a written request for reinstatement with the Commission.
(c) The Commission shall not require an explanation for an objection to an administrative termination or a request for reinstatement filed pursuant to this regulation, and no objection or request shall be denied.
(d) The Commission shall provide notice of an administrative termination, or the reinstatement of a committee subsequent to an administrative termination, to the Office of the Secretary of State and any local filing officer with whom the committee was required to file their last filed campaign statement.
NOTE
Authority cited: Sections 83112 and 84212, Government Code. Reference: Sections 82013 and 84212, Government Code.
HISTORY
1. New section filed 1-5-2012; operative 2-4-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 1). For prior history of section 18404.2, see Register 2002, No. 7.
§18405. Candidates with Multiple Controlled Committees.
Note • History
(a) Multiple Controlled Committees.
(1) If a candidate or elected officer controls more than one committee for the purpose of election to office, including committees established for different terms of the same elective office or for a different elective office, the candidate or elected officer shall, in addition to any other requirements related to the filing of campaign statements, file campaign statements for each of these committees on the dates the candidate or elected officer is required to file preelection statements under Sections 84200.5, 84200.7 and 84200.8 in connection with his or her election to office. Further, a candidate or elected officer shall, in addition to any other requirements related to the filing of campaign statements, file campaign statements for any other committee he or she controls, including an officeholder account committee, a legal defense fund committee, or a ballot measure committee, on the dates the candidate or elected officer is required to file preelection statements under Sections 84200.5, 84200.7 and 84200.8 in connection with his or her election to office.
(2) If a candidate or elected officer is required to file a supplemental preelection or independent expenditure report under Sections 84202.5 or 84203.5, only the committee(s) that made the contributions or independent expenditures in connection with the election are required to file the supplemental report; another committee controlled by the candidate or elected officer which made no contributions or independent expenditures in connection with the election is not required to file a supplemental preelection or independent expenditure report.
(b) Seeking Office in Another Jurisdiction.
(1) When an individual is simultaneously a candidate for elective state office and elective office in a local government agency, or for elective office in two different local jurisdictions, he or she shall, in addition to any other requirements relating to the filing of campaign statements, file campaign statements for all committees he or she controls with both jurisdictions at the locations specified in Section 84215 on the dates the candidate is required to file semiannual statements under Section 84200 and preelection statements under Sections 84200.5, 84200.7 and 84200.8. The candidate or elected officer shall file the originally signed campaign statement with the relevant jurisdiction (e.g., state committee campaign statement with Secretary of State, city committee campaign statement with local filing officer) and shall file a copy of the campaign statement with the other location(s).
(2) The cross-filing requirements in paragraph (b)(1) applicable to a candidate or elected officer seeking office in another jurisdiction do not apply to late contribution reports under Section 84203, late independent expenditure reports under Section 84204, election cycle and $5,000 reports under Section 85309, or ballot measure contribution and expenditure reports under Section 84204.5.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82016, 84200, 84200.5, 84200.7, 84200.8 and 84215, Government Code.
HISTORY
1. New section filed 6-9-2009; operative 7-9-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 24).
§18406. Short Form for Candidates or Officeholders Who Receive and Spend Less than $1,000 in a Calendar Year.
Note • History
(a) A candidate or officeholder who plans to receive contributions of less than $1,000 and who plans to make expenditures of less than $1,000 in a calendar year may file a short form campaign statement for that calendar year. The period covered by the short form is the calendar year. No other campaign statements must be filed by a candidate or officeholder
who has filed the short form campaign statement for activity in the calendar year unless the candidate or officeholder receives $1,000 or more in contributions or makes $1,000 or more in expenditures.
(b) A candidate who files a short form campaign statement in connection with an elective office, covering the calendar year in which the candidate's name will appear on the ballot, with a declaration of candidacy, as a pre-election statement pursuant to Government Code section 84200.5, or as a semi-annual campaign statement pursuant to Government Code section 84200 for the period ending June 30, and subsequently receives monetary or non-monetary contributions totaling $1,000 or more or makes expenditures totaling $1,000 or more prior to the election shall send written notification to the Secretary of State, the local filing officer with whom the candidate is required to file the originals of his or her campaign statements, and each candidate contending for the same office, as follows:
(1) The notification shall be sent within 48 hours of receiving contributions totaling $1,000 or more or making expenditures of $1,000 or more;
(2) The notification shall include the name and address of the candidate, the elective office for which the short form campaign statement was filed, the date of the election, and the date contributions totaling $1,000 or more were received or expenditures totaling $1,000 or more were made;
(3) The notification shall be sent by guaranteed overnight delivery, personal delivery, or facsimile transmission.
NOTE
Authority cited: Sections 83112 and 84206, Government Code. Reference: Section 84206, Government Code.
HISTORY
1. New section filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
2. Amendment filed 6-15-88; operative 7-15-88 (Register 88, No. 25).
3. Designation of subsection (a) and new subsections (b)-(c) filed 5-23-94; operative 5-23-94 (Register 94, No. 21).
4. Editorial correction of subsection (c) (Register 96, No. 43).
5. Amendment of subsection (b) and repealer of subsection (c) filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
6. Change without regulatory effect amending subsection (b)(3) filed 6-26-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 26).
7. Amendment of subsection (b) filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18410. Filing Requirements for Statement of Organization.
Note • History
(a) The Secretary of State shall reject the filing of a Statement of Organization unless it contains all of the following information:
(1) Indication of the “Statement Type,” whether initial, amendment, or termination and, if the committee has qualified, the date of qualification or, if the statement is a termination statement, the date the committee terminated.
(2) The committee identification number, if the filing is an amended statement.
(3) The full name, as required by the Act and Commission regulations, street address, and telephone number of the committee.
(4) The full name, street address, and telephone number of the treasurer.
(5) Indication of the type of committee by completing at least one of the following sections: controlled committee; primarily formed committee; or general purpose committee.
(6) If the committee is a candidate controlled committee, the full name and office sought by a candidate, including district number, if applicable, and, if the committee has qualified, the name and address of the financial institution where the campaign bank account is located and the account number.
(7) If the committee is a noncandidate controlled committee, the name of each principal officer as set forth in Regulation 18402.1.
(8) If the committee is a committee primarily formed to support or oppose specific candidates or measures in a single election, the name of the candidate or the number, letter, or full title of the ballot measure, the jurisdiction, and whether the committee is formed to support or oppose the candidate or measure.
(9) If the committee is a general purpose committee, indication of whether the committee is a city, county, or state committee and a brief description of its activity.
(10) If the committee is a sponsored committee, the full name, street address, and telephone number of each sponsor and the industry group or affiliation of each sponsor as required in Regulation 18419(b)(2).
(11) Signed verification of the statement, including the date, by the treasurer or assistant treasurer and controlling officeholder, candidate, or state measure proponent.
(b) A committee is not in compliance with the provisions of Section 84101 or 84103 until such time as the Secretary of State accepts for filing a statement of organization or amendment thereto that provides the information required under subdivision (a)(1-11).
(c) Notwithstanding the above provisions, if the statement of organization filed is an amendment or termination and the information contained on the previous statements of organization filed by the committee is correct, the amended statement need only include the committee name, identification number, and verification along with the amendment, if an amended statement, or the termination date, if a termination statement.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 84102 and 84103, Government Code.
HISTORY
1. New section filed 5-8-2009; operative 6-7-2009 (Register 2009, No. 19). For prior history, see Register 96, No. 43.
§18412. Identifying Funding Sources for Contributions and Independent Expenditures Made by Certain Tax Exempt Organizations.
Note • History
(a) Application. This regulation establishes rules governing organizations that are formed and operate as tax exempt organizations under Internal Revenue Code Sections 501(c)(3), 501(c)(4), 501(c)(5), and 501(c)(6), as well as federal or out-of-state political organizations, which make contributions or independent expenditures totaling $1,000 or more from their general treasuries to support or oppose a candidate or ballot measure in California, and report the sources of the funds used to make those contributions or independent expenditures as required by Regulation 18215(b)(1).
(b) If a donor to such an organization requests or knows that the payment will be used by the organization to make a contribution or an independent expenditure to support or oppose a candidate or ballot measure in California, the full amount of the donor's payment shall be disclosed by the organization as a contribution. For purposes of this regulation, a donor “knows” that a payment will be used to make a contribution or an independent expenditure if a donor makes a payment in response to a message or a solicitation indicating the organization's intent to make a contribution or independent expenditure. An organization that solicits and receives contributions totaling $1,000 or more becomes a committee pursuant to Section 82013(a).
(c)(1) If an organization makes a contribution or an independent expenditure from its general treasury that is not fully paid from organizational income, it must identify additional donors if those described in subdivision (b) of this regulation did not provide the full balance of the contribution or independent expenditure. In such cases the organization shall identify and report donors who pursuant to Regulation 18215(b)(1) are presumed to have had “reason to know” that all or part of their payments would be used to make expenditures or contributions, using a “last in, first out” accounting method, until a sufficient number of donors have been identified and reported to account for the full balance of the contribution or independent expenditure. An organization need not report a donor as a contributor if the organization has evidence clearly establishing specific circumstances that show the donor did not intend that its payment would be used to fund a contribution or independent expenditure. However, an organization shall not knowingly conceal the name of a donor with the purpose of depriving the public of information to which it is entitled under the Act.
(2) If an organization that makes a contribution or an independent expenditure from its general treasury must identify additional donors because those described in subdivisions (b) and (c)(1) of this regulation did not provide the full amount of the contribution or independent expenditure, the organization shall allocate the remaining balance of the contribution or independent expenditure to itself.
(d) The organization shall maintain all records necessary to establish its compliance with subdivisions (b) and (c).
(e)(1) An organization that qualifies as a recipient committee under Title 9 (commencing with Section 81000) of the Government Code shall report as a recipient committee, identifying its contributors as required under subdivisions (b) and (c) of this regulation.
(2) An organization that identifies its donors pursuant to this regulation and also identifies the same donors on a report filed monthly with the Federal Election Commission shall be in compliance with this regulation by identifying the federal committee name and identification number on the campaign schedule which requires contributor identification.
(3) An organization that makes expenditures from income-producing revenues (such as sales of goods or services or investment income) shall file reports as a committee pursuant to Section 82013(b) or (c).
(4) For contributions reported under subdivision (c)(1):
(A) The date that must be listed for contributions received shall be tied to the date or dates of the expenditures.
(B) If the employer and occupation information cannot be obtained, the report shall provide an explanation of the organization's attempts to obtain the information.
(C) Contributors of $5,000 or more shall be notified by the organization as required by Section 84105 and Regulation 18427.1.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015 and 82031, Government Code.
HISTORY
1. New section filed 4-19-2012; operative 5-19-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 16).
§18413. Reporting Independent Expenditures by Eligible 501(c)(3)/501(c)(4) Organizations.
Note • History
(a) Application. This regulation provides an event-based reporting alternative for an eligible 501(c)(3) or 501(c)(4) organization that makes occasional independent expenditures from its general treasury to support or oppose a ballot measure in California. This reporting option does not apply for contributions or independent expenditures made by a 501(c)(3) or 501(c)(4) organization to support or oppose a candidate in a California election, or to contributions made to support or oppose a ballot measure in California.
(b) Definitions. For purposes of this regulation, “Eligible 501(c)(3) or 501(c)(4) organization” means an organization to which all of the following apply:
(1) The organization has received either a 501(c)(3) or 501(c)(4) tax-exempt status from the Internal Revenue Service and is operating under either Section 501(c)(3) or 501(c)(4) of the Internal Revenue Code; and if incorporated in the State of California, has received a tax-exempt determination from the California Franchise Tax Board under California Revenue and Taxation Code Section 23701d or 23701f, or if incorporated in a state other than California, has received the required tax-exempt determination under the laws of the state of incorporation.
(2) The organization is multipurpose and occasionally makes independent expenditures, using funds donated directly to its general treasury by individuals or business entities, to support or oppose ballot measures in California. “Occasionally makes independent expenditures” means either of the following:
(A) Expenditures from the organization's general treasury totaling, in the aggregate in a calendar year, less than $500,000 to support or oppose four or fewer state ballot measures.
(B) Expenditures from the organization's general treasury totaling, in the aggregate in a calendar year, less than $50,000 to support or oppose one or more local ballot measures.
(c) Reporting Options. Under Regulation 18215(b)(1), an eligible 501(c)(3) or 501(c)(4) organization that makes an independent expenditure from its general treasury is required to identify the donors of funds utilized to make independent expenditures on ballot measures in California, if the organization has previously made independent expenditures or contributions from its general treasury totaling at least $1,000 during the same calendar year, or during any of the four calendar years immediately preceding that year. An eligible 501(c)(3) or 501(c)(4) organization shall either (1) report the independent expenditure as a recipient committee or (2) elect to report the independent expenditure under the event-based reporting rules set forth in subdivision (d) without designating a treasurer, filing a statement of organization, periodic recipient committee reports on Form 460, or a statement of termination.
(d) Event-Based Independent Expenditure Reporting.
(1) When to File. An eligible 501(c)(3) or 501(c)(4) organization that elects event-based reporting shall report an independent expenditure of $1,000 or more made from its general treasury to support or oppose the qualification or passage of a ballot measure on an Independent Expenditure Report (Form 496) filed within 10 business days after making the independent expenditure. However, if the eligible 501(c)(3) or 501(c)(4) organization makes the independent expenditure during the 90 days preceding a state election or 16 days preceding a local election in which the measure appears on the ballot, it shall file the Independent Expenditure Report within 24 hours after making the independent expenditure.
(2) Report Contents.
(A) The Form 496 report shall list the eligible 501(c)(3) or 501(c)(4) organization's full name and street address, and in addition, shall include the designation “Eligible 501(c)(3) IE Report” or “Eligible 501(c)(4) IE Report” in the “Name of Filer” field, indicating the organization's election to use event-based independent expenditure reporting. The report shall include the name of a current officer, director, or trustee of the 501(c)(3) or 501(c)(4) organization listed on the organization's Internal Revenue Service Form 990, who shall be responsible for the accuracy and completeness of the report.
(B) The Form 496 report shall contain the information about the independent expenditure required by the form concerning the date, amount, and description of the goods or services for which the expenditure was made, and shall identify the measure the independent expenditure is supporting or opposing as specified in Section 84204.5(a)(2).
(C) The Form 496 report shall identify the donors whose payments of $100 or more to the general treasury were used to pay for the independent expenditure. If only a part of a donor's payment to the organization was used to make independent expenditures, the payment may be apportioned for reporting purposes. Donors shall be identified and reported as required by Regulation 18412(b) and (c). Donor payments to the organization that may be subject to itemized disclosure are those payments made after the date of the organization's first expenditure or contribution of $1,000 or more pursuant to Regulation 18215(b)(1).
(D) The organization shall maintain the records necessary to document the donor contributions and the independent expenditures reported.
(3) Where to File. For an independent expenditure in connection with a state measure, the organization shall file a Form 496 report electronically with the California Secretary of State. For an independent expenditure in connection with a local measure, the organization shall file a Form 496 report electronically with the California Secretary of State, and shall also file a copy of the report with the clerk of the city or county in which the measure is being voted on.
(e) A 501(c)(3) or 501(c)(4) organization that is not an eligible 501(c)(3) or 501(c)(4) organization but otherwise qualifies as a recipient committee under Title 9 (commencing with Section 81000) of the Government Code shall report as a recipient committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82013, 84204 and 85500, Government Code.
HISTORY
1. New section filed 12-19-2007as an emergency; operative 12-19-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 51). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 4-18-2008.
2. Certificate of Compliance as to 12-19-2007 order, including amendment of section heading and section, transmitted to OAL 4-11-2008 and filed 5-14-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 20).
3. Amendment of subsections (c) and (d)(2)(C) filed 4-19-2012; operative 5-19-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 16).
§18416. Annual Loan Reports. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84216 and 84216.5, Government Code.
HISTORY
1. New section filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
2. Amendment filed 6-10-87; operative 7-10-87 (Register 87, No. 25).
3. Repealer filed 7-12-2001; operative 8-11-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 28).
Note • History
(a) The terms used in this section are defined as follows:
(1) “Sponsored committee” means a committee, other than a controlled committee, which has one or more sponsors.
(2) “Sponsor” of a committee means any person (except a candidate, proponent or other individual) to whom any of the following applies:
(A) The committee receives 80 percent or more of its contributions either from the person or from the person's members, officers, employees or shareholders;
(B) The person collects contributions for the committee by use of payroll deductions or dues from its members, officers or employees;
(C) The person provides, alone or in combination with other organizations, all or nearly all of the administrative services for the committee; or
(D) The person sets, alone or in combination with other organizations, the policies for soliciting contributions or making expenditures of committee funds.
(3) “Intermediate unit” means a chapter, local, branch, unit or similar component of a sponsor that collects money from its members, officers, employees or shareholders when, at the time of the making of the payment, the donor knows or has reason to know that the payment, or funds with which the payment will be commingled, will be used to make contributions by the sponsored committee within the meaning 2 Cal. Code of Regs. section 18215(b)(1).
(4) “Member” includes a member, employee, officer, shareholder or any other person affiliated with a sponsor or an intermediate unit.
(5) “Member contribution” is a voluntary or mandatory payment made by a member of a sponsor or an intermediate unit when, at the time of making the payment, the donor knows or has reason to know that the payment, or funds with which the payment will be commingled, will be used to make contributions by a sponsored committee within the meaning of 2 Cal. Code of Regs. section 18215(b)(1).
(b) In the case of a sponsored committee:
(1) The committee shall include the name of its sponsor in the name of the committee. If the sponsored committee has more than one sponsor and the sponsors are members of an industry or other identifiable group, the name of the committee shall include a term identifying that industry or group.
(2) The committee shall indicate on the committee's statement of organization the industry group or affiliation of the sponsor.
(3) The sponsor shall file as a committee if it meets the thresholds set forth in Government Code section 82013 except as provided in subdivisions (c) through (f).
(c) A sponsor is not a committee within the meaning of Government Code section 82013 if all of the following criteria are satisfied:
(1) The sponsor does not directly or indirectly make or receive a sufficient amount of contributions or independent expenditures, other than those in support of its sponsored committee, to satisfy the thresholds set forth in Government Code section 82013. A sponsoring organization makes contributions and expenditures in support of its sponsored committee when it provides the committee with member contributions or money from its treasury, with the exception of establishment or administrative costs (see 2 Cal. Code Regs. section 18215(c)(16));
(2) The sponsored committee reports all contributions and expenditures made in support of the committee by the sponsor, its intermediate units, and the members of such entities. With respect to a member contribution which is channeled through the sponsor or an intermediate unit, the member is the contributor;
(3) The sponsored committee reports as an intermediary the sponsor and, if required by paragraph (f) of this regulation, any intermediate unit, as an intermediary, if the sponsor or intermediate unit directly or indirectly provides the committee with $100 or more in member contributions regardless of whether any member for whom the sponsor or intermediate unit acts contributed $100 or more; and
(4) A responsible officer of the sponsor, as well as the treasurer of the sponsored committee, verifies the committee's campaign statement pursuant to Government Code section 81004.
(d) A sponsor which is a committee pursuant to Government Code section 82013 by virtue of making or receiving contributions or independent expenditures other than those in support of its sponsored committee:
(1) Need not report on its campaign statement member contributions to the sponsored committee if the committee discloses such contributions in compliance with the standards set forth in paragraphs (c)(2), (c)(3), and (c)(4) of this regulation;
(2) Must report contributions or payments for establishment or administrative costs it makes to the sponsored committee in the form of money from its treasury; and
(3) Must make a prominent reference on its campaign statement stating the name of its sponsored committee, including the committee's identification number issued by the Secretary of State's office.
(e) An intermediate unit is not a committee pursuant to Government Code section 82013 by virtue of making contributions and expenditures in support of its sponsor's sponsored committee or by virtue of acting as an intermediary pursuant to paragraph (c)(3) of this regulation. An intermediate unit which is a committee by virtue of making or receiving other contributions or independent expenditures need not disclose member contributions if the sponsored committee follows the procedures set forth in paragraph (c)(3) of this regulation for reporting the member contributions.
(f) An intermediate unit is reportable as an intermediary on the sponsored committee's campaign statement pursuant to paragraph (c)(3) of this regulation only if the name of the intermediate unit is substantially different from the name of the sponsor.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82048.7 and 84102, Government Code.
HISTORY
1. New section filed 12-1-77; effective thirtieth day thereafter (Register 77, No. 49).
2. Amendment of subsection (b)(4) filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
3. Amendment filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
4. Amendment filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
5. Amendment of subsections (a)(3), (a)(5), (c)(1), (d)(3) and Note filed 6-19-96; operative 6-19-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 25).
6. Amendment of subsection (a)(2)(A) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
7. Amendment of subsections (c)(1) and (d)(2) filed 5-28-97; operative 5-28-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 22).
8. Change without regulatory effect amending subsections (a)(2), (a)(3), (a)(5), (b)(3)-(c)(1), (c)(4)-(d) and (e) filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
§18420. Reporting of Campaign Contributions and Expenditures of State or Local Government Agencies.
Note • History
(a) Any candidate or committee that receives contributions from a state or local government agency shall report receipt of those contributions.
(b) The payment by a state or local government agency of the salary or expenses of its employees or agents is an expenditure or contribution only if the salary or expenses are for campaign activities and meet the requirements of 2 Cal. Code Regs. section 18423. For purposes of this subdivision, “campaign activities” shall include, but are not limited to, the following:
(1) Arranging or coordinating a campaign-related event;
(2) Acting in the capacity of the campaign manager or coordinator;
(3) Soliciting, receiving or acknowledging campaign contributions or arranging for the raising of contributions;
(4) Developing, writing or distributing campaign literature or making arrangements for campaign literature;
(5) Arranging for the development, production or distribution of campaign literature;
(6) Preparing television, radio or newspaper campaign advertisements;
(7) Arranging for the development, production, publishing or broadcast of campaign advertisements;
(8) Establishing liaison with or coordinating activities of campaign volunteers;
(9) Preparing campaign budgets;
(10) Preparing campaign statements; and
(11) Participating in partisan get out the vote drives.
Nothing in this subdivision shall require the reporting of employee's campaign activities if such activities are performed on vacation time or other than during publicly paid working hours.
(c) Notwithstanding subdivision (b), the payment of salary or expenses by a state or local government agency to an elected official shall not be an expenditure or contribution.
(d) If a state or local government agency makes expenditures or contributions, as those terms are defined in Government Code sections 82015 and 82025 and 2 Cal. Code Regs. sections 18215 and 18225, the state or local government agency shall file campaign statements required by Chapter 4 of the Political Reform Act if the agency qualifies as a committee under Government Code section 82013.
(e) The individual authorizing or directing the making of expenditures or contributions which qualify an agency as a committee shall be the treasurer unless another individual is designated.
COMMENT: This regulation establishes the requirement for a committee to report receipt of contributions from state or local government agencies. If a state or local government agency has enough campaign activity to qualify as a committee, the state or local government agency itself will be required to file campaign statements.
Nothing in this regulation should be read as condoning or authorizing campaign-related activities by a state or local government agency. Under many circumstances, such activities may be illegal. See Penal Code section 424; Government Code section 54964; Stanson v. Mott, 17 Cal. 3d 206 (1976); People v. Sperl, 54 Cal. App. 3d 640 (1976); and People v. Battin, 77 Cal. App. 3d 635 (1978).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84200, et seq., Government Code.
HISTORY
1. New section filed 8-30-79; effective thirtieth day thereafter (Register 79, No. 35).
2. Amendment of section heading filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
3. Editorial correction of Reference cite (Register 95, No. 17).
4. Editorial correction of Comment (Register 95, No. 44).
5. Change without regulatory effect amending subsections (b) and (b)(11)-(e) filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
§18420.1. Payments by State or Local Agencies for a Campaign Related Communication.
Note • History
(a) A payment of public moneys by a state or local governmental agency, or by an agent of the agency, made in connection with a communication to the public that expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage, or defeat of a clearly indentified measure, as defined in Regulation 18225(b)(1), or that taken as a whole and in context, unambiguously urges a particular result in an election is one of the following:
(1) A contribution under Section 82015 if made at the behest of the affected candidate or committee.
(2) An independent expenditure under Section 82031.
(b) For the purposes of subdivision (a), a communication paid for with public moneys by a state or local governmental agency unambiguously urges a particular result in an election if the communication meets either one of the following criteria:
(1) It is clearly campaign material or campaign activity such as bumper stickers, billboards, door-to-door canvassing, or other mass media advertising including, but not limited to, television or radio spots.
(2) When considering the style, tenor, and timing of the communication, it can be reasonably characterized as campaign material and is not a fair presentation of facts serving only an informational purpose.
(c) For purposes of subdivision (a), payments of public moneys by a state or local governmental agency made in connection with a communication include payments for both the direct and indirect costs of the communication. Indirect costs of a communication are costs reasonably related to designing, producing, printing, or formulating the content of the communication including, but not limited to, payments for polling or research; payments for computer usage, software, or programming; and payments for the salary, expenses, or fees of the agency's employees, agents, vendors, and consultants.
(d) For purposes of subdivision (b)(2), when considering the style, tenor, timing of a communication, factors to be considered include, but are not limited to, whether the communication is any of the following:
(1) Funded from a special appropriation related to the measure as opposed to a general appropriation.
(2) Is consistent with the normal communication pattern for the agency.
(3) Is consistent with the style of other communications issued by the agency.
(4) Uses inflammatory or argumentative language.
(e) Notwithstanding subdivision (a), a payment for the following communications shall not be considered a contribution or an independent expenditure:
(1) An agency report providing the agency's internal evaluation of a measure made available to a member of the public upon the individual's request.
(2) The announcement of an agency's position at a public meeting or within the agenda or hearing minutes prepared for the meeting.
(3) A written argument filed by the agency for publishing in the voter information pamphlet.
(4) A departmental view presented by an agency employee upon request by a public or private organization, at a meeting of the organization.
(5) A communication clearly and unambiguously authorized by law.
(f) A state or local governmental agency that qualifies as a committee under Section 82013 shall file campaign statements and reports pursuant to Chapter 4 and any other relevant provisions of the Act.
COMMENT: Nothing in this regulation should be read as condoning or authorizing use of public moneys for campaign related activities by a state or local governmental agency. Under many circumstances these activities may be illegal. (See Penal Code Section 424; Government Code Sections 8314, 54964, and 89001; Education Code Section 7054; and Vargas v. City of Salinas (2009) 46 Cal.4th 1.)
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82013, 82015 and 82031, Government Code.
HISTORY
1. New section filed 1-8-2009; operative 2-7-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 2).
2. Amendment of section heading, section and Note filed 9-22-2009; operative 10-22-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 39).
§18420.5. Campaign Filing Requirements for the February 5, 2008 Statewide Election. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82046 and 84200-84205, Government Code.
HISTORY
1. New section filed 9-24-2007; operative 10-24-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 39). For prior history, see Register 98, No. 22.
2. Repealer filed 4-21-2011; operative 4-21-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 16).
Note • History
In reporting the balance of cash and cash equivalents on a campaign statement pursuant to Government Code Section 84211(e), a candidate or committee shall report separately:
(a) The balance of cash. This means the combined balance in all campaign checking accounts and savings accounts, money market funds and certificates of deposit.
(b) The balance of cash equivalents. This means the combined original cost of all investments and interests in real property purchased with campaign funds, which are not reported as cash pursuant to subsection (a).
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84211(e), Government Code.
HISTORY
1. New section filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
§18421.1. Disclosure of the Making and Receipt of Contributions.
Note • History
Except as otherwise provided by law, the following standards shall be applicable to contributions and expenditures:
(a) A monetary contribution, including one made through wire transfer, credit card transaction, debit account transaction or similar electronic payment option (including one made via the Internet), is “made” on the date that the contribution is mailed, delivered, or otherwise transmitted to the candidate or committee. Alternatively, the date of the check or other negotiable instrument by which the contribution is made may be used in lieu of the date on which the contribution is mailed, delivered, or otherwise transmitted, provided it is no later than the date the contribution is mailed, delivered, or otherwise transmitted.
(b) Notwithstanding subdivision (a), for purposes of the disclosure of late contributions, as defined in Government Code section 82036 and pursuant to Government Code section 84203, a monetary contribution is “made” on the date the contribution is mailed, delivered, or otherwise transmitted to the candidate or committee. Consistent with 2 Cal. Code Regs. section 18401, the candidate or committee shall maintain documentation to support the date the contribution was made.
(c) A monetary contribution is “received” on the date that the candidate or committee, or the agent of the candidate or committee, obtains possession or control of the check or other negotiable instrument by which the contribution is made. All contributions received by a person acting as an agent of a candidate or committee shall be reported to and disclosed by the candidate or committee, or by the committee's treasurer, no later than the closing date of the next campaign statement that the committee or candidate is required to file.
(d) Notwithstanding subdivision (c) above, a monetary contribution collected by means of payroll deductions or membership dues by a membership organization for its sponsored committee pursuant to Government Code section 82048.7(b)(2) is “received” by the committee on the earlier of the following:
(1) The date that the committee obtains actual possession or control of the contribution;
(2) Within 60 days after the receipt of the payment by the committee's sponsor.
(e) Notwithstanding subdivision (c) above, a monetary contribution made through wire transfer, credit card transaction, debit account transaction or similar electronic payment option (including those made via the Internet) is “received” on the date the candidate or committee, or the agent of the candidate or committee, obtains possession or has control of the debit/credit account information or other payment information by which the contribution is made, or on the date the candidate or committee, or the agent of the candidate or committee, obtains possession or has control of the funds, whichever is earlier. In the case of installment payments, the contribution is received when the candidate or committee, or agent of the candidate or committee, obtains possession or control of the funds for each installment payment. The contribution reported is the amount of each installment payment.
(f) A nonmonetary contribution is “made” by the contributor, and “received” by the candidate or committee, on the earlier of the following dates:
(1) The date that funds are expended by the contributor for goods or services, if the specific expenditure is made at the behest of the candidate or committee;
(2) The date that the candidate or committee, or the agent of the candidate or committee, obtains possession or control of the goods or services, or the date that the candidate or committee otherwise receives the benefit of the expenditure.
(g) The standards for when a contribution is “made” and “received” set forth in this section are not applicable where a contribution is disposed of pursuant to Government Code sections 84211(q), 84203(c), or 2 Cal. Code Regs. section 18531.
NOTE
Authority cited: Section 83112, Gov. Code. Reference: Sections 82015, 82025, 82048.7, 84203, 84211 and 84306, Gov. Code.
HISTORY
1. New section filed 3-10-92; operative 4-9-91 (Register 92, No. 13).
2. Editorial correction of subsection (f) (Register 96, No. 43).
3. Amendment filed 9-23-2004; operative 9-23-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 39).
4. Amendment of subsection (e) filed 11-6-2006; operative 12-6-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 45).
Note • History
The term “street address” as used in Chapter 4 of Title 9 of the Government Code means the following:
(a) The street name and building number, and the city, state, and zip code.
(b) The Army and Air Force Post Office (A.P.O.) or Fleet Post Office (F.P.O.) address assigned by the United States government to an individual or a dependent who resides with the individual when the individual is on government duty outside the United States and does not have a conventional street address.
NOTE
Authority cited: Section 83112, Government Code. Reference: Chapter 4 of Title 9, Government Code.
HISTORY
1. New section filed 9-30-99; operative 9-30-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 40).
2. Amendment of first paragraph, new subsections (a) and (b) and amendment of Note filed 12-13-2007; operative 1-12-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 50).
§18421.3. Reporting of Contributions and Expenditures Collected by Contract Vendors or Collecting Agents.
Note • History
(a) A candidate or committee may contract with a vendor or collecting agent to establish one or more accounts to collect contributions prior to transferring the funds to a campaign bank account. These contributions are deemed to be received by the candidate or committee upon receipt by the vendor pursuant to rules set forth in 2 Cal. Code Regs. section 18421.1 and must be transferred to the candidate's or committee's campaign bank account “promptly” as defined in Government Code section 84306. The entire amount authorized by the contributor is the amount of the contribution. Any amounts deducted or charged by the vendor or collecting agent are deemed to be expenditures from the campaign bank account at the time the fees are deducted or charged.
(b) Nothing in this regulation should be construed to require the establishment of a bank account unless otherwise required by other provisions of this title. The provisions in subdivision (a) apply to candidates and their controlled committees, notwithstanding Government Code section 85201 and 2 Cal. Code of Regs. section 18524.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84211, 84306 and 85201, Government Code.
HISTORY
1. New section filed 12-18-2006; operative 1-17-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18421.4. Reporting Cumulative Amounts for State Elections and State Recipient Committees.
Note • History
(a) When reporting cumulative amounts of contributions received or made as defined by Government Code section 82018 and pursuant to subdivisions (f), (g), (h), and (k) of Government Code section 84211, a committee as defined in subdivision (a) of Government Code section 82013 controlled by a candidate for elective state office also must disclose the cumulative total(s) of contributions received or made for each election.
(b) When reporting cumulative amounts of contributions made as defined by Government Code section 82018 and pursuant to subdivisions (g) and (k) of Government Code section 84211, a recipient committee as defined in subdivision (a) of Government Code section 82013 that makes contributions to candidates for elective state office also must disclose the cumulative total(s) of contributions made for each election.
(c) When filing a campaign statement under Government Code sections 84200, 84200.3 or 84200.5, a candidate for elective state office who has accepted the applicable voluntary expenditure limit under Government Code sections 85400-85403 must disclose the cumulative total(s) of expenditures made for each election that are subject to the expenditure limit unless the candidate is no longer subject to the expenditure limit pursuant to Government Code section 85402.
(d) This regulation does not apply to a candidate for statewide elective office, or the candidate's controlled committee for that office, in an election held before November 6, 2002. This regulation applies on and after November 6, 2002, to a candidate for statewide elective office, and the candidate's controlled committee for that office, in an election held on or after November 6, 2002.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82018, 84211, 85301, 85302, 85303, 85305, 85306, 85307, 85314, 85400, 85401, 85402 and 85403, Government Code.
HISTORY
1. New section filed 6-19-2001 as an emergency; operative 7-19-2001. A Certificate of Compliance must be transmitted to OAL by 11-16-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 25).
2. Editorial correction of History 1 (Register 2001, No. 29).
3. Editorial correction of History 1 (Register 2002, No. 5).
4. Repealed by operation of Government Code section 11422.1, 1974 Administrative Procedure Act (Register 2002, No. 5).
5. New section filed 1-31-2002; operative 3-2-2002. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2002, No. 5).
§18421.6. Reporting Accrued Expenses.
Note • History
(a) Accrued expenses (excluding loans) owed by a recipient committee which remain outstanding shall be reported on each campaign statement until extinguished.
(b) An accrued expense (excluding a loan) shall be reported as of the date on which the goods or services are received, except that any obligation incurred for a regularly recurring administrative overhead expense (e.g., rent, utilities, phones, campaign workers' salary) shall not be reported as an accrued expense before the payment due date. If the exact amount of a debt or obligation is not known, the report shall state that the amount reported is an estimate. Once the exact amount is determined, the committee shall either amend the report(s) containing the estimate or indicate the correct amount on the report for the reporting period in which such amount is determined.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82025 and 84211(j), Government Code.
HISTORY
1. New section filed 9-30-99; operative 9-30-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 40).
§18421.7. Reporting an Expenditure for a Gift, a Meal, or Travel.
Note • History
(a) When reporting an itemized expenditure under Section 84211(k) or Section 84303 for a gift, a meal, or travel, a committee controlled by a candidate shall briefly describe the political, legislative, or governmental purpose of the expenditure and the following:
(1) For an itemized expenditure on a gift, the date of the gift, the nature of the gift, and if made to an individual recipient, the name of the recipient, or if made to a group of recipients, the name of each recipient who received a benefit of $50 or more.
(2) For an itemized expenditure on a meal, other than a meal reported as an expenditure for travel, the date of the meal, the number of individuals for whom the expenditure was paid, and whether these individuals included the candidate, a member of the candidate's “household” as defined by Section 89511(b)(4), or an individual with the authority to approve expenditures of the committee's campaign funds.
(3) For an itemized expenditure on travel, including lodging or a meal, the date or dates of travel, the destination, the goods or services paid for by the expenditure, the number of individuals for whom the expenditure was paid, and whether these individuals included the candidate, a member of the candidate's “household” as defined by Section 89511(b)(4), or an individual with authority to approve expenditures of the committee's campaign funds.
(b) A committee required to identify the recipient of a gift under subdivision (a)(1) that has not determined the recipient prior to the closing date of the reporting period in which it made the expenditure for the gift shall identify the recipient as “undetermined recipient” on the committee's campaign disclosure statement, and shall amend the statement to disclose the name of the recipient within 45 calendar days of the date the recipient receives the gift if the benefit to the recipient is $50 or more.
(c) The reporting requirements of this Regulation are in addition to the reporting requirements of Section 84211(k)(1), (2), (3), (5), and (6).
NOTE
Authority cited: Sections 83112, 84211(k) and 84303, Government Code. Reference: Sections 84211, 84303, 89510, 89511, 89512 and 89513, Government Code.
HISTORY
1. New section filed 6-11-2008; operative 7-1-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 24).
§18421.8. Reporting an Expenditure by a Candidate Controlled General Purpose Ballot Measure Committee.
Note • History
(a) When reporting an expenditure of $100 or more, a general purpose ballot measure committee controlled by a candidate for elective state office shall identify each measure for which the expenditure is made to support or oppose by its assigned ballot designation. If a potential measure has not been assigned an official ballot designation, the report shall briefly describe the purpose of each potential measure for which the expenditure is made to support or oppose.
(b) When reporting an expenditure under subdivision (a) to support or oppose more than one measure or potential measure, a general purpose ballot measure committee controlled by a candidate for elective state office shall specify the amount of the expenditure attributed to the support or opposition of each measure or potential measure. However, this subdivision shall not apply to an expenditure made for operating costs, administrative overhead, fundraising activities, travel, compliance costs, and attorney's fees incurred in general support or opposition to the measures and potential measures supported or opposed by the committee if the amount of the expenditure cannot be attributed to each specific measure or potential measure.
(c) For any committee reporting under this regulation, the information required in subdivisions (a) and (b) is in addition to any information otherwise required under Section 84211.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82027.5, 82047.5, 84101, 84102, 84211 and 84303, Government Code.
HISTORY
1. New section filed 1-30-2009; operative 3-1-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 5).
§18421.9. Reporting Expenditures Charged to a Credit, Debit or Charge Card by a Candidate or Committee.
Note • History
A candidate or committee shall disclose the information, as pertinent, required by paragraphs (1) through (5) of subdivision (k) of Section 84211 for expenditures paid by the candidate or committee to a credit, debit or charge card company if the expenditures reach the $100 aggregate threshold for that subdivision. A candidate or committee shall also disclose the information, as pertinent, required by paragraphs (1) through (5) of subdivision (k) of Section 84211 for each specific expenditure of $100 or more charged on the candidate's or committee's credit, debit or charge card.
NOTE
Authority cited: Sections 83112, Government Code. Reference: Sections 84211 and 84303, Government Code.
HISTORY
1. New section filed 2-11-2010; operative 3-13-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 7).
§18421.31. Text Message Contributions.
Note • History
(a) This regulation applies to a committee engaging in fundraising through text message contributions. Text message refers to messages sent to phones over the short message service (“SMS”).
(b) Pursuant to Regulation 18421.1(c), text message contributions are received on the date that a mobile fundraising vendor, acting as agent of the candidate or committee, obtains possession or control of the contributions.
(c) Contributions made by text message shall be considered to be transferred promptly to a committee's campaign bank account as required by Section 84306 and Regulation 18421.3 if they are collected by the wireless carrier and forwarded by the mobile fundraising vendor to the committee following the standard business practices for those transactions.
(d) In addition to any other records required by the Act and regulations, a committee raising funds by text message contributions shall maintain the records required by Regulation 18401(a) paragraphs (1)-(3) for contributions under $25, for contributions from $25 to less than $100, and for contributions of $100 or more, respectively.
(e) A contribution made by text message shall be attributed to the person who is subscribed to the cell phone number that texted in the contribution.
(f) Under Regulation 18421.3(a), the entire amount authorized by the contributor is the amount of the contribution, and any amounts paid by the committee to the wireless carrier or mobile fundraising vendor for processing the contributions shall be reported by the committee as an expenditure.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 84104 and 84306, Government Code.
HISTORY
1. New section filed 11-8-2011; operative 12-8-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 45).
§18423. Payments for Personal Services as Contributions and Expenditures.
Note • History
(a) The payment of salary, reimbursement for personal expenses, or other compensation by an employer to an employee who spends more than 10% of his compensated time in any one month rendering services for political purposes is a contribution, as defined in Section 82015 and Regulation 18215, or an expenditure, as defined in Section 82025 and Regulation 18225, by the employer if:
(1) The employee renders services at the request or direction of the employer; or
(2) The employee, with consent of the employer, is relieved of any normal working responsibilities related to his employment in order to render the personal services, unless the employee engages in political activity on bona fide, although compensable, vacation time or pursuant to a uniform policy allowing employees to engage in political activity.
(b) Personal services are rendered for political purposes if they are carried on for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of one or more candidates, or the qualification or passage of any measure, and include but are not limited to:
(1) Personal services received by or made at the behest of a candidate or committee by an employee; and
(2) Hours spent developing or distributing communications that expressly advocate the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure.
(c) The amount of the contribution or expenditure reportable pursuant to this regulation is the pro-rata portion of the gross salary, reimbursement for personal expenses or compensation attributable to the time spent on political activity. An in-kind contribution of the services of salaried personnel to a committee and the expenditure by the person making the salary payment are considered to be made on the payroll date of the salaried personnel.
(d) This regulation does not affect the obligation of an employer or any other person to report expenditures and contributions other than the salary, reimbursement for personal expenses, or compensation for personal services of an employee.
(e) Notwithstanding the provisions of subsection (a), salary, reimbursement for personal expenses and compensation paid to an employee by an employer who has contracted to provide services to a candidate or committee are not contributions or expenditures by the employer, provided that the services rendered by the employee are not beyond the scope of the contract. This paragraph does not affect any reporting obligation imposed by Section 84303.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 82025 and 84211, Government Code.
HISTORY
1. New section filed 5-10-76; effective thirtieth day thereafter (Register 76, No. 20).
2. Editorial correction (Register 77, No. 22).
3. Editorial correction of section title filed 1-9-81 (Register 81, No. 2).
4. Amendment of section heading filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
5. Editorial correction of Reference cite (Register 95, No. 17).
6. Amendment of subsections (a), (c) and (e) filed 1-10-2012; operative 2-9-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 2).
§18425. Late Contributions; Reports.
Note • History
(a) Whenever a candidate or committee is required to file a late contribution report with the Secretary of State pursuant to Government Code Section 84203, the report shall include the date of the election. This provision shall not apply to reports of late contributions made to a state candidate or committee or a committee primarily formed to support or oppose a state candidate or state measure.
(b) Late Non-Monetary Contributions.
(1) When more than one non-monetary contribution will be made by or received from a single contributor during the late contribution reporting period, a candidate or committee may, on or before the deadline specified in Government Code section 84203 or 84203.3, file a single late contribution report covering the entire late contribution period disclosing:
(A) The total value of non-monetary contributions that will be made by or received from the contributor during the period; or
(B) If the actual value of non-monetary contributions is not known at the time of filing, a good faith estimate of the value that will be contributed or received during the period. If the value of late non-monetary contributions differs from the estimated amount by 20 percent or more, the estimated report must be amended within 24 hours from the time the candidate or committee knows that the estimated value is incorrect.
(2) On the candidate or committee's next campaign statement filed pursuant to Government Code section 84200, 84200.5, 84202.3, 84202.5, or 84202.7, the actual value of all late non-monetary contributions shall be disclosed.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82036 and 84203, Government Code.
HISTORY
1. New section filed 1-25-84; effective thirtieth day thereafter (Register 84, No. 4).
2. New section refiled 3-26-84 correcting inadvertent omission of subsection (b); effective upon filing pursuant to Government Code Section 11346.2(d) (Register 84, No. 13).
3. Amendment of subsection (a) filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
4. Amendment of subsection (a) and repealer and new subsections (b)-(b)(2) filed 11-20-98; operative 11-20-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 47).
§18426. Semi-Annual Statement Early Filing.
Note • History
Whenever a person is required to file a semi-annual campaign statement pursuant to Government Code Section 84200, that person may file the statement at any time prior to the date the statement is due so long as the statement includes all expenditures and contributions made or received during the period specified by Section 84200. If the filer makes expenditures or receives contributions after filing the semi-annual statement, but prior to the closing date prescribed in Government Code Section 84200, the filer must, not later than the time specified in Section 84200, amend the filed statement to include all such expenditures and contributions.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84200, Government Code.
HISTORY
1. New section filed 6-17-76; effective thirtieth day thereafter (Register 76, No. 25). For history of former Section, see Register 76, No. 14.
2. Repealer and new section filed 10-29-76; effective thirtieth day thereafter (Register 76, No. 44).
3. Editorial correction (Register 77, No. 22).
4. Amendment filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
5. Amendment filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
§18426.1. Assistant Treasurer.
Note • History
Pursuant to Government Code section 84100, every recipient committee shall have a treasurer, and may designate, on the committee's statement of organization, one assistant treasurer. The assistant treasurer may sign and verify campaign statement(s) on behalf of the committee which he or she has used reasonable diligence to prepare and review, and signs to that effect under penalty of perjury as required by Government Code section 81004. With respect to statements signed by the assistant treasurer, the treasurer and assistant treasurer shall be jointly and severally liable for any violations for which the Political Reform Act would otherwise hold the treasurer liable. The assistant treasurer shall assume the duties and responsibilities of the treasurer as set forth in the Political Reform Act and Commission regulations (including Title 2, California Code of Regulations sections 18401 and 18427) in the event of a temporary vacancy in the office or in the event the treasurer is unavailable. Notwithstanding this regulation, a committee may not accept a contribution or make an expenditure at a time when there is a vacancy in the office of treasurer.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81004, 84100 and 84104, Government Code.
HISTORY
1. New section filed 9-30-99; operative 9-30-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 40).
§18427. Duties of Treasurers and Candidates with Respect to Campaign Statements.
Note • History
(a) Treasurers. The treasurer of a committee shall verify that to the best of his or her knowledge the committee campaign statements are true and complete and use all reasonable diligence in the preparation of the statements. To comply with these duties the treasurer shall do all of the following:
(1) Establish a system of record keeping sufficient to ensure that receipts and expenditures are recorded promptly and accurately, and sufficient to comply with regulations established by the Commission related to record keeping.
(2) Either maintain the records personally or monitor record keeping by others.
(3) Take steps to ensure compliance with all requirements of the Act concerning the receipt and expenditure of funds and the reporting of funds.
(4) Either prepare campaign statements personally or review with care the campaign statements and underlying records prepared by others.
(5) Correct inaccuracies or omissions in campaign statements of which the treasurer knows, and cause to be checked, and, if necessary, corrected, information in campaign statements a person of reasonable prudence would question based on all the surrounding circumstances of which the treasurer is aware or should be aware by reason of his or her duties under this regulation and the Act.
(b) Candidates with respect to candidate campaign statements. A candidate shall verify that to the best of his or her knowledge his or her own campaign statements are true and complete and use all reasonable diligence in the preparation of the statements. To comply with these duties the candidate shall be subject to the same duties imposed upon treasurers as stated in subdivision (a).
(c) Candidates with respect to campaign statements of committees they control. A candidate shall verify to the best of his or her knowledge that the campaign statements filed by a committee he or she controls are true and complete and that the treasurer has used all reasonable diligence in the preparation of the statements. To comply with these duties, the candidate shall do all of the following:
(1) Ascertain whether the treasurer is exercising all reasonable diligence in the performance of his or her duties including those duties specified under subdivision (a).
(2) Take whatever steps are necessary to replace the treasurer or raise the treasurer's performance to required standards, if the candidate knows or has reason to know that the treasurer is not exercising all reasonable diligence in the performance of his or her duties.
(3) Review with care the campaign statements prepared for filing by the committee.
(4) Correct any inaccuracies and omissions in campaign statements of which the candidate knows, and cause to be checked, and, if necessary, corrected, any information in campaign statements a person of reasonable prudence would question based on all the surrounding circumstances of which the candidate is aware or should be aware by reason of his or her duties under this regulation and the Act.
(5) Perform with due care any other tasks assumed in connection with the raising, spending or recording of campaign funds insofar as the tasks relate to the accuracy of information entered on campaign statements.
(6) Unless such steps are required to meet the standards set forth in subdivision (c)(1) through (4), a candidate is not responsible for establishing a record keeping procedure for a committee, monitoring committee record keeping, reviewing campaign finance records other than campaign statements, or personally taking steps to corroborate any information contained on a campaign statement.
(d) Committees where no treasurer is designated. If a committee fails to designate a treasurer as required by Government Code Section 84100, the individual or group of individuals primarily responsible for approving the political activity of the committee, as defined in Regulation 18402.1(b), will be considered the treasurer or treasurers and will be subject to all the duties set forth in subdivision (a).
COMMENT. This regulation sets out the duties of candidates and treasurers only with respect to campaign statements. Among the duties imposed by this regulation on candidates and treasurers with respect to committee campaign statements is to “cause to be checked, and, if necessary, corrected, any information . . . which a person of reasonable prudence would question based on all the surrounding circumstances of which the treasurer [candidate] is aware or should be aware by reason of his or her duties under this regulation and the Act.” The circumstances that trigger a duty to inquire under this standard are limited to those circumstances actually known to the candidate or treasurer and to those circumstances the candidate or treasurer should be aware of in carrying out his or her duties under the Act and regulation. They do not include circumstances a candidate or treasurer “might” or “should have known” if the candidate or treasurer had gone beyond his or her required duties. For example, Mr. Jones gives Mr. Smith $100 in cash and instructs him to write a check to the candidate's controlled committee and to conceal the true source of the contribution. The committee reports the contribution received from Smith. If neither the candidate nor treasurer has knowledge of the questionable nature of the contribution and neither, through performance of their respective duties (such as monitoring campaign records or reviewing campaign statements), could have learned facts that would lead one to question the contribution, the candidate and treasurer have no duty of inquiry with respect to the contribution. There is no duty of inquiry even though Smith would have revealed the true source of the funds if he had been asked.
Once circumstances are known that raise a question concerning the accuracy of information on a campaign statement, an inquiry is required. It is not possible in a regulation to describe with particularity every factual situation that might trigger a duty to inquire because the circumstances that could arise with respect to any particular campaign transaction are endless. For example, a duty to inquire may be triggered in the case of a contribution as a result of the size of the contribution, the reported source, the likelihood of that source making a contribution of the size reported, the circumstances surrounding receipt, or the manner in which the contribution is recorded in campaign records.
The burden of inquiry is likely to fall more heavily upon the treasurer because it is the treasurer, rather than the candidate, upon whom the major record keeping and reporting responsibility falls. Therefore, the treasurer is more likely than the candidate to be the person who, by reason of performance of duties, is aware of or should be aware of facts which would give rise to a duty of inquiry.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81004, 84100, 84213 and 91004, Government Code.
HISTORY
1. New section filed 12-13-77 as an emergency; effective upon filing (Register 77, No. 51). For prior history, see Register 77, No. 17.
2. Repealed 4-13-78 by operation of Section 11422.1(c), Government Code. (Register 79, No. 16).
3. New section filed 4-20-79; effective thirtieth day thereafter (Register 79, No. 16).
4. Amendment of subsection (d) filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
5. Editorial correction of section title filed 1-9-81 (Register 81, No. 2).
6. Amendment of section heading filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
7. Amendment filed 10-31-2008; operative 1-1-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
8. Editorial correction of effective date in History 7 (Register 2008, No. 49).
§18427.1. Notification to Contributors of $5,000 or More.
Note • History
(a) A candidate or committee that receives contributions cumulating $5,000 or more in a calendar year from a single source shall, within two weeks of receiving such contributions, provide notice to the contributor that the contributor may be required to file campaign reports.
(b) The notice shall contain the following language or substantially similar language:
If your contribution(s) to this committee and to other California state or local committees total(s) $10,000 or more in a calendar year, California law requires you to file a Major Donor Committee Campaign Statement (Form 461). The deadline and location for filing this statement will depend upon the timing and type of contribution(s) you have made. In addition, once you become a major donor, you are required to file a late contribution report within 24 hours if you make contributions totaling $1,000 or more to a single candidate, any of the candidate's controlled committees, or to a committee primarily formed to support or oppose a candidate or ballot measure during the 16 days before the election in which the candidate or ballot measure is being voted on, or make contributions totaling $1,000 or more to state or county political party committees during the 16 days prior to a state election.
Failure to file campaign statements may result in late filing penalties ($10/day) and fines (up to $5,000/violation). For more information, contact the Fair Political Practices Commission toll-free at (866) ASK-FPPC or refer to their website: www.fppc.ca.gov.
Additionally, if you make contributions of $25,000 or more in a calendar year in California and some or all of those contributions are to state candidates, committees or ballot measures, you are required to file your Form 461 electronically with the Secretary of State. For more information on the electronic filing requirements, contact the Secretary of State's office at (916) 653-6224.
(c) Candidates and treasurers shall maintain a record of all notices sent pursuant to this section, containing the date of each notice and the name and address of the person to whom each notice is sent.
(d) Notice to a contributor is not required if:
(1) A notice has previously been sent to the contributor pursuant to this section in the same calendar year; or
(2) The contributor has been issued a recipient committee identification number by the Secretary of State.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84105, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Amendment of subsections (a) and (b) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
3. Amendment of subsections (b) and (d)(1)-(2) and repealer of subsection (d)(3) filed 4-20-2000; operative 4-20-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 16).
4. Editorial correction of subsection (b) (Register 2001, No. 11).
5. Change without regulatory effect amending subsection (b) filed 6-26-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 26).
6. Amendment of subsection (b) filed 1-14-2004; operative 1-14-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 3).
7. Amendment of subsection (b) filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
8. Amendment of subsection (b) filed 4-28-2011; operative 4-28-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 17).
§18428. Reporting of Contributions and Independent Expenditures Required to be Aggregated.
Note • History
(a) Whenever a monetary threshold identified in Chapter 4 and Chapter 5 of the Political Reform Act has been met or exceeded, contributions and independent expenditures from different sources that are aggregated and treated as if received from a single person shall be reported as follows:
(b) Major Donor and Independent Expenditure Committees:
(1) Any committee pursuant to Government Code section 82013(b) or (c) that is required to aggregate contributions under 2 Cal. Code of Regs. section 18215.1 or independent expenditures under 2 Cal. Code of Regs. section 18225.4 shall file its campaign statement reflecting the total aggregated amount of the contributions or independent expenditures made for the required reporting period. The campaign statement shall be filed in the name of an individual or one of the contributing entities that directs and controls the making of the payments of the entity or entities whose contributions or independent expenditures are required to be aggregated. The filer shall indicate in the campaign statement under the “name of filer” that the campaign statement includes the aggregated activities of other entities directed and controlled by the filer (e.g., (name of filer) “including aggregated contributions/independent expenditures”). In itemizing the amount of each contribution or independent expenditure made, the campaign statement must also identify the name of the entity making the contributions or independent expenditures for each itemized payment made. The filer shall also identify on each campaign statement it is required to file the addition or deletion of any entity, other than a committee pursuant to Government Code section 82013(a), with which the filer is required to aggregate contributions or independent expenditures. If the committee has filed a previous campaign statement that did not require aggregation and it was filed in a name other than the required name of the filer for reporting aggregated contributions or independent expenditures as set forth above, the subsequent report shall include under the name of filer the former name under which the report was filed (e.g., (name of filer) formerly (name of individual only) or (name of entity only).
(2) Whenever any person identified in this subdivision makes a contribution that is subject to aggregation to a committee that is required to report the contribution on its own campaign statements, the person making the contribution shall notify the recipient committee of the “name of filer” under which the contribution is being reported on that person's statement.
(c) Recipient Committees:
(1) Contributions Received: Whenever any person that is a committee pursuant to Government Code section 82013(a) files its campaign statement under the reporting provisions of Chapter 4 or Chapter 5 of the Political Reform Act disclosing a contribution received from a committee described in subdivision (b) of this regulation, it shall report the contribution as received from the contributor and additionally include the “name of filer” of the major donor committee that will report this contribution as provided under subdivision (b)(2) above (e.g., (name of contributor/name of filer)).
(2) Reporting Contributions and Independent Expenditures Made: Whenever any person who is a committee pursuant to Government Code section 82013(a) files any campaign statement that is required under the reporting provisions of Chapter 4 or Chapter 5 of the Political Reform Act disclosing contributions or independent expenditures made by that committee, and the contributions or independent expenditures are subject to aggregation, those contributions or independent expenditures shall be identified on its report as a payment that is subject to aggregation and reported to the recipient in the same manner as set forth for major donor and independent expenditures committees in subdivision (b) above. (See Government Code section 84211(k)(5).)
(d) The notification requirements of subdivision (b)(2) of this regulation are not applicable to contributions made by a sponsor to its sponsored committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 84211 and 85311, Government Code.
HISTORY
1. New section filed 6-1-79; effective thirtieth day thereafter (Register 79, No. 22).
2. Amendment of section title and subsections (a) and (c) filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2).
3. Amendment of section heading filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
4. Amendment of subsection (c) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment filed 11-10-97; operative 11-10-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 46).
6. Amendment of subsections (a) and (b), repealer of subsection (c), subsection relettering and amendment of Note filed 12-27-2001 as an emergency; operative 12-27-2001 (Register 2001, No. 52). A Certificate of Compliance must be transmitted to OAL by 4-24-2002 or emergency language will be repealed by operation of law on the following day.
7. Amendment of subsections (b)-(e) and new subsection (f) filed 5-13-2002; operative 4-25-2002 (Register 2002, No. 20).
8. Repealer and new section heading and amendment of section filed 4-4-2006; operative 5-4-2006 (Register 2006, No. 14).
9. Editorial correction of subsection (b)(2) (Register 2006, No. 19).
§18429. Providing a Procedure to Obtain an Exemption from Reporting and Disclosure Requirements (84102, 84210(g), 84210(h), 84210(j), 84210(k), 84214). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84102, 84210(g), 84210(h), 84210(j), 84210(k), 84214, and 84300, Government Code.
HISTORY
1. New section filed 5-10-76; effective thirtieth day thereafter (Register 76, No. 20).
2. Editorial correction in Section 18429 (Register 76, No. 34).
3. Amendment of subsection (a) filed 1-21-77 as an emergency; effective upon filing (Register 77, No. 4).
4. Reinstatement of subsection (a) as it appeared prior to the filing of 1-21-77 by operation of Section 11422.1(b), Government Code (Register 77, No. 51).
5. Repealer filed 6-22-78; effective thirtieth day thereafter (Register 78, No. 25).
§18430. Committees Controlled by More Than One Candidate.
Note • History
(a) If a committee other than a legislative caucus committee is controlled by more than one candidate:
(1) The name of each controlling candidate must be listed on the statement of organization;
(2) The name of each controlling candidate must be listed on the cover sheet of every campaign statement filed by the committee;
(3) Each controlling candidate must list the name of the committee, indicating that it is a controlled committee of that candidate, on the cover sheet of every campaign statement filed by the candidate;
(4) The campaign statements of the controlled committee cannot be combined or consolidated with the campaign statements of any controlling candidate.
(b) If a committee other than a legislative caucus committee is controlled by more than one candidate, all campaign statements filed by the committee shall be signed and verified by:
(1) All the controlling candidates in the case of a committee controlled by two or three candidates;
(2) One of the controlling candidates, on behalf of all the controlling candidates, in the case of a committee controlled by more than three candidates.
(c) In the case of a legislative caucus committee:
(1) The statement of organization must list the legislative caucus as controlling the committee;
(2) Each campaign statement of the committee must indicate that it is controlled by the caucus, and must be signed and verified by the caucus chairman on behalf of the caucus.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84102 and 84211, Government Code.
HISTORY
1. New section filed 3-21-84; effective thirtieth day thereafter (Register 84, No. 12).
§18431. Reporting of Expenditures by an Agent or Independent Contractor.
Note • History
(a) The following expenditures, and all similar expenditures, when made by an agent or independent contractor, including any vendor or subvendor, on behalf of or for the benefit of a candidate or committee, must be reported under Section 84303. Expenditures not of the types included below do not have to be reported. Expenditures that must be reported include all of the following:
(1) Expenditures to any person, other than an employee of the agent or independent contractor, for expert advice, expert analysis, or campaign management services, including but not limited to analysis, advice, or management services in connection with any of the following:
(A) Development of campaign strategy.
(B) Campaign management.
(C) Design or management of campaign literature or advertising.
(D) Campaign fund raising.
(2) Expenditures to any person, other than an employee of the agent or independent contractor, who furnishes the candidate or committee with products or services that show how the campaign is conducted, including but not limited to expenditures for any of the following:
(A) Printed campaign literature.
(B) Advertising time or space.
(C) Campaign buttons and other campaign paraphernalia.
(D) Surveys, polls, signature gathering and door-to-door solicitation of voters.
(E) Facilities, invitations, or entertainment for fundraising events.
(F) Postage for campaign mailings.
(3) Any of the following types of expenditures:
(A) To the candidate.
(B) To any person for the personal use of the candidate, or his or her family.
(C) That are gifts to any person.
(D) To or on behalf of any other candidate or committee.
(E) To printers of mass mailings.
(F) To any person who transfers funds to any other person for expenditures reportable under this regulation.
(G) For any commission, finder's fee or rebate provided to any person in connection with any expenditure reportable under this regulation if the commission, finder's fee or rebate is inconsistent, in either manner or amount, with customary industry practice.
(b) Expenditures made directly from a candidate's or committee's account, charged to the candidate's or committee's credit, credit card, debit card or charge card, are not considered expenditures by an agent or independent contractor reportable under Section 84303. These expenditures shall be reported under Section 84211, and candidate or committee payments to a credit card, debit card or charge card company shall be reported and itemized as specified in Regulation 18421.9.
(c) An expenditure required to be reported by Section 84303 must be reported by the candidate or committee at the same time and in the same manner and detail as required under Section 84211 for the candidate's or committee's direct expenditures.
(d) An agent or independent contractor who makes an expenditure on behalf of or for the benefit of a candidate or committee that is required to be reported under Section 84303 shall make known to the candidate or committee all the information required for reporting the expenditure under Section 84211. A subagent or subvendor may make the report required by this subdivision to his or her principal, who shall then report the expenditure to the committee or candidate. An agent or independent contractor shall report all expenditures required to be reported under Section 84303 no later than three working days prior to the time the campaign statement reporting the expenditure is required to be filed, except that an expenditure that must be reported under Sections 84203 or 84204 shall be reported to the candidate or committee within 24 hours of the time it is made.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84211 and 84303, Government Code.
HISTORY
1. New section filed 8-10-84; effective thirtieth day thereafter (Register 84, No. 32).
2. Amendment of subsection (a)(2)(G), repealer of subsection (d) and relettering of subsection (e) to subsection (d) filed 1-4-85; effective thirtieth day thereafter (Register 85, No. 1).
3. Amendment of subsection (c) filed 6-17-85, effective thirtieth day thereafter (Register 85, No. 25).
4. Amendment of subsection (d) filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
5. Amendment of section and Note filed 2-11-2010; operative 3-13-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 7).
§18432. Reporting Cumulative Contributions and Expenditures for Each Fiscal Year. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81002, 84211, 85102 and 85301-85303, Government Code.
HISTORY
1. New section filed 4-24-89; operative 5-24-89 (Register 89, No. 18).
2. Amendment filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
3. Repealer filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
Note • History
(a) For purposes of Government Code Sections 84302, a person, as defined in Government Code Section 82047, is an intermediary for a contribution if any of the following applies:
(1) The recipient of the contribution would consider the person to be the contributor without the disclosure of the identity of the true source of the contribution.
(2) The person is an intermediary pursuant to Regulation 18419.
(b) Any person who qualifies as an intermediary for the making of a contribution shall disclose to the recipient of the contribution both his or her own full name and street address, occupation, and the name of his employer, if any, or his or her principal place of business if he or she is self-employed, and the full name and street address, occupation, and the name of employer, if any, or principal place of business if self-employed, of the contributor.
(c) The recipient of the contribution shall include in his or her campaign statement the name of the intermediary and other information disclosed pursuant to Government Code Section 84302 and subdivision (b) of this section, if the recipient knows or has reason to know that a contribution is made by an intermediary.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84302, Government Code.
HISTORY
1. New section filed 2-8-90; operative 3-10-90 (Register 90, No. 7).
2. Amendment of subsection (a), repealer of subsections (a)(3), (b)-(b)(2), (c)-(c)(7)(B) with subsection relettering, and amendment of newly designated subsections (b) and (c) filed 6-23-92; operative 7-23-92 (Register 92, No. 26).
§18435. Definition of Mass Mailing and Sender.
Note • History
(a) A “mass mailing” has been made when over two hundred substantially similar pieces of mail have been sent within a calendar month.
(b) The sender, as used in Government Code Section 84305, is the candidate or committee who pays for the largest portion of expenditures attributable to the designing, printing, and posting of the mailing which are reportable under Government Code Sections 84200-84217.
(c) For purposes of this section to “pay for” a share of the cost of a mass mailing means to make, to promise to make, or to incur an obligation to make, any payment:
(1) To any person for the design, printing, postage, materials or other costs (including salaries, fees, or commissions) of the mailing; or
(2) As a fee or other consideration for an endorsement or, in the case of a ballot measure, support or opposition, in the mailing.
(d) The identification required by Section 84305 shall be preceded by the words “Paid for by.” These words shall be presented in the same size and color as the identification required by Section 84305, and shall be immediately adjacent to and above or immediately adjacent to and in front of the required identification.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82041.5 and 84305, Government Code.
HISTORY
1. New section filed 6-17-76; effective thirtieth day thereafter (Register 76, No. 25).
2. Amendment filed 2-17-82; effective thirtieth day thereafter (Register 82, No. 8).
3. Amendment filed 12-15-83; effective thirtieth day thereafter (Register 83, No. 51).
4. Amendment of subsection (a) filed 7-28-92; operative 8-27-92. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 92, No. 31).
5. New subsection (d) filed 3-7-2011; operative 4-6-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 10).
§18435.5. Slate Mailer Requirements.
Note • History
(a) Section 84305.5 requires a slate mailer to identify the slate mailer organization or committee sending the slate mailer, and to designate by an asterisk (*) each candidate and each ballot measure supported or opposed in a slate mailer for which payment of $100 or more has been received by the organization or committee (either from the candidate, ballot measure committee, or from any other person “at the behest” of a candidate or ballot measure committee as defined in Regulation 18225.7).
(b) To ensure that it is easily legible, the Notice to Voters required by Section 84305.5 shall appear with a reasonable degree of color contrast between the background and the statement and must appear on a plain background, not superimposed over an illustration or a patterned background. Examples of a reasonable degree of color contrast that would meet the standard required by Section 84305.5 are when the disclaimer is printed in black text on a white background or a similar degree of color contrast between the background and the text of the disclaimer.
(c) Slate Mailers in Multiple Languages. The Notice to Voters in a slate mailer shall appear in English. In addition, if all or a significant portion of the slate mailer appears in a language other than English, the Notice to Voters must also appear in that language.
(d) In addition to applying to slate mailers sent by traditional mail, the slate mailer identification and disclaimer requirements of Section 84305.5 apply to slate mailers distributed electronically.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84305.5, Government Code.
HISTORY
1. New section filed 2-17-2011; operative 3-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 7).
§18438. Contributions to Members of Quasi-Judicial Boards and Commissions. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Repealer filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
§18438.1. Officers and Agencies Under Government Code Section 84308.
Note • History
(a) The officers of an agency exempted by Government Code Section 84308(a)(3) are exempted only when:
(1) They are acting as members of the governing body of the agency, and the body is acting in its entirety as itself or as the ex officio governing body of any other agency. This applies to a city council or board of supervisors which designates itself as the redevelopment agency for the city or county; or
(2) They are acting as members of any committee or subgroup of the governing body of the agency which is composed solely of members of the governing body of the agency.
(b) The exemption for the officers of local governmental agencies who are directly elected by the voters applies only to agencies whose entire membership consists of officers directly elected by the voters to serve on that agency.
(c) “Alternate” means any person designated to serve as an officer of an agency who has served at least once in the preceding three months, or who knows or has reason to know that he or she will serve as an officer of the agency in the next three months.
(d) An officer of an agency includes only those persons who:
(1) Serve as members of governmental boards and commissions; or
(2) Serve as the head of an agency. A member of the Governor's Cabinet is not an officer under Government Code Section 84308 when he or she is acting in the capacity of agency secretary; however, the person is an officer when he or she acts as a department director or as a member of any board or commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Amendment filed 3-12-84; effective thirtieth day thereafter (Register 84, No. 11).
3. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
4. Editorial correction of section heading filed 5-6-85; effective thirtieth day thereafter (Register 85, No. 19).
§18438.2. Proceedings Under Government Code Section 84308.
Note • History
(a) For purposes of Government Code Section 84308, a “proceeding involving a license, permit or other entitlement for use” includes any proceeding to grant, deny, revoke, restrict, or modify a license, permit or other entitlement for use.
(b) A proceeding involving a license, permit or other entitlement for use is “pending before” an agency:
(1) When the application has been filed, the proceeding has been commenced, or the issue has otherwise been submitted to the jurisdiction of an agency for its determination or other action;
(2) It is the type of proceeding where the officers of the agency are required by law to make a decision, or the matter has been otherwise submitted to the officers of the agency for their decision; and
(3) The decision of the officer or officers with respect to the proceeding will not be purely ministerial.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Amendment filed 11-10-83; effective thirtieth day thereafter (Register 83, No. 46).
3. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, N. 8).
§18438.3. Agents Under Government Code Section 84308.
Note • History
(a) For purposes of Government Code Section 84308, a person is the “agent” of a party to, or a participant in, a proceeding involving a license, permit or other entitlement for use only if he or she represents that person in connection with the proceeding involving the license, permit or other entitlement for use. If an individual acting as an agent is also acting as an employee or member of a law, architectural, engineering or consulting firm, or a similar entity or corporation, both the entity or corporation and the individual are “agents.”
(b) To determine whether a contribution of more than $250 has been made by a person or his or her agent, contributions made by that person within the preceding 12 months shall be aggregated with those made by his or her agent within the preceding 12 months or the period of the agency relationship, whichever is shorter.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
2. Editorial correction of Reference cite (Register 95, No. 17).
3. Amendment of subsection (b) filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
§18438.4. Participants Under Government Code Section 84308.
Note • History
For purposes of Government Code Section 84308,
(a) A person “lobbies in person” when he or she communicates directly, either in person or in writing, with an officer of an agency for the purpose of influencing the decision in a proceeding.
(b) A person “testifies in person” when he or she testifies or makes an oral statement before an agency during a proceeding on a license, permit or other entitlement for use for the purpose of influencing the decision of the agency.
(c) A person “otherwise acts to influence” officers of an agency when he or she communicates with an employee of the agency, or when his or her agent lobbies in person, testifies in person or otherwise communicates with officers or employees of the agency, for the purpose of influencing the officers' decision in a proceeding.
(d) A person does not lobby, testify or otherwise act to influence the officers or employees of an agency by communications made to the public, other than those made in the proceedings before the agency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
§18438.5. Aggregated Contributions Under Government Code Section 84308.
Note • History
For purposes of Government Code section 84308:
Notwithstanding the provisions of 2 Cal. Code Regs. section 18215.1, to determine whether a contribution of more than $250 has been made by any party to a proceeding, contributions made by a party's parent, subsidiary, or otherwise related business entity, (as those relationships are defined in 2 Cal. Code of Regs. section 18703.1(d)) shall be aggregated and treated as if received from the party for purposes of the limitations and disclosure provisions of Government Code section 84308.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 5-26-2006; operative 6-25-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 21). For prior history of section 18438.5, see Register 85, No. 8.
§18438.6. Solicitation, Direction, and Receipt of Contributions Under Government Code Section 84308.
Note • History
For purposes of Government Code Section 84308,
(a) A person “accepts” or “receives” a contribution only if the contribution is for that person's own candidacy or own controlled committee.
(b) A person “makes a contribution” to an officer or candidate only if the contribution is made for that officer's or candidate's own candidacy or controlled committee.
(c) An officer “solicits” a contribution only if he or she knows or has reason to know that the person being solicited for a contribution is a party or agent of a party, or is a participant or agent of a participant and either:
(1) The officer or candidate personally requests a contribution for his or her own campaign or controlled committee, or for any other candidate, public official or committee, either orally or in writing; or
(2) The agent of the officer or candidate with the officer or candidate's knowledge, requests a contribution for the officer or candidate's own campaign or controlled committee.
(d) Notwithstanding subsection (c), a solicitation does not include a request made in a mass mailing sent to members of the public, to a public gathering, or published in a newspaper, on radio or TV, or in any other mass media.
A person does not “solicit” solely because his or her name is printed with other names on stationery or a letterhead used to request contributions.
(e) A person “directs” a contribution if he or she acts as the agent of another person or of a committee other than his or her own controlled committee in accepting a contribution on behalf of, or transmitting a contribution to, such other person or committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
§18438.7. Prohibitions and Disqualification Under Government Code Section 84308.
Note • History
For purposes of Government Code Section 84308,
(a) An officer knows or has reason to know that a person has a financial interest in the decision in a proceeding if:
(1) The person is a party; or
(2) The person is a participant and reveals facts in his or her written or oral support or opposition before the agency which make the person's financial interest apparent.
(b) An officer knows, or should have known, about a proceeding pending before the agency if either:
(1) The officer has received notice of the license, permit or other entitlement proceeding. Notice includes receipt of an agenda or docket identifying the proceeding and the party or other persons affected by name; or
(2) The officer has actual knowledge of the proceeding.
(c) An officer knows, or should have known about a contribution if:
(1) The contribution has been disclosed by the party pursuant to Section 84308(d); or
(2) The officer has actual knowledge of the contribution.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
§18438.8. Disclosure Under Government Code Section 84308.
Note • History
(a) An officer who is required by Government Code section 84308(c) to disclose the receipt of a contribution shall make the disclosure on the public record at the beginning of a public hearing in a proceeding involving the license, permit, or other entitlement for use, if a hearing is held. If there is no public hearing, the disclosure shall be entered into the written record of the proceeding.
(b) Any party to a proceeding pending before an agency under Government Code section 84308(a) shall disclose on the record of the proceeding the names of any persons whose contributions are required to be aggregated, if the person has made a contribution to any officer of the agency as defined in Government Code section 84308(a)(4). The disclosure shall be made at the time the application is filed, or the proceeding is otherwise commenced, if the contribution was made during the twelve month period preceding the filing of the application or commencement of the proceeding, or no later than 30 days after the contribution is made if the contribution is made at any stage during the proceeding.
(c) The disclosure shall include the name of the party and any other person making the contribution, if any, the name of the recipient, the amount of the contribution, and the date the contribution was made.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
3. Amendment of section and Note filed 5-26-2006; operative 6-25-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 21).
§18439. Definition of “Personally Deliver.”
Note • History
For the purposes of Government Code Section 84309(b)(1), the term “personally deliver” shall:
(a) Include the delivery of a copy or facsimile of a contribution, or the delivery of an original or a copy of a transmittal letter of a contribution.
(b) Not include the delivery of a contribution by the United States Post Office.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84309, Government Code.
HISTORY
1. New section filed 12-15-83; effective thirtieth day thereafter (Register 83, No. 51).
Note • History
For the purposes of Government Code Section 84310:
(a) A candidate, committee, or slate mailer organization “expends campaign funds” to pay for a telephone call if either of the following applies:
(1) A candidate or committee makes an expenditure for the call reportable under Government Code, Title 9, Chapter 4 (Sections 84100, et seq.) or a person makes a payment for the call at the behest of the candidate or committee and that payment is a contribution to the candidate or committee under Government Code Section 82015.
(2) A slate mailer organization pays for the call after receiving a payment to make the call that qualifies as an expenditure of campaign funds by a candidate or committee under subdivision (a)(1) of this regulation.
(b) A required disclosure statement shall identify at least one candidate, committee, or slate mailer organization “paying for” the call or at least one candidate or committee “authorizing” the call and shall state that the call is “paid for” or “authorized” by the identified candidate, committee, or slate mailer organization.
(c) For purposes of subdivision (b) of this regulation:
(1) A candidate, committee, or slate mailer organization “pays for” a call when it pays directly for the call or pays another person to make the call on its behalf.
(2) A candidate or committee “authorizes” a call if a person pays for the call at the behest of the candidate or committee and that payment is a contribution to the candidate or committee under Government Code Section 82015.
(d) Each candidate, committee, and slate mailer organization paying for and each candidate and committee authorizing a call requiring a disclosure statement shall maintain a record of the script of the call, and a copy of the recording of any recorded messages, for a period of time as set forth in 2 Cal. Code Regs. Section 18401(b).
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84310, Government Code.
HISTORY
1. New section filed 9-11-2007; operative 10-11-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 37).
§18450.1. Definitions. Advertisement Disclosure.
Note • History
(a) An advertisement as defined in Section 84501 includes but is not limited to the following:
(1) Programming received by a television or radio;
(2) A communication as described in subdivision (a) of Section 84501 that is placed in broadcast, print or electronic media;
(A) An electronic media advertisement means an advertisement, logo, icon, writing, image, recording, or other data transmitted, distributed, posted, broadcast, or displayed electronically. This includes, but is not limited to advertisements in electronic messages, electronic message attachments, text messages, or advertisements that appear on Internet webpages, blogs, mobile devices, or other electronic communication systems.
(3) A telephone, facsimile, or electronic message that is not solicited by the recipient and is intended for delivery in substantially similar form to more than 200 recipients. For purposes of this paragraph, when a committee sends a message to 200 or fewer recipients and the message is “forwarded” to other persons by a recipient, the message sent by the committee is not an advertisement by that committee unless the recipient forwarded the message at the behest of the committee and more than 200 total recipients received the message.
(4) A direct mailing that is not solicited by the recipient and is intended for delivery in substantially similar form to more than 200 recipients.
(5) Posters, door hangers, and yard signs produced in quantities of more than 200.
(6) A billboard.
(7) Campaign buttons 10 inches in diameter or larger, and bumper stickers 60 square inches or larger produced in quantities of more than 200.
(b) In addition to the exempted communications in subdivision (b) of Section 84501, none of the following are an “advertisement”:
(1) A small tangible promotional item (e.g., pen, pin, etc.) upon which the disclosures required by Sections 84503, 84506 and 84507 cannot be conveniently printed or displayed, wearing apparel, and skywriting.
(2) A communication from an organization to its members, other than a communication from a political party to its members.
(3) An electronic media advertisement where inclusion of any of the disclosure requirements of Sections 84503, 84504, 84506, or 84506.5 or of Regulation 18450.4(b)(3)(G)(iv) would be impracticable because:
(A) The nature of the technology used in conveying the communication makes it impossible to incorporate the disclosures, and
(B) The inclusion of the disclosures would severely interfere with the committee's ability to convey the intended message so that it can be understood by the audience.
Any committee that claims a required disclosure in an electronic media advertisement is impracticable has the burden of establishing that a disclaimer could not be included due to the above factors.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84501, 84502, 84503, 84504, 84505, 84506, 84507, 84508, 84509, 84510 and 84511, Government Code.
HISTORY
1. New section filed 7-31-2002; operative 7-31-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 31).
2. Amendment filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52).
§18450.3. Committee Name Identification. Advertisement Disclosure.
Note • History
(a) Under Section 84504, the name of a committee primarily formed to support or oppose a ballot measure shall clearly identify the economic or other special interest of the committee's major donors of $50,000 or more. The name identification requirements of Section 84504 shall apply only to committees that are primarily formed to support or oppose a ballot measure, as defined by Section 82047.5.
(b) For purposes of implementing the name identification requirements of Section 84504, the following shall apply:
(1) Identification of a disclosable contributor's “economic or other special interest” pursuant to Section 84504 shall identify any ascertainable economic interest that exists that is likely to be affected by the ballot measure. If no ascertainable economic interest exists, the name or phrase pursuant to Section 84504 shall identify any goal or purpose that is likely to be affected by the ballot measure. In the event that there is more than one disclosable contributor and all such disclosable contributors do not share an economic interest or goal or purpose, the name or phrase shall identify the various economic interests or goal or purpose that are likely to be affected by the ballot measure.
(2) If candidates or their controlled committees, as a group or individually, are major contributors of $50,000 or more, the committee name identification shall include the controlling candidates' names.
(3) If the major donors of $50,000 or more share a common employer, the identity of the employer shall also be disclosed in the name of the primarily formed committee.
(4) When the committee name is required to list the major donors of $50,000 or more, either by name or by a name or phrase that identifies the economic or other special interest of the major donors, the list of the major donors shall be in descending order based on the amount of contributions made by the listed donor to the committee. The list of major donors shall precede, and not be interspersed with, other constituencies supporting or opposing the measure, such as “concerned citizens,” “consumers,” “taxpayers,” etc.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84504 and 84506, Government Code.
HISTORY
1. New section filed 1-24-2002 as an emergency; operative 1-24-2002 (Register 2002, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-24-2002 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-24-2002 order, including repealer of subsection (d), transmitted to OAL 5-15-2002 and filed 6-27-2002 (Register 2002, No. 26).
3. Editorial correction of History 2 and repealer of erroneous former History 3 (Register 2002, No. 45).
4. Amendment filed 2-2-2009; operative 3-4-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 6).
§18450.4. Contents of Disclosure Statements. Advertisement Disclosure.
Note • History
(a) The disclosure requirements of Sections 84503 and 84506(a)(2) shall not apply to general purpose committees, as defined by Section 82027.5.
(b) Where a “disclosure statement” or “disclosure” is required for an advertisement under Sections 84503, 84504, 84506, or 84506.5, the following shall apply to the committee that authorized and paid for the advertisement:
(1) Disclosures shall include “paid for by” in the same manner as, and immediately adjacent to and above, or immediately adjacent to and in front of, the required identification. In addition, disclosure required by Sections 84503 and 84506 shall include the name, pursuant to Regulation 18450.3, of the $50,000 contributor or contributors. The disclosure shall explicitly indicate that the contributor or contributors were major donors to the committee by stating, for example, “major funding by” “committee contributors:” or “top contributors:” In the case of a contributor that is a committee pursuant to Section 82013(a), the word “committee” shall be included in the disclosure. The aggregation rules of Regulation 18215.1 shall apply in determining when a contributor has reached the $50,000 disclosure threshold of Sections 84503 and 84506.
(2) Where two or more contributors of identical amounts meet the threshold for the top two contributors, the order of disclosure shall be made beginning with the most recent contributor of that amount.
(3) The disclosures shall be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice of the identity of the person(s) or committee(s) that paid for the communication, as specified below.
(A) Video: The information shall be both written and spoken either at the beginning or at the end of the communication, except that if the disclosure statement is written for at least five seconds of a broadcast of thirty seconds or less or ten seconds of a sixty second broadcast, a spoken disclosure statement is not required. The written disclosure statement shall appear with a reasonable degree of color contrast between the background and text of the statement, must be of sufficient size to be readily legible to an average viewer and air for not less than four seconds.
(B) Audio: The information shall be spoken in a clearly audible and intelligible manner at the beginning or end of the communication and shall last at least three seconds.
(C) Print Media: All disclosure statements on printed materials designed to be distributed personally or through the mail shall be printed in type no less than 10 points in size and printed in a contrasting color to the background on which it appears.
(D) Over Size Print Media: All disclosure statements on printed materials that are larger than those designed to be individually distributed (e.g., yard signs or billboards) shall constitute at least five percent (5%) of the height of the advertisement and printed in a contrasting color.
(E) If a single print media advertisement consists of multiple pages, folds, or faces, the disclosure requirement of this Regulation applies only to one page, fold, or face.
(F) Each communication that would require a disclosure if distributed separately, and that is included in a package of materials, must contain the required disclosure.
(G) Electronic Media: The disclosure statement on electronic media advertisements must be presented in a clear and conspicuous manner. A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if the placement is easily overlooked. An electronic media disclosure statement is considered clear and conspicuous if it meets the following, as applicable to that advertisement:
1. Text or Graphic Electronic Media Advertisement: The disclosure information in a text or graphic electronic media advertisement must appear in letters at least as large as the majority of the text in the advertisement, or alternatively, if the advertisement is limited in size (e.g. a micro bar, a button ad, a paid text advertisement that is limited to 500 characters or less in length, or a small paid graphic or picture link) the disclosure is displayed via rollover display, link to a webpage with disclosure information, or other technological means that provide the user with disclosure information. In addition, the disclosure information must be visible for a period of at least four seconds and appear with a reasonable degree of color contrast between the background and text of the statement as to be legible.
2. Audio Electronic Media Advertisement: In an audio format electronic media advertisement, the disclosure information must be spoken in a clearly audible and intelligible manner at the beginning or end of the communication and shall last at least three seconds.
3. Video Electronic Media Advertisement: In a video electronic media advertisement which also includes audio, the disclosure information shall be both written and spoken either at the beginning or at the end of the communication, except that if the disclosure statement is written for at least five seconds of a broadcast of thirty seconds or less or ten seconds of a sixty second broadcast, a spoken disclosure statement is not required. The written disclosure statement shall appear with a reasonable degree of color contrast between the background and text of the statement, must be of sufficient size to be readily legible to an average viewer and air for not less than four seconds.
4. Electronic Media Advertisement Disclosure -- Exception: In electronic media advertisements whose size, space, or character limit constraints (i.e., SMS text message) render it impracticable to include the full disclosure information specified in Sections 84503, 84504, 84506, 84506.5, or subsection (b)(3)(G)(i) of this regulation, the candidate or committee sending the mass mailing may provide abbreviated advertisement disclosure containing at least the committee's FPPC number (i.e., “FPPC # 185734”) and when technologically possible a link to the webpage on the Secretary of State's website displaying the committee's campaign finance information, if applicable.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84503, 84504, 84506 and 84506.5, Government Code.
HISTORY
1. New section filed 1-24-2002 as an emergency; operative 1-24-2002 (Register 2002, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-24-2002 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-24-2002 order, including amendment of subsections (a) and (b)(1)-(3), transmitted to OAL 5-15-2002 and filed 6-27-2002 (Register 2002, No. 26).
3. Editorial correction of History 2 and repealer of erroneous former History 3 (Register 2002, No. 45).
4. New subsection (b) and subsection relettering filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
5. New subsection (a), subsection relettering and amendment of newly designated subsections (d) and (e) filed 10-11-2005; operative 10-11-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 41).
6. Amendment of section and Note filed 7-7-2009; operative 8-6-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 28).
7. Amendment of subsections (b)(3)(A)-(B) and new subsections (b)(3)(G)-(b)(3)(G)4. filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52).
8. Amendment of subsections (b)(1) and (b)(3) filed 3-7-2011; operative 4-6-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 10).
§18450.5. Amended Advertising Disclosure.
Note • History
(a) Advertisement Amendments: Advertisement disclosures must be amended when a new person qualifies as a disclosable contributor under Sections 84503 or 84506, or when the committee's name changes pursuant to Section 84504 and Regulations 18402 or 18450.3.
(b) Timing of Advertisement Amendments:
(1) Broadcast or electronic media advertisement disclosures must be amended within 5 calendar days after a new person qualifies as a disclosable contributor or a committee's name changes. A committee shall be deemed to have complied with this paragraph if the amended advertisement is delivered, containing a request that the advertisement immediately be replaced, to all affected broadcast stations or other location where the advertisement is placed no later than the fifth day.
(2) Print media advertisement disclosures, including billboards, must be amended to reflect accurate disclosure information every time an order to reproduce the advertisement is placed.
(3) Tangible items disclosure statements must be amended to reflect accurate disclosure information every time an order to reproduce the items is placed.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84503, 84504, 84506 and 84509, Government Code.
HISTORY
1. New section filed 1-24-2002 as an emergency; operative 1-24-2002 (Register 2002, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-24-2002 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-24-2002 order transmitted to OAL 5-15-2002 and filed 6-27-2002 (Register 2002, No. 26).
3. Editorial correction of History 2 and repealer of erroneous former History 3 (Register 2002, No. 45).
4. Amendment of subsections (a) and (b)(1) filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52).
§18450.11. Spokesperson Disclosure.
Note • History
(a) A report shall be filed, pursuant to Government Code section 84511, whenever a committee makes expenditures that total in the aggregate $5000 or more to an individual for his or her appearance in an advertisement. For purposes of the report filed pursuant to this subdivision, “expenditure” shall have the meaning set forth in Government Code section 82025.
(b) The report filed must contain the following information:
(1) The committee's name, street address and committee identification number;
(2) The name, ballot number or letter and jurisdiction of the measure;
(3) The date of the expenditure;
(4) The name and address of the individual who appears in the advertisement; and
(5) The total amount of the expenditure.
(c) Any committee subject to the electronic reporting requirements of subdivision (a) of Government Code section 84605 shall file this report electronically.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82025, 84501, 84511 and 84605, Government Code.
HISTORY
1. New section filed 2-19-2002; operative 3-21-2002 (Register 2002, No. 8).
§18451. CalPERS and CalSTRS Board Member Elections; Where to File Campaign Reports and Statements.
Note • History
Candidates for, and elected members of, the Board of Administration of the Public Employees' Retirement System or the Teachers' Retirement Board, their controlled committees, and committees formed or existing primarily to support or oppose these candidates or elected members, shall file campaign reports and statements pursuant to Section 84215(e) and by online or electronic means as required by Section 84605.
NOTE
Authority cited: Sections 83112 and 84225, Government Code. Reference: Sections 84215(e) and 84605, Government Code.
HISTORY
1. New section filed 11-12-99; operative 11-12-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 46).
2. Change without regulatory effect redesignating second subsection (c) as subsection (d) and relettering subsections filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
3. Amendment of first paragraph and subsections (b)-(c) and (e)-(f) filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
4. Repealer and new section filed 3-8-2011; operative 4-7-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 10).
§18452. Reporting Requirements. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84225, Government Code.
HISTORY
1. New section filed 11-12-99; operative 11-12-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 46). For prior history see Register 93, No. 6.
2. Amendment of subsections (a)-(b)(1), new subsections (b)(2) and (b)(4), subsection renumbering and amendment of newly designated subsection (b)(3) and subsection (f)(2) filed 7-18-2005; operative 8-17-2005 (Register 2005, No. 29).
3. Repealer filed 3-8-2011; operative 4-7-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 10).
§18453. CalPERS Board Member Elections -- Record Keeping Requirements. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 90001, Government Code.
HISTORY
1. New section filed 12-21-2000. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2000, No. 51).
2. Repealer filed 3-8-2011; operative 4-7-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 10).
§18457. Out-of-State Contributors. [Repealed]
Note • History
NOTE
Authority cited: Sections 83112, 84513, Government Code. Reference: Section 84507(d), Government Code.
HISTORY
1. New section filed 10-11-90; operative 11-10-90 (Register 90, No. 45).
2. Change without regulatory effect repealing section filed 2-4-93 pursuant to title 1, section 100, California Code of Regulations (Register 93, No. 6).
Chapter 4.6. Online Disclosure
§18465. Disclosure of Lobbying Entity Identification Numbers.
Note • History
(a) Each person required pursuant to Section 84605(a)(4) to file lobbying reports or statements electronically or online shall include in those reports or statements the identification number, if any, assigned such person by the Secretary of State. The electronic or online report or statement also shall include the identification number, if any, assigned to any lobbyist, lobbying firm, lobbyist employer, or lobbying coalition whose name must be disclosed on the report or statement pursuant to Chapter 6 (commencing with Section 86100).
(b) The requirements of this section are not applicable to reports filed on paper.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84605, Government Code.
HISTORY
1. New chapter 4.6 (section 18465) and section filed 12-20-2000; operative 12-20-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 51).
2. Amendment of subsection (a) filed 4-21-2011; operative 4-21-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2011, No. 16).
§18465.1. Verification of Online Filers.
Note • History
Any filing made on behalf of a filer by a vendor or service provider authorized by the filer to make such filings is presumed filed under penalty of perjury by the filer.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84605, Government Code.
HISTORY
1. New section filed 5-26-2005; operative 6-25-2005 (Register 2005, No. 21).
§18466. State Ballot Measure Contributions and Expenditures; Online Reports.
Note • History
(a) When Reporting Applies. The disclosure requirements of Government Code Section 84204.5 apply to a committee formed pursuant to Government Code Section 82013(a) that has online filing obligations under Government Code Section 84605, when the committee does any of the following:
(1) Makes contributions totaling five thousand dollars ($5,000) or more to a committee primarily formed, as defined in Government Code Section 82047.5, to support or oppose the qualification or passage of a single state ballot measure.
(2) Makes contributions totaling five thousand dollars ($5,000) or more to a state general purpose committee, as defined in Government Code Section 82027.5, and either:
(A) The donor knows the contributions are to support or oppose the qualification or passage of a single state ballot measure; or
(B) The receiving committee has reported contributions or expenditures exceeding $100,000 in the past twelve months to support or oppose the qualification or passage of a single state ballot measure, the election for the measure has not yet been held, and the receiving committee's reports showing the more than $100,000 in contributions or expenditures in the past twelve months are available online on the Secretary of State's database as of the applicable reporting deadline under Government Code Section 84204.5. However, if the donor knows the contributions are not to support or oppose the qualification or passage of a state ballot measure, no report is required under this paragraph (a)(2).
(3) Makes independent expenditures totaling five thousand dollars ($5,000) or more to support or oppose the qualification or passage of a single state ballot measure.
(b) Reporting Threshold for Committees Supporting Multiple State Measures on the Same Ballot. When a committee makes contributions totaling five thousand dollars ($5,000) or more to a committee supporting or opposing multiple state measures on the same ballot, and a report is required under paragraphs (a)(1) or (a)(2), the donor committee shall file a report, unless before the deadline for filing the report under Government Code Section 84204.5 the donor has received a written notice from the committee receiving the contribution stating how the money will be apportioned and demonstrating that five thousand dollars ($5,000) or more will not be spent on a single state measure.
(c) Exceptions. The disclosure required by Government Code Section 84204.5 does not apply in the following circumstances:
(1) As excepted by Government Code Section 84204.5(b) or (c).
(2) When a committee primarily formed to support or oppose a state ballot measure makes a contribution to another committee primarily formed to support or oppose the same state ballot measure or another measure on the same ballot.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 84204.5, Government Code.
HISTORY
1. New section filed 9-20-2007; operative 10-20-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 38).
2. Editorial correction of subsection (c)(1) (Register 2007, No. 48).
Chapter 5. Campaign Finance Reform
§18500. Contribution Limits. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85102, 85104 and 85301-85303, Government Code.
HISTORY
1. New section filed 4-17-89 as an emergency; operative 4-17-89 (Register 89, No. 18). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-15-89.
2. Repealed by operation of Government Code 11346.1(g) filed 1-15-91 (Register 91, No. 19).
§18502. Broad Based Political Committee. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85102, Government Code.
HISTORY
1. New section filed 10-26-88 as an emergency; effective 10-26-88 and operative 1-1-89 pursuant to Government Code Section 85104 (Register 88, No. 46). A Certificate of Compliance must be transmitted to OAL within 120 days from 10-26-88 or emergency language will be repealed on 2-23-89. For history of former Chapter 5, see Registers 83, No. 5 and 81, No. 8.
2. Certificate of Compliance transmitted to OAL 1-25-89 and filed 2-24-89 (Register 89, No. 10).
3. Repealer filed 1-17-2001 as an emergency; operative 1-17-2001. A Certificate of Compliance must be transmitted to OAL by 5-17-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
4. Certificate of Compliance as to 1-17-2001 order transmitted to OAL 3-30-2001 and filed 5-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 18).
§18502.1. Reporting by Small Contributor Committees. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 84102, 84103, 85203 and 85402, Government Code.
HISTORY
1. New section filed 2-24-89; operative 2-24-89 (Register 89, No. 10).
2. Amendment of section heading, section and Note filed 1-7-97 as an emergency; operative 1-7-97. Submitted to OAL for printing only (Register 97, No. 2).
3. Editorial correction of History 2 (Register 97, No. 25).
4. Permanent regulation filed 6-19-97; operative 6-19-97. Submitted to OAL for printing only (Register 97, No. 25).
5. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
6. Repealer filed 1-17-2001 as an emergency; operative 1-17-2001. A Certificate of Compliance must be transmitted to OAL by 5-17-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
7. Certificate of Compliance as to 1-17-2001 order transmitted to OAL 3-30-2001 and filed 5-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 18).
§18502.2. Early Registration as Broad Based Political Committee. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 84102 and 85102, Government Code.
HISTORY
1. New section filed 11-2-88 as an emergency; operative 11-2-88 (Register 88, No. 46). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 3-2-89.
2. Repealed by operation of Government Code 11346.1(g) filed 1-15-91 (Register 91, No. 19).
§18503. Small Contributor Committees.
Note • History
(a) A “small contributor committee” means any committee that meets all of the following requirements:
(1) The committee has been in existence for at least six months. To meet this requirement, the committee may count the length of time it existed before January 1, 2001.
(2) Within 36 months before making a contribution under Government Code section 85302, the committee receives contributions from 100 or more persons. To meet this requirement, the committee may count contributions received before January 1, 2001.
(3) The committee's campaign funds do not include any contributions that exceed $200 per person per calendar year, including campaign funds received before January 1, 2001.
(4) The committee makes contributions to five or more candidates for any elective office every 36 months and each contribution equals or exceeds $25. To meet this requirement, a committee may count contributions made before January 1, 2001.
(b) Before making a contribution in excess of the limits specified in Government Code section 85301 and in accordance with the limits specified in Government Code section 85302, a small contributor committee shall amend its statement of organization to reflect that it is a small contributor committee and to indicate the date on which it qualified as such. For committees that qualified before January 1, 2001, the date of qualification is January 1, 2001.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 84102, 84103, 85203, 85301 and 85302, Government Code.
HISTORY
1. New section filed 1-17-2001 as an emergency; operative 1-17-2001. A Certificate of Compliance must be transmitted to OAL by 5-17-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
2. Certificate of Compliance as to 1-17-2001 order, including amendment of subsections (a)(3) and (a)(4), transmitted to OAL 3-30-2001 and filed 5-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 18).
§18519.4. Surplus Funds from Elections Prior to 1/1/97. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 89519, Government Code.
HISTORY
1. New section filed 1-7-97 as an emergency; operative 1-7-97 (Register 97, No. 2). A Certificate of Compliance must be transmitted to OAL by 5-7-97 or emergency language will be repealed by operation of law on the following day.
2. Amendment of subsections (c) and (d) filed 5-13-97; operative 5-13-97. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 512795 (1991) (Register 97, No. 20).
3. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
4. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18520. Statement of Intention To Be a Candidate.
Note • History
(a) For purposes of Government Code section 85200, “specific office” means a specific term of “elective office” as defined in Government Code section 82023.
(b) Prior to the solicitation or receipt of any contribution or loan for a specific office, the individual must file a statement, signed under penalty of perjury, of intention to be a candidate for the specific office.
(c) Candidates are not required to file a new statement of intention to be a candidate for the general election or special general election, after filing a statement of intention for the connected primary election or special primary election.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 85200 and 85201, Government Code.
HISTORY
1. New section filed 4-26-2002; operative 5-26-2002 (Register 2002, No. 17). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements).
§18521. Establishment of Separate Controlled Committee for Each Campaign Account.
Note • History
(a) A candidate who is required to file a statement of organization for a controlled committee pursuant to Government Code section 84101 shall establish a separate controlled committee and campaign bank account for each specific office identified in statements filed by the candidate pursuant to Government Code section 85200 and 2 Cal. Code Regs. section 18520.
(b) Candidates, Other than Candidates for Elective State Office: A controlled committee and campaign bank account established for a specific office may be redesignated as a campaign bank account for a future election if:
(1) The future election is for the same elective office;
(2) The funds in the campaign bank account/committee are not considered “surplus campaign funds” as defined in Government Code section 89519;
(3) The candidate amends the Statement of Organization for the committee to reflect the redesignation for the future election;
(4) The candidate files a new statement, signed under penalty of perjury, of intention to be a candidate for the specific future election; and
(5) Redesignation of committees/bank accounts is not otherwise prohibited by law.
(c) Redesignation by candidates for elective state office is prohibited at the state level.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84101, 85200, 85201, 85301, 85302 and 85318, Government Code.
HISTORY
1. New section filed 3-22-89; operative 4-21-89 (Register 89, No. 15).
2. Amendment of section and Note filed 4-26-2002; operative 5-26-2002 (Register 2002, No. 17). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements).
3. New subsection (c) filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18521.5. Ballot Measure Committees Controlled by Candidates for Elective State Office.
Note • History
Except as otherwise provided for recall committees under Section 85315 and Regulation 18531.5, a candidate for elective state office may control a committee under Section 82013(a) to support or oppose the qualification or passage of a measure, only as provided in this regulation.
(a) Committee Name
(1) If the committee is a general purpose ballot measure committee, the committee name shall include the name of the controlling candidate pursuant to Regulation 18402(c)(1), and expressly indicate it is a ballot measure committee.
(2) If the committee is a primarily formed ballot measure committee, the committee name shall include, in addition to the information set forth in subdivision (a)(1), the information required in Section 84107, and in Section 84504 and Regulation 18450.3.
(b) Statement of Organization.
(1) The committee shall identify on its Statement of Organization each measure on which the committee has spent, or anticipates spending, $50,000 or more in the current two year period, beginning with January 1 of an odd-numbered year and ending with December 31 of the following even-numbered year.
(2) If an official ballot designation has not been assigned to a measure or potential measure that must be identified pursuant to subdivision (b)(1), the Statement of Organization shall describe the purpose of the anticipated measure or measures. The committee shall amend its Statement of organization pursuant to Section 84103 to correctly identify the measure or measures after an official ballot designation has been assigned.
(c) Application of Section 85310. If the committee makes a communication described in Section 85310(a) that “clearly identifies” a candidate for elective state office, as defined in Regulation 18531.10(a)(1), contributions to the committee are subject to the limit prescribed for political party committees in Section 85303(b) if the communication is made at the behest of the clearly identified candidate.
(d) Committee Expenditures
(1) Except as permitted under paragraphs (2) and (3) below, committee funds shall be used only to make expenditures related to a state or local measure or potential measure anticipated by the committee, or to qualification or pre-qualification activities relating to such measures. Such expenditures include, but are not limited to, payment of the committee's reasonable and ordinary operating costs, administrative overhead, fundraising activities, travel, compliance costs, and attorney's fees incurred as a result of the committee's activities.
(2) The committee may at any time return all or part of a contribution to a committee contributor.
(3) A committee that is preparing to terminate its status as a committee may, at any time within 60 days prior to the effective date of its termination, disburse some or all of its leftover funds pursuant to subdivision (b)(3) of Section 89519.
(e) In addition to any other reporting and recordkeeping requirements, the committee shall also comply with the provisions of Regulations 18401(a)(6) and 18421.8.
(f) No provision of this regulation shall be construed to permit any of the following:
(1) A contribution of committee funds to a controlled committee of a candidate for elective office that is not operated as a candidate controlled ballot measure committee pursuant to this section.
(2) A payment of committee funds in violation of the restrictions on use of campaign funds by candidate controlled campaign committees described in Sections 89511 through 89518.
(3) A use of committee funds in violation of Elections Code Section 18680.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82013, 82016, 82027.5, 82047.5, 84102, 84103, 84107, 84504, 85301, 85302, 85303 and 85310, Government Code; and Section 18680, Elections Code.
HISTORY
1. New section filed 1-30-2009; operative 3-1-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 5).
§18522. Payments From Personal Funds for Filing Fee or Candidate Statement. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84200, 84221, 85200 and 85201, Government Code.
HISTORY
1. New section filed 3-22-89; operative 4-21-89 (Register 89, No. 15).
2. Repealer filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
§18523. Nondesignated Contributions or Loans.
Note • History
The following provisions shall apply to contributions that do not specifically designate the specific office for which the contributions were made:
(a) When a contributor makes a contribution or loan to a candidate with more than one controlled committee and does not designate the committee for which the contribution or loan is made, the candidate or his or her designee may allocate the contribution or loan to any one of the candidate's controlled committees consistent with subdivision (b) of this regulation, to the extent allowable under the applicable provisions of this title, including Government Code sections 85301 and 85302, and 2 Cal. Code Regs. section 18531.
(b) The candidate or his or her designee may allocate a monetary contribution to a controlled committee consistent with subdivision (a) of this regulation, by either depositing the contribution in the campaign bank account for a particular controlled committee or reporting in a campaign statement or a late contribution report that the contribution has been made by that contributor to a particular controlled committee.
(c) A monetary contribution shall be reported in the campaign statement for the reporting period in which it is received, and shall be deposited in the campaign bank account for the controlled committee to which it is being allocated within 30 days of receipt. Non-monetary contributions shall be allocated to a particular committee within 30 days of receipt or by the reporting deadline for the reporting period in which the contribution is received, whichever is earlier.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85201, 85301 and 85302, Government Code.
HISTORY
1. New section filed 2-24-89; operative 3-26-89 (Register 89, No. 10).
2. Amendment filed 7-28-89; operative 8-27-89 (Register 89, No. 31).
3. Editorial correction of printing error in HISTORY 1. (Register 91, No. 31).
4. Repealer of subsection (b) filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
5. Change without regulatory effect amending Note filed 2-23-99 pursuant to section 100, title 1, Government Code (Register 99, No. 9).
6. Amendment of Note filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
7. Amendment of section and Note filed 4-26-2002; operative 5-26-2002 (Register 2002, No. 17). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements).
§18523.1. Written Solicitation for Contributions.
Note • History
(a) When a candidate or controlled committee of a candidate makes any written solicitation for contributions, the solicitation shall identify the particular controlled committee by name.
(b) Candidates for elective state office: Candidates for elective state office must include all of the following information in any written solicitation for contributions:
(1) Identification of the particular controlled committee for which the contribution is solicited by name;
(2) Identification of the specific office for which the contributions are solicited.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85201, 85301 and 85302, Government Code.
HISTORY
1. New section filed 2-24-89; operative 3-26-89 (Register 89, No. 10).
2. Amendment filed 7-28-89; operative 8-27-89 (Register 89, No. 31).
3. Amendment filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
4. Change without regulatory effect amending Note filed 2-23-99 pursuant to section 100, title 1, Government Code (Register 99, No. 9).
5. Amendment of section and Note filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
6. Amendment of section and Note filed 4-26-2002; operative 5-26-2002 (Register 2002, No. 17). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements).
§18524. Investment and Expenditure of Candidates' Campaign Funds.
Note • History
(a) All contributions received by a candidate shall be deposited in the candidate's campaign bank account established pursuant to Government Code Section 85201. The candidate shall make all campaign expenditures from the campaign bank account. Moneys in the candidate's campaign bank account shall be spent only on expenses associated with the candidate's election to the specific elective office designated in the statement of intention and expenses associated with holding that office.
(b) The candidate may transfer funds from the campaign bank account to certificates of deposit, interest--bearing saving accounts, money market accounts, or similar accounts which shall be established only for funds for the same elective office for which the campaign bank account was established. Prior to expenditure, the funds shall be redeposited in the candidate's campaign bank account.
(c) The candidate may establish one or more credit card accounts or one or more charge accounts for the campaign bank account. Expenditures for payment of charges incurred on each credit card or charge account shall be made only from the campaign bank account. The credit card and charge accounts shall be used only for expenses associated with the candidate's election to the specific elective office designated in the statement of intention or expenses associated with holding that office.
(d) The candidate may establish, for the campaign bank account, one petty cash fund at each campaign office. No more than $100 shall be deposited in a petty cash fund at any time. No expenditure of $100 or more shall be made from a petty cash fund. Expenditures of less than $100 from a petty cash fund shall be deemed to be expenditures from the campaign bank account. All expenditures from a petty cash fund shall be for expenses associated with the candidate's election to the specific elective office designated in the statement of intention or for expenses associated with holding that office.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85201, Government Code.
HISTORY
1. New Section filed 4-20-89; operative 5-20-89 (Register 89, No. 18).
2. Change without regulatory effect amending Note filed 2-23-99 pursuant to section 100, title 1, Government Code (Register 99, No. 9).
§18525. Incumbent Candidates' Election Expenses and Officeholder Expenses.
Note • History
(a) An incumbent elected officer shall make expenditures for the following campaign expenses from the appropriate campaign bank account for election to a future term of office:
(1) Payments for fundraising and campaign strategy expenses for election to a future term of office.
(2) Payments for mass mailings, political advertising, opinion polls or surveys, and other communications in connection with election to a future term of office. For purposes of this section, a mass mailing, political advertisement, opinion poll or survey, or other communication shall be considered “in connection with election to a future term of office” if it makes reference to the officer's future election or status as a candidate for a future term of office, or if it is made by an incumbent officer within 3 months prior to an election for which he or she has filed any of the following:
(A) A statement of intention to be a candidate for a specific office, pursuant to Government Code Section 85200.
(B) A declaration of candidacy or nomination papers, as specified in Chapter 1 (commencing with Section 8000) of Division 8 of the Elections Code.
(C) Any other documents necessary to be listed on the ballot as a candidate for any state or local office.
(3) Payments for services and actual expenses of political consultants, the campaign treasurer and other campaign staff, pollsters and other persons providing services directly in connection with a future election.
(4) Payments for voter registration and get-out-the-vote drives.
(b) An incumbent elected officer may make expenditures for purposes not enumerated in subdivision (a) from either the campaign bank account established pursuant to Government Code Section 85201 for election to the incumbent term of office or from a campaign bank account established pursuant to Government Code Section 85201 for election to a future term of office. This section shall not be construed to permit an incumbent elected officer to make expenditures from any campaign bank account for expenses other than those associated with his or her election to the specific office for which the account was established and expenses associated with holding that office.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85201, Government Code.
HISTORY
1. New section filed 11-15-89; operative 12-15-89 (Register 89, No. 46).
2. Amendment of subsection (a)(2)(B) and Note filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
§18526. Reimbursement of Expenditures.
Note • History
(a) Expenditures made at the behest of the candidate for goods, services or travel expenses payable from the campaign bank account may be reimbursed and will be deemed expenditures from the campaign bank account if all the following apply:
(1) The person to be reimbursed is a volunteer or paid employee of the candidate's controlled committee.
(2) The treasurer of the committee is provided with a dated receipt and a written description of each expenditure prior to reimbursement.
(3) Reimbursement is paid within 45 calendar days after the expenditures are paid by the person to be reimbursed.
(b) Expenditures made at the behest of the candidate by an agent or independent contractor, such as a campaign consultant or advertising agent, for goods, services, or travel expenses payable from the campaign bank account may be reimbursed and will be deemed expenditures from the campaign bank account if all of the following apply:
(1) The expenditures are made pursuant to a written contract between the candidate or committee and the agent or independent contractor which provides for the reimbursement of such expenditure.
(2) The treasurer of the committee is provided with a dated receipt and a written description of each expenditure prior to reimbursement.
(3) Reimbursement is paid within 45 calendar days after the expenditures are paid by the person to be reimbursed.
(c) When a candidate or committee controlled by a candidate is notified that expenditures totaling $100 or more in a filing period have been made by a person who is to be reimbursed, the candidate or committee shall report, pursuant to Government Code section 84211(k), the expenditures on the campaign statement for the period in which the expenditures were made by the person to be reimbursed and the reimbursements on the campaign statement for the period in which the expenditures were reimbursed.
(d) If reimbursement is not paid within the time permitted by this section, the expenditure shall be reported on the campaign statement as a nonmonetary contribution received on the 45th day after the expenditures are paid by the person to be reimbursed, unless the person seeking reimbursement makes a good faith effort to obtain reimbursement and is unable to collect.
(e) During the period specified for reimbursement, or until reimbursement is paid, whichever occurs first, the person to be reimbursed shall make no contributions to the candidate or committee which cause the total amount of expenditures and contributions made to the candidate or committee by that person to exceed contribution limits.
COMMENT: For reimbursement of officeholder expenditures, see Government Code section 89511.5.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82025, 84211 and 85201, Government Code.
HISTORY
1. New section filed 4-18-89 as an emergency; operative 4-18-89 (Register 89, No. 18). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-16-89.
2. Certificate of Compliance as to 4-18-89 order including amendment of subsections (a)(1), (b)(1) and (d) transmitted to OAL 8-11-89 and filed 9-11-89 (Register 89, No. 37).
3. Amendment of subsection (c) filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
4. New comment filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Change without regulatory effect amending subsection (c) filed 6-8-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 23).
§18526.1. Use of Personal Funds for Officeholder Expenditures. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84211, 85200, 85201, 89510 and 89511.5, Government Code.
HISTORY
1. New section filed 1-26-90; operative 2-25-90 (Register 90, No. 5).
2. Amendment of subsections (b)(3)-(d) filed 10-11-94; operative 10-11-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 41).
3. Editorial correction of Reference cite (Register 95, No. 21).
4. Repealer filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
Note • History
(a) Government Code section 85300 prohibits the payment of public moneys, in the form of matching funds or cash subsidies, for the public financing of elections. The prohibition in this subsection does not apply to public officers and candidates in charter cities and counties.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85300, Government Code.
HISTORY
1. New section filed 9-10-90; operative 10-10-90 (Register 90, No. 43).
2. Amendment filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
3. Amendment of section heading and repealer and new section filed 12-15-98; operative 12-15-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 51).
§18530.1. Use of Funds Raised Prior to January 1, 1997. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 49, California Political Reform Act of 1996.
HISTORY
1. New section filed 1-6-97 as an emergency; operative 1-6-97. Submitted to OAL for printing only (Register 97, No. 2).
2. Editorial correction of History 1 (Register 97, No. 25).
3. Section refiled as a permanent regulation 6-17-97; operative 6-17-97. Submitted to OAL for printing only (Register 97, No. 25).
4. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
5. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18530.2. Transfer of Funds Raised Prior to Proposition 34 Limits.
Note • History
(a) Candidates for Elective State Office Other Than Statewide Elective Office:
Pursuant to Government Code section 85306, subdivision (b), a candidate for elective state office, other than a candidate for statewide elective office, may transfer funds possessed on January 1, 2001, to a controlled committee of the same candidate for an election held after January 1, 2001, without attributing the funds to specific contributors. There is no limit to the number of times the candidate's committee may transfer without attribution funds possessed on January 1, 2001; provided, however, that the maximum amount that the controlled committee holding the funds on January 1, 2001, may subsequently transfer without attribution shall be the lesser of (i) the balance on January 1, 2001, less the amount of any transfers made without attribution after January 1, 2001, and (ii) the lowest balance in the committee's account on or after January 1, 2001; and, provided further, that the maximum amount that any committee that has received such unattributed transfer may subsequently transfer without attribution shall be the lesser of (i) the sum received without attribution less any transfers subsequently made by that committee without attribution, and (ii) the lowest balance in the committee's account following receipt of such unattributed transfer.
(b) Candidates for Statewide Elective Office:
Pursuant to Government Code section 85306, subdivision (c), a candidate for statewide elective office may transfer funds possessed on November 6, 2002, to a controlled committee of the same candidate for an election held after January 1, 2001, without attributing the funds to specific contributors. There is no limit to the number of times the candidate's committee may transfer without attribution funds possessed on November 6, 2002; provided, however, that the maximum amount that the controlled committee holding the funds on November 6, 2002, may subsequently transfer without attribution shall be the lesser of (i) the balance on November 6, 2002, less the amount of any transfers made without attribution after November 6, 2002, and (ii) the lowest balance in the committee's account on or after November 6, 2002; and, provided further, that the maximum amount that any committee that has received such unattributed transfer may subsequently transfer without attribution shall be the lesser of (i) the sum received without attribution less any transfers subsequently made by that committee without attribution, and (ii) the lowest balance in the committee's account following receipt of such unattributed transfer.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85306, Government Code.
HISTORY
1. New section filed 1-30-2003 as an emergency; operative 1-30-2003 (Register 2003, No. 5). A Certificate of Compliance must be transmitted to OAL by 5-30-2003 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-30-2003 order, including amendment of section and Note, transmitted to OAL 5-15-2003 and filed 6-16-2003 (Register 2003, No. 25).
§18530.3. Reporting of Specified Contributions and Expenditures by Political Party Committees.
Note • History
(a) A political party committee as defined in Government Code section 85205 shall disclose on campaign reports filed pursuant to this title contributions to any accounts holding what are commonly known as “Federal Levin Funds” pursuant to title 2 U.S.C.A., section 441i(b), which are used to make “contributions” under Government Code section 82015, for the purpose of supporting or defeating any state or local candidate or ballot measure. The limitation set forth at Government Code section 85303(b) applies to all contributions made for the purpose of making contributions for the support or defeat of candidates for elective state office, including contributions to Levin Fund accounts.
(b) A political party committee as defined in Government Code section 85205 shall disclose on campaign reports filed pursuant to this title expenditures made from any account established and maintained under provisions of the Federal Election Campaign Act of 1971, as amended, which are “expenditures” under Government Code section 82025, made for the purpose of supporting or defeating any state or local candidate or ballot measure.
(c) A political party committee as defined in Government Code section 85205 shall disclose on the allocation schedule of its campaign reports, and on any other reports which the political party committee is required to file under this title, any expenditures by its federal committee which are “contributions” or “independent expenditures” made for the purpose of supporting or defeating any state or local candidate or ballot measure, as defined in Government Code sections 82015 and 82031. For each such contribution or independent expenditure the political party committee shall include a description of the account or accounts from which the contribution or expenditure is made, but shall not be required to allocate or itemize under Government Code section 84211(f), (g), or (h) any contributions received by its federal campaign committee used for the purposes described in this subdivision.
(d) Any committee described in Government Code section 82013, including any major donor committee, shall disclose on its periodic campaign statements any contribution it has made to the Federal Levin Fund account of a political party committee as defined in Government Code section 85205.
(e) A political party committee as defined in Government Code section 85205 shall provide notification of potential major donor committee filing obligations under Government Code section 84105 and 2 Cal. Code Regs. section 18427.1, to donors of contributions reported under subdivision (a) of this section.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 82025, 82031, 85303 and 85205, Government Code.
HISTORY
1. New section filed 1-9-2007; operative 2-8-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 2).
§18530.4. Legal Defense Funds--State Candidates and Officers.
Note • History
(a) Application and Definitions.
(1) This regulation applies to the bank account permitted by Section 85304(a).
(2) For purposes of this regulation, the following definitions apply:
(A) “Legal defense funds” means money in the legal defense account.
(B) “Legal defense account” means the bank account established at a financial institution located in the State of California pursuant to Section 85304(a).
(C) “Legal defense committee” means a committee formed pursuant to subdivision (b) of this regulation.
(D) “Candidate” means a candidate for elective state office who raises legal defense funds.
(E) “Officer” means an elected state officer who raises legal defense funds.
(b) Establishing the Legal Defense Account and Controlled Committee. A candidate or officer shall deposit legal defense funds in and expend them from a bank account separate from any other bank account held by the official, including a legal defense account established under Section 85304.5. The candidate or officer shall establish a controlled committee for the legal defense account by filing a statement of organization pursuant to Section 84101. The statement of organization shall contain a description of the specific legal dispute or disputes for which the account is established, and shall be amended pursuant to Section 84103, as a legal dispute is either resolved or initiated. The words “Legal Defense Fund” and the candidate's or officer's last name shall be included in the committee name.
(c) Required Recordkeeping and Audits. The candidate or officer, and the treasurer of the legal defense committee, is subject to recordkeeping requirements specified in Section 84104 and shall keep separate detailed accounts, records, bills, and receipts, for each legal dispute including documentation to support the basis and timing, as set forth in subdivision (g)(3), for raising legal defense funds. The legal defense committee shall be subject to audits under Chapter 10 (commencing with Section 90000) of Title 9 of the Government Code. An audit under Section 90001 of a candidate or officer, or any controlled committee of the candidate or officer, shall include that candidate's or officer's legal defense committee maintained during the audit period as described in Section 90002(c).
(d) Reporting Requirements. The legal defense committee shall file campaign statements and reports pursuant to Chapters 4 (commencing with Section 84100) and 5 (commencing with Section 85100) of Title 9 of the Government Code at the same times and in the same places as it otherwise would be required to do for any other controlled committee formed by the candidate or officer for election to state office.
(e) Contributions and Expenditures not Subject to Certain Provisions. A contribution to and an expenditure from a legal defense account is not subject to the provisions of Sections 85200, 85201, or Article 4 (commencing with Section 85400) of Chapter 5 of Title 9 of the Government Code.
(f) Status as a Local Candidate or Local Elected Officer. A candidate or officer may establish a legal defense account under Section 85304 regardless of whether the individual is also a local candidate or local elected officer.
(g) Limitations. For the purposes of Section 85304(a), the following limitations apply:
(1) Legal defense funds may only be raised in an amount reasonably calculated to pay, and may only be expended for, attorney's fees and other related legal costs.
(A) “Attorney's fees and other related legal costs” includes only the following:
(i) Attorney's fees and other legal costs related to the defense of the candidate or officer.
(ii) Administrative costs directly related to compliance with the requirements of subdivisions (b) and (d) and the recordkeeping requirements of subdivision (c) of this regulation.
(B) “Attorney's fees and other related legal costs” does not include for example expenses for fundraising, media or political consulting fees, mass mailing or other advertising, or a payment or reimbursement for a fine, penalty, judgment or settlement, or a payment to return or disgorge contributions made to any other committee controlled by the candidate or officer.
(2) A candidate or officer may only raise funds under this regulation for defense against a civil or criminal proceeding, or for defense against a government agency's administrative enforcement proceeding arising directly out of the conduct of an election campaign, the electoral process, or the performance of the officer's governmental activities and duties. An administrative enforcement proceeding includes a discretionary audit initiated under Section 90003, but not an audit initiated under Section 90001 until the candidate or officer reasonably concludes that a government agency has commenced an investigation based upon the audit. A candidate or officer may raise funds under this regulation and Section 85304 to defend against an election contest conducted pursuant to Division 16 (commencing with Section 16000) of the Elections Code, but may not raise or spend legal defense funds for attorney's fees and other legal costs incurred in an election recount conducted pursuant to Chapter 9 (commencing with Section 15600) of Division 15 of the Elections Code.
(3) Legal defense funds may not be raised in connection with a proceeding until the following has occurred:
(A) In a proceeding brought by a government agency, when the candidate or officer reasonably concludes the agency has commenced an investigation or the agency formally commences the proceeding, whichever is earlier.
(B) In a civil proceeding brought by a private person, after the person files the civil action.
(h) Remaining Funds. Funds remaining in the legal defense account following payment of all attorney's fees and other related legal costs for which the account and committee are established shall be returned or disposed of as follows:
(1) If the total amount of remaining legal defense funds is more than $5,000, the entire sum shall be returned to legal defense account donors on a pro rata basis.
(2) Remaining legal defense funds that are not required to be returned under subdivision (h)(1) shall be disposed of for any of the purposes set forth in subdivisions (b)(1) through (b)(5) of Section 89519. Remaining legal defense funds may not be transferred, except as permitted under subdivisions (b)(1) through (b)(5) of Section 89519, and disposition is subject to the provisions of Sections 85301 through 85306 and Regulation 18536.
(i) Termination and Reopening of Committees. A legal defense account and legal defense committee shall be terminated, and all attorney's fees and other related costs as well as any remaining funds as described in subdivision (h) returned or disposed of, within 90 days of the date the last legal dispute for which the account and committee are established has been resolved. The Executive Director may for good cause, and consistent with the purposes of Section 85304 and this regulation, extend the termination date or permit the candidate or officer to reopen the account. The application to extend the termination date or to reopen the account shall be in writing and shall include copies of all supporting documents including copies of billing statements.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85301-85306 and 89519, Government Code.
HISTORY
1. New section filed 10-9-2001; operative 11-8-2001 (Register 2001, No. 41).
2. Amendment of section heading and section filed 12-13-2007; operative 1-12-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 50).
§18530.45. Legal Defense Funds -- Local Candidates and Officers.
Note • History
(a) Application and Definitions.
(1) This regulation applies to the bank account permitted by Section 85304.5(a).
(2) For purposes of this regulation, the following definitions apply:
(A) “Legal defense funds” means money in the legal defense account.
(B) “Legal defense account” means the bank account established at a financial institution located in the State of California pursuant to Section 85304.5(a).
(C) “Legal defense committee” means a committee formed pursuant to subdivision (c) of this regulation.
(D) “Candidate” means a candidate for elective office in a local government agency.
(E) “Officer” means an elected officer in a local government agency.
(b) Local Regulation of Legal Defense Account.
(1) Except as provided in paragraphs (2) and (3), this regulation shall govern the legal defense account and legal defense committee established by a candidate or officer under Section 85304.5.
(2) A local government agency may impose different requirements, including a contribution limit, on a legal defense account and legal defense committee maintained by a candidate or officer in its jurisdiction if its requirements regarding establishment of the committee, recordkeeping, and reporting are at least as strict as those provided in subdivisions (c), (e), and (f) of this regulation.
(3) If the local government agency does not enact local contribution limits applicable to legal defense funds, the local requirements must also be at least as strict as those provided in subdivision (i).
(c) Establishing the Legal Defense Account and Legal Defense Committee. A candidate or officer who raises legal defense funds under this regulation shall deposit the funds in and expend the funds from a bank account separate from any other bank account held by the candidate or officer, including a campaign bank account and a legal defense account for a state official and a candidate under Section 85304. The candidate or officer shall establish a controlled committee for the legal defense account by filing a statement of organization pursuant to Section 84101. The statement of organization shall contain a description of the specific legal dispute or disputes for which the account is established, and shall be amended pursuant to Section 84103, as legal disputes are either resolved or initiated. The words “Legal Defense Fund” and the candidate's or officer's last name shall be included in the committee name.
(d) Separate Accounts For Each Local Elective Office. The candidate or officer shall establish a separate legal defense account and legal defense committee for each local elective office to which the legal proceeding or proceedings relate.
(e) Required Recordkeeping and Audits. The candidate or officer, and the treasurer of the legal defense committee, are subject to recordkeeping requirements specified in Section 84104 and shall keep separate detailed accounts, records, bills, and receipts, for each legal proceeding including documentation to support the basis and timing, as set forth in subdivision (i)(3), for raising legal defense funds. The legal defense committee shall be subject to audits under Chapter 10 of Title 9 of the Government Code. An audit under Section 90001 of a candidate or officer, or any controlled committee of the candidate or officer, shall include that candidate's or officer's legal defense committee maintained during the audit period as described in Section 90002(c).
(f) Reporting Requirements. The legal defense committee shall file campaign statements and reports pursuant to Title 9 of the Government Code at the same times and in the same places as it otherwise would be required to do for any other candidate controlled committee in the jurisdiction in which the legal defense committee was established.
(g) Contributions and Expenditures Not Subject to Certain Provisions. A contribution to and an expenditure from a legal defense account under Section 85304.5 is not subject to the provisions of Sections 85200 or 85201.
(h) State Legal Defense Accounts. A candidate or officer who is also a state candidate or officer may establish a legal defense committee under Section 85304.
(i) Limitations. For the purposes of Section 85304.5 the following limitations apply:
(1) Legal defense funds may only be raised in an amount reasonably calculated to pay, and may only be expended for, attorney's fees and other related legal costs.
(A) “Attorney's fees and other related legal costs” includes only the following:
(i) Attorney's fees and other direct legal costs related to the defense of the candidate or officer.
(ii) Administrative costs directly related to compliance with the requirements of subdivisions (c) and (f) and the recordkeeping requirements of subdivision (e) of this regulation.
(B) “Attorney's fees and other related legal costs” does not include for example expenses for fundraising, media or political consulting fees, mass mailing or other advertising, or a payment or reimbursement for a fine, penalty, judgment or settlement, or a payment to return or disgorge contributions made to any other committee controlled by the candidate or officer.
(2) A candidate or officer may only raise funds under this regulation for defense against a civil or criminal proceeding, or for defense against a government agency's administrative enforcement proceeding arising directly out of the conduct of an election campaign, the electoral process, or the performance of the officer's governmental activities and duties. An administrative enforcement proceeding includes a discretionary audit initiated under Section 90003, but not an audit initiated under Section 90001 until the candidate or officer reasonably concludes that a government agency has commenced an investigation based upon the audit. A candidate or officer may raise funds under this regulation and Section 85304.5 to defend against an election contest conducted pursuant to Division 16 (commencing with Section 16000) of the Elections Code, but may not raise or spend legal defense funds for attorney's fees and other legal costs incurred in an election recount conducted pursuant to Chapter 9 (commencing with Section 15600) of Division 15 of the Elections Code.
(3) Legal defense funds may not be raised in connection with a proceeding until the following has occurred:
(A) In a proceeding brought by a government agency, when the candidate or officer reasonably concludes the agency has commenced an investigation or the agency formally commences the proceeding, whichever is earlier.
(B) In a civil proceeding brought by a private person, after the person files the civil action.
(j) Remaining Funds. Funds remaining in the legal defense account following payment of all attorney's fees and other related legal costs for which the account and committee are established shall be returned or disposed of as follows:
(1) If the total amount of remaining legal defense funds is more than $5,000, the entire sum shall be returned to legal defense account donors on a pro rata basis.
(2) Remaining legal defense funds not required to be returned under subdivision (j)(1) shall be disposed of for any of the purposes set forth in subdivisions (b)(1) through (b)(5) of Section 89519. Remaining legal defense funds may not be transferred, except as permitted under subdivisions (b)(1) through (b)(5) of Section 89519.
(k) Termination and Reopening of Committees. A legal defense account and legal defense committee shall be terminated, and all attorney's fees and other related costs returned or disposed of, within 90 days of the date the last legal dispute for which the account and committee are established has been resolved. The local ethics agency, or in the absence of an agency, the FPPC Executive Director, may for good cause, and consistent with the purposes of Section 85304.5 and this regulation, extend the termination date or permit the candidate or officer to reopen the account. The application to extend the termination date or to reopen the account shall be in writing and shall include copies of all supporting documents including copies of billing statements.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85304 and 85304.5, Government Code.
HISTORY
1. New section filed 9-4-2008; operative 10-4-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 36).
§18530.7. Extensions of Credit.
Note • History
(a) Except as provided in subdivision (b), an extension of credit which consists of a receipt of goods or services pursuant to an agreement between the provider of the goods or services and a candidate or committee, and where payment is not made until a later date, is a contribution subject to Government Code section 85307(a).
(b) For purposes of Government Code section 85307(a), an extension of credit is not a contribution made by the provider of the goods or services or a contribution accepted by the candidate or committee if either subdivision (b)(1) or (b)(2) of this regulation is met:
(1) Payment is made on or before the earlier of the following dates:
(A) 45 days after the date of the invoice; or
(B) 45 days from the date the goods or services are delivered; or
(C) For services ongoing in nature, 45 days after the date of the invoice, where services are billed no less frequently than on a three-month billing cycle.
(2) All of the requirements of subsections (b)(2)(A)-(E) of this regulation are met:
(A) The credit arrangement is recorded in a written instrument;
(B) It is a regular business of the provider of goods or services to provide similar goods or services;
(C) The provider provides the goods and services in the ordinary course of business and on the same terms and conditions offered to customers generally;
(D) The provider of goods or services enters into the agreement with the intent that the candidate or committee be required to pay in accordance with terms of the agreement and does not have actual knowledge that the candidate or committee would not be able to pay in accordance with those terms; and
(E) The provider of goods or services makes reasonable efforts to collect the full amount of the payment owed within four months of the date that the payment for the goods or services is due under the terms of the agreement. Reasonable efforts to collect the full amount of the payment may be demonstrated even if:
(i) The provider does not exhaust all available legal options; or
(ii) The provider accepts less than the full amount of the payment owed by the candidate or committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85307, Government Code.
HISTORY
1. New section filed 7-20-2005; operative 8-19-2005 (Register 2005, No. 29). For prior history, see Register 2001, No. 18.
Note • History
(a) Any personal loan made before January 1, 2001, by a candidate for elective state office does not count toward the $100,000 loan limit of subdivision (b) of Government Code section 85307.
(b) For purposes of subdivision (b) of Government Code section 85307 and this regulation, “campaign” encompasses both the primary and general elections or special and special runoff elections for a specific term of elective state office. “Campaign” includes any of the candidate's controlled committees formed for the purpose of seeking that elective state office and all committees formed for the purpose of supporting the candidate's candidacy for that elective state office.
(c) The proceeds of a loan that meets the terms of subdivision (a) of Government Code section 85307, which the candidate then lends to his or her campaign, count toward the $100,000 loan limit of subdivision (b) of Government Code section 85307. Both the candidate and the commercial lending institution must be disclosed as the sources of the loan.
(d) A candidate may make a series of personal loans to his or her campaign as long as the outstanding balance does not exceed $100,000 at the time of making the loans. If a candidate's personal loan balance has reached the $100,000 limit, the loan balance must be reduced before the candidate may make any additional loans to his or her campaign.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85307, Government Code.
HISTORY
1. New section filed 2-19-2002; operative 3-21-2002 (Register 2002, No. 8).
2. Amendment of subsection (c) filed 11-9-2004; operative 11-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 46).
§18530.9. Contributions to Candidate Controlled Ballot Measure Committees. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82016, 82043, 85301 and 85302, Government Code.
HISTORY
1. New section filed 7-26-2004; operative 11-3-2004 (Register 2004, No. 31).
2. Repealer filed 9-20-2007; operative 10-20-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 38).
§18531. Return of Excessive Contributions.
Note • History
(a) Contributions which either in the aggregate or on their face exceed the contribution limits of Government Code Sections 85301, 85302 and 85303 shall be deemed not to have been accepted within the meaning of that provision, if returned pursuant to this section.
(b) A monetary contribution shall be returned prior to deposit or negotiation, within 14 days of receipt.
(c) A non-monetary contribution shall be returned by returning to the contributor, within the deadline specified in subdivision (b) any of the following:
(1) The non-monetary contribution.
(2) Its monetary equivalent.
(3) The monetary amount by which the value of the non-monetary contribution exceeds the contribution limits of Government Code Sections 85301, 85302 and 85303.
(d) This regulation shall not be construed to authorize the making or solicitation of any contribution in excess of the contribution limits of Government Code Sections 85301, 85302 and 85303.
(e) Notwithstanding subsections (a) through (c), contributions to a committee, other than a candidate controlled committee, which are earmarked for purposes other than making contributions directly to candidates for elective office shall not be deemed in excess of limits and need not be returned, provided the contributions are deposited to a separate account within the deadlines prescribed in subsection (b).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85301, 85302 and 85303, Government Code.
HISTORY
1. New section filed 6-23-89; operative 6-23-89 (Register 89, No. 26).
2. Amendment of subsections (a), (b) and (d) and footnote filed 11-16-90; operative 12-26-90 (Register 91, No. 1).
3. Amendment filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
4. Amendment of subsections (a) and (a)(3)-(e), repealer of footnote and amendment of Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment of Note filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
6. Amendment of section and Note filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
7. Editorial correction of subsection (b) (Register 2005, No. 38).
§18531.1. Affiliated Entities Sharing One Contribution Limit. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85311, Government Code.
HISTORY
1. New section filed 11-10-97; operative 11-10-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 46).
2. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
3. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18531.2. Refunding General Election Contributions.
Note • History
(a) The following provisions apply to the pro rata refund of contributions raised for a general election or a special general election by a candidate for elective state office who is defeated in the primary or special primary election, or who withdraws from the general election or special general election, as required under Section 85318:
(1) The candidate shall apply Regulation 18540, subdivisions (a)(1) through (a)(7), to calculate expenses attributable to the general election or the special general election that may be deducted from the refunds.
(2) The candidate shall convert to cash and include in the total contributions subject to refund each campaign asset, or the applicable portion thereof, if all of the following apply:
(A) The asset was received as a non-monetary contribution for the general or special general election.
(B) The candidate's committee held the asset on the day after the primary election, or the day after the candidate has withdrawn from the general election.
(C) The value of the asset was $50 or more.
(b) Contributions for the general election or special general election that may be considered surplus campaign funds under Section 89519 shall be refunded under Section 85318 and this regulation.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85318 and 89519, Government Code.
HISTORY
1. New section filed 12-13-2007; operative 1-12-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 50).
§18531.3. Transfers of Funds Into Officeholder Accounts. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85313 and 89512, Government Code.
HISTORY
1. New section filed 1-6-97 as an emergency; operative 1-6-97. Submitted to OAL for printing only (Register 97, No. 2).
2. Editorial correction of History 1 (Register 97, No. 25).
3. Section refiled as a permanent regulation 6-17-97; operative 6-17-97. Submitted to OAL for printing only (Register 97, No. 25).
4. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
5. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18531.4. Officeholder Accounts--Reporting. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85200, 85201, 85301-85313, Government Code.
HISTORY
1. New section filed 1-7-97 as an emergency; operative 1-7-97. Submitted to OAL for printing only (Register 97, No. 2).
2. Editorial correction of History 1 (Register 97, No. 25).
3. Permanent regulation filed 6-19-97; operative 6-19-97. Submitted to OAL for printing only (Register 97, No. 25).
4. Amendment of section and Note filed 5-26-98; operative 5-26-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 22).
5. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
Note • History
(a) Definitions. For purposes of this section:
(1) “Target officer” means an elected officer who is the subject of a recall effort.
(2) “Replacement candidate” means a candidate within the meaning of Government Code section 82007 who is running to replace a target officer in the event the recall is successful and who is on the same ballot as the recall measure.
(b) Application of Contribution and Voluntary Expenditure Limits to State Recalls.
(1) Target Officer. Pursuant to Government Code section 85315, the contribution limits of Chapter 5 of the Act do not apply to contributions accepted by an elected state officer who is the target of a recall into a separate recall committee established to oppose the qualification of the recall measure or the recall election. Pursuant to Government Code section 85315, the voluntary expenditure limits of the Act do not apply to expenditures made by an elected state officer who is the target of a recall to oppose the qualification of the recall measure or the recall election.
(2) Replacement Candidates. The replacement candidates in a state recall election are seeking elective state office and therefore the contribution and voluntary expenditure limits of Chapter 5 of the Act apply to replacement candidates.
(3) Committees Primarily Formed to Support or Oppose a Recall. A recall is included within the definition of a “measure” in Government Code section 82043. Therefore, except as provided in this subdivision, the contribution and voluntary expenditure limits of Chapter 5 of the Act do not apply to a committee primarily formed to support or oppose a recall. As to candidate controlled recall committees, the provisions of 2 Cal. Code Regs. section 18530.9 apply.
(c) Committee Formation and Campaign Report Filing Obligations. All candidates and committees that raise and spend funds in connection with a recall have full reporting and disclosure obligations under Chapters 4 and 5 of the Political Reform Act.
(1) Target Officer. A target officer may use a committee for the office held to oppose the recall. A target officer may also establish a separate committee to oppose a recall upon receiving a notice of intent to recall the officer pursuant to Elections Code section 11021. A target officer must deposit contributions accepted in the separate committee to oppose the recall in a single bank account at a financial institution located in the State of California which is separate from any other bank account held by the officer, including any campaign bank account. The word “recall” and the name of the target officer shall be included as part of the committee name in the statement of organization filed for the committee pursuant to Government Code section 84107.
A target officer opposing a recall is not required to file a new statement of intention to be a candidate for elective office pursuant to Government Code section 85200.
(2) Replacement Candidate. A replacement candidate may establish a committee to seek elective office in a recall election. A replacement candidate must disclose all contributions received and expenditures made pursuing elective office, even if the target officer has not yet been served with notice of intent to recall. A replacement candidate is required to file a statement of intention to be a candidate for elective office pursuant to Government Code section 85200.
(3) Committees Primarily Formed to Support or Oppose a Recall (Including Recall Proponents and Opponents). A person or group of persons who raises or spends more than $1,000 for a recall attempt qualifies as a “committee” under Government Code section 82013 when the target officer is served with a notice of intent to recall pursuant to Elections Code section 11021. Once the notice of intent to recall is given, the committee must report on its first campaign statement all contributions received and expenditures made for the purpose of influencing the electorate to sign a recall petition or to vote for or against a recall election, regardless of when the contributions were received or expenditures were made. A committee primarily formed to support or oppose the recall of an elected officer must identify in the committee name, the name of the elected officer and whether the committee is in support of or opposition to the recall.
(d) The amendments to this regulation adopted by the Commission on June 25, 2004, shall become effective November 3, 2004.
Comment: Committees active in a recall must file all campaign reports required by Chapters 4 and 5 of the Act. These reports include the following: the target officer, committees primarily formed to support or oppose a recall measure, and the replacement candidates must all file the semi-annual campaign reports and two pre-election reports preceding the recall election, required by Government Code sections 84200 and 84200.5, 84200.7 or 84200.8. In addition, committees primarily formed to support or oppose a recall measure, including a separate committee established by a target officer to oppose a recall measure, must file quarterly campaign reports required by Government Code section 84202.3. For recalls of an elected state officer, the electronic reports required by Government Code section 85309 must be also filed.
In addition, pursuant to Government Code sections 81013 and 81009.5, nothing in the Act prevents a local jurisdiction from adopting a local ordinance with additional or different requirements applicable to candidates or committees involved in recall elections in that jurisdiction, including applying contribution limits to all candidates and committees participating in the recall, so long as the local ordinance does not prevent the persons from complying with the Political Reform Act.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82007, 82043, 84107, 84211, 85200, 85301, 85302 and 85315, Government Code.
HISTORY
1. New section filed 8-14-2003; operative 8-14-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 33). For prior history, see Register 2001, No. 18.
2. Amendment of subsections (b)(3) and (c)(1), new subsection (d) and amendment of Note filed 7-26-2004; operative 11-3-2004 (Register 2004, No. 31).
§18531.6. Treatment of Debts Outstanding After an Election -- Prior to January 24, 2004.
Note • History
The provisions of this regulation apply to contributions accepted by a committee prior to January 24, 2004. For rules regarding the treatment of contributions accepted on or after January 24, 2004, see regulation 18531.61.
(a) Pre-2001 Elections. Government Code section 85316 does not apply to a candidate for elective state office in an election held prior to January 1, 2001.
(1) There are no contribution limits in effect for elections held prior to January 1, 2001 for contributions made on or after January 1, 2001.
(2) Contributions for an election held prior to January 1, 2001 may be accepted in an amount that exceeds net debts outstanding.
(b) 2001 and Subsequent Elections. Government Code section 85316 applies to a candidate for elective state office in an election held on or after January 1, 2001, as follows:
(1) The contribution limits of Government Code sections 85301 and 85302 apply to any candidate controlled committee formed on or after January 1, 2001, whether the committee is designated for an election held pre- or post-January 1, 2001.
(2) Beginning January 1, 2001, contributions received by any candidate controlled committee formed prior to January 1, 2001, for an election held after January 1, 2001, are subject to the limits of Government Code sections 85301 and 85302.
(3) Transfers to a committee formed for an election held on or after January 1, 2001, are subject to the requirements of 2 Cal. Code Regs. section 18536.
(c) A candidate for elective state office subject to subdivision (b) of this regulation may use contributions accepted pursuant to Government Code section 85316 only for payment of net debts outstanding for an election.
(d) For purposes of this section, “net debts outstanding” includes the following:
(1) An amount necessary to cover the cost of raising funds as permitted under this section;
(2) Any costs associated with complying with the post-election requirements of this Title and other necessary administrative costs associated with winding down the campaign, including office space rental, staff salaries, and office supplies; and
(3) The total amount of unpaid debts, loans and accrued expenditures incurred with respect to an election, less the sum of:
(A) The total cash on hand available to pay those debts and obligations, including: currency; balances on deposit in banks, savings and loan institutions, and other depository institutions; traveler's checks; certificates of deposit; treasury bills; and any other committee investments valued at fair market value; and
(B) The total amounts owed to the candidate controlled committee in the form of credits, refunds of deposits, returns, or receivables, or a commercially reasonable amount based on the collectibility of those credits, refunds, returns, or receivables.
The amount of the net debts outstanding shall be reduced as additional funds are received. The candidate and his or her controlled committee(s) may accept contributions made after the date of an election, if such contributions do not exceed the amount of net debts outstanding on the date the contribution is received. Any contribution that exceeds the amount of net debts outstanding shall be treated in the same manner as a contribution in excess of the contribution limits.
(e) Notwithstanding subdivision (b), this regulation does not apply to a candidate for statewide elective office in an election held before November 6, 2002.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83 of Proposition 34; and Sections 85201, 85301-85302, 85306, 85316, 85317, 85318 and 85321, Government Code.
HISTORY
1. New section filed 10-4-2001; operative 11-3-2001 (Register 2001, No. 40).
2. Editorial correction of subsection (b)(2) (Register 2001, No. 48).
3. Amendment of section heading and new first paragraph filed 1-23-2004 as an emergency; operative 1-24-2004. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2004, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-24-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 1-23-2004 order transmitted to OAL 4-16-2004 and filed 5-13-2004 (Register 2004, No. 20).
§18531.61. Treatment of Debts Outstanding After an Election.
Note • History
(a) Application. Under Section 85316(a) a candidate for elective state office may solicit and accept contributions after an election to pay net debts outstanding, subject to the applicable contribution limit for that election. This regulation applies to contributions accepted under Section 85316(a) on or after January 24, 2004, by a candidate for elective state office. See Regulation 18531.6 for rules regarding the treatment of similar contributions accepted before January 24, 2004.
(b) Definitions. For purposes of Section 85316(a) and this regulation, the following definitions apply:
(1) “The applicable contribution limit for that election” means the contribution limit, if any, as provided in Sections 85301 and 85302 applicable on the date of the election.
(2) “That election” or “the election” means the election for which a candidate for elective state office is raising contributions to pay net debts outstanding.
(3) “Net debts outstanding” includes all of the following:
(A) An amount necessary to cover the cost of raising funds as permitted under Section 85316(a) and this regulation.
(B) Costs related to complying with the post-election requirements of Title 9 (commencing with Section 81000) of the Government Code and other necessary administrative costs related to winding down the campaign, including office space rental, staff salaries, and office supplies.
(C) Legal fees and expenses incurred directly in connection with monitoring the count of absentee or provisional ballots for the election, or with a ballot recount conducted under Chapter 9 (commencing with Section 15600) of Division 15 of the Elections Code for the election.
(D) The total amount of unpaid debts, loans and accrued expenditures incurred with respect to the election, less the sum of both of the following:
(i) The total cash on hand available to pay those debts and obligations, including: currency; balances on deposit in banks, savings and loan institutions, and other depository institutions; traveler's checks; certificates of deposit; treasury bills; and any other committee investments valued at fair market value.
(ii) The total amounts owed to the candidate controlled committee in the form of credits, refunds of deposits, returns, or receivables, or a commercially reasonable amount based on the collectibility of those credits, refunds, returns, or receivables.
(c) Raising Funds. A candidate for elective state office may accept contributions after the date of the election only up to the amount of net debts outstanding from the election. The contributions accepted are subject to the applicable contribution limit for that election. The candidate shall reduce the total amount of net debts outstanding as additional funds are received. The candidate and his or her controlled committee(s) may not accept a contribution under Section 85316(a) that exceeds the total amount of net debts outstanding on the date the contribution is received. A contribution that exceeds the amount of net debts outstanding shall be treated in the same manner as a contribution in excess of the contribution limits.
(d) Paying the Debt. A candidate for elective state office may only use a contribution accepted after the election pursuant to Section 85316(a) for payment of net debts outstanding from the election. The candidate may only use the funds on hand and owed to the committee, described in clauses (b)(3)(D)(i) and (ii), for payment of net debts outstanding from the election. The candidate shall use available funds to pay net debts outstanding as soon as practicable.
(e) Transfer. Pursuant to Section 85306, a candidate may transfer campaign funds from another of his or her controlled committees for the purpose of paying the net debts outstanding of his or her committee for elective state office under Section 85316(a). A transfer of this type made to a committee for an election to a statewide elective office held on or after November 6, 2002, or to any other elective state office held on or after January 1, 2001, is subject to the contribution limits of Sections 85301 and 85302 and attribution requirements of Regulation 18536.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 83 of Proposition 34; and Sections 85201, 85301, 85302, 85306, 85316, 85317, 85318 and 85321, Government Code.
HISTORY
1. New section filed 1-23-2004 as an emergency; operative 1-24-2004. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2004, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-24-2004 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 1-23-2004 order transmitted to OAL 4-16-2004 and filed 5-13-2004 (Register 2004, No. 20).
3. Amendment of section heading and section filed 1-7-2008; operative 2-6-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 2).
§18531.62. Elected State Officeholder Bank Accounts.
Note • History
(a) Application and Definitions. For purposes of Government Code Section 85316(b) and this regulation, the following definitions apply:
(1) “Officeholder” means an elected state officer.
(2) “Officeholder controlled committee” means a committee formed pursuant to subdivision (c) of this regulation.
(3) “Officeholder account” means the bank account established at a financial institution located in the State of California pursuant to Government Code Section 85316(b).
(4) “Officeholder funds” means money in the officeholder account.
(b) Establishing the Officeholder Account: For purposes of Government Code Section 85316(b), an officeholder shall maintain officeholder funds in a single bank account separate from any other bank account held by the officeholder.
(c) Establishing the Officeholder Controlled Committee, Reporting and Recordkeeping:
(1) Formation: The officeholder shall establish a controlled committee by filing a statement of organization pursuant to Government Code Section 84101 if the officeholder receives $1,000 or more in officeholder contributions in a calendar year.
(2) Committee Name: The controlled committee name shall include the officeholder's last name, the office held, the year the officeholder was elected to the current term of office, and the words “Officeholder Account.” The statement of organization shall include the name, account number, and address of the financial institution where the committee established the officeholder account.
(3) Filing Requirements: The controlled committee shall file campaign statements and reports pursuant to Chapters 4 and 5, except Sections 85200 and 85201, of Title 9 of the Government Code at the same times and in the same places as it otherwise would be required to do for any other controlled committee formed by the officeholder for election to state office.
(4) Required Recordkeeping and Audits. The officeholder and treasurer shall be subject to recordkeeping requirements under Government Code Section 84104. The officeholder account and officeholder controlled committee shall be subject to audits under Chapter 10 of Title 9 of the Government Code. Any audit of the officeholder, or any of his or her controlled committees, under Government Code Section 90001 shall include all officeholder accounts and officeholder controlled committees maintained by the officeholder during the audit period as described in Government Code Section 90002(c).
(d) Prohibitions:
(1) Officeholder funds may not be contributed or transferred to another state or local committee, including any other controlled committee of the officeholder, except as permitted in subdivisions (g) (2) and (g)(3).
(2) Officeholders may not use officeholder funds to pay “campaign expenses” as defined in 2 Cal. Code of Regulations Section 18525(a).
(3) The officeholder may not transfer or contribute funds from any other committee he or she controls to the officeholder account, except as permitted in subdivision (g)(2) and (g)(3).
(e) Contributions to the Officeholder Account:
(1)(A) Required Notices: In addition to the requirements of 2 Cal. Code of Regulations Section 18523.1, a written solicitation for contributions to the officeholder account shall include the following: “For purposes of the Political Reform Act's contribution limits, a contribution to an officeholder account is also considered to be a contribution to all campaign committees for future elective state office the officeholder seeks during his or her current term of office.”
(B) In addition to the requirements of subparagraph (A) above, an officeholder who files a statement of intention to be a candidate for any elective state office during the officeholder's term of office shall provide notice of this filing to every person that has made a contribution to his or her officeholder account. The notice shall contain the language in subparagraph (A) and be transmitted or mailed within 10 days of filing the statement of intention to be a candidate.
(2) Cumulation: A contribution to the officeholder account shall also be deemed a contribution to the officeholder's controlled committee for election to elective state office for the purposes of Government Code Section 85316(b)(3) only under all of the following circumstances:
(A) The contributor makes the contribution between the day the election was held for the term of office for which the officeholder account was established and the end of that term of office;
(B) The officeholder maintains the controlled committee, established for a future term of elective state office, at any time during the period covered in subparagraph (A).
(3) Cumulation and Primary and General Elections: A person's contributions to the officeholder account, when combined with contributions from the same person for a primary and general election to the elective state office may not exceed the contribution limits applicable to the primary and general election.
(4) Multiple Officeholder Accounts: When an officeholder maintains more than one officeholder account in the same calendar year, he or she may not receive the following contributions to any of those accounts during that calendar year:
(A) Contributions from a single contributor that, when cumulated for all the accounts, exceed the maximum amount the contributor could give to the officeholder account having the highest per person contribution limit under Government Code Section 85316(b)(1).
(B) Contributions from all contributors that, when cumulated for all the accounts, exceed the maximum amount in total contributions the officeholder could receive in the officeholder account having the highest aggregate contribution limit under Government Code Section 85316(b)(2).
(f) Contributions Over the Limits:
(1) An officeholder shall return to the contributor the portion of any contribution to his or her officeholder account that exceeds the limits of Government Code Section 85301, 85302 (after cumulation) or 85316 (either alone or after cumulation) by the earlier of 14 days of receipt or 14 days of the date the officeholder files a statement of intention to be a candidate for elective state office pursuant to Government Code Section 85200.
(2) A contributor to the officeholder account does not violate the contribution limits applying to the officeholder's election to a future elective state office as otherwise provided under Government Code Section 85316(b)(3) if, when he or she makes the contribution, the officeholder has not filed a statement of organization to establish a controlled committee for election to a future elective state office.
(g) Terminating Officeholder Accounts and Committees.
(1) The officeholder may not accept contributions after the officeholder's term of office ends or the date he or she leaves that office, whichever is earlier.
(2) The officeholder may redesignate the officeholder account as an officeholder controlled committee for a future term of the same office by amending the statement of organization for the committee to reflect the redesignation for the future term of office prior to the date the officer's term of office ends.
(3) An officeholder may redesignate officeholder funds in the redesignated officeholder account as officeholder funds for the new term of office, subject to the limitations in subdivision (e)(4).
(4) Once the officeholder's term of office ends or he or she leaves that office, whichever is earlier, the officeholder may only use his or her officeholder funds for the following purposes:
(A) Paying outstanding officeholder expenses.
(B) Repaying contributions to contributors to the officeholder account.
(C) Making a donation to a bona fide charitable, educational, civic, religious, or similar tax-exempt, nonprofit organization, if no substantial part of the proceeds will have a material financial effect on the officeholder, a member of his or her immediate family, or his or her committee treasurer.
(D) Paying for professional services reasonably required by the officeholder controlled committee to assist in the performance of its administrative functions.
(5) The officeholder shall terminate the officeholder controlled committee within 90 days of the date the officer's term of office ends or he or she leaves that office, whichever is earlier. The Executive Director may for good cause extend the termination date or permit the candidate to reopen the account.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84104, 85316 and 90000-90007, Government Code.
HISTORY
1. New section filed 7-3-2007; operative 8-2-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 27). For prior history, see Register 2007, No. 26.
§18531.63. Elected State Officeholder Contribution Cumulation [Repealed].
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85316, Government Code.
HISTORY
1. New section filed 1-19-2007 as an emergency; operative 1-19-2007. A Certificate of Compliance must be transmitted by OAL by 5-21-2007 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 3).
2. Repealed by operation of Government Code section 11346.1(g) (Register 2007, No. 26).
§18531.64. Winding Down Elected State Officer Officeholder Committees [Repealed].
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85316, Government Code.
HISTORY
1. New section filed 1-19-2007 as an emergency; operative 1-19-2007. A Certificate of Compliance must be transmitted by OAL by 5-21-2007 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 3).
2. Repealed by operation of Government Code section 11346.1(g) (Register 2007, No. 26).
§18531.7. Payments for Communications--Section 85312.
Note • History
(a) Definitions. For purposes of Government Code section 85312 “payments for communications to members” are any payments made by an organization or its sponsored committee for the publication, dissemination or communication to the organization's members, employees, or shareholders, or to the families of the organization's members, employees or shareholders by newsletter, letter, flyer or the like of material, written or spoken, that supports or opposes a candidate or ballot measure. “Payments for communications to members” do not include any payments made by an organization for general public advertising such as broadcasting, billboards, and newspaper advertisements or for communications to persons who are not members, employees, or shareholders, or families of members, employees, or shareholders of the organization.
(1) An “organization,” other than a political party, means a sole proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, limited liability company, association, labor union and any other organization or group of persons acting in concert, including a committee as defined by Government Code section 82013, but excluding a candidate or individual.
(2) “Member” means any person who, pursuant to a specific provision of an organization's articles or bylaws, has the right to vote directly or indirectly for the election of a director or directors or an officer or officers or on a disposition of all or substantially all of the assets of the organization or on a merger or on a dissolution. “Member” also means any person who is designated in the articles or bylaws as a member and, pursuant to a specific provision of an organization's articles or bylaws, has the right to vote on changes to the articles or bylaws, or pays or has paid membership dues in an amount predetermined by the organization so long as the organization is tax exempt under 26 U.S.C. 501, subdivision (c). Members of a local union are considered to be members of any national or international union of which the local union is a part and of any federation with which the local, national, or international union is affiliated.
(3) A person is not a “member” of an organization if the person is only on a mailing or contact list of the organization without meeting the definition provided in subdivision (a)(2) of this regulation.
(4) “Shareholder” means the person in whose name shares are registered in the records of a corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation.
(5) “Family” means a member's, employee's, or shareholder's spouse, domestic partner as defined by Family Code section 297, dependent children, and parents who reside with the member, employee, or shareholder.
(b) An organization meets the requirements of subdivisions (a)(1) and (a)(2) of this regulation where it is comprised of 25 or fewer individuals and the communication is directed only to those individuals and their families.
(c) Calculation of Payments Subject to Government Code section 85312. “Payments for communications” includes the following:
(1) Any payment made by an organization for costs directly attributable to the communication including but not limited to salaries, production, postage, space or time purchased, agency fees, printing and any additional administrative or overhead costs attributable to the communication.
(2) Any payment for costs directly attributable to a communication from an organization inadvertently delivered to persons other than members, employees, or shareholders or families of members, employees, or shareholders provided those costs do not exceed $100 or 5% of the total cost of the communication to an organization's members, employees, or shareholders or families of members, employees, or shareholders, whichever is higher, notwithstanding subdivision (c)(1) above.
(d) Notwithstanding any provision of this regulation, a payment for a communication to members, employees, shareholders or families of members, employees or shareholders of an organization for the purpose of supporting or opposing a candidate or ballot measure shall be regarded as a contribution or expenditure if it is paid for by a person other than the organization, its sponsored committee, or its members, employees or shareholders, or paid from funds received by the organization or its sponsored committee from a person other than the organization's members, employees or shareholders that are earmarked for the communication.
(e) A payment that is made at the behest of a candidate or committee for communications to members, employees, shareholders, or families of members, employees, or shareholders of an organization for the purpose of supporting or opposing a candidate or a ballot measure is not a contribution to the candidate or committee at whose behest the communication was made.
(f) If the organization is a committee organized under Government Code section 82013, subdivision (a), and therefore already subject to the reporting requirements of Chapter 4 of this title, the payment is reportable in accordance with the requirements of Government Code section 84211, subdivisions (b), (i), (j) and (k)(1), (2), (3), (4), and (6).
(g) Provisions of Government Code section 85312 and this regulation apply to communications supporting or opposing a local candidate or local measure.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 82025, 85303, 85312 and 85703, Government Code.
HISTORY
1. New section filed 10-31-2002; operative 10-31-2002. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 44).
§18531.10. Communications Identifying State Candidates.
Note • History
(a) Definitions. For purposes of Government Code section 85310:
(1) A candidate is “clearly identified” if the communication states his or her name, makes unambiguous reference to his or her office or status as a candidate, or unambiguously describes him or her in any manner. A candidate also is “clearly identified” if the communication contains the voice or a visual depiction of the candidate. A candidate is not considered “clearly identified” if the candidate's name is required by the provisions of state or federal law to appear in the communication and the candidate is not singled out in the manner of display.
(2) A communication “expressly advocate[s]” the election or defeat of a candidate as that term is defined in 2 Cal. Code Regs. section 18225, subdivision (b)(2).
(3) A communication is “made at the behest” of a candidate as that term is defined in 2 Cal. Code Regs. section 18225.7.
(b) The $50,000 threshold contained in subdivision (a) of Government Code section 85310 is met when a person makes or promises to make a payment or payments totaling $50,000.
(c) Communications are subject to subdivision (a) of Government Code section 85310 if they occur within 45 days before an election for which the candidate identified is on the ballot.
(d) The contribution limit referred to in subdivision (c) of Government Code section 85310 applies to all contributions received by a committee that makes or promises to make payments at the behest of a candidate for a communication described in subdivision (a) of Government Code section 85310, regardless of whether the contributions are used to fund the communication at issue. Once a committee receives a contribution or contributions in excess of the limit referenced in subdivision (c) of Government code section 85310, the committee may not make or promise to make a payment for a communication governed by that subdivision. Any contribution received by a committee that makes a communication described in subdivision (c) of Government Code section 85310 may not be attributed to a person other than the person making the contribution to that committee.
(e) The contribution limits under this regulation are subject to periodic adjustment pursuant to Government Code section 83124.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85310, Government Code.
HISTORY
1. New section filed 7-30-2004; operative 7-30-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 31).
§18532. Solicitation of Contributions in Excess of the Contribution Limits. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85301, 85302, 85303 and 85305, Government Code.
HISTORY
1. New section filed 10-19-89; operative 11-18-89 (Register 89, No. 42).
2. Amendment filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
3. Amendment of section and repealer of footnote filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
4. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18533. Contributions from Joint Checking Accounts.
Note • History
(a) A contribution made from a checking account by a check bearing the printed name of more than one individual shall be attributed to the individual whose name is printed on the check and who signs the check, unless an accompanying document directs otherwise. The document shall indicate the amount to be attributed to each contributing individual and shall be signed by each contributing individual whose name is printed on the check. If each individual whose name is printed on the check signs the check, the contribution shall be attributed equally to each individual, unless an accompanying document signed by each individual directs otherwise.
If the name of the individual who signs the check is not printed on the check, an accompanying document, signed by the contributing individuals, shall state to whom the contribution is attributed.
(b) For purposes of this regulation, each contributing individual is a “person” as defined in Government Code section 82047 and is subject to the contribution limitations set forth in Government Code sections 85301 and 85303.
(c) If the individual who signs the check or accompanying document is acting as an intermediary for another contributor, this regulation shall not apply and Regulation 18432.5 shall apply instead.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85301 and 85303, Government Code.
HISTORY
1. New section filed 2-23-90; operative 3-25-90 (Register 90, No. 11).
2. Amendment filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
3. Amendment of subsection (b) and repealer of footnote filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
4. Amendment of section and Note filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18534. Required Committee Bank Accounts.
Note • History
(a) This regulation is applicable to any committee pursuant to subdivision (a) of Government Code section 82013 that receives contributions subject to the limits of subdivision (a) or (b) of Government Code section 85303.
(b) A committee described in subdivision (a) of this regulation must make all contributions to candidates for elective state office, and to other committees for the purpose of making contributions to candidates for elective state office, from a bank account maintained and designated as an “all purpose” committee account. Checks drawn on this account must include the words “all purpose” in the title of the account appearing on the checks. (For example, “XYZ's all purpose account.”)
(c) Contributions received by a committee described in subdivision (a) of this regulation, that exceed the aggregate limits prescribed in subdivisions (a) or (b) of Government Code section 85303, must be returned pursuant to 2 Cal. Code. Regs. section 18531, or deposited into a committee bank account designated as a “restricted use” account, or may be split between a committee's “all purpose” and “restricted use” accounts at the time of deposit, with the amount deposited into the “all purpose” account not to exceed the contributor's limit under subdivisions (a) or (b) of Government Code section 85303. Within fourteen (14) calendar days following receipt, a committee may transfer any portion of the original contribution from the committee's “restricted use” account to the “all purpose” account, provided that the total amount deposited into the “all purpose” account does not exceed the contributor's limit under subdivisions (a) or (b) of Government Code section 85303. For each contribution transferred under this subdivision, the committee shall maintain records sufficient to establish that the transfer was effected within fourteen (14) calendar days of receipt. Checks drawn on any “restricted use account” must include the words “restricted use” in the title of the account appearing on the checks. (For example, “XYZ's restricted use account.”)
(d) Except by means of the transfer described in subdivision (c) above, funds from a “restricted use” account may not be used to make contributions to candidates for elective state office, or to make contributions to other committees for the purpose of making contributions to candidates for elective state office.
(e) A committee described in subdivision (a) of this regulation may transfer funds from its “all purpose” account to any other account. Any such transfers, however, need not be considered in determining whether any person contributing to the committee has or has not exceeded annual contribution limits for that person under subdivisions (a) or (b) of Government Code section 85303. Except as set forth in subdivision (c) above, a committee may not transfer funds to an “all purpose” account from any “restricted use” or other committee account.
(f) A committee making a contribution to any other committee must notify the recipient whether the contribution is from the committee's “all purpose” or “restricted use” account, or from some other account. A check with the proper designation of the account on its face shall be presumed to be adequate notification of the nature of the funds to the recipient committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85303, Government Code.
HISTORY
1. New section filed 1-9-2007; operative 2-8-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 2).
§18535. Restrictions on Contributions Between State Candidates.
Note • History
(a) Under Government Code section 85305, a candidate for elective state office, as defined in Government Code section 82024, and any committee(s) controlled by that candidate may not make any contribution to any other candidate for elective state office in excess of $3,000 per election. This amount is adjusted for inflation in January of every odd-numbered year, pursuant to Government Code section 83124 and implementing regulations, and is $3,000 in 2002.
(b) The $3,000 limit of Government Code section 85305, as adjusted for inflation, applies to contributions made by officeholders or candidates for Governor, other statewide elective offices, the Legislature, and the Board of Administration of the Public Employees' Retirement System, and their committee(s), to other candidates for elective state office, subject to the provisions of subdivision (e).
(c) The restrictions of Government Code section 85305 on contributions made by one candidate for elective state office to another apply to the aggregate total of contributions made from the personal funds or assets of the candidate and contributions made by all committees controlled by that candidate, as defined in Government Code section 82016 and 2 Cal. Code Regs. section 18217.
(d) The restrictions of Government Code section 85305 on contributions made by one candidate for elective state office to another apply to all contributions made from, and all contributions made to, any committees controlled by a candidate for elective state office, including committees formed for a pre-2001 election.
(e) Pursuant to Section 83 of Proposition 34, the restrictions of Government Code section 85305 are applicable to contributions made by legislative candidates and their controlled committees to any candidate for elective state office, on and after January 1, 2001, and are applicable to contributions made by candidates for statewide elective office, as defined in Government Code section 82053, and their controlled committees, to any candidate for elective office, on and after November 6, 2002.
COMMENT: Accordingly, on and after January 1, 2001, a legislative candidate and his or her committee(s) may not contribute to another legislative or statewide candidate in excess of $3,000 per election. On and after November 6, 2002, a statewide candidate and his or her committee(s) may not contribute to another legislative or statewide candidate in excess of $3,000 per election. During the period after January 1, 2001, and before November 6, 2002, however, a statewide candidate and his or her committee(s) is not prohibited from contributing in excess of $3,000 per election to another statewide candidate or to a legislative candidate, though a legislative candidate is prohibited from receiving contributions in excess of $3,000 per election pursuant to Government Code section 85301.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85305, Government Code.
HISTORY
1. New section filed 8-19-2002 as an emergency; operative 8-19-2002. A Certificate of Compliance must be transmitted to OAL by 12-17-2002 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2002, No. 34). For prior history, see Register 2001, No. 18.
2. Certificate of Compliance as to 8-19-2002 order transmitted to OAL 12-13-2002 and filed 1-8-2003 (Register 2003, No. 2).
§18536. Transfer and Attribution of Contributions.
Note • History
For purposes of Government Code section 85306:
(a) A committee transferring funds must designate in its records at the time of its first transfer whether it elects the “first in, first out” or a “last in, first out” method of accounting for the current and future transfers. That designation is irrevocable.
(1) “First in, first out” means that campaign funds being transferred are attributed to the transferring committee's contributors in chronological order beginning with the earliest of its contributors or, if there has been a prior transfer, beginning with the earliest contributor for which unattributed contributions remain.
(2) “Last in, first out” means that campaign funds being transferred are attributed to the transferring committee's contributors in reverse chronological order beginning with the most recent of its contributors or, if there has been a prior transfer, beginning with the most recent contributor for which unattributed contributions remain.
(3) Campaign funds shall be attributed to contributors in the lesser of the following amounts:
(A) The actual amount of the original contribution from the person to whom the campaign funds are being attributed;
(B) The applicable contribution limit under Government Code section 85301 or 85302; or
(C) The amount of campaign funds the committee is seeking to transfer that has not yet been attributed.
(b) Except as provided in subdivisions (b) and (c) of Government Code section 85306, campaign funds transferred, when aggregated with all other transfers attributable to, and contributions from, the same contributor, may not exceed the contribution limits applicable to the candidate at the time of the transfer. Campaign funds attributed to a contributor who is a candidate for elective state office at the time of the transfer, when aggregated with all other contributions from that contributor, may not exceed the amount provided in subdivision (a) of Government Code section 85301.
(c) The committee transferring the funds shall maintain records that identify the specific contributors to whom any transferred contributions have been attributed. If the transferring committee no longer is required by Government Code section 84104 to maintain detailed records, the receiving committee shall maintain either:
(1) Such records from the transferring committee as are sufficient, pursuant to paragraphs (1), (5) and (6) of subdivision (f) of Government Code section 84211, to confirm the identity of the original contributors to whom transfers are being attributed; or
(2) Copies of the transferring committee's original verified and filed campaign reports that show the original contribution received from each contributor to whom a transferred contribution is attributed.
(d) A committee receiving transferred funds must disclose on its campaign statements each attributed contribution of one hundred dollars ($100) or more, providing the same information required by subdivision (f) and, if applicable, subdivision (m) of Government Code section 84211 as disclosed on the campaign statement on which the contribution was originally reported or as contained in the committee's records at the time of the transfer.
(e) Transfers made prior to a primary election, when aggregated with all other transfers attributable to, and contributions from, the same contributor, may include amounts that could have been raised for the general election pursuant to Government Code section 85318, provided the receiving committee complies with the requirements of this section.
(f) A candidate or committee that receives a contribution which, when aggregated with contributions attributed to the same contributor, would otherwise constitute a violation of Government Code section 85301 or 85302, shall not be in violation of either of those sections provided the contribution is returned pursuant to 2 Cal. Code Regs. sections 18531.
(g) A contributor that makes a contribution which, when aggregated with contributions attributed to the same contributor, would otherwise be in violation of Government Code section 85301 or 85302, shall not be in violation of either of those sections unless the contributor was aware of the attribution at the time the contribution was made.
(h) This regulation does not apply to a candidate for statewide elective office, or the candidate's controlled committee for that office, in an election held before November 6, 2002. This regulation applies on and after November 6, 2002, to a candidate for statewide elective office, and the candidate's controlled committee for that office, in an election held on or after November 6, 2002.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85200, 85305, 85306 and 85318, Government Code.
HISTORY
1. New section filed 7-17-2001; operative 7-17-2001 (Register 2001, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-14-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements). For prior history see Register 93, No. 9.
2. Repealer and new section filed 11-6-2001; operative 11-15-2001 (Register 2001, No. 45).
§18536.1. Establishment of Separate Bank Account for Contributions in Compliance with Contribution Limitations. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code; and Section 12400, Elections Code. Reference: Sections 85200, 85201 and 85301-85306, Government Code; and Section 12400, Elections Code.
HISTORY
1. New section filed 9-26-88 as an emergency; operative 9-26-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-24-89.
2. Certificate of Compliance including amendment transmitted to OAL 12-21-88 and filed 1-19-89; operative 1-19-89 (Register 89, No. 4).
3. Change without regulatory effect repealing section filed 2-24-93; operative 2-24-93 pursuant to title 1, section 100, California Code of Regulations (Register 93, No. 9).
§18536.2. Use of Campaign Funds for Any Lawful Purpose Other Than to Support or Oppose a Candidacy for Elective Office. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code; and Section 12400, Election Code. Reference: Section 85306, Government Code; and Sections 12400 and 12401, Elections Code.
HISTORY
1. New section filed 9-26-88 as an emergency; operative 9-26-88 (Register 88, No. 41). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 1-24-89.
2. Certificate of Compliance including amendment transmitted to OAL 12-21-88 and filed 1-19-89; operative 1-19-89 (Register 89, No. 4).
3. Change without regulatory effect repealing section filed 2-24-93; operative 2-24-93 pursuant to title 1, section 100, California Code of Regulations (Register 93, No. 9).
§18537. Contribution Limits and Application to Repaid Loans.
Note • History
(a) This regulation is applicable to loans received or made that are subject to the contribution limits of chapter 5 of this title.
(b) Forgiveness of a loan made to a candidate or committee shall not constitute an additional contribution from the lender for purposes of the contribution limitations.
(c) Except as prohibited by Government Code section 85316, repayment of a loan in whole or in part shall enable the lender, guarantor, endorser, or cosigner to make additional contributions to the same candidate or committee provided that the additional contributions, when combined with the outstanding balance of any loan from that contributor, do not result in a violation of the contribution limits.
(d) Each loan received shall be reported as a contribution on the campaign report for the reporting period in which it was received regardless of whether it has been retired, forgiven, or remains outstanding in whole or in part. A candidate or committee which has repaid a loan, in whole or in part, and has received an additional contribution from the lender, shall indicate on the campaign statement that the cumulative amount of the contributor's contribution has been reduced accordingly.
NOTE
Authority cited: Section 83112, Government Code. Reference Sections 84211 and 85301-85321, Government Code.
HISTORY
1. New section filed 7-13-90; operative 8-12-90 (Register 90, No. 34).
2. Amendment filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
3. Amendment of subsection (a) and repealer of footnote filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
4. Editorial correction of subsection (b) (Register 2001, No. 18).
5. Amendment of subsection (a) and amendment of Note filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
6. Amendment of section and Note filed 6-20-2006; operative 7-20-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 25).
§18537.1. Carry Over of Contributions.
Note • History
(a) For purposes of Government Code section 85317 and this regulation, “carry over” refers to the movement of campaign funds to the candidate's controlled committee established for a subsequent election to the same elective state office without attribution as required by Government Code section 85306(a).
(b) Campaign funds are available to be “carried over” pursuant to Government Code section 85317 and this regulation only if all of the following apply:
(1) The funds to be “carried over” are held in a campaign bank account/campaign committee established for an election to elective state office occurring on or after January 1, 2001, or for candidates for statewide elective office, for an election occurring on or after November 6, 2002;
(2) The campaign bank account/campaign committee that is holding the funds to be “carried over” was established for an election that has already been held; and
(3) The funds to be “carried over” are not considered “surplus campaign funds” as defined in Government Code section 89519.
(c) For the purposes of Government Code section 85317, “subsequent election for the same elective state office” refers to:
(1) The election to the next term of office immediately following the election/term of office for which the funds were raised;
(2) The general election, which is subsequent to and for the same term of office as the primary election for which the funds were raised; or
(3) The special general election, which is subsequent to and for the same term of office as the special primary election for which the funds were raised.
(d) A candidate who establishes a campaign bank account for an election but does not file the necessary documents or otherwise fulfill the requirements of the Election Code to appear on the ballot in that election may not “carry over” campaign funds, but may transfer with attribution pursuant to Government Code section 85306 and consistent with Government Code section 85318.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84214, 85200, 85201, 85306, 85316, 85317 and 85318, Government Code.
HISTORY
1. New section filed 4-19-2002; operative 5-19-2002 (Register 2002, No. 16).
2. Amendment of subsection (c) and new subsections (c)(1)-(d) filed 5-8-2006; operative 6-7-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 19).
3. Amendment of subsection (d) and Note filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18538. Ballot Measure Committees; Expenditures as Contributions to Candidates. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85301, 85302, 85303 and 85305, Government Code.
HISTORY
1. New section filed 9-20-90 as an emergency; operative 9-20-90 (Register 90, No. 44). A Certificate of Compliance must be transmitted to OAL by 1-18- 91 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 91, No. 46).
§18538.2. Political Endorsements. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015 and 85304, Government Code.
HISTORY
1. New section filed 9-17-90 as an emergency; operative 9-17-90 (Register 90, No. 43). A Certificate of Compliance must be transmitted to OAL by 1-15- 91 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 91, No. 46).
§18539. Online Disclosure of Contributions.
Note • History
(a) Reports filed under Section 85309 are not required to be filed on paper. A report filed online or electronically pursuant to this section must contain the following information:
(1) The name and address of the filer and, if applicable, the filer's identification number issued by the Secretary of State.
(2) Date of the filing.
(3) Identification of amended information.
(4) The date the contribution was received.
(5) The full name and address of the contributor and the contributor's identification code. If the contributor is an individual, his or her occupation and employer.
(6) The amount of the contribution.
(b) Under Section 85309(a) and (b), candidates for elective state office and primarily formed state ballot measure committees that file electronically under Section 84605, must file online 24-hour reports disclosing contributions of $1,000 or more received during an “election cycle.” Section 85204 defines “election cycle” for purposes of Section 85309 and 85500 to mean the period of time commencing 90 days prior to an election and ending on the date of the election. The “election” referred to in Section 85204 means a state election where the candidate or measure for which the contribution was received or in connection with which the independent expenditure was made will be listed on the ballot.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85204 and 85309, Government Code.
HISTORY
1. New section filed 6-25-2001 as an emergency; operative 6-25-2001. A Certificate of Compliance must be transmitted to OAL by 10-23-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 26). For prior history, see Register 2001, No. 18.
2. Repealed by operation of Government Code section 11346.1(g) (Register 2001, No. 46).
3. New section filed 1-16-2002; operative 2-15-2002 (Register 2002, No. 3).
4. Amendment of section and Note filed 1-10-2012; operative 2-9-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 2).
§18539.2. Reporting Payments Pursuant to Government Code Section 85310.
Note • History
(a) Reports filed under Government Code section 85310 are not required to be filed on paper. A report filed online or electronically pursuant to this section must contain the following information:
(1) The name and address of the person making a payment or a promise of payment totaling $50,000 or more for a communication described in Government Code section 85310, subdivision (a);
(2) If the person making a payment or a promise of payment is an individual, his or her occupation and employer;
(3) The amount(s) of the payment(s) or promise of payment;
(4) If the person making a payment or a promise of payment is a committee under Government Code section 82013, subdivision (a), the identification number issued to the committee by the Secretary of State;
(5) The date(s) of the payment(s) or promise of payment;
(6) The name(s) of and office(s) sought or held by the candidate(s) identified in the communication;
(7) A description of the method of communication for which the payment of $50,000 or more was made, such as television or radio broadcasts, print advertisements, or literature and mailings; and
(8) Identification of amended information.
(b) The Secretary of State will provide a mechanism for the filer to acknowledge his or her execution of a written declaration verifying the online or electronically filed report in accordance with subdivision (e) of this regulation.
(c) If the person making a payment or a promise of payment has received a payment or promise of payment totaling $5,000 or more from any other person(s) for the purpose of making the communication, the report must also contain the following information:
(1) The name and address of the person from whom a payment or promise of payment was received;
(2) If the person making a payment or a promise of payment is an individual, his or her occupation and employer;
(3) The date(s) of the payment(s) or a promise of payment;
(4) The amount(s) of the payment(s) or promise of payment; and
(5) If the person making a payment or a promise of payment is a committee under Government Code section 82013, subdivision (a), the identification number issued to the committee by the Secretary of State.
(d) To meet the requirements for verification under this title, a report required to be filed under Government Code section 85310 must contain or be verified by a written electronic filing declaration signed and verified in accordance with Government Code section 81004.
(e) The original declaration must:
(1) Include the statement, “I have used all reasonable diligence in preparing this report and to the best of my knowledge the information contained herein is true and complete. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”;
(2) Be signed, dated and verified on the same date the report is transmitted to the Secretary of State; and
(3) Be retained in the filer's records for five years following the date that the campaign report to which it relates is filed. The declaration must be furnished to an enforcement or auditing agency upon request.
(f) An electronically transmitted report will be considered complete and filed when the conditions in subdivision (e) of this regulation are met.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81004, 83112 and 85310, Government Code.
HISTORY
1. New section filed 6-25-2001 as an emergency; operative 6-25-2001. A Certificate of Compliance must be transmitted to OAL by 10-23-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 26).
2. Certificate of Compliance as to 6-25-2001 order transmitted to OAL 10-17-2001 and filed 11-16-2001 (Register 2001, No. 46).
3. New subsection (a)(7), subsection renumbering and amendment of newly designated subsection (a)(8) filed 10-9-2002; operative 10-9-2002. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 41).
§18540. Voluntary Expenditure Ceilings.
Note • History
(a) For purposes of Government Code section 85400, campaign expenditures shall be allocated to primary, general, special, or runoff elections as follows:
(1) Expenditures related to mailing or distribution of campaign literature, signs, buttons, bumper stickers and similar items, shall be allocated to the next election following the date(s) on which the expenditures were made or, if the election is held on the date when the expenditures were made, to the election held on that date.
(2) Expenditures related to publications in broadcast, print or electronic media shall be allocated to the next election following the date(s) specified in the contract for broadcast, publication, or dissemination or, if the election is held on the date specified for publication, broadcast, or dissemination, to the election held on that date.
(3) Expenditures related to telephone banks, including costs of design and operation, costs of installing or renting telephone lines and equipment, toll charges, personnel costs, rental of office space, and associated consultants' fees, shall be allocated to the next election following the date(s) on which the expenditures were made or, if the election is held on the date when the expenditures were made, to the election held on that date.
(4) Expenditures on professional services, including fees and costs of campaign consultants and pollsters, shall be allocated to the next election following the date(s) on which the expenditures were made or, if the election is held on the date when the expenditure was made, to the election held on that date. In the event that a contract for professional services allocates specific fees and costs to particular elections, the terms of the contract will govern allocation of expenditures to each election. If a contract provides for a bonus payment should the candidate win a particular election, the bonus payment is an expense of the election whose result triggers the payment obligation.
(5) Overhead expenditures, including expenditures related to the lease of office space, payments for utilities, rental or purchase of office equipment and furnishings, miscellaneous supplies, costs of internal copying and printing, monthly telephone charges, personnel costs, and candidate or staff travel expenses, shall be allocated to the next election following the date(s) on which the expenditures were made or, if the election is held on the date when the expenditures were made, to the election held on that date.
(6) Expenditures related to campaign fundraising shall be allocated to the election for which the funds were raised. If fundraising expenditures cannot be assigned in this manner to a particular election, fundraising expenditures shall be allocated to the next election following the date(s) on which the expenditures were made or, if the election is held on the date when the expense was incurred, to the election held on that date. Fundraising expenditures for the payment of debts under Government Code section 85316 shall not be counted against the voluntary expenditure ceilings established under Government Code section 85400.
(7) Unless there is a clear indication to the contrary, campaign expenditures not described in subdivisions (a)(1) through (a)(6) of this regulation shall be allocated to the next election following the date(s) on which the expenditures were made or, if the election is held on the date when the expenditure was made, to the election held on that date. Refunds of any expenditure on goods or services not provided to or used by the campaign shall be credited to the election for which the expenditure would otherwise have been allocated.
(8) The candidate shall maintain records establishing that his or her allocation of campaign expenditures under Government Code section 85400 was consistent with the provisions of the Act and of this regulation.
(b) The allocation of expenditures under this regulation shall be reported pursuant to subdivision (c) of 2 Cal. Code Regs. section 18421.4.
(c) A non-monetary contribution is deemed to be a campaign expenditure made by the receiving committee on the date of receipt, which counts against the voluntary expenditure limits prescribed by Government Code section 85400, if an expenditure for equivalent goods or services would have been a campaign expenditure described in subdivision (a) of this regulation. For purposes of Government Code section 85400, the amount of the expenditure shall be the fair market value of the contribution on the date of receipt.
(d) Expenditures not counted against the voluntary expenditure limits prescribed by Government Code section 85400 include, but are not limited to, contributions to other candidates or committees, costs associated with preparing and filing campaign finance reports required under the Act, candidate filing fees, and costs of ballot pamphlet statements.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 85400 and 85402, Government Code.
HISTORY
1. New section filed 11-26-2001; operative 12-26-2001 (Register 2001, No. 48). For prior history, see Register 92, No. 28.
2. Amendment of subsection (b) filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
§18541. Voluntary Expenditure Limits--Notification and Designation Requirements. [Repealed]
Note • History
NOTE
Authority cited: Sections 83112, Government Code. Reference: Sections 85400 through 85404 and 85602, Government Code.
HISTORY
1. New section filed 1-6-97 as an emergency; operative 1-6-97. Submitted to OAL for printing only (Register 97, No. 2).
2. Editorial correction of History 1 (Register 97, No. 25).
3. Section refiled as a permanent regulation 6-17-97, including amendments to subsections (d) and (e); operative 6-17-97. Submitted to OAL for printing only (Register 97, No. 25).
4. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
5. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
§18542. Notification of Personal Contributions in Excess of the Voluntary Expenditure Limits.
Note • History
(a) A candidate for elective state office, other than a candidate for the State Public Employees Retirement Board, who makes personal contributions to his or her own campaign which in the aggregate are in excess of the applicable voluntary expenditure limits set forth in Government Code section 85400, must disclose on an initial or amended statement of intention specified in section 85200, the date on which the candidate's personal contributions exceeded the expenditure limit if any candidate in that race has accepted the voluntary expenditure limits.
(b) Filing requirements:
(1) The statement of intention shall be filed within 24 hours of making a personal contribution or contributions which exceeds the expenditure limits in Government Code section 85400;
(2) The statement of intention shall be personally delivered or sent by guaranteed overnight delivery; and
(3) The original statement of intention shall be sent to the Secretary of State, who will make the information publicly available.
(c) Personal contributions to be counted toward the expenditure limit include transfers of personal funds from any other controlled committee of the candidate.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85200, 85400, 85401 and 85402, Government Code.
HISTORY
1. New section filed 6-19-2001; operative 6-19-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 25).
2. Editorial correction amending History 1 (Register 2001, No. 29).
3. Certificate of Compliance as to 6-19-2001 order transmitted to OAL 10-17-2001 and filed 10-29-2001 (Register 2001, No. 44).
§18543. Lifting of Voluntary Expenditure Limits.
Note • History
For purposes of Government Code section 85402, subdivision (a), all candidates for an elective state office who have accepted the voluntary expenditure limits are not bound by those limits if any candidate for the same office, whether in the primary (or special) or general (or special runoff) election, contributes personal funds to his or her own campaign in excess of the limits set forth in Government Code section 85400.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85400 and 85402, Government Code.
HISTORY
1. New section filed 10-29-2001 as an emergency; operative 10-29-2001 (Register 2001, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-2002 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements).
2. Repealer and new section filed 2-19-2002; operative 2-26-2002 pursuant to Government Code section 11343.4. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2002, No. 8).
§18544. Campaign Contribution and Voluntary Expenditure COLA Formula.
Note • History
(a) For purposes of Government Code Section 83124, beginning the year 2002 the cost of living adjustment shall be calculated as follows.
(1) The contribution limitations in Government Code Sections 85301, 85302 and 85303 shall be adjusted biennially by the Commission to reflect changes in the California Consumer Price Index (CPI). The adjustments shall be made using the following formula: the contribution limit amount in effect January 1, 2001, multiplied by the annual CPI, divided by the base CPI from 2000, rounded to the nearest one hundred dollars ($100).i The resulting figure shall be the adjusted contribution limitation in effect for all state elections held until the next odd numbered year.
(2) The voluntary expenditure ceilings in Government Code Section 85400 shall be adjusted biennially by the Commission to reflect changes in the California Consumer Price Index. The adjustment shall be made using the following formula: the voluntary expenditure ceiling amount in effect January 1, 2001, multiplied by the annual CPI, divided by the base CPI from 2000, rounded to the nearest one thousand dollars ($1,000).ii The resulting figure shall be the adjusted voluntary expenditure limitation in effect for all state elections held until the next odd numbered year.
(b) For purposes of Government Code Section 85316(b), beginning the year 2006 the cost of living adjustment shall be calculated as follows.
(1) The contribution limitation shall be adjusted biennially by the Commission to reflect changes in the California Consumer Price Index (CPI). The adjustment shall be made using the following formula: the contribution limit amount in effect January 1, 2007, multiplied by the annual CPI, divided by the base CPI from 2006, rounded to the nearest one hundred dollars ($100). The resulting figure shall be the adjusted contribution limitation in effect for all state officeholders until the next odd numbered year.
(c) The adjustments shall be based upon the September forecast of U.S. Bureau of Labor Statistics California Consumer Price Index for All Urban Consumers for the calendar year immediately preceding the year in which the adjustment is to take effect.
i For example, the annual average California CPI for All Urban Consumers for 2000 is 174.8. In 2002, the California CPI increased to 187.4. Therefore an adjusted contribution limit beginning in 2003 that was $3,000 would be calculated as follows:
$3,000 x 187.4 = $3,216 ($3,200 rounded to the nearest $100)
174.8
ii For example, the annual average California CPI for All Urban Consumers for 2000 is 174.8. In 2002, the California CPI increased to 187.4. Therefore an adjusted expenditure ceiling beginning in 2003 that was $400,000 would be calculated as follows:
$400,000 x 187.4 = $428,833 ($429,000 rounded to the nearest $1,000)
174.8
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83124, 85301, 85302, 85303, 85316 and 85400, Government Code.
HISTORY
. 1. New section filed 10-4-2002; operative 10-4-2002. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 40).
2. New subsections (b)-(b)(1) and subsection relettering filed 1-19-2007 as an emergency; operative 1-19-2007. A Certificate of Compliance must be transmitted by OAL by 5-21-2007 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 3).
3. Reinstatement of section as it existed prior to 1-19-2007 emergency amendment by operation of Government Code section 11346.1(f) (Register 2007, No. 26).
4. Amendment of section and Note filed 7-3-2007; operative 8-2-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 27).
§18545. Contribution Limit and Voluntary Expenditure Ceiling Amounts.
Note • History
(a) Campaign Contribution Limits
(1) For purposes of Section 85301(a), the adjusted contribution limit in effect for candidates for the Senate or Assembly and candidates for elected seats to the Board of Administration of the Public Employees Retirement System, for an election occurring during the period January 1, 2011 through December 31, 2012 is $3,900 per person.
(2) For purposes of Section 85301(b), the adjusted contribution limit in effect for candidates for Lieutenant Governor, Secretary of State, Attorney General, Treasurer, Controller, Superintendent of Public Instruction, Insurance Commissioner and Board of Equalization members for an election occurring during the period January 1, 2011 through December 31, 2012 is $6,500 per person.
(3) For purposes of Section 85301(c), the adjusted contribution limit in effect for candidates for Governor for an election occurring during the period January 1, 2011 through December 31, 2012 is $26,000 per person.
(4) For purposes of Section 85302(a), the adjusted contribution limit in effect for candidates for Senate or Assembly and candidates for elected seats to the Board of Administration of the Public Employees Retirement System, for an election occurring during the period January 1, 2011 through December 31, 2012 is $7,800 per small contributor committee.
(5) For purposes of Section 85302(b), the adjusted contribution limit in effect for candidates for Lieutenant Governor, Secretary of State, Attorney General, Treasurer, Controller, Superintendent of Public Instruction, Insurance Commissioner and Board of Equalization members for an election occurring during the period January 1, 2011 through December 31, 2012 is $13,000 per small contributor committee.
(6) For purposes of Section 85302(c), the adjusted contribution limit in effect for candidates for Governor for an election occurring during the period January 1, 2011 through December 31, 2012 is $26,000 per small contributor committee.
(7) For purposes of Section 85303(a), the adjusted annual contribution limit to any committee, other than a political party committee, in effect for an election occurring during the period January 1, 2011 through December 31, 2012 is $6,500 per person.
(8) For purposes of Section 85303(b), the adjusted annual contribution limit to any political party committee in effect for an election occurring during the period January 1, 2011 through December 31, 2012 is $32,500 per person.
(b) Voluntary Expenditure Ceilings
(1) For purposes of Section 85400(a)(1), the adjusted voluntary expenditure ceiling in effect for Assembly candidates for an election occurring during the period January 1, 2011 through December 31, 2012 is $520,000 in the primary or special primary election and $909,000 in the general or special general election.
(2) For purposes of Section 85400(a)(2), the adjusted voluntary expenditure ceiling in effect for Senate candidates for an election occurring during the period January 1, 2011 through December 31, 2012 is $780,000 in the primary or special primary election and $1,169,000 in the general or special general election.
(3) For purposes of Section 85400(a)(3), the adjusted voluntary expenditure ceiling in effect for State Board of Equalization candidates for an election occurring during the period January 1, 2011 through December 31, 2012 is $1,299,000 in the primary election and $1,949,000 in the general election.
(4) For purposes of Section 85400(a)(4), the adjusted voluntary expenditure ceiling in effect for a candidate for Lieutenant Governor, Secretary of State, Attorney General, Treasurer, Controller, Superintendent of Public Instruction, and Insurance Commissioner for an election occurring during the period January 1, 2011 through December 31, 2012 is $5,179,000 in the primary election and $7,795,000 in the general election.
(5) For purposes of Section 85400(a)(5), the adjusted voluntary expenditure ceiling in effect for a candidate for Governor for an election occurring during the period January 1, 2011 through December 31, 2012 is $7,795,000 in the primary election and $12,992,000 in the general election.
(c) Officeholder Contribution Limits (per contributor per calendar year)
(1) For purposes of Section 85316, the adjusted contribution limit in effect for officeholders in the Senate or Assembly for calendar year 2011 and 2012 is $3,200 per person per calendar year.
(2) For purposes of Section 85316, the adjusted contribution limit in effect for officeholders in statewide elected state offices (other than Governor) for calendar year 2011 and 2012 is $5,400 per person per calendar year.
(3) For purposes of Section 85316, the adjusted contribution limit in effect for the officeholder in the Governor's office for calendar year 2011 and 2012 is $21,600 per person per calendar year.
(d) Officeholder Contribution Limits (aggregate)
(1) For purposes of Section 85316, the adjusted aggregate officeholder contribution limit in effect for officeholders in the Senate or Assembly for calendar years 2011 and 2012 is $53,900 per calendar year.
(2) For purposes of Section 85316, the adjusted aggregate officeholder contribution limit in effect for officeholders in statewide elected state offices (other than Governor) for calendar years 2011 and 2012 is $107,900 per calendar year.
(3) For purposes of Section 85316, the adjusted aggregate officeholder contribution limit in effect for the officeholder in the Governor's office for calendar years 2011 and 2012 is $215,800 per calendar year.
(e) The contribution limit and the voluntary expenditure ceiling adjustments shall be made pursuant to Regulation 18544.
(f) As of January 1, 2007, the contribution limit and voluntary expenditure ceiling adjustments of this regulation also will apply to elections held after December 31, 2012, until these limits are adjusted by the Commission for the next biennial period.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 83124, 85301, 85302, 85303, 85316 and 85400, Government Code.
HISTORY
1. New section filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
2. Amendment filed 12-31-2004; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2004, No. 53).
3. Amendment filed 12-18-2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
4. Amendment of section and Note filed 7-3-2007; operative 8-2-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2007, No. 27).
5. Amendment filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
6. Amendment filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
§18550. Online Disclosure of Independent Expenditures.
Note • History
(a) Reports filed under Section 85500 are not required to be filed on paper. A report filed online or electronically pursuant to this section must contain the following information:
(1) The name and address of the filer and, if applicable, the filer's identification number issued by the Secretary of State.
(2) Date of the filing.
(3) Identification of amended information.
(4) The date of each expenditure.
(5) A description of each expenditure.
(6) The amount of each expenditure.
(7) If the expenditure was in connection to a candidate, the candidate's name, the office sought or held and, if applicable, district number. In addition, the report must identify whether the expenditure was made to support or oppose the candidate.
(8) If the expenditure was made in connection with a ballot measure, the ballot measure's name, including its number or letter, and the jurisdiction. In addition, the report must identify whether the expenditure was made to support or oppose the ballot measure.
(b) If the filer is a recipient committee formed pursuant to Section 82013, the filer must disclose contributions of $100 or more received after the closing date of the last campaign statement through the date of the independent expenditure. If no previous campaign statement has been filed, disclose such contributions received since January 1 of the current calendar year. Also include the following information:
(1) The full name and address of each contributor and the contributor's identification code. If the contributor is an individual, his or her occupation and employer.
(2) The date and amount of the contribution.
(3) The interest rate if the contribution is a loan.
(c) Under Section 85500, any committee that files electronically under Section 84605 making independent expenditures on state candidates or measures, must file online 24-hour reports disclosing independent expenditures of $1,000 or more made during an “election cycle.” Section 85204 defines “election cycle” for purposes of Sections 85309 and 85500 to mean the period of time commencing 90 days prior to an election and ending on the date of the election. The “election” referred to in Section 85204 means a state election where the candidate or measure for which the contribution was received or in connection with which the independent expenditure was made will be listed on the ballot.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85204 and 85500, Government Code.
HISTORY
1. New section filed 6-25-2001 as an emergency; operative 6-25-2001. A Certificate of Compliance must be transmitted to OAL by 10-23-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 26). For prior history, see Register 2001, No. 18.
2. Repealed by operation of Government Code section 11346.1(g) (Register 2001, No. 46).
3. New section filed 1-16-2002; operative 2-15-2002 (Register 2002, No. 3).
4. Amendment of subsections (a) and (b), new subsection (c) and amendment of Note filed 1-10-2012; operative 2-9-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 2).
§18550.1. Independent and Coordinated Expenditures.
Note • History
(a) For purposes of Government Code section 85500(b), an expenditure is not considered independent, and shall be treated as a contribution from the person making the expenditure to the candidate on whose behalf, or for whose benefit, the expenditure is made, if the expenditure funds a communication that expressly advocates the nomination, election or defeat of a clearly identified candidate and is made under the following circumstances:
(1) The expenditure is made at the request, suggestion, or direction of, or in cooperation, consultation, concert or coordination with, the candidate on whose behalf, or for whose benefit, the expenditure is made, or
(2) The communication funded by the expenditure is created, produced or disseminated,
(A) After the candidate has made or participated in making any decision regarding the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement of the communication, or
(B) After discussion between the creator, producer or distributor of a communication, or the person paying for that communication, and the candidate, regarding the content, timing, location, mode, intended audience, volume of distribution or frequency of placement of that communication, the result of which is agreement on any of these topics.
As used throughout this regulation, the term “candidate” includes a candidate controlled committee and the agent of the candidate or controlled committee, when the agent acts within the course and scope of his or her agency.
(b) In addition to the rule provided in subdivision (a) of this regulation, there shall be a presumption that an expenditure funding a communication that expressly advocates the nomination, election or defeat of a clearly identified candidate is not independent of the candidate on whose behalf, or for whose benefit, the expenditure is made, when
(1) It is based on information about the candidate's campaign needs or plans provided to the expending person by the candidate, or
(2) It is made by or through any agent of the candidate in the course of the agent's involvement in the current campaign, or
(3) The person making the expenditure retains the services of a person who provides the candidate with professional services related to campaign or fundraising strategy for that same election, or
(4) The communication replicates, reproduces, republishes or disseminates, in whole or in substantial part, a communication designed, produced, paid for or distributed by the candidate.
(c) Notwithstanding the foregoing, an expenditure shall not be considered a contribution to a candidate merely because:
(1) The person making the expenditure interviews the candidate on issues affecting the person making the expenditure, or
(2) The person making the expenditure has obtained a photograph, biography, position paper, press release, or similar material from the candidate, or
(3) The person making the expenditure has previously made a contribution to the candidate, or
(4) The person makes an expenditure in response to a general, non-specific request for support by a candidate, provided that there is no discussion with the candidate prior to the expenditure relating to details of the expenditure, or
(5) The person making the expenditure has invited the candidate to make an appearance before the person's members, employees, shareholders, or the families thereof, provided that there is no discussion with the candidate prior to the expenditure relating to details of the expenditure, or
(6) The person making the expenditure informs the candidate that the person has made an expenditure, provided that there is no other exchange of information, not otherwise available to the public, relating to details of the expenditure, or
(7) The expenditure is made at the request or suggestion of the candidate for the benefit of another candidate or committee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85500(b), Government Code.
HISTORY
1. New section filed 4-9-2003; operative 4-9-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 15).
§18564. Notice Requirement for Independent Expenditures Exceeding $10,000. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85604, Government Code.
HISTORY
1. New section filed 1-25-90; operative 2-24-90 (Register 90, No. 5).
2. Repealer filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
Article 1. Statewide Measures
§18570. Return of Contributions with Insufficient Donor Information.
Note • History
(a) The 60-day period within which a contribution must be returned pursuant to Government Code section 85700 commences on the first day the candidate or committee, or an agent of a candidate or committee, obtains possession or control of the contribution.
(b) Pending receipt of the information required by Government Code section 85700, a candidate or committee, or an agent of a candidate or committee, may deposit a monetary contribution in the candidate's or committee's campaign bank account.
(c) A contribution lacking the information required by Government Code section 85700 is deemed returned on the date the contribution or its monetary equivalent is mailed, delivered or otherwise transmitted to the contributor within 60 calendar days of the date identified according to subdivision (a) of this regulation. If the contribution cannot be returned, the contribution shall be paid within 60 calendar days of the date identified according to subdivision (a) of this regulation to the Secretary of State for deposit in the General Fund of the State. If the contribution was made in connection with a local election, the contribution shall be paid to the general fund of the local jurisdiction in which the committee is based.
(d) A candidate or committee shall maintain in its files a record of the date on which the information required by Government Code section 85700 was obtained, if that date is different from the date the contribution is received.
(e) Except as provided otherwise, campaign disclosure statements shall be amended within 70 calendar days of the closing date of the reporting period to include information required by Government Code section 85700 that is obtained after the original disclosure statement is filed. Campaign disclosure statements filed pursuant to Government Code sections 84203, 84204, 85309 and 85500 need not be amended pursuant to this regulation.
(f) Contributions that are returned by check, pursuant to Government Code section 85700, which are not cashed by the original contributor within 90 calendar days of being returned, pursuant to subdivision (c) of this regulation, shall be paid within an additional 30 calendar days to the Secretary of State for deposit in the General Fund of the State. If the contribution was made in connection with a local election, the contribution shall be paid to the general fund of the local jurisdiction in which the committee is based.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 84213 and 85700, Government Code.
HISTORY
1. New section filed 10-9-2001; operative 11-8-2001 (Register 2001, No. 41). For prior history, see Register 78, No. 5.
2. Amendment of subsection (c) and new subsection (f) filed 7-20-2005; operative 8-19-2005 (Register 2005, No. 29).
§18572. Lobbyist Contributions--Making a Contribution Defined.
Note • History
(a) A lobbyist makes a contribution prohibited by Government Code section 85702 when any of the following occur:
(1) he or she mails, delivers or otherwise transmits to an elected state officer, a candidate for elective state office or his or her controlled committee, or to a committee primarily formed to support or oppose such a candidate, that the lobbyist is registered to lobby, a contribution as defined in Government Code section 82015 and 2 Cal. Code Regs. section 18215, and the contribution is made from the lobbyist's personal funds or assets. A contribution will be deemed to be made from a lobbyist's personal funds or assets when the contribution is made from assets which are the personal property of the lobbyist, unless pursuant to 2 Cal. Code Regs. section 18533 the contribution is attributed to another person.
(2) the contribution is made by a business entity, including a lobbying firm, owned in whole or in part by a lobbyist, and the lobbyist participates in the decision to make the contribution.
(3) the contribution is made from funds of a committee comprised in part of personal funds or resources of a lobbyist and the lobbyist participates in the decision to make the contribution.
(b) Nothing in this regulation shall be construed to prohibit a lobbyist from advising his or her client or lobbyist employer regarding the making of a contribution.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015 and 85702, Government Code.
HISTORY
1. New section filed 6-6-2002; operative 7-6-2002 (Register 2002, No. 23).
2. Editorial correction of subsection (a)(1) (Register 2004, No. 17).
§18573. Proposition 34 Provisions Applicable to Local Jurisdictions. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82016, 83116, 83116.5, 84204, 84305.6, 84511, 85100, 85202, 85206, 85308, 85312, 85501, 85700, 85701, 85703, 89510, 89519, 91000, 91004, 91005.5 and 91006, Government Code.
HISTORY
1. New section filed 1-22-2001 as an emergency; operative 1-22-2001. A Certificate of Compliance must be transmitted to OAL by 5-22-2001 or emergency language will be repealed by operation of law on the following day. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 4).
2. Repealed by operation of Government Code section 11346.1(g) (Register 2003, No. 10).
§18580. Direct Personal Benefit Defined. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 85800, Government Code.
HISTORY
1. Repealer filed 4-14-76; effective thirtieth day thereafter (Register 76, No. 16).
2. New section filed 11-15-90; operative 12-15-90 (Register 90, No. 50).
3. Renumbering and amendment of former section 18580 to section 18960 filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
§18585. Defining “Acting Jointly.” [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code.
HISTORY
1. Repealer filed 4-14-76; effective thirtieth day thereafter (Register 76, No. 16).
2. Change without regulatory effect adding Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
§18586. Statements of Intent. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code.
HISTORY
1. Repealer filed 4-14-76; effective thirtieth day thereafter (Register 76, No. 16).
2. Change without regulatory effect adding Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
§18587. Procedure for Reviewing Statements of Intent (85300-85305). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85300-85305, Government Code.
HISTORY
1. New section filed 9-30-75 as an emergency; effective upon filing (Register 75, No. 40).
2. Certificate of Compliance filed 1-23-76 (Register 76, No. 4).
3. Repealer filed 4-14-76; effective thirtieth day thereafter (Register 76, No. 16).
§18588. Statements of Intent: Combined Filings; Separations After a Combined Filing. (85300-85305). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 85300-85305, Government Code.
HISTORY
1. New section filed 10-9-75 as an emergency; effective upon filing (Register 75, No. 41).
2. Certificate of Compliance filed 1-23-76 (Register 76, No. 4).
3. Repealer filed 4-14-76; effective thirtieth day thereafter (Register 76, No. 16).
§18590. Formula for Authorization to Spend. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code.
HISTORY
1. Repealer filed 4-14-76; effective thirtieth day thereafter (Register 76, No. 16).
2. Change without regulatory effect adding Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
Chapter 6. Lobbyists
§18600. Duties and Prohibitions of Lobbyists, Lobbying Firms, and Lobbyist Employers (86100-86300).
Note
When any duty or prohibition is imposed upon a lobbyist, lobbying firm or a lobbyist employer by Chapter 6 of the Political Reform Act, that duty or prohibition shall begin as of the day the lobbyist, lobbying firm or lobbyist employer contracts or is employed to influence or attempts to influence the action of any agency which will or should be but has not heretofore been listed on the registration statement of the lobbying firm or the lobbyist employer of the lobbyist.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86100-86203, Government Code.
(Chapter 6, Sections 18600, 18618 and 18650, filed as an emergency 6-30-75, operative 6-30-75; Certificate of Compliance included; Register 75, No. 27).
HISTORY
1. Amendment of subsections (a)-(c) filed as an emergency 5-28-86, making the following changes:
. Subsection (a): deleted designation “(a),” “employer of a” after “upon a lobbyist', and “extend to all state candidates, committees supporting state candidates, elective state officials, legislative officials (and to the related individuals or entities specified in the Act) and to such agency officials (and related individuals or entities) of those agencies which are, or should be listed on the lobbyist's registration statement under Government Code Section 86101(c) or 86103. These duties and prohibitions” after “prohibition shall,” “a” after “of the day,” and “his” after “registration statement”; added “lobbying firm” after “upon a lobbyist,” “employer” before “by Chapter 6,” “the” after “as of the day,” “lobbying firm or lobbyist employer” before “contracts” and “of the lobbying firm or the lobbyist employer of the lobbyist” after “registration statement”;
. Subsection (b): deleted “(b) When any duty or prohibition is imposed by Chapter 6 of the Political Reform Act upon a person described in Government Code Section 86108(b) that duty or prohibition shall extend to all state candidates, elective state officials, legislative officials (and to the related individuals or entities specified in the Act) and to such agency officials (and related individuals or entities) of those agencies whose administrative actions the person described in 86108(b) has attempted or is attempting to influence.”;
. Subsection (c): deleted “(c) This regulation does not apply to the duties and prohibitions imposed by Government Code Section 86205.
. COMMENT: Lobbyists, employers of lobbyists and others who spend substantial amounts to influence legislative or administrative action are required to disclose certain dealings and transactions with state candidates, elected state officers, legislative officials, and agency officials, and with other individuals and entities by reason of relationships with any of the foregoing. Lobbyists are prohibited from making certain gifts and any campaign contributions to such persons. Few if any lobbyists attempt to influence administrative actions of all state agencies, and few if any persons make expenditures to influence administrative action of all state agencies. The purpose of the prohibitions and disclosure requirements as applied to agency officials is to assure that no undue economic influences will be brought to bear on such officials when they undertake administrative actions. This purpose would not be furthered if the prohibitions and disclosure requirements were interpreted as being applicable to all agency officials, without regard to whether the lobbyist or the filer had attempted to influence administrative actions of the official's agency.
. To require disclosure regarding all agency officials without regard to whether the filer has attempted to influence administrative actions of the agency would tend to defeat the purpose of disclosure because the relevant data would be lost within a massive quantity of irrelevant data. These regulations carry out the purpose of the Act by limiting the disclosure requirements and prohibitions to officials of agencies the administrative actions of which the lobbyist or filer has attempted to influence.
. Similar limitations cannot, however, be extended to the duties and prohibitions of the Act with respect to state candidates, committees supporting state candidates, elected state officers and legislative officials. To the contrary, the duties and prohibitions imposed upon lobbyists, employers of lobbyists, and persons described in Section 86108(b) with respect to such political persons must be applicable in all cases if the purposes of the Act are to be accomplished.
. The influence of legislative officials and elected state officers extends throughout state government, there being no precise limits of their jurisdiction. Administrative agency officials know that members of the Legislature and the constitutional officers chosen directly by the people play a role in (1) defining the agency's powers; (2) adopting legislation bearing on the work of the agency; (3) determining the budget of the agency; (4) making or confirming appointments to the agency; and (5) considering future appointments to other governmental posts for the incumbent agency officials. In addition to these factors is the prestige of these elected officials which may give their communications with and urgings upon administrative agency officials special weight. Because of this extensive influence, the purposes of the Political Reform Act necessitate that the disclosure requirements and the prohibitions on gifts and contributions be applicable to all elected state officers and candidates for such offices and to all legislative officials, even in the case of a lobbyist who confines his activities to one or more administrative agencies.”;
. Certificate of Compliance must be transmitted no later than 9-25-86, or emergency language will be repealed by operation of law (Gov. C. § 11346.1(g));
. (Register 86, No. 22).
2. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
§18601. Withdrawal of Lobbyist Certification or Lobbying Firm Registration.
Note • History
(a) Any person who has filed a lobbyist certification or lobbying firm registration statement pursuant to Government Code Section 86100 but who is not and has not been, since filing the certification or lobbyist registration statement, a lobbying firm, as defined in Government Code Section 82038.5 and 2 Cal. Adm. Code Section 18238.5, or a lobbyist, as defined in Government Code Section 82039 and 2 Cal. Adm. Code Section 18239, may withdraw the certification as a lobbyist or the registration as a lobbying firm lobbyist by filing a Notice of Withdrawal as provided in this regulation.
(b) The Notice of Withdrawal shall contain an explanation of the reasons for submitting the Notice, shall be signed by the filer under penalty of perjury and shall be filed with the Secretary of State. After a valid Notice of Withdrawal has been filed, the filer is not subject to the prohibitions of Government Code Section 86203.
(c) The Franchise Tax Board shall not conduct an audit pursuant to Government Code Section 90001(a) of any person who has filed a Notice of Withdrawal, unless a determination has been made that the Notice of Withdrawal is invalid.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82039, 86100, 86102, 86103, and 90001, Government Code.
(Section filed 6-17-76, operative 7-17-76; Register 76, No. 25).
HISTORY
1. Amendment of section heading filed 8-27-81, operative 9-26-81, making the following changes:
. Section heading deleted “(86100-86300)” after “Employees”; (Register 81, No. 35).
2. Amendment of subsection (a) and section heading filed as an emergency 5-28-86, operative 5-28-86, making the following changes:
. In section heading “Withdrawal of Lobbyist Certification or Lobbying Firm Registration” substituted for “Withdrawal of Lobbyist Registration”;
. Subsection (a) added “certification or lobbying firm” after “filed a lobbyist,” and “certification or” after “filing the,” “a lobbying firm, as defined in Government Code Section 82038.5 and 2 Cal. Adm. Code Section 18238.5, or” after “registration statement,” “the certification as a lobbyist or the” added after “may withdraw” and “lobbying firm” after “registration as a”;
. Certificate of Compliance must be transmitted no later than 9-25-86, or emergency language will be repealed by operation of law (Gov. C. § 11346.1(g)); Register 86, No. 22).
3. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
4. Editorial correction of History 2 (Register 95, No. 17).
§18603. Lobbyist Certification.
Note • History
Regardless of whether an individual had a current lobbyist certification on file at the end of the last regular session of the Legislature, he or she must file another certification for any subsequent session of the Legislature once the individual meets the qualifications for a lobbyist for that legislative session as set forth in Section 82039(a) and Regulation 18239.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86106 and 86107, Government Code.
HISTORY
1. New section filed 9-22-2009; operative 10-22-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 39).
§18603.1. Lobbyist Ethics Orientation Course.
Note • History
(a) A lobbyist who filed a completed lobbyist certification in connection with the last regular session of the Legislature and qualifies again as a lobbyist in connection with the next regular session of the Legislature, on or before June 30 of an odd-numbered year, shall complete the ethics orientation course described in subdivision (b) of Section 8956 no later than June 30 of that odd-numbered year. This requirement applies to a lobbyist who meets these criteria even though the lobbyist's certification may have been terminated prior to the end of the last regular session of the Legislature.
(b) A lobbyist who does not meet the criteria in subdivision (a) shall complete the ethics orientation course described in subdivision (b) of Section 8956 within 12 months of filing a lobbyist certification in connection with any regular session of the Legislature.
(c) Neither subdivision (a) nor (b) apply if the lobbyist states in his or her lobbyist certification for the current regular session of the Legislature that he or she has completed the ethics orientation course described in subdivision (b) of Section 8956 within the 12-month period prior to filing the certification.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86103 and 86106, Government Code.
HISTORY
1. New section filed 9-22-2009; operative 10-22-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 39).
Note • History
(a) Pursuant to Government Code Section 86110, a lobbyist shall maintain a journal or other form of record showing all activity expenses incurred or paid by the lobbyist and all monetary and non-monetary contributions of $25 or more made or delivered by the lobbyist to state candidates or elected state officers, or made to committees controlled by or primarily formed to support such candidates or officers.
(b) Every activity expense which must be reported by the lobbyist shall be supported by original source documents, such as receipts, invoices and cancelled checks, indicating for each expenditure:
(1) The full name of the payee;
(2) The full name and official position of each elective state official, legislative official, agency official, state candidate or member of the immediate family of one of these individuals who was a beneficiary;
(3) The total number of all beneficiaries;
(4) A description of the goods or services or other consideration for which the expenditure was made or incurred;
(5) The date and total amount of the transaction; and
(6) The amount of the expenditure attributable to each beneficiary.
In the event it is impractical to obtain a receipt or an invoice to support any expenditure, a written voucher shall be prepared to support such expenditure. This voucher shall be prepared in a timely manner and shall contain the information described in paragraphs (1) through (6).
(c) All monetary contributions of $25 or more made or delivered by the lobbyist to state candidates or elected state officers, or made to committees controlled by or primarily formed to support such candidates or officers shall be supported by cancelled checks or other bank records. In addition, the lobbyist shall keep records of monetary and non-monetary contributions of $25 or more, indicating for each contribution:
(1) The full name of the payee;
(2) The full name of the recipient of the contribution if other than the payee;
(3) In the case of a non-monetary contribution, a description of the goods or services or other consideration provided; and
(4) The amount and date of the contribution.
(d) All records which the lobbyist must keep by virtue of this regulation shall be maintained by the lobbyist for a period of five years from the date of the lobbyist's final report for the calendar year for which the activities were reported pursuant to Government Code Section 86113.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86110 and 91000.5, Government Code.
HISTORY
1. New section filed 5--28--86 as an emergency; operative 5--28--86 (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9--25--86. For history of former Section 18610, see Register 75, No. 31.
2. Certificate of Compliance filed 9--15--86 (Register 86, No. 38).
3. Editorial correction of Note (Register 95, No. 6).
4. Amendment of subsection (d) and Note filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
Note • History
(a) Reporting Activity Expenses. A lobbyist's periodic report shall disclose all activity expenses made or incurred during the period, regardless of whether they are paid for during the period. An activity expense previously reported as incurred but not paid need not be reported again when actual payment is made. When reporting activity expenses, the lobbyist shall show the full name of the payee, the date, the total amount of the expense, the amount attributable to each elective state official, legislative official, agency official, state candidate or member of the immediate family of one of these individuals who was a beneficiary of an activity expense, together with a description of the benefit and each official's full name, title and agency.
(b) Reporting Contributions.
(1) A lobbyist's periodic report shall disclose:
(A) All monetary and non-monetary contributions totaling $100 or more made from the lobbyist's personal funds, or from funds the lobbyist owns or controls, to state candidates, elected state officers, and committees controlled by or primarily formed to support such candidates and officers; and
(B) All other monetary and non-monetary contributions totaling $100 or more delivered in person by the lobbyist to state candidates and elected state officers.
(2) For each reportable contribution, the lobbyist shall disclose:
(A) The date the contribution was made;
(B) The full name of the person or persons for whom the contribution was delivered if other than the lobbyist;
(C) If the contribution is not made from personal funds, the source of the funds from which the contribution was made;
(D) The full name of the candidate, officer or committee receiving the contribution; and
(E) The amount of the contribution.
(3) For purposes of this subsection the term “personal funds” means all assets which are the personal property of the lobbyist.
(c) The first report of a person filing pursuant to Government Code Section 86113 shall cover all the activities of the lobbyist during the calendar quarter in which he or she first qualified or filed a lobbyist certification pursuant to Government Code Section 86100. The cumulative period for the first report begins with the first day of the calendar quarter in which the lobbyist first qualified or the lobbyist's certification was filed.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86113, Government Code.
HISTORY
1. New section filed 5-28-86 as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
2. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
3. Amendment of subsections (b)(1)(A) and (b)(1)(B) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
4. Editorial correction relettering subsection (d) to (c) (Register 96, No. 43).
§18612. Accounting by Lobbying Firms.
Note • History
(a) Pursuant to Government Code Section 86110, a lobbying firm shall maintain a cash receipts journal showing a record of all payments received in connection with lobbying activity. To the extent that payments received by a lobbying firm are only partially in connection with lobbying activities, the lobbying firm may keep records of payments received for lobbying separate from payments received in connection with non-lobbying activities. The cash receipts journal shall include for each payment received:
(1) The full name of the person making the payment;
(2) If the payment was made on behalf of another person, the full name of the person on whose behalf of the payment was made;
(3) The date the payment was received;
(4) The amount of the payment;
(5) If the payment was received during a calendar quarter after the calendar quarter in which services were provided, the calendar quarter in which the services were provided.
(b) A lobbying firm shall maintain a cash disbursements journal or other form of record showing:
(1) All activity expenses incurred or paid by the lobbying firm, including those reimbursed by a person who contracts with the lobbying firm for lobbying services;
(2) All monetary and non-monetary contributions of $25 or more made by the lobbying firm to state candidates, elected state officers and committees controlled by or primarily formed to support such candidates or officers; and
(3) All payments to any other lobbying firm with which the lobbying firm subcontracts.
(c) Every activity expense which must be reported by the lobbying firm shall be supported by original source documents, such as receipts, invoices and cancelled checks, indicating for each expenditure:
(1) The full name of the payee;
(2) The full name and official position of each elective state official, legislative official, state candidate or member of the immediate family of one of those individuals who was a beneficiary;
(3) The total number of all beneficiaries;
(4) A description of the goods or services or other consideration for which the expenditure was made or incurred;
(5) The date and total amount of the expenditure; and
(6) The amount of the expenditure attributable to each beneficiary.
In the event it is impractical to obtain a receipt or an invoice to support any expenditure, a written voucher shall be prepared to support such expenditure. This voucher shall be prepared in a timely manner and shall contain the information described in paragraphs (1) through (6).
(d) All monetary contributions of $25 or more made by the lobbying firm to state candidates, elected state officers and committees controlled by or primarily formed to support such candidates or officers shall be supported by cancelled checks or other bank records. In addition, the lobbying firm shall keep records of monetary or non-monetary contributions of $25 or more, indicating for each contribution:
(1) The full name and address of the payee;
(2) The full name and address of the recipient of the contribution if other than the payee;
(3) In the case of a non-monetary contribution, a description of the goods or services or other consideration provided; and
(4) The amount and date of the contribution. If the lobbying firm or a committee sponsored by the lobbying firm keeps records and files campaign statements with the Secretary of State pursuant to Chapter 4 of the Political Reform Act, no records are required by this subsection.
(e) If the lobbying firm subcontracts with another lobbying firm for lobbying services, the payments to the subcontractor shall be supported by cancelled checks or other bank records. The lobbying firm records shall indicate for each payment:
(1) The full name of the subcontractor;
(2) The full name of the person for whom the subcontractor was retained to lobby; and
(3) The date and amount of the payment.
(f) All records which must be kept by virtue of this regulation shall be maintained for a period of five years from the date of the lobbying firm's final report for the calendar year for which the activities were reported pursuant to Government Code Section 86114.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86110 and 91000.5, Government Code.
HISTORY
1. New section filed 5--28--86 as an emergency; operative 5--28--86 (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9--25--86.
2. Certificate of Compliance filed 9--15--86 (Register 86, No. 38).
3. New subsection (a)(2) and subsection renumbering filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
4. Amendment of subsection (f) and Note filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
§18613. Reporting by Lobbying Firms.
Note • History
(a) Reporting Payments Received.
The periodic reports filed by a lobbying firm shall show all payments received in connection with lobbying activity during the period. To the extent that payments received by a lobbying firm are only partially in connection with lobbying activities, the lobbying firm shall report only that portion which was received for lobbying activities. When reporting payments received, the lobbying firm shall disclose:
(1) The full name, address and telephone number of the person or entity making the payment;
(2) If the payment was made on behalf of another person, the full name, address and telephone number of the person on whose behalf the payment was made;
(3) The date the payment was received;
(4) The amount of the payment;
(5) If the payment was received after the calendar quarter in which services were provided, the calendar quarter in which the services were provided.
(b) Reporting Payments Made.
(1) Reporting Activity Expenses. The periodic report filed by a lobbying firm shall disclose all activity expenses made or incurred during the period, regardless of whether they are paid during the period. An activity expense previously reported as incurred but not paid need not be reported again when actual payment is made. When reporting activity expenses, the lobbying firm shall disclose the full name of the payee, the date and total amount of the expense, the total number of beneficiaries, the amount attributable to each elective state official, legislative official, state candidate or member of their immediate family who is a beneficiary of the expense, together with a description of the benefit and each official's full name, title and agency.
(2) Reporting Contributions.
(A) Except as provided in subsection (B), all lobbying firms shall disclose all monetary and non-monetary contributions totaling $100 or more made by the firm to state candidates, elected state officers, and committees supporting such candidates or officers. For each reportable contribution, the firm shall disclose the date the contribution was made, the candidate, officer or committee receiving the contribution, and the amount of the contribution.
(B) Notwithstanding subparagraph (A), if a lobbying firm has made contributions totaling $100 or more to an elected state officer, state candidate, or a committee supporting such an officer or candidate and the firm or a committee sponsored by the firm has previously reported those contributions in a campaign statement pursuant to Chapter 4 of the Political Reform Act which has been filed with the Secretary of State, the firm may disclose only the name and identification number of its committee on its periodic report in lieu of the information required by subparagraph (A) with respect to those contributions.
(c) Reporting Specific Lobbying Interests of Persons Who Contract with the Lobbying Firm for Lobbying Services.
(1) For each client, the lobbying firm shall report each bill or administrative action with regard to which a partner, owner, officer or employee of the lobbying firm either engaged in direct communication, or was directed by that client to engage in direct communication, with a qualified official on behalf of that client for the purpose of influencing legislative or administrative action during the reporting period, either by reference to its legislative or administrative identification number or by brief textual description.
(2) A lobbying firm shall not report bills or administrative actions which have “died” prior to the reporting period, shall not report bills or administrative actions which the lobbying firm is only “watching” or “monitoring” and shall not report bills or administrative actions which the lobbying firm has not attempted to influence during the reporting period.
(3) The definitions contained in 2 Cal. Code of Regs. Section 18239 of the terms “direct communication,” “qualifying official” and “influence legislative or administrative action” shall apply to this subsection.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86114, Government Code.
HISTORY
1. New section filed 5-28-86 as an emergency; operative 5-28-86. A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86 (Register 86, No. 22).
2. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
3. Amendment of subsections (b)(2)(A), (b)(2)(B) and (c)(3) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
4. Amendment of subsection (c)(3) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. New subsection (a)(2) and subsection renumbering filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
§18614. Payments for Lobbying Services.
Note • History
(a) The following payments from a client to a lobbying firm shall be considered payments for lobbying services:
(1) Payments for services related to a matter on which the client expressly or implicitly authorizes the lobbying firm to communicate directly with an elected state official, legislative official or agency official for the purpose of influencing legislative or administrative action.
(2) Payments for legislative-related services only if, within one year after the services are provided, the client, either directly or through an affiliated entity, expressly or implicitly authorizes the lobbying firm to communicate directly with an elected state official, legislative official or agency official for the purpose of influencing legislative or administrative action on the same or substantially the same matter.
(3) Payments for research or preparation of a proposed initiative measure only if, within one year after the initiative-related services are provided, the client, either directly or through an affiliated entity, expressly or implicitly authorizes the lobbying firm to communicate directly with an elected state official, legislative official or agency official for the purpose of influencing legislative or administrative action on the same or substantially the same matter. However, such payments need not be reported if they are required to be disclosed, and are in fact disclosed pursuant to Chapter 4 (commencing with Section 84100) of Title 9 of the Government Code.
(b) The following payments from a client to a lobbying firm shall not be considered payments for lobbying services:
(1) Payments for litigation.
(2) Payments for legislative-related or initiative-related services performed by a lobbying firm for a client which are not reportable pursuant to subsections (a)(2) or (a)(3). However, payments for legislative-related services shall be reported by the client as “other payments to influence legislative or administrative action” pursuant to Government Code Section 86116(i) if either of the following applies:
(A) At the time the payment is made, the client is required to be registered on the lobbying firm's registration statement.
(B) Within one year after the services are provided, the client, either directly or through an affiliated entity, expressly or implicitly authorizes another lobbying firm or a lobbyist employed by the client to communicate directly with an elected state official, legislative official or agency official for the purpose of influencing legislative or administrative action on the same or substantially the same matter.
(c) The following definitions apply to this section:
(1) “Legislative-related services” includes researching, monitoring, analyzing or drafting statutes, regulations or pending or proposed legislative or administrative action, providing advice or recommending strategy concerning pending or proposed legislative or administrative action, and similar services in the absence of express or implied authorization to engage in direct communication.
(2) “Direct communication” means appearing as a witness before, talking to (either by telephone or in person), corresponding with, or answering questions or inquiries from, any elected state official, legislative official or agency official, either personally or through an agent who acts under one's direct supervision, control or direction.
(3) “Affiliated entity” includes, but is not limited to, an organization which has a parent or subsidiary relationship to the client, an organization that is primarily funded or managed by the client or the parent entity of the client, or an organization of which the client is a member.
(d) When a payment for initiative-related or legislative-related services made to a lobbying firm in a previous reporting period must be reported retroactively pursuant to this section, the payment shall be reported on the report for the then current calendar quarter and the lobbying firm and lobbyist employer shall indicate the calendar quarter in which the payment was made or received. If the payment was previously reported in the current calendar year as “other payments to influence legislative or administrative action,” the lobbyist employer shall indicate on the report for the then current calendar quarter that the amount has been deducted from “other payments to influence legislative or administrative action” and instead reported as a payment to a lobbying firm. For purposes of subsections (a)(2) and (a)(3), the lobbying firm and lobbyist employer shall indicate, in addition to the information required by 2 Cal. Code Regs. Sections 18613(a) and 18616(b), that the payment was for initiative-related or legislative-related services and the date upon which the person making the payment or the affiliated entity authorized the lobbying firm to engage in direct communication.
(e) This section shall not be construed to require any entity to report payments it receives for services prior to the calendar quarter in which the entity qualifies as a lobbying firm.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86114 and 86116, Government Code.
HISTORY
1. New section filed 8-25-88; operative 9-24-88 (Register 88, No. 36). For prior history, see Register 86, No. 38.
§18615. Accounting by Lobbyist Employers and Persons Spending $5,000 or More to Influence Legislative or Administrative Action.
Note • History
(a) Pursuant to Government Code section 86110, lobbyist employers shall keep detailed records of payments in the following categories:
(1) Payments to lobbying firms;
(2) Payments to lobbyists;
(3) Activity expenses;
(4) Other payments to influence legislative or administrative action. This includes payments for or in connection with:
(A) Support or assistance of lobbyists;
(B) Direct communication with a legislative, agency or elective state official for the primary purpose of influencing legislative or administrative action; and
(C) Soliciting or urging persons other than the lobbyist employer's employees to enter into direct communication with a legislative, agency or elective state official for the primary purpose of influencing legislative or administrative action.
(5) Contributions to elected state officers, state candidates and committees controlled by or primarily formed to support such officers or candidates;
(b) The lobbyist employer shall keep records using one of the following methods:
(1) The lobbyist employer may keep records of payments in connection with lobbying separate from records of activities which are not described in subdivision (a); or
(2) The lobbyist employer may use any system with records maintained in accordance with accepted accounting principles.
(c) Records of payments by the lobbyist employer shall be supported by cancelled checks or other bank records, and shall include:
(1) All payments in connection with lobbying activities made to or on behalf of a lobbying firm, including but not limited to fees, retainers and reimbursement of expenses. To the extent that payments to a lobbying firm are only partially in connection with lobbying activities, the lobbyist employer may keep records of payments made for lobbying separate from payments made in connection with non-lobbying activities. Detailed records shall include:
(A) The full name of the payee;
(B) If the payee is a person other than the lobbying firm, the full name of both the payee and the lobbying firm;
(C) The date and amount of the payment; and
(D) The calendar quarter during which the services paid for were rendered.
(2) All direct or indirect payments, such as salaries, fees and reimbursement of expenses, advances or other payments made to a lobbyist. Salary includes gross wages paid, plus any fringe benefits which are in lieu of wages such as the granting of stock options or purchase of annuities, but does not include routine fringe benefits such as the lobbyist employer's contributions to a health plan, retirement plan or payroll taxes. To the extent payments made to a lobbyist are only partially in connection with his or her activities as a lobbyist, the lobbyist employer may apportion the payments based on the percentage of the lobbyist's compensated time which is spent influencing or attempting to influence legislative or administrative action. Detailed records shall include:
(A) The full name of the payee; and
(B) The date and amount of the payment.
(3) All activity expenses incurred or paid by the lobbyist employer, other than those activity expenses incurred by the lobbyist which shall be recorded as reimbursements to the lobbyist or “other payments to influence legislative or administrative action” under the provisions of subdivision (c)(4), as appropriate. Records to be maintained under this subdivision include:
(A) The full name of the payee;
(B) The full name and official position of each elective state official, legislative official, agency official, state candidate or member of the immediate family of one of those individuals who was a beneficiary;
(C) The total number of all beneficiaries;
(D) A description of the goods or services or other consideration for which the payment was made or incurred;
(E) The date and total amount of the expenditure; and
(F) The amount of the payment attributable to each beneficiary.
(4) All other payments to influence legislative or administrative action, including:
(A) The full name, title and proportionate share of compensation paid to each employee, other than a lobbyist, who is engaged for 10 percent or more of his or her compensated time in a calendar month in or in connection with any of the activities described in subdivision (a). Such employees include those providing research services and those preparing materials to be used by a lobbyist or to be used in direct communication or in soliciting or urging others to engage in direct communication for the primary purpose of influencing legislative or administrative action. Compensation includes gross wages paid plus any benefits which are in lieu of wages such as the granting of stock options or the purchase of annuities. It does not include, however, routine fringe benefits, such as the employer's contribution to health plans, retirement plans, etc., which are made on behalf of all employees nor does it include the payment of the employer's payroll taxes.
(B) The payment by the lobbyist employer of expenses incurred by a lobbyist;
(C) The payment of expenses incurred by the lobbyist employer for goods or services used by a lobbyist or used to support or assist a lobbyist in connection with his or her activities as a lobbyist;
(D) For state and local government agencies that file reports pursuant to Government Code sections 86115 and 86116, the payment of dues or similar payments made to any organization, including a federation, confederation, or trade, labor, or membership organization, that makes expenditures equal to 10 percent of its total expenditures, or fifteen thousand dollars ($15,000) or more, during any calendar quarter, to influence legislative or administrative action;
(E) The payment of any other expense which would not have been incurred but for the lobbyist employer's activities to influence or attempt to influence legislative or administrative action, i.e., those activities described in subdivision (a), including, but not limited to, office overhead and operating expenses, payments to expert witnesses and expenses incurred by employees other than a lobbyist.
(F) For filers reporting payments in connection with ratemaking or quasi-legislative proceedings before the California Public Utilities Commission as specified in Government Code section 86116(h)(2), the full name, title, and compensation paid to each attorney for time spent appearing as counsel or preparing to appear as counsel in those proceedings; and the full name, title and compensation paid to each witness for time spent testifying or preparing to testify at those proceedings.
(G) Detailed records for subdivisions (c)(4)(B), (C), (D), (E) and (F) shall include:
1. The full name of the payee;
2. The date and amount of the payment; and
3. A description of the goods or services or other consideration for which the payment was made.
(5) All monetary and non-monetary contributions of $25 or more made by the lobbyist employer to an elected state officer, a state candidate or committees controlled by or primarily formed to support such officers or candidates. Cancelled checks or other bank records shall support the monetary contributions. In addition, for each monetary and non-monetary contribution, the records shall indicate:
(A) The full name of the payee;
(B) The full name of the recipient of the contribution if other than the payee;
(C) In the case of a non-monetary contribution, a description of the goods or services or other consideration provided; and
(D) The date and amount of the payment. If the lobbyist employer or a committee sponsored by the lobbyist employer keeps records and files campaign statements with the Secretary of State pursuant to Chapter 4 of the Political Reform Act, no records are required by this paragraph.
(6) No records shall be required for payments which are not reportable pursuant to 2 Cal. Code Regs. section 18616(g)(1), (2), (3) and (4).
(d) All records which must be kept by virtue of this regulation shall be maintained for a period of five years from the date of the filer's final report for the calendar year for which the activities were reported pursuant to Government Code section 86116.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86110 and 91000.5, Government Code.
HISTORY
1. New section filed 8-1-75 as an emergency; operative 8-1-75. Certificate of Compliance included (Register 75, No. 31).
2. Repealer of subsections (a) (1) (B) 3, (b) (1) (C) and (b) (1) (D) and new subsections (a) (1) (B) 3, (a) (1) (B) 4 and (b) (1) (C) filed 8-20-76; operative 9-19-76 (Register 76, No. 34).
3. Amendment of subsections (a)-(d) and new subsections (e) and (f) filed 10-13-78; operative 1-1-79 (Register 78, No. 41).
4. New subsections (b), (c) and (e) filed 1-25-80; operative 2-24-80 (Register 80, No. 4).
5. Amendment of section heading and subsections (d) (2) filed 11-5-82; operative 11-5-82 (Register 82, No. 45).
6. Amendment of subsections (a)-(c) filed 12-15-83; operative 1-14-84 (Register 83, No. 51).
7. Repealer and new section filed 5-28-86 as an emergency; operative 5-28-86 (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
8. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
9. Editorial correction of History Note 5 (Register 95, No. 6).
10. New subsections (c)(1)(B) and (c)(4)(D), subsection relettering, and amendment of subsections (c)(4)(A) and newly designated subsections (c)(4)(F) and (c)(4)(G) filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
11. Amendment of subsection (d) and Note filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
12. Editorial correction of subsection (c)(4)(G) (Register 2002, No. 22).
13. Amendment filed 6-17-2002; operative 7-17-2002 (Register 2002, No. 25).
§18616. Reports by Lobbyist Employers and Persons Spending $5,000 or More to Influence Legislative or Administrative Action.
Note • History
(a) Payments to be Reported in General. Persons filing periodic reports under Government Code section 86116 shall report payments in the following categories:
(1) Payments to lobbying firms.
(2) Payments to lobbyists.
(3) Activity expenses.
(4) Other payments to influence legislative or administrative action, specifically, payments for or in connection with:
(A) Support or assistance of lobbyists;
(B) Direct communication with a legislative, agency, or elective state official for the primary purpose of influencing legislative or administrative action; and
(C) Soliciting or urging persons other than the filer or the filer's employees to enter into direct communication with a legislative, agency, or elective state official for the primary purpose of influencing legislative or administrative action.
(5) Contributions to elected state officers, state candidates, and committees controlled by or primarily formed to support those officers or candidates.
(b) Payments to Lobbying Firms. Lobbyist employers shall disclose on their periodic reports the total amount of payments, including reimbursement for expenses, made to each lobbying firm during the period, and the name and address of the lobbying firm which received the payments. If the payment to the lobbying firm was made through another person, the lobbyist employer shall report the name and address of both the payee and the lobbying firm. The lobbyist employer shall indicate on the report if the payment was made for services provided in a previous calendar quarter. To the extent that payments to a lobbying firm are only partially in connection with lobbying activities, the lobbyist employer shall report only that portion which was made for lobbying activities.
(c) Payments to Lobbyists. Lobbyist employers shall disclose on their periodic reports the total amount of all direct and indirect payments, such as salaries and reimbursement of expenses, made to lobbyists during the filing period in consideration for or in connection with their activities as lobbyists. A lobbyist's salary includes gross wages paid plus any benefits which are in lieu of wages such as the granting of stock options or the purchase of annuities. It does not include, however, routine fringe benefits, such as the employer's contribution to health plans, retirement plans, etc., which are made on behalf of all employees nor does it include the payment of the employer's payroll taxes. To the extent payments made to a lobbyist are only partially in connection with his or her activities as a lobbyist, a filer may apportion the payments based on the percentage of the lobbyist's compensated time which is spent influencing or attempting to influence legislative or administrative action.
(d) Activity Expenses. All persons filing reports under Government Code section 86116 shall disclose each activity expense made or incurred during the period, regardless of whether it is paid for during the period. An activity expense previously reported as incurred but not paid need not be reported again when actual payment is made. When reporting activity expenses, the filer shall show the full name and address of the payee, the total amount of the expense, the amount attributable to each elected state officer, legislative official, agency official, state candidate or member of the immediate family of one of those persons who is the beneficiary of an activity expense, together with a description of the benefit and each official's full name, title and agency. The filer shall also report the total of all activity expenses incurred during the period.
(e) Contributions.
(1) Except as provided in paragraph (2), all persons filing periodic reports under Government Code section 86116 shall disclose all monetary and non-monetary contributions totaling $100 or more made by the filer to state candidates, elected state officers, and committees controlled by or primarily formed to support those officers or candidates. For each reportable contribution, the filer shall disclose the date the contribution was made, the candidate, officer, or committee receiving the contribution, and the amount of the contribution.
(2) Notwithstanding paragraph (1), if a filer has made contributions totaling $100 or more to an elected state officer, state candidate, or a committee controlled by or primarily formed to support an elected state officer or state candidate, and the filer or a committee sponsored by the filer has previously reported those contributions in a campaign statement pursuant to Chapter 4 of the Political Reform Act which has been filed with the Secretary of State, the filer may disclose only the name and identification number of its committee on its periodic report in lieu of the information required by paragraph (1) with respect to those contributions.
(f) Other Payments to Influence Legislative or Administrative Action. All persons who file periodic reports under Government Code section 86116 shall report the total of all other payments to influence legislative or administrative action made by the filer during the reporting period. The total amount reported shall include the following:
(1) Compensation of Employees Other Than Lobbyists. This shall include a proportionate share of the compensation paid to employees other than lobbyists who are engaged for 10 percent or more of their compensated time in a calendar month in or in connection with the activities described in subdivision (a)(4) of this regulation. Such employees include those providing research services and those preparing materials to be used by a lobbyist or to be used in direct communication or in soliciting or urging others to engage in direct communication for the primary purpose of influencing legislative or administrative action. Compensation includes gross wages paid plus any benefits which are in lieu of wages such as the granting of stock options or the purchase of annuities. It does not include, however, routine fringe benefits, such as the employer's contribution to health plans, retirement plans, etc., which are made on behalf of all employees nor does it include the payment of the employer's payroll taxes.
(2) Payments Other Than Compensation. This shall include all of the following:
(A) Payments made by the filer for expenses incurred by a lobbyist in connection with his or her activities as a lobbyist. All such expenses paid directly by the filer shall be reported as “other payments to influence legislative or administrative action,” regardless of the nature of the expense.
(B) Payment by the filer of expenses incurred by the filer for goods or services used by a lobbyist or used to support or assist a lobbyist in connection with his or her activities as a lobbyist.
(C) Payments of any other expenses which would not have been incurred but for the filer's activities to influence or attempt to influence legislative or administrative action, i.e., those activities described in subdivision (a)(4) of this regulation.
(g) Exceptions.
(1) Notwithstanding subdivision (f) of this regulation, a filer need not report compensation or other payments for services which are solely secretarial, clerical, or manual or are limited solely to the compilation of data and statistics.
(2) Except for payments to lobbyists and the compensation of employees other than lobbyists which must be reported under subdivision (f)(1) of this regulation, a filer need not report any regular, ongoing business overhead which would continue to be incurred in substantially similar amounts regardless of the filer's activities to influence legislative or administrative action.
(3) A filer does not have to report any part of the costs of producing a regularly published newsletter or periodical whose circulation is limited to an organization's members, employees, shareholders, other affiliated individuals and those who request or purchase the publication. This exception applies only to those costs regularly incurred in publishing and distributing the newsletter or periodical. If additional costs are incurred because the newsletter or periodical is issued on other than its regular schedule, expanded in circulation, or altered in style, size, or format for the primary purpose of influencing or attempting to influence legislative or administrative action, such additional costs are reportable under subdivision (f)(2)(C) of this regulation.
(4) Except as provided in Government Code section 86116.5, which is applicable to all state and local agencies that file reports pursuant to Government Code sections 86115 and 86116, dues or similar payments made by any person for membership in a bona fide association, including any federation, confederation, or trade, labor, or membership organization, some portion of which is used to influence legislative or administrative action, are not payments to influence legislative or administrative action.
(5) Reduced Reporting. In lieu of reporting expenses in accordance with subdivision (f) of this regulation, a filer that makes payments to influence a ratemaking or quasi-legislative proceeding, as defined in Government Code section 82002(b) or (c), before the California Public Utilities Commission shall report the total of any payments made for the following:
(A) Compensation paid to all attorneys for time spent appearing as counsel and preparing to appear as counsel in those proceedings, excluding time spent preparing written testimony for those proceedings;
(B) Compensation paid to all witnesses for time spent testifying and preparing to testify in those proceedings, excluding time spent preparing written testimony for those proceedings; and,
(C) For purposes of subdivision (g)(5), “compensation” shall have the same meaning as in subdivision (f)(1) of this regulation.
(D) The reduced reporting of Government Code section 86116(h)(2) and this subdivision does not apply to payments to an individual who is a lobbyist under Government Code section 82039, to payments for expenses incurred by that individual or to payments described in subdivision (a)(4)(C).
(h) Optional Reporting. In addition to reporting total payments for any period, a filer may apportion payments reported on the basis of whether they were made to influence legislative action or to influence administrative action.
(i) Applicability of Government Code section 86115(b). For the purpose of determining whether Government Code section 86115(b) is applicable to any person, all payments made during any calendar quarter which are required to be reported by this regulation shall be combined and a report shall be filed if the total is $5,000 or more. If, however, the only reportable payments made are activity expenses within the meaning of Government Code section 86111(a), no report shall be required.
(j) Reporting Specific Lobbying Interests.
(1) The filer shall report each bill or administrative action with regard to which a partner, owner, officer or employee of the filer, or a lobbying firm with which the filer has contracted, either has engaged in direct communication, or has been directed by the filer to engage in direct communication, with a qualified official for the purpose of influencing legislative or administrative action on behalf of the filer during the reporting period, either by reference to its legislative or administrative identification number or by brief textual description.
(2) A filer shall not report bills or administrative actions which have “died” prior to the reporting period, shall not report bills or administrative actions which the filer or its agent is only “watching” or “monitoring,” and shall not report bills or administrative actions which the filer or its agent has not attempted to influence during the reporting period.
(3) The definitions contained in 2 Cal. Code Regs. section 18239 of the terms “direct communication,” “qualifying official,” and “influence legislative or administrative action” shall apply to this subdivision.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86115, 86116 and 86116.5, Government Code.
HISTORY
1. New section filed 10-13-78 as an emergency; designated effective 1-1-79 (Register 78, No. 41).
2. Certificate of Compliance filed 11-24-78 (Register 78, No. 47).
3. Amendment of subsection (d) filed 12-19-79 as an emergency; effective upon filing. Certificate of Compliance included (Register 79, No. 51).
4. New subsection (e) filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
5. Amendment filed 3-8-84; effective thirtieth day thereafter (Register 84, No. 10).
6. Amendment of subsection (e) filed 5-29-84; effective thirtieth day thereafter (Register 84, No. 22).
7. Repealer and new section filed 5-28-86 as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
8. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
9. Amendment of subsections (e)(1), (e)(2) and (j)(3) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
10. Amendment filed 3-28-94; operative 3-28-94 (Register 94, No. 13).
11. Editorial correction of subsections (d) and (j)(3) (Register 95, No. 6).
12. Amendment of subsection (b) filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
13. Amendment filed 6-17-2002; operative 7-17-2002 (Register 2002, No. 25).
14. Amendment of subsections (g)(5) and (g)(5)(D) filed 5-17-2004; operative 5-17-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 21).
§18616.4. Reports by Lobbying Coalitions Which Are Lobbyist Employers; Reports by Members of Lobbying Coalitions.
Note • History
(a) Definition of Lobbying Coalition. A lobbying coalition is a group of ten or more persons formed primarily to influence legislative or administrative action, whose members make payments to the coalition for the purpose of sharing the expenses of employing a lobbyist or contracting for the services of a lobbying firm. A bona fide federation, confederation or trade, labor or membership organization is not a lobbying coalition if it is ongoing in nature and its membership services are not limited to influencing legislative or administrative action. No person shall qualify as a lobbying firm or lobbyist employer solely by virtue of making payments to a lobbying coalition.
(b) Reporting by Lobbying Coalitions. A lobbying coalition shall file reports required of lobbyist employers pursuant to Government Code Section 86116. In addition, the lobbying coalition shall file with its lobbyist employer reports a form, prepared by the Commission, which discloses the following information:
(1) The name and business address of each member.
(2) The amount paid to the coalition by each member during the period covered by the report.
(3) The cumulative amount paid to the coalition by each member since January 1 of the biennial legislative session covered by the report.
(c) Reporting by Lobbying Firms and Lobbyist Employers Who are Members of a Lobbying Coalition. On a separate form which shall be attached to the filer's periodic report, a lobbyist employer or lobbying firm who makes payments to a lobbying coalition shall report the following information:
(1) The name and business address of the lobbying coalition.
(2) The amount the filer paid to the coalition during the period covered by the report.
(3) The cumulative amount the filer paid to the coalition since January 1 of the biennial legislative session covered by the report.
In addition, a lobbyist employer who makes payments to a lobbying coalition shall report those payments as “other payments to influence legislative or administrative action” under Section 18616(f).
(d) Reporting by Persons Who Spend $5,000 or More in a Calendar Quarter to Influence Legislative or Administrative Action. This section shall not eliminate reporting pursuant to Government Code Section 86115(b). A person who spends $5,000 or more in a calendar quarter to influence legislative or administrative action shall report payments to a lobbying coalition in the same manner as required for lobbyist employers in subdivision (c).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86114, 86115 and 86116, Government Code.
HISTORY
1. New section filed 3-31-88; operative 4-30-88 (Register 88, No. 16).
2. Amendment filed 7-27-89; operative 8-26-89 (Register 89, No. 31).
3. Amendment of subsections (b)(3) and (c)(3) filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18616.5. Reports by Lobbyist Employers and Persons Spending $5,000 or More to Influence Legislative or Administrative Action: Reporting Employees Who Engaged in Direct Communication on Behalf of the Filer. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86116(f), Government Code.
HISTORY
1. New section filed 9-15-86; operative 10-15-86 (Register 86, No. 38).
2. Repealer filed 7-9-87; operative 8-8-87 (Register 87, No. 29).
§18617. Early Filing of Periodic Reports.
Note • History
Whenever a person is required to file a periodic report pursuant to Government Code Section 86114 or 86116, that person may file the report at any time prior to the time specified in Government Code Section 86117 so long as the report includes all information required for the period covered by the report. If the filer engages in any reportable activity after filing the periodic report, but on or before the last day of the calendar quarter for which the report is filed, the filer must, not later than the time specified in Government Code Section 86117, amend the filed report to include all such reportable activity.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86117, Government Code.
HISTORY
1. New section filed 5-28-86 as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86. For history of former section, see Register 80, No.4.
2. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
§18618. Lobbying Reports; Where to File. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86114, 86116 and 86117, Government Code.
HISTORY
1. Amendment filed 5-10-76; effective thirtieth day thereafter (Register 76, No. 20).
2. Amendment filed 1-25-80; effective thirtieth day thereafter (Register 80, No. 4).
3. Repealer and new section filed 5-28-86 as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
4. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
5. Repealer filed 7-9-87; operative 8-8-87 (Register 87, No. 29).
§18619. Business Entities Retained to Influence Legislative or Administrative Actions: Definitions. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82032, 82039, 86101, 86107, 86108, 86109, and 86205, Government Code.
HISTORY
1. New section filed 8-1-875 as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance included (Register 75, No. 31).
2. Amendment filed 10-13-78; designated effective 1-1-79 (Register 78, No. 41).
3. Amendment filed 8-27-81; effective thirtieth day thereafter (Register 81, No. 35).
4. Editorial correction of subsection (f) filed 11-5-82 (Register 82, No. 45).
5. Amendment of subsection (f) filed 6-29-84; effective thirtieth day thereafter (Register 84, No. 26).
6. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
7. Amendment of subsection (f) filed 11-13-85; effective thirtieth day thereafter (Register 85, No. 46).
8. Repealer filed 5-28-86 as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
9. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
10. Change without regulatory effect amending Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
§18620. Reports by Lobbyist Employers and Persons Spending $2500 or More to Influence Legislative or Administrative Action. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86108 and 86109(c), Government Code.
HISTORY
1. New section filed 9-18-75; effective thirtieth day thereafter (Register 75, No. 38).
2. New subsection (a)(6) filed 4-30-76; effective thirtieth day thereafter (Register 76, No. 18).
3. Amendment filed 10-13-78, as an emergency; designated effective 1-1-79 (Register 78, No. 41).
4. Certificate of Compliance filed 11-24-78 (Register 78, No. 47). For prior history see Register 78, No. 41
5. Amendment of subsections (d), (e) and (g) 1-25-80, effective thirtieth day thereafter (Register 84, No. 51).
6. Amendment filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
7. Repealer filed 5-28-86, as an emergency; effective upon filing (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL with 120 days or emergency language will be repealed on 9-25-86.
8. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
§18621. Reporting Pursuant to Section 86108(b). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86108(b), Government Code.
HISTORY
1. New section filed 9-18-75; effective thirtieth day thereafter (Register 75, No. 38).
2. Amendment of subsection (b) filed 10-3-75 as an emergency; designated effective 10-18-75 (Register 75, No. 40).
3. Repealer filed 10-13-78; designated effective 1-1-79 (Register 78, No. 41).
§18622. Consolidated Reporting by Lobbyists and Their Employers (86107, 86109). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86107 and 86109, Government Code.
HISTORY
1. New section filed 10-13-78, operative 1-1-79 (Register 78, No. 41).
2. Repealer filed as an emergency 5-28-86, operative 5-28-86; Certificate of Compliance must be transmitted no later than 9-25-86, or emergency language will be repealed by operation of law (Gov. C. § 11346.1(g)); (Register 86, No. 22).
3. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
§18623. Gifts from Lobbyists and Lobbying Firms; Honoraria.
Note • History
Comment: For free admission, food, beverages, transportation, lodging, and subsistence provided to an elected state officer, legislative official, agency official, or state candidate in connection with a speech, panel, seminar, or similar service, see California Code of Regulations, Title 2, Section 18950.3.
NOTE
Authority cited: Sections 83112 and 86201, Government Code. Reference: Sections 86111, 86112, 86113, 86114, 86115 and 86116, Government Code.
HISTORY
1. New section filed 6-17-76 as an emergency; operative 6-17-76. Certificate of Compliance included (Register 76, No. 25).
2. Amendment of subsections (a) and (b) filed 10-13-78; operative 1-1-79 (Register 78, No. 41)
3. Amendment of section heading, subsections (a), (b) and new subsection (c) filed 8-27-81; operative 9-26-81 (Register 81, No. 35).
4. Amendment of section heading and subsections (b) and (c) filed 5-28-86 as an emergency; operative 5-28-86 (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
5. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
6. Amendment of subsection (a) filed 10-19-89; operative 11-18-89 (Register 89, No. 42).
7. Repealer and new Comment filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
§18624. Lobbyist Arranging Gifts.
Note • History
A lobbyist “arranges for the making of a gift” within the meaning of Government Code Section 86203 if the lobbyist, either directly or through an agent, does any of the following:
(a) Delivers a gift to the recipient.
(b) Acts as the representative of the donor, if the donor is not present at the occasion of a gift. This does not include accompanying the recipient to an event where the donor will be present.
(c) Invites or sends an invitation to an intended recipient regarding the occasion of a gift.
(d) Solicits responses from an intended recipient concerning his or her attendance or nonattendance at the occasion of a gift.
(e) Is designated as the representative of the donor to receive responses from an intended recipient concerning his or her attendance or nonattendance at the occasion of a gift.
(f) Acts as an intermediary in connection with the reimbursement of a recipient's expenses.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86203, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
§18625. Loans from Lobbyist or Lobbying Firm; Placing Official Under Personal Obligation.
Note • History
(a) For purposes of Government Code Section 86205(a), placing an elected state officer, legislative official, agency official, or state candidate under personal obligation includes arranging or making a loan whether secured or unsecured, to the elected state officer, legislative official, agency official or state candidate, either directly or through an agent.
(b) A lobbyist or lobbying firm “arranges” a loan when the lobbyist or lobbying firm:
(1) Refers the elected state officer, legislative official, agency official, or state candidate, who is to be the recipient of the loan, to an individual for the purpose of facilitating the making of the loan and has any contact with any individual to facilitate the making of the loan; or,
(2) Cosigns, guarantees, furnishes security for, or endorses the loan for the elected state officer, legislative official, agency official, or state candidate.
NOTE
Authority cited: Section 83112, Government Code, Reference: Section 86205, Government Code.
HISTORY
1. New section filed 10--19--89, operative 11--18--89 (Register 89, No. 42).
§18626. Contributions from Lobbyists. [Repealed]
Note • History
NOTE
Authority cited: Sections 83112, Government Code. Reference: Sections 82039, 82039.5, 85313(c), 85704, 86104(d) and 86105(e), Government Code.
HISTORY
1. New section filed 8-4-97; operative 8-4-97 pursuant to Government Code section 11343.4(d). Submitted to OAL for printing only (Register 97, No. 32).
2. Change without regulatory effect adding explanatory Note filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
3. Repealer filed 5-4-2001; operative 6-3-2001 (Register 2001, No. 18).
4. Change without regulatory effect amending Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
§18630. Home Hospitality (86203). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 86203, Government Code.
HISTORY
1. New section filed 11-4-75; operative 12-4-75 (Register 75, No. 45).
2. Amendment of section heading and subsections (a)-(d) filed 10-13-78; operative 1-1-79 (Register 78, No. 41).
3. Amendment of subsection (a) filed 5-28-86 as an emergency; operative 5-28-86 (Register 86, No. 22). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-25-86.
4. Certificate of Compliance filed 9-15-86 (Register 86, No. 38).
5. Repealer filed 3-19-2010; operative 4-18-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 12).
Note • History
(a) When reporting activity expenses as required under Section 86112 for events described under Regulation 18946.2, subdivisions (a) and (b), the value of the expense reported by any person required to file a periodic report under Article 1 of Chapter 6 of this title for each reportable person attending the event shall be calculated as provided in Regulation 18946.2(b).
(b) Notwithstanding subdivision (a) of this regulation, if an official notifies the filer, in writing, that the official attended the event but that the official did not stay for any meal or entertainment, and that the official received only minimal appetizers and drinks, the value of the gift received is the value of any specific item, other than food, that is presented to the official and guest accompanying the official at the event. For purposes of this subdivision, “entertainment” means a feature show or performance intended for an audience, and does not include music provided for background ambiance.
Upon receiving the above notification from the official, the value of the expense reported by the filer may be reported to reflect the value of gift pursuant to this regulation.
COMMENT: Cross-reference: See Regulation 18946.2, subdivision (e).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86112 and 86112.5, Government Code.
HISTORY
1. New section filed 5-2-2005; operative 5-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
2. Amendment filed 8-7-2012; operative 9-6-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 32).
§18650. Reportable Exchanges (86107 and 86109). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86107 and 86109, Government Code.
HISTORY
1. Amendment filed 10-13-78; designated effective 1-1-79 (Register 78, No. 41).
2. Repealer filed 8-27-81; effective thirtieth day thereafter (Register 81, No. 35).
Chapter 7. Conflicts of Interest
Article 1. Conflicts of Interest; General Prohibition
§18700. Basic Rule; Guide to Conflict of Interest Regulations.
Note • History
(a) No public official at any level of state or local government may make, participate in making or in any way use or attempt to use his/her official position to influence a governmental decision in which he/she knows or has reason to know he/she has a disqualifying conflict of interest. A public official has a conflict of interest if the decision will have a reasonably foreseeable material financial effect on one or more of his/her economic interests, unless the public official can establish either: (1) that the effect is indistinguishable from the effect on the public generally, or (2) a public official's participation is legally required.
(b) To determine whether a given individual has a disqualifying conflict of interest under the Political Reform Act, proceed with the following analysis:
(1) Determine whether the individual is a public official, within the meaning of the Act. (See Government Code section 82048; 2 Cal. Code Regs. § 18701.) If the individual is not a public official, he or she does not have a conflict of interest within the meaning of the Political Reform Act.
(2) Determine whether the public official will be making, participating in making, or using or attempting to use his/her official position to influence a government decision. (See 2 Cal. Code Regs. § 18702.) If the public official is not making, participating in making, or using or attempting to use his/her official position to influence a government decision, then he or she does not have a conflict of interest within the meaning of the Political Reform Act.
(3) Identify the public official's economic interests. (See 2 Cal. Code Regs. § 18703.)
(4) For each of the public official's economic interests, determine whether that interest is directly or indirectly involved in the governmental decision which the public official will be making, participating in making, or using or attempting to use his/her official position to influence. (See 2 Cal. Code Regs. § 18704.)
(5) Determine the applicable materiality standard for each economic interest, based upon the degree of involvement determined pursuant to California Code of Regulations, title 2, section 18704. (See 2 Cal. Code Regs. § 18705.)
(6) Determine whether it is reasonably foreseeable that the governmental decision will have a material financial effect (as defined in California Code of Regulations, title 2, section 18705) on each economic interest identified pursuant to California Code of Regulations, title 2, section 18703. (See 2 Cal. Code Regs. § 18706.) If it is not reasonably foreseeable that there will be a material financial effect on any of the public official's economic interests, he or she does not have a conflict of interest within the meaning of the Political Reform Act. If it is reasonably foreseeable that there will be a material financial effect on any of the public official's economic interests, and the official does not participate in the decision, determine whether the official may segment the decision into separate decisions to allow his or her participation in subsequent decisions. (See 2 Cal. Code Regs. §18709.)
(7) Determine if the reasonably foreseeable financial effect is distinguishable from the effect on the public generally. If the official can establish that the reasonably foreseeable material financial effect on his or her economic interest is indistinguishable from the effect on the public generally, he or she does not have a conflict of interest within the meaning of the Political Reform Act. If the reasonably foreseeable material financial effect on the public official's economic interest is distinguishable from the effect on the public generally, he or she has a conflict of interest within the meaning of the Political Reform Act. (See 2 Cal. Code Regs. § 18707.)
(8) Determine if the public official's participation is legally required despite the conflict of interest. If the official can establish that his or her participation is legally required, he or she may participate in the governmental decision despite the conflict of interest. (See 2 Cal. Code Regs. § 18708.)
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100 and 87103, Government Code.
HISTORY
1. Repealer and new section filed 12-17-76, as an emergency; effective upon filing (Register 76, No. 51). For prior history, see Register 76, No. 40.
2. Certificate of Compliance filed 3-31-77 (Register 77, No. 14).
3. Amendment of section heading and repealer of subsections (e) and (f) filed 8--2--85; effective thirtieth day thereafter (Register 85, No. 33).
4. Amendment of section and Note filed 6-23-94; operative 6-23-94 (Register 94, No. 25).
5. Editorial correction of subsection (a)(2)(B) (Register 96, No. 43).
6. Amendment of subsection (d)(2) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
7. Editorial correction of subsection (d) (Register 98, No. 44).
8. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
9. Editorial change reformatting table (Register 98, No. 52).
10. Change without regulatory effect amending table filed 1-27-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 5).
11. Editorial correction of History 8 (Register 2000, No. 25).
12. Change without regulatory effect amending table filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
13. Amendment of subsections (b)(1) and (b)(8) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
14. Change without regulatory effect amending subsection (b)(8) filed 1-16-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
15. Amendment of subsections (b)(1)-(8) filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
16. Amendment of subsections (a), (b)(7) and (b)(8) filed 12-20-2005; operative 1-19-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 51).
§18700.1. Using Official Position to Influence (87100). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87100, Government Code.
HISTORY
1. New section filed 8-2-85; effective thirtieth day thereafter (Register 85, No. 33).
2. Repealer filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Editorial correction of History 2 (Register 2000, No. 25).
§18701. Public Official, Definitions.
Note • History
(a) For purposes of Government Code section 82048, which defines “public official,” and Government Code section 82019, which defines “designated employee,” the following definitions apply:
(1) “Member” shall include, but not be limited to, salaried or unsalaried members of committees, boards or commissions with decisionmaking authority.
(A) A committee, board or commission possesses decisionmaking authority whenever:
(i) It may make a final governmental decision;
(ii) It may compel a governmental decision; or it may prevent a governmental decision either by reason of an exclusive power to initiate the decision or by reason of a veto that may not be overridden; or
(iii) It makes substantive recommendations that are, and over an extended period of time have been, regularly approved without significant amendment or modification by another public official or governmental agency.
(B) A committee, board, or commission does not possess decisionmaking authority under subsection (a)(1)(A)(i) of this regulation if it is formed for the sole purpose of researching a topic and preparing a report or recommendation for submission to another governmental body that has final decisionmaking authority.
(2) “Consultant” means an individual who, pursuant to a contract with a state or local government agency:
(A) Makes a governmental decision whether to:
(i) Approve a rate, rule, or regulation;
(ii) Adopt or enforce a law;
(iii) Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
(iv) Authorize the agency to enter into, modify, or renew a contract provided it is the type of contract that requires agency approval;
(v) Grant agency approval to a contract that requires agency approval and to which the agency is a party, or to the specifications for such a contract;
(vi) Grant agency approval to a plan, design, report, study, or similar item;
(vii) Adopt, or grant agency approval of, policies, standards, or guidelines for the agency, or for any subdivision thereof; or
(B) Serves in a staff capacity with the agency and in that capacity participates in making a governmental decision as defined in regulation 18702.2 or performs the same or substantially all the same duties for the agency that would otherwise be performed by an individual holding a position specified in the agency's Conflict of Interest Code under Government Code section 87302.
(b) For purposes of Government Code section 87200, the following definitions apply:
(1) “Other public officials who manage public investments” means:
(A) Members of boards and commissions, including pension and retirement boards or commissions, or of committees thereof, who exercise responsibility for the management of public investments;
(B) High-level officers and employees of public agencies who exercise primary responsibility for the management of public investments, such as chief or principal investment officers or chief financial managers. This category shall not include officers and employees who work under the supervision of the chief or principal investment officers or the chief financial managers; and
(C) Individuals who, pursuant to a contract with a state or local government agency, perform the same or substantially all the same functions that would otherwise be performed by the public officials described in subdivision (b)(1)(B) above.
(2) “Public investments” means the investment of public moneys in real estate, securities, or other economic interests for the production of revenue or other financial return.
(3) “Public moneys” means all moneys belonging to, received by, or held by, the state, or any city, county, town, district, or public agency therein, or by an officer thereof acting in his or her official capacity, and includes the proceeds of all bonds and other evidences of indebtedness, trust funds held by public pension and retirement systems, deferred compensation funds held for investment by public agencies, and public moneys held by a financial institution under a trust indenture to which a public agency is a party.
(4) “Management of public investments” means the following nonministerial functions: directing the investment of public moneys; formulating or approving investment policies; approving or establishing guidelines for asset allocations; or approving investment transactions.
COMMENT: In limited circumstances, the members of a nonprofit organization may be “public officials.” (In re Siegel (1977) 3 FPPC Ops. 62.)
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82019, 82048, 87100, 87200 and 87302, Government Code.
HISTORY
1. New section filed 1-22-76; effective thirtieth day thereafter (Register 76, No. 4).
2. Amendment of subsection (c) filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
3. Amendment of subsection (b) filed 10-19-89; operative 11-18-89 (Register 89, No. 42).
4. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
5. Editorial correction of History 4 (Register 2000, No. 25).
6. Amendment of section heading, section and Note filed 1-11-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2).
7. Amendment filed 12-29-2005; operative 1-28-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 52).
§18702. Making, Participating in Making, or Using or Attempting to Use Official Position to Influence a Government Decision, Defined.
Note • History
(a) To determine if a public official is making, participating in making, or using or attempting to use his/her official position to influence a government decision, apply 2 Cal. Code Regs. sections 18702.1 through 18702.4, respectively.
(b) Notwithstanding subdivision (a) of this regulation, to determine if a public official who holds an office specified in Government Code section 87200 is making, participating in making, or using or attempting to use his or her official position to influence a governmental decision relating to an agenda item which is noticed for a meeting subject to the provisions of the Bagley-Keene Act (Government Code section 11120 et seq.) or the Brown Act (Government Code section 54950 et seq.) apply 2 Cal. Code Regs. sections 18702.1(a)(1)-(a)(4), 18702.2, 18702.3, 18702.4, 18702.5.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81002, 81003, 87100, 87101, 87105 and 87200, Government Code.
HISTORY
1. New section filed 1-22-76; effective thirtieth day thereafter (Register 76, No. 4).
2. Amendment filed 3-19-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 12).
3. Amendment filed 12-20-78; effective thirtieth day thereafter (Register 78, No. 51).
4. Amendment of subsection (a) and (b) filed 7-5-79; effective thirtieth day thereafter (Register 79, No. 27).
5. Amendment of subsection (b) filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
6. Amendment filed 6-22-87; operative 7-22-87 (Register 87, No. 26).
7. Repealer and new section filed 10-17-88; operative 11-16-88 (Register 88, No. 43).
8. Amendment of subsection (c) filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
9. Editorial correction of subsections (a) and (c) (Register 95, No. 50).
10. Amendment of section heading, section and Note filed 3-26-96; operative 3-26-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 13).
11. Amendment of subsections (d)(2)-(3) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
12. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
13. Change without regulatory effect amending section filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
14. Editorial correction of History 12 (Register 2000, No. 25).
15. Amendment of section and Note filed 6-10-2003; operative 6-10-2003 (Register 2003, No. 24).
§18702.1. Determining When a Public Official is Making a Governmental Decision.
Note • History
(a) A public official “makes a governmental decision,” except as provided in 2 Cal. Code Regs. section 18702.4, when the official, acting within the authority of his or her office or position:
(1) Votes on a matter;
(2) Appoints a person;
(3) Obligates or commits his or her agency to any course of action;
(4) Enters into any contractual agreement on behalf of his or her agency;
(5) Determines not to act, within the meaning of subdivisions (a)(1), (a)(2), (a)(3), or (a)(4), above, unless such determination is made because of his or her financial interest. When the determination not to act occurs because of the official's financial interest, the official's determination may be accompanied by an oral or written disclosure of the financial interest.
(b) When an official with a disqualifying conflict of interest abstains from making a governmental decision in an open session of the agency and the official remains on the dais or in his or her designated seat during deliberations of the governmental decision in which he or she is disqualified, his or her presence shall not be counted toward achieving a quorum.
(c) During a closed meeting of the agency, a disqualified official shall not be present when the decision is considered or knowingly obtain or review a recording or any other non-public information regarding the governmental decision.
(d) Notwithstanding subdivision (a) of this regulation, to determine if a public official who holds an office specified in Government Code section 87200 is making, participating in making, or using or attempting to use his or her official position to influence a governmental decision relating to an agenda item which is noticed for a meeting subject to the provisions of the Bagley-Keene Act (Government Code section 11120 et seq.) or the Brown Act (Government Code section 54950 et seq.) apply 2 Cal. Code Regs. sections 18702.1(a)(1)-(a)(4), 18702.2, 18702.3, 18702.4, 18702.5.
COMMENT: Nothing in this section authorizes or prohibits an agency by local rule or custom from requiring a disqualified member to step down from the dais and/or leave the chambers.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81002, 81003, 87100, 87101, 87105 and 87200, Government Code.
HISTORY
1. New section filed 9-5-85; effective thirtieth day thereafter (Register 85, No. 36).
2. Amendment filed 10-17-88; operative 11-16-88 (Register 88, No. 43).
3. Amendment of subsection (a)(1) filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
4. Amendment of subsections (a)(2), (a)(3)(E), (a)(4) and (c)-(c)(2) filed 12-11-95; operative 12-11-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 50).
5. Amendment of subsection (a)(1) and Note filed 6-13-97; operative 6-13-97. Submitted to OAL for printing only (Register 97, No. 24).
6. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
7. Editorial correction of History 6 (Register 2000, No. 25).
8. Amendment of section and Note filed 1-10-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2).
9. Amendment of subsection (c) filed 1-16-2002; operative 2-15-2002 (Register 2002, No. 3).
10. Amendment of subsection (a) , new subsection (d) and amendment of Note filed 6-10-2003; operative 6-10-2003 (Register 2003, No. 24).
§18702.2. Determining When a Public Official is Participating in Making a Governmental Decision.
Note • History
A public official “participates in making a governmental decision,” except as provided in Title 2, California Code of Regulations, section 18702.4, when, acting within the authority of his or her position, the official:
(a) Negotiates, without significant substantive review, with a governmental entity or private person regarding a governmental decision referenced in Title 2, California Code of Regulations, section 18701(a)(2)(A); or
(b) Advises or makes recommendations to the decisionmaker either directly or without significant intervening substantive review, by:
(1) Conducting research or making any investigation which requires the exercise of judgment on the part of the official and the purpose of which is to influence a governmental decision referenced in Title 2, California Code of Regulations, section 18701(a)(2)(A); or
(2) Preparing or presenting any report, analysis, or opinion, orally, or in writing, which requires the exercise of judgment on the part of the official and the purpose of which is to influence a governmental decision referenced in Title 2, California Code of Regulations, section 18701(a)(2)(A).
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87100, Government Code.
HISTORY
1. New section filed 7-24-85; effective thirtieth day thereafter (Register 85, No. 30).
2. Repealer of subsection (h) filed 6-22-87; operative 7-22-87 (Register 87, No. 26).
3. Amendment filed 10-17-88; operative 11-16-88 (Register 88, No. 43).
4. Change without regulatory effect amending subsection (a)(2) filed 11-27-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 48).
5. Amendment of subsections (a)(1)-(3) and (d) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
6. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
7. Editorial correction of History 6 (Register 2000, No. 25).
8. Amendment of subsection (a) filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18702.3. Determining When a Public Official is Using or Attempting to Use His/Her Official Position to Influence a Governmental Decision.
Note • History
(a) With regard to a governmental decision which is within or before an official's agency or an agency appointed by or subject to the budgetary control of his or her agency, the official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the decision, the official contacts, or appears before, or otherwise attempts to influence, any member, officer, employee or consultant of the agency. Attempts to influence include, but are not limited to, appearances or contacts by the official on behalf of a business entity, client, or customer.
(b) With regard to a governmental decision which is within or before an agency not covered by subsection (a), the official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the decision, the official acts or purports to act on behalf of, or as the representative of, his or her agency to any member, officer, employee or consultant of an agency. Such actions include, but are not limited to the use of official stationery.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87100, Government Code.
HISTORY
1. New section filed 10-17-88; operative 11-16-88 (Register 88, No. 43).
2. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Editorial correction of History 2 (Register 2000, No. 25).
Note • History
(a) Making or participating in making a governmental decision shall not include:
(1) Actions of public officials which are solely ministerial, secretarial, manual, or clerical;
(2) Appearances by a public official as a member of the general public before an agency in the course of its prescribed governmental function to represent himself or herself on matters related solely to the official's personal interests as defined in Title 2, California Code of Regulations, section 18702.4(b)(1); or
(3) Actions by public officials relating to their compensation or the terms or conditions of their employment or contract. In the case of public officials who are “consultants,” as defined in Title 2, California Code of Regulations, section 18701(a)(2), this includes actions by consultants relating to the terms or conditions of the contract pursuant to which they provide services to the agency, so long as they are acting in their private capacity.
(b) Notwithstanding Title 2, California Code of Regulations, section 18702.3(a), an official is not attempting to use his or her official position to influence a governmental decision of an agency covered by that subsection if the official:
(1) Appears in the same manner as any other member of the general public before an agency in the course of its prescribed governmental function solely to represent himself or herself on a matter which is related to his or her personal interests. An official's “personal interests” include, but are not limited to:
(A) An interest in real property which is wholly owned by the official or members of his or her immediate family.
(B) A business entity wholly owned by the official or members of his or her immediate family.
(C) A business entity over which the official exercises sole direction and control, or over which the official and his or her spouse jointly exercise sole direction and control.
(2) Communicates with the general public or the press.
(3) Negotiates his or her compensation or the terms and conditions of his or her employment or contract.
(4) Prepares drawings or submissions of an architectural, engineering or similar nature to be used by a client in connection with a proceeding before any agency. However, this provision applies only if the official has no other direct oral or written contact with the agency with regard to the client's proceeding before the agency except for necessary contact with agency staff concerning the processing or evaluation of the drawings or submissions prepared by the official.
(5) Appears before a design or architectural review committee or similar body of which he or she is a member to present drawings or submissions of an architectural, engineering or similar nature which the official has prepared for a client if the following three criteria are met:
(A) The review committee's sole function is to review architectural or engineering plans or designs and to make recommendations in that instance concerning those plans or designs to a planning commission or other agency;
(B) The ordinance or other provision of law requires that the review committee include architects, engineers or persons in related professions, and the official was appointed to the body to fulfill this requirement; and (C) The official is a sole practitioner.
(c) Academic Decisions
(1) Except as provided in subsection (c)(2), neither disclosure of financial interests nor disqualification is required under Government Code sections 87100, 87302, or any Conflict of Interest Code, in connection with:
(A) Teaching decisions, including the selection by a teacher of books or other educational materials for use within his or her own school or institution, and other decisions incidental to teaching;
(B) Decisions made by a person who has teaching or research responsibilities at an institution of higher education to pursue personally a course of academic study or research, to apply for funds to finance such a project, to allocate financial and material resources for such academic study or research, and all decisions relating to the manner or methodology with which such study or research will be conducted. Provided, however, that the provisions of this subsection (c)(1)(B) shall not apply with respect to any decision made by the person in the exercise of institution- or campus-wide administrative responsibilities respecting the approval or review of any phase of academic research or study conducted at that institution or campus.
(2) Disclosure (consistent with 2 Cal. Code Regs. section 18755) shall be required under Government Code section 87302 or any Conflict of Interest Code in connection with a decision made by a person or persons at an institution of higher education with principal responsibility for a research project to undertake such research, if it is to be funded or supported, in whole or in part, by a contract or grant (or other funds earmarked by the donor for a specific research project or for a specific researcher) from a nongovernmental entity, but disqualification may not be required under Government Code sections 87100, 87302 or any Conflict of Interest Code in connection with any such decision if the decision is substantively reviewed by an independent committee established within the institution.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87100, Government Code.
HISTORY
1. New section filed 10-17-88; operative 11-16-88 (Register 88, No. 43).
2. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Editorial correction of History 2 (Register 2000, No. 25).
4. Amendment of subsection (c)(2) filed 6-14-2005; operative 7-14-2005 (Register 2005, No. 24).
§18702.5. Public Identification of a Conflict of Interest for Section 87200 Filers.
Note • History
(a) Government Code section 87105 and this regulation apply when a public official who holds an office specified in Government Code section 87200 has a financial interest in a decision within the meaning of Government Code section 87100, and the governmental decision relates to an agenda item which is noticed for a meeting subject to the provisions of the Bagley-Keene Act (Government Code section 11120 et seq.) or the Brown Act (Government Code section 54950 et seq.).
(b) Content & Timing of Identification: The public official shall, following the announcement of the agenda item to be discussed or voted upon but before either the discussion or vote commences, do all of the following:
(1) The public official shall publicly identify:
(A) Each type of economic interest held by the public official which is involved in the decision and gives rise to the conflict of interest (i.e. investment, business position, interest in real property, personal financial effect, or the receipt or promise of income or gifts), and
(B) The following details identifying the economic interest(s):
(i) if an investment, the name of the business entity in which each investment is held;
(ii) if a business position, a general description of the business activity in which the business entity is engaged as well as the name of the business entity;
(iii) if real property, the address or another indication of the location of the property, unless the property is the public official's principal or personal residence, in which case, identification that the property is a residence;
(iv) if income or gifts, then identification of the source; and
(v) if personal financial effect, then identification of the expense, liability, asset or income affected.
(2) Form of Identification: If the governmental decision is to be made during an open session of a public meeting, the public identification shall be made orally and shall be made part of the official public record.
(3) Recusal/Leaving the Room: The public official must recuse himself or herself and leave the room after the identification required by subdivisions (b)(1) and (b)(2) of this regulation is made. He or she shall not be counted toward achieving a quorum while the item is discussed.
(c) Special Rules for Closed Session: If the governmental decision is made during a closed session of a public meeting, the public identification may be made orally during the open session before the body goes into closed session and shall be limited to a declaration that his or her recusal is because of a conflict of interest under Government Code section 87100. The declaration shall be made part of the official public record. The public official shall not be present when the decision is considered in closed session or knowingly obtain or review a recording or any other non-public information regarding the governmental decision.
(d) Exceptions:
(1) Uncontested Matters: The exception from leaving the room granted in Government Code section 87105(a)(3) for a “matter [that] has been placed on the portion of the agenda reserved for uncontested matters” shall mean agenda items on the consent calendar. When the matter in which the public official has a financial interest is on the consent calendar, the public official must comply with subdivisions (b)(1) and (b)(2) of this regulation, and recuse himself or herself from discussing or voting on that matter, but the public official is not required to leave the room during the consent calendar.
(2) Absence: If the public official is absent when the agenda item subject to subdivision (a) of this regulation is considered, then Government Code section 87105 and this regulation impose no public identification duties on the public official for that item at that meeting.
(3) Speaking as a Member of the Public Regarding an Applicable Personal Interest: When a personal interest found in 2 Cal. Code Regs. section 18702.4(b) is present, a public official may speak as a member of the general public if he or she complies with subdivisions (b)(1) and (b)(2) of this regulation, recuses himself or herself from voting on the matter and leaves the dais to speak from the same area as the members of the public. He or she may listen to the public discussion of the matter with the members of the public.
COMMENT: Nothing in the provisions of this regulation is intended to cause an agency or public official to make any disclosure that would reveal the confidences of a closed session or any other privileged information as contemplated by law including but not limited to the recognized privileges found in 2 Cal. Code Regs. section 18740.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87105 and 87200, Government Code.
HISTORY
1. New section filed 6-10-2003; operative 6-10-2003 (Register 2003, No. 24). For prior history, see Register 98, No. 48.
2. Amendment of subsection (b)(1)(A) filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18702.6. Material Financial Effect: Source of Income or Gifts Who Is an Individual Indirectly Involved in the Decision. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 10-17-88; operative 11-16-88 (Register 88, No. 43).
2. Repealer filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Editorial correction of History 2 (Register 2000, No. 25).
§18703. Economic Interests, Defined.
Note • History
For purposes of Title 2, Division 6, Chapter 7 of the California Code of Regulations, the term “economic interest” includes the interests defined in Title 2, California Code of Regulations, sections 18703.1 through 18703.5, inclusive.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 2-20-76; effective thirtieth day thereafter (Register 76, No. 8).
2. Amendment of subsection (d) filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
3. Amendment of initial paragraph only filed 11-13-85; effective thirtieth day thereafter (Register 85, No. 46).
4. Repealer and new section filed 11-29-93; operative 12-29-93 pursuant to Government Code section 11346.2(d) (Register 93, No. 49).
5. Editorial correction of printing error in subsection (a) (Register 94, No. 25).
6. Amendment of subsections (b)-(b)(3) filed 12-5-94; operative 12-5-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 49).
7. Editorial correction of subsection (a)(1)(A)(i) (Register 95, No. 50).
8. Amendment filed 3-26-96; operative 3-26-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 13).
9. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
10. Editorial correction of History 9 (Register 2000, No. 25).
§18703.1. Economic Interest, Defined: Business Entities.
Note • History
For purposes of disqualification under Government Code sections 87100 and 87103, a public official has an economic interest in a business entity if any of the following are true:
(a) The public official has a direct or indirect investment worth two thousand dollars ($2,000) or more in the business entity.
(b) The public official is a director, officer, partner, trustee, employee, or holds any position of management in the business entity.
(c) Parent, Subsidiary, Otherwise Related Business Entity. An official has an economic interest in a business entity which is a parent or subsidiary of, or is otherwise related to, a business entity in which the official has one of the interests defined in Government Code section 87103(a) or (d).
(d) Parent, Subsidiary, Otherwise Related Business Entity, defined.
(1) Parent-subsidiary. A parent-subsidiary relationship exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation.
(2) Otherwise related business entity. Business entities, including corporations, partnerships, joint ventures and any other organizations and enterprises operated for profit, which do not have a parent-subsidiary relationship are otherwise related if any one of the following three tests is met:
(A) One business entity has a controlling ownership interest in the other business entity.
(B) There is shared management and control between the entities. In determining whether there is shared management and control, consideration should be given to the following factors:
(i) The same person or substantially the same person owns and manages the two entities;
(ii) There are common or commingled funds or assets;
(iii) The business entities share the use of the same offices or employees, or otherwise share activities, resources or personnel on a regular basis;
(iv) There is otherwise a regular and close working relationship between the entities; or
(C) A controlling owner (50% or greater interest as a shareholder or as a general partner) in one entity also is a controlling owner in the other entity.
(e) Although a public official may not have an economic interest in a given business entity pursuant to subdivisions (a)-(c) of this section, the public official may nonetheless have an economic interest in the business entity if it is a source of income to him or her. (See 2 Cal. Code Regs. section 18703.3.)
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 9-12-90; operative 10-12-90 (Register 90, No. 43).
2. Amendment filed 3-26-96; operative 3-26-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 13).
3. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
4. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
5. Editorial correction of History 3 (Register 2000, No. 25).
6. Amendment of subsections (a) and (e) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
7. Change without regulatory effect amending subsections (c) and (e) filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
8. Amendment of first paragraph and subsection (c) and repealer of subsection (d)(3) filed 3-11-2004; operative 3-11-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§18703.2. Economic Interest, Defined: Real Property.
Note • History
(a) For purposes of disqualification under Government Code sections 87100 and 87103, a public official has an economic interest in any real property in which the public official has a direct or indirect interest worth two thousand dollars ($2,000) or more in fair market value.
COMMENT: For the statutory definition of “interest in real property,” see Government Code section 82033.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-29-93; operative 12-29-93 pursuant to Government Code section 11346.2(d) (Register 93, No. 49).
2. Change without regulatory effect amending first paragraph filed 4-11-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 15).
3. Change without regulatory effect amending section heading filed 7-18-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 29).
4. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
5. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
6. Editorial correction of History 4 (Register 2000, No. 25).
7. Amendment of subsection (a) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
8. Amendment of subsection (a) filed 3-11-2004; operative 3-11-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§18703.3. Economic Interest, Defined: Source of Income.
Note • History
(a)(1) For purposes of disqualification under Sections 87100 and 87103, a public official has an economic interest in any person from whom he or she has received income, including commission income and incentive compensation as defined in this regulation, aggregating five hundred dollars ($500) or more within 12 months prior to the time when the relevant governmental decision is made. A public official's income includes income which has been promised to the public official but not yet received by him or her, if he or she has a legally enforceable right to the promised income.
(2) Parent, Subsidiary, Otherwise Related Business Entity. An official has an economic interest in a business entity which is a parent or subsidiary of, or is otherwise related to, a business entity in which the official has an interest as defined in Section 87103(c). “Parents, subsidiaries, and otherwise related business entities” are defined in Regulation 18703.1(d).
(3) In addition to having an economic interest in any business entity from which the official has received income of five hundred ($500) or more within 12 months prior to the time when the relevant governmental decision is made, the official has a source-of-income economic interest in all of the following:
(A) Any individual owning a 50 percent or greater interest in that business entity.
(B) Any individual, regardless of the extent of the individual's ownership interest in that entity, who has the power to direct or cause the direction of the management and policies of the business entity.
(b) Former employers. Source of income, as used in Section 87103(c) and this section, shall not include a former employer if: All income from the employer was received by or accrued to the public official prior to the time he or she became a public official; the income was received in the normal course of the previous employment; and there was no expectation by the public official at the time he or she assumed office of renewed employment with the former employer.
(c) Sources of Commission Income to Brokers, Agents and Salespersons
(1) “Commission income” means gross payments received by a public official as a result of services rendered as a broker, agent, or other salesperson for a specific sale or similar transaction. Commission income is received when it is paid or credited.
(2) The sources of commission income in a specific sale or similar transaction include for each of the following:
(A) An insurance broker or agent:
(i) The insurance company providing the policy;
(ii) The person purchasing the policy; and
(iii) The brokerage firm, agency, company, or other business entity through which the broker or agent conducts business.
(B) A real estate broker:
(i) The person the broker represents in the transaction;
(ii) If the broker receives a commission from a transaction conducted by an agent working under the broker's auspices, the person represented by the agent;
(iii) Any brokerage business entity through which the broker conducts business; and
(iv) Any person who receives a finder's or other referral fee for referring a party to the transaction to the broker, or who makes a referral pursuant to a contract with the broker.
(C) A real estate agent:
(i) The broker and brokerage business entity under whose auspices the agent works;
(ii) The person the agent represents in the transaction; and
(iii) Any person who receives a finder's or other referral fee for referring a party to the transaction to the broker, or who makes a referral pursuant to a contract with the broker.
(D) A travel agent or salesperson:
(i) The airline, hotel, tour operator or other person who provided travel services or accommodations in the transaction;
(ii) The person who purchases or has a contract for travel services or accommodations through the agent or salesperson; and
(iii) The person, travel agent, company, travel agency or other business entity for which the agent or salesperson is an agent.
(E) A stockbroker:
(i) The brokerage business entity through which the broker conducts business; and
(ii) The person who trades the stocks, bonds, securities or other investments through the stockbroker.
(F) A retail or wholesale salesperson:
(i) The person, store or other business entity which provides the salesperson with the product or service to sell and for which the salesperson acts as a representative in the transaction; and
(ii) The person who purchases the product or service.
(3) For purposes of determining whether disqualification is required under the provisions of Sections 87100 and 87103(c), the full gross value of any commission income for a specific sale or similar transaction shall be attributed to each source of income in that sale or transaction.
(d) Sources of Incentive Compensation. “Incentive compensation” means income received by an official who is an employee, over and above salary, which is either ongoing or cumulative, or both, as sales or purchases of goods or services accumulate. Incentive compensation is calculated by a predetermined formula set by the official's employer which correlates to the conduct of the purchaser in direct response to the effort of the official. Incentive compensation does not include: salary; commission income; bonuses for activity not related to sales or marketing, the amount of which is based solely on merit or hours worked over and above a predetermined minimum; and such executive incentive plans as may be based on company performance, provided that the formula for determining the amount of the executive's incentive income does not include a correlation between that amount and increased profits derived from increased business with specific and identifiable clients or customers of the company. Incentive compensation also does not include payments for personal services which are not marketing or sales.
The purchaser is a source of income to the official if all three of the following apply:
(1) The official's employment responsibilities include directing sales or marketing activity toward the purchaser; and
(2) There is direct personal contact between the official and the purchaser intended by the official to generate sales or business; and
(3) There is a direct relationship between the purchasing activity of the purchaser and the amount of the incentive compensation received by the official.
Comment: For further discussion of incentive compensation, see Peninsula Health Care District v. Fair Political Practices Commission, Sacramento County Superior Court, Case No. 02CS01766, and In re Hanko, O-02-088 (August 9, 2002).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-29-93; operative 12-29-93 pursuant to Government Code section 11346.2(d) (Register 93, No. 49).
2. Change without regulatory effect amending section heading filed 7-18-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 29).
3. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
4. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
5. Editorial correction of History 3 (Register 2000, No. 25).
6. Amendment of subsections (a) and (c)(5)(A) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
7. Amendment of subsection (a), repealer of subsections (c)(1) and (c)(5)-(c)(5)(B), subsection renumbering, amendment of newly designated subsections (c)(1) and (c)(3) and new subsection (d)-(d)(3) filed 11-10-2003; operative 11-10-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 46).
8. Amendment and redesignation of subsection (a) as subsection (a)(1) and new subsection (a)(2) filed 3-11-2004; operative 3-11-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
9. Amendment of subsectons (a)(1)-(2), new subsections (a)(3)-(a)(3)(B) and amendment of subsections (b) and (c)(3) filed 6-17-2010; operative 7-17-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2010, No. 25).
§18703.4. Economic Interest, Defined: Source of Gifts.
Note • History
For purposes of disqualification under Sections 87100 and 87103, a public official has an economic interest in any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $420 or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8, 87103 and 89503, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Amendment filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
4. Editorial correction of History 1 (Register 2000, No. 25).
5. Amendment of section filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
6. Amendment filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
7. Editorial correction of History 6 (Register 2003, No. 12).
8. Amendment filed 3-11-2004; operative 3-11-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
9. Amendment filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1).
10. Amendment of section and Note filed 12-18-2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
11. Amendment filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
12. Amendment filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
§18703.5. Economic Interest, Defined: Personal Finances.
Note • History
For purposes of disqualification under Government Code sections 87100 and 87103, a public official has an economic interest in his or her personal finances and those of his or her immediate family. A governmental decision will have an effect on this economic interest if the decision will result in the personal expenses, income, assets, or liabilities of the official or his or her immediate family increasing or decreasing.
COMMENT: Cross-references: For the definition of “immediate family,” see Government Code section 82029. For the definition of “income,” see Government Code section 82030 and California Code of Regulations, Title 2, section 18232.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-21-88; operative 12-21-88 (Register 88, No. 48).
2. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
4. Editorial correction of History 2 (Register 2000, No. 25).
5. Amendment of section heading and section filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
6. Amendment filed 3-11-2004; operative 3-11-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§18704. Determining Whether an Economic Interest Is Directly or Indirectly Involved in a Governmental Decision.
Note • History
(a) In order to determine if a governmental decision's reasonably foreseeable financial effect on a given economic interest is material, it must first be determined if the official's economic interest is directly involved or indirectly involved in the governmental decision. If a public official's economic interest is not directly involved in a governmental decision, it is indirectly involved.
(1) For governmental decisions which affect business entities, sources of income, and sources of gifts apply Regulation 18704.1.
(2) For governmental decisions which affect real property interests apply Regulation 18704.2.
(3) For governmental decisions which affect the personal expenses, income, assets or liabilities of the public official or his or her immediate family (personal financial effect) apply Regulation 18704.5.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 1-20-76 as an emergency; effective upon filing (Register 76, No. 4).
2. Repealer by operation of law, Section 11422.1, Gov. C. (Register 76, No. 25).
3. New section filed 6-17-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 25).
4. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
5. Editorial correction of History 4 (Register 2000, No. 25).
6. Amendment of section and Note filed 3-5-2009; operative 4-4-2009 (Register 2009, No. 10).
§18704.1. Determining Whether Directly or Indirectly Involved in a Government Decision; Business Entities, Sources of Income, Sources of Gifts.
Note • History
(a) A person, including business entities, sources of income, and sources of gifts, is directly involved in a decision before an official's agency when that person, either directly or by an agent:
(1) Initiates the proceeding in which the decision will be made by filing an application, claim, appeal, or similar request or;
(2) Is a named party in, or is the subject of, the proceeding concerning the decision before the official or the official's agency. A person is the subject of a proceeding if a decision involves the issuance, renewal, approval, denial or revocation of any license, permit, or other entitlement to, or contract with, the subject person.
(b) If a business entity, source of income, or source of a gift is directly involved in a governmental decision, apply the materiality standards in California Code of Regulations, Title 2, section 18705.1(b), section 18705.3(a), or section 18705.4(a), respectively. If a business entity, source of income, or source of a gift is not directly involved in a governmental decision, apply the materiality standards in California Code of Regulations, Title 2, section 18705.1(c), section 18705.3(b), or section 18705.4(b), respectively.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading and subsection (b) filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment of subsection (b) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
§18704.2. Determining Whether Directly or Indirectly Involved in a Governmental Decision: Interest in Real Property.
Note • History
(a) Real property in which a public official has an economic interest is directly involved in a governmental decision if any of the following apply:
(1) The real property in which the official has an interest, or any part of that real property, is located within 500 feet of the boundaries (or the proposed boundaries) of the property which is the subject of the governmental decision. For purposes of subdivision (a)(5), real property is located “within 500 feet of the boundaries (or proposed boundaries) of the real property which is the subject of the governmental decision” if any part of the real property is within 500 feet of the boundaries (or proposed boundaries) of the redevelopment project area.
(2) The governmental decision involves the zoning or rezoning, annexation or deannexation, sale, purchase, or lease, or inclusion in or exclusion from any city, county, district or other local governmental subdivision, of the real property in which the official has an interest or a similar decision affecting the real property. For purposes of this subdivision, the terms “zoning” and “rezoning” shall refer to the act of establishing or changing the zoning or land use designation on the real property in which the official has an interest.
(3) The governmental decision involves the issuance, denial or revocation of a license, permit or other land use entitlement authorizing a specific use or uses of the real property in which the official has an interest.
(4) The governmental decision involves the imposition, repeal or modification of any taxes or fees assessed or imposed on the real property in which the official has an interest.
(5) The governmental decision is to designate the survey area, to select the project area, to adopt the preliminary plan, to form a project area committee, to certify the environmental document, to adopt the redevelopment plan, to add territory to the redevelopment area, or to rescind or amend any of the above decisions; and real property in which the official has an interest, or any part of it is located within the boundaries (or the proposed boundaries) of the redevelopment area.
(6) The decision involves construction of, or improvements to, streets, water, sewer, storm drainage or similar facilities, and the real property in which the official has an interest will receive new or improved services.
(b) Notwithstanding subdivision (a) above, real property in which a public official has an interest is not directly involved in a governmental decision, but is instead indirectly involved if:
(1) The decision solely concerns the amendment of an existing zoning ordinance or other land use regulation (such as changes in the uses permitted, or development standards applicable, within a particular zoning category) which is applicable to all other properties designated in that category, which shall be analyzed under 2 Cal. Code Regs. section 18705.2(b).
(2) The decision solely concerns repairs, replacement, or maintenance of existing streets, water, sewer, storm drainage or similar facilities.
(3) The decision solely concerns the adoption or amendment of a general plan and all of the following apply:
(A) The decision only identifies planning objectives or is otherwise exclusively one of policy. A decision will not qualify under this subdivision if the decision is initiated by the public official, by a person that is an economic interest of the public official, or by a person representing either the public official or an economic interest of the public official.
(B) The decision requires a further decision or decisions by the public official's agency prior to implementing the planning or policy objectives. Examples of further decisions include, but are not limited to, permitting, licensing, rezoning, or the approval of or change to a zoning variance, land use ordinance, or specific plan or its equivalent.
(C) The decision does not concern an identifiable parcel or parcels or development project. A decision does not “concern an identifiable parcel or parcels” solely because, in the proceeding before the agency in which the decision is made, the parcel or parcels are merely included in an area depicted on a map or diagram offered in connection with the decision, provided that the map or diagram depicts all parcels located within the agency's jurisdiction and economic interests of the official are not singled out.
(D) The decision does not concern the agency's prior, concurrent, or subsequent approval of, or change to, a permit, license, zoning designation, zoning variance, land use ordinance, or specific plan or its equivalent.
(c) Definitions -- General Plans. The definitions below apply to this regulation:
(1) A decision “solely concerns the adoption or amendment of a general plan” when the decision, in the manner described in Government Code sections 65301 and 65301.5, grants approval of, substitutes for, or modifies any component of, a general plan, including elements, a statement of development policies, maps, diagrams, and texts, or any other component setting forth objectives, principles, standards, and plan proposals, as described in Government Code sections 65302 and 65303.
(2) “General plan” means “general plan” as used in Government Code, Title 7 (Planning and Zoning), Division 1 (Local Planning), Article 5, sections 65300, et seq.
(3) “Specific plan or its equivalent” means a “specific plan” or any equivalent plan adopted by the jurisdiction to meet the purposes described in Government Code, Title 7 (Planning and Zoning), Division 1 (Local Planning), Article 8, sections 65450, et seq.
(d) Determining the applicable materiality standard.
(1) If the real property in which the public official has an economic interest is directly involved in a governmental decision, apply the materiality standards in 2 Cal. Code Regs. section 18705.2(a).
(2) If a real property interest is not directly involved in a governmental decision, apply the materiality standards in 2 Cal. Code Regs. section 18705.2(b).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment filed 1-16-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
5. Amendment filed 2-18-2003; operative 2-18-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 8).
6. Amendment of subsections (b) and (b)(1), new subsections (b)(3)-(c)(3), subsection relettering and amendment of newly designated subsections (d)(1)-(2) filed 9-9-2004; operative 9-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 37).
7. Editorial correction of subsection (b)(3)(A) (Register 2005, No. 38).
§18704.3. Sources of Commission Income to Brokers, Agents and Salespersons. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82030, 87103, 87207 and 87302, Government Code.
HISTORY
1. New section filed 12-21-84; effective thirtieth day thereafter (Register 84, No. 51).
2. Editorial correction of subsection (e) (Register 96, No. 43).
3. Repealer filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
4. Editorial correction of History 3 (Register 2000, No. 25).
§18704.5. Determining Whether Directly or Indirectly Involved in a Governmental Decision: Economic Interest in Personal Finances.
Note • History
A public official or his or her immediate family are deemed to be directly involved in a governmental decision which has any financial effect on his or her personal finances or those of his or her immediate family.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment of section heading and section filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
5. Amendment repealing subsection (a) designator filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18705. Standards for Determining Whether a Financial Effect on an Economic Interest Is Material.
Note • History
(a) In order to determine if a governmental decision's reasonably foreseeable financial effect on a given economic interest is material:
(1) For governmental decisions which affect economic interests in business entities--apply 2 Cal. Code Regs. section 18705.1;
(2) For governmental decisions which affect economic interests in real property--apply 2 Cal. Code Regs. section 18705.2;
(3) For governmental decisions which affect economic interests in sources of income--apply 2 Cal. Code Regs. section 18705.3;
(4) For governmental decisions which affect economic interests in sources of gifts--apply 2 Cal. Code Regs. section 18705.4;
(5) For governmental decisions which affect the personal expenses, income, assets or liabilities of the public official or his immediate family (personal financial effect)--apply 2 Cal. Code Regs. section 18705.5;
(b) General Rule: Whenever the specific provisions of 2 Cal. Code Regs. sections 18705.1 through 18705.5, inclusive, cannot be applied, the following general rule shall apply: The financial effect of a governmental decision is material if the decision will have a significant effect on the official or a member of the official's immediate family, or on the source of income, the source of gifts, the business entity, or the real property, which is an economic interest of the official.
(c) Special Rules. Notwithstanding 2 Cal. Code Regs. sections 18705.1 through 18705.5, inclusive, an official does not have to disqualify himself or herself from a governmental decision if: Although a conflict of interest would otherwise exist under 2 Cal. Code Regs. sections 18705.1 through 18705.5, inclusive, 18706, the decision will have no financial effect on the person or business entity who appears before the official, or on the real property in which the official holds a direct or indirect interest, or on the personal finances of the official and/or his immediate family.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 1-24-78; effective thirtieth day thereafter (Register 78, No. 4).
2. Amendment filed 6-4-82; effective thirtieth day thereafter (Register 82, No. 23).
3. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
4. Editorial correction of History 3 (Register 2000, No. 25).
5. New subsection (b)(1) designator, repealer of subsection (c)(1), and subsection renumbering filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
6. Amendment filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
§18705.1. Materiality Standard: Economic Interests in Business Entities.
Note • History
(a) Introduction.
(1) If a business entity in which a public official has an economic interest is directly involved in a governmental decision (see Regulation 18704.1(a)), use the standards in subdivision (b) of this regulation.
(2) If a business entity in which a public official has an economic interest is indirectly involved in a governmental decision (see Regulation18704.1(b)), use the standards in subdivision (c) of this regulation.
(b) Directly involved business entities.
(1) General Rule: Unless the exception in subdivision (b)(2) of this regulation applies, the financial effects of a governmental decision on a business entity which is directly involved in the governmental decision is presumed to be material. This presumption may be rebutted by proof that it is not reasonably foreseeable that the governmental decision will have any financial effect on the business entity.
(2) Exception: If the public official's only economic interest in the business entity is an investment interest (see Section 87103(a)), and the public official's investment in the business entity is worth $25,000 or less, apply the materiality standards in either of the following provisions, as applicable:
(A) Subdivision (c)(1) of this regulation if the business entity is listed in the Fortune 500, or if not listed in the Fortune 500, has revenues that are no less than the revenues of the business entity that ranks 500th in the Fortune 500 list.
(B) Subdivision (c)(2) of this regulation if the business entity is listed on the New York Stock Exchange, or if not listed on the New York Stock Exchange, for its most recent fiscal year had net income of no less than $2.5 million.
(c) Indirectly involved business entities. The following materiality standards apply when a business entity in which a public official has an economic interest is indirectly involved in a governmental decision. If more than one of the following subdivisions is applicable to the business entity in question, apply the subdivision with the highest dollar thresholds.
(1) If the business entity is listed in the Fortune 500 or, if not listed in the Fortune 500, has revenues that are no less than the revenues of the business entity that ranks 500th in the Fortune 500 list, the financial effect of a governmental decision on the business entity is material if it is reasonably foreseeable that:
(A) The governmental decision will result in an increase or decrease in the business entity's gross revenues for a fiscal year of $10,000,000 or more; or
(B) The governmental decision will result in the business entity incurring or avoiding additional expenses or reducing or eliminating existing expenses for a fiscal year in the amount of $2,500,000 or more; or
(C) The governmental decision will result in an increase or decrease in the value of the business entity's assets or liabilities of $10,000,000 or more.
(2) If the business entity is listed on the New York Stock Exchange, or if not listed on the New York Stock Exchange, for its most recent fiscal year had net income of no less than $2.5 million, the financial effect of a governmental decision on the business entity is material if it is reasonably foreseeable that:
(A) The governmental decision will result in an increase or decrease to the business entity's gross revenues for a fiscal year in the amount of $500,000 or more; or,
(B) The governmental decision will result in the business entity incurring or avoiding additional expenses or reducing or eliminating existing expenses for a fiscal year in the amount of $200,000 or more; or,
(C) The governmental decision will result in an increase or decrease in the value of assets or liabilities of $500,000 or more.
(3) If the business entity is listed on either the NASDAQ or American Stock Exchange, or if not so listed, for its most recent fiscal year had net income of no less than $750,000, the financial effect of a governmental decision on the business entity is material if it is reasonably foreseeable that:
(A) The governmental decision will result in an increase or decrease to the business entity's gross revenues for a fiscal year in the amount of $300,000 or more; or,
(B) The governmental decision will result in the business entity incurring or avoiding additional expenses or reducing or eliminating existing expenses for a fiscal year in the amount of $100,000 or more; or,
(C) The governmental decision will result in an increase or decrease in the value of assets or liabilities of $300,000 or more.
(4) If the business entity is not covered by subdivisions (c)(1)-(3), the financial effect of a governmental decision on the business entity is material if it is reasonably foreseeable that:
(A) The governmental decision will result in an increase or decrease in the business entity's gross revenues for a fiscal year in the amount of $20,000 or more; or,
(B) The governmental decision will result in the business entity incurring or avoiding additional expenses or reducing or eliminating existing expenses for a fiscal year in the amount of $5,000 or more; or,
(C) The governmental decision will result in an increase or decrease in the value of the business entity's assets or liabilities of $20,000 or more.
(d) Terminology. The accounting terms described below are the same as, or not inconsistent with, terms used in Generally Accepted Accounting Principles and Generally Accepted Auditing Standards. Nothing in this subdivision should be construed to incorporate new items not contemplated under Generally Accepted Accounting Principles and Generally Accepted Auditing Standards, nor to exclude any items that might be included in the definitions of these terms under Generally Accepted Accounting Principles and Generally Accepted Auditing Standards
(1) Assets. As used in this section, “assets” means all property, real and personal, tangible and intangible, which belongs to any business entity. This includes, but is not limited to, cash, securities, merchandise, raw materials, finished goods, operating supplies, and ordinary maintenance material and parts, accounts receivable and notes and loans receivable, and prepaid expenses (such as prepaid insurance, interests, rents, taxes, advertising, and operating supplies).
(A) When a business entity holds a claim over collateral (including real property) as security for a loan made by the business entity, such a claim does not make the collateral (including real property) an “asset” of the business entity, unless the business entity has initiated proceedings to foreclose upon, or acquire the asset based on the debtor's failure to repay the loan. The loan or note secured by the collateral is an asset.
(B) The definition of “assets” also includes intangible assets. Intangible assets, include, but are not limited to, long-lived legal rights and competitive advantages developed or acquired by a business enterprise, patents, copyrights, franchises, trademarks, organizational costs, goodwill, and secret processes.
(2) Expenses: In general, the term refers to the current costs of carrying on an activity.
(3) Gross Revenue: Actual or expected inflows of cash or other assets. “Gross Revenue” is the revenue of a business entity before adjustments or deductions are made for returns and allowances and the costs of goods sold, and prior to any deduction for these and any other expenses.
(4) Liabilities: Obligations of the business entity, liquidation of which is reasonably expected to require the transfer of assets or the creation of other new liabilities. Any financial obligation or cash expenditures that must be made by the business entity at a specific time to satisfy the contractual terms of such an obligation.
(5) Net Income: A business entity's total earnings; otherwise defined as revenues adjusted for the costs of doing business, depreciation, interest, taxes, and other expenses. This amount is usually found at the bottom of a business entity's Profit and Loss statement. Also described as Net Profit.
(e) Financial statements. In complying with this regulation, public officials may rely on the most recent independently audited financial statements of the business entity so long as those statements are reflective of the current condition of the business entity. Financial statements are not considered “reflective of the current condition of the business entity” where:
(1) The most recent independently audited financial statements of the business entity are for a fiscal year ending more than twenty-four months prior to the date of the governmental decision.
(2) The most recent audit of the financial statements resulted in an adverse opinion, was issued with a disclaimer, or was otherwise qualified in such a manner that the statement of assets, liabilities, expenses, or gross revenues is questioned in the audit report, or
(3) There has been a subsequent event, intervening between the date that the financial statement was created and the date of the decision of the public official, that makes the statement no longer representative, including, but not limited to, business reorganizations.
Comments: Electronic access to annual reports, quarterly reports, and other financial statements filed with the United States Securities and Exchange Commission (“SEC”) may be obtained by accessing the SEC's website and selecting its EDGAR database of statutory filings: http://www.sec.gov/edgar/searchedgar/companysearch.html.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Repealer and new section filed 1-18-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
5. Amendment filed 1-16-2003; operative 1-16-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
6. Amendment of section heading and section filed 5-21-2009; operative 6-20-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 21).
7. Editorial correction of subsection (c)(3) (Register 2009, No. 31).
§18705.2. Materiality Standard: Economic Interests in Real Property.
Note • History
(a) Directly involved real property.
(1) Real property, other than leaseholds. The financial effect of a governmental decision on the real property is presumed to be material. This presumption may be rebutted by proof that it is not reasonably foreseeable that the governmental decision will have any financial effect on the real property.
(2) Real property, leaseholds. The financial effect of a governmental decision on the real property in which an official holds a leasehold interest is presumed to be material. This presumption may be rebutted by proof that it is not reasonably foreseeable that the governmental decision will have any effect on any of the following:
(A) The termination date of the lease;
(B) The amount of rent paid by the lessee for the leased real property, either positively or negatively;
(C) The value of the lessee's right to sublease the real property, either positively or negatively;
(D) The legally allowable use or the current use of the real property by the lessee; or
(E) The use or enjoyment of the leased real property by the lessee.
(b) Indirectly involved real property interests.
(1) Real property, other than leaseholds. The financial effect of a governmental decision on real property which is indirectly involved in the governmental decision is presumed not to be material. This presumption may be rebutted by proof that there are specific circumstances regarding the governmental decision, its financial effect, and the nature of the real property in which the public official has an economic interest, which make it reasonably foreseeable that the decision will have a material financial effect on the real property in which the public official has an interest. Examples of specific circumstances that will be considered include, but are not limited to, circumstances where the decision affects:
(A) The development potential or income producing potential of the real property in which the official has an economic interest;
(B) The use of the real property in which the official has an economic interest;
(C) The character of the neighborhood including, but not limited to, substantial effects on: traffic, view, privacy, intensity of use, noise levels, air emissions, or similar traits of the neighborhood.
(2) Real property, leaseholds. The financial effect of a governmental decision on real property in which a public official has a leasehold interest and which is indirectly involved in the governmental decision is presumed not to be material. This presumption may be rebutted by proof that there are specific circumstances regarding the governmental decision, its financial effect, and the nature of the real property in which the public official has an economic interest, which make it reasonably foreseeable that the governmental decision will:
(A) Change the legally allowable use of the leased real property, and the lessee has a right to sublease the real property;
(B) Change the lessee's actual use of the real property;
(C) Substantially enhance or significantly decrease the lessee's use or enjoyment of the leased real property;
(D) Increase or decrease the amount of rent for the leased real property by 5+percent during any 12-month period following the decision; or
(E) Result in a change in the termination date of the lease.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment filed 1-16-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
§18705.3. Materiality Standard: Economic Interests in Persons Who Are Sources of Income.
Note • History
(a) Directly involved sources of income. Any reasonably foreseeable financial effect on a person who is a source of income to a public official, and who is directly involved in a decision before the official's agency, is deemed material.
(b) Indirectly involved sources of income.
(1) Sources of income which are business entities. If the source of income is a business entity, apply the materiality standards stated in Title 2, California Code of Regulations, section 18705.1(c).
(2) Sources of income which are non-profit entities, including governmental entities. The effect of a decision is material as to a nonprofit entity which is a source of income to the official if any of the following applies:
(A) For an entity whose gross annual receipts are $400,000,000 or more, the effect of the decision will be any of the following:
(i) The decision will result in an increase or decrease of the entity's gross annual receipts for a fiscal year in the amount of $1,000,000 or more; or
(ii) The decision will cause the entity to incur or avoid additional expenses or to reduce or eliminate existing expenses for a fiscal year in the amount of $250,000 or more; or
(iii) The decision will result in an increase or decrease in the value of the entity's assets or liabilities in the amount of $1,000,000 or more.
(B) For an entity whose gross annual receipts are more than $100,000,000 but less than $400,000,000, the effect of the decision will be any of the following:
(i) The decision will result in an increase or decrease of the entity's gross annual receipts for a fiscal year in the amount of $400,000 or more; or
(ii) The decision will cause the entity to incur or avoid additional expenses or to reduce or eliminate existing expenses for a fiscal year in the amount of $100,000 or more; or
(iii) The decision will result in an increase or decrease in the value of the entity's assets or liabilities in the amount of $400,000 or more.
(C) For an entity whose gross annual receipts are more than $10,000,000, but less than or equal to $100,000,000 the effect of the decision will be any of the following:
(i) The decision will result in an increase or decrease of the entity's gross annual receipts for a fiscal year in the amount of $200,000 or more.
(ii) The decision will cause the entity to incur or avoid additional expenses or to reduce or eliminate existing expenses for a fiscal year in the amount of $50,000 or more.
(iii) The decision will result in an increase or decrease in the value of the entity's assets or liabilities in the amount of $200,000 or more.
(D) For an entity whose gross annual receipts are more than $1,000,000, but less than or equal to $10,000,000 the effect of the decision will be any of the following:
(i) The decision will result in an increase or decrease of the entity's gross annual receipts for a fiscal year in the amount of $100,000 or more.
(ii) The decision will cause the entity to incur or avoid additional expenses or to reduce or eliminate existing expenses for a fiscal year in the amount of $25,000 or more.
(iii) The decision will result in an increase or decrease in the value of the entity's assets or liabilities in the amount of $100,000 or more.
(E) For an entity whose gross annual receipts are more than $100,000 but less than or equal to $1,000,000 the effect of the decision will be any of the following:
(i) The decision will result in an increase or decrease of the entity's gross annual receipts for a fiscal year in the amount of $50,000 or more.
(ii) The decision will cause the entity to incur or avoid additional expenses or to reduce or eliminate existing expenses for a fiscal year in the amount of $12,500 or more.
(iii) The decision will result in an increase or decrease in the value of the entity's assets or liabilities in the amount of $50,000 or more.
(F) For an entity whose gross annual receipts are $100,000 or less, the effect of the decision will be any of the following:
(i) The decision will result in an increase or decrease of the entity's gross annual receipts for a fiscal year in the amount of $10,000 or more.
(ii) The decision will cause the entity to incur or avoid additional expenses or to reduce or eliminate existing expenses for a fiscal year in the amount of $2,500 or more.
(iii) The decision will result in an increase or decrease in the value of the entity's assets or liabilities in the amount of $10,000 or more.
(3) Sources of income who are individuals. The effect of a decision is material as to an individual who is a source of income to an official if any of the following applies:
(A) The decision will affect the individual's income, investments, or other tangible or intangible assets or liabilities (other than real property) by $1,000 or more; or
(B) The decision will affect the individual's real property interest in a manner that is considered material under Title 2, California Code of Regulations, sections 18705.2(b).
(c) Nexus. Any reasonably foreseeable financial effect on a person who is a source of income to a public official is deemed material if the public official receives or is promised the income to achieve a goal or purpose which would be achieved, defeated, aided, or hindered by the decision.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment of subsection (b)(2) filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
5. Amendment of subsections (b)(1) and (b)(3)(B) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
§18705.4. Materiality Standard: Economic Interests in Persons Who Are Sources of Gifts.
Note • History
(a) Directly involved sources of gifts. Any reasonably foreseeable financial effect on a person who is a source of a gift to a public official, and which person is directly involved in a decision before the official's agency, is deemed material.
(b) Indirectly involved sources of gifts.
(1) Sources of gifts which are indirectly involved business entities. If the source of a gift is a business entity, apply the materiality standards stated in 2 Cal. Code Regs. section 18705.1(c).
(2) Sources of gifts which are indirectly involved nonprofit entities or government agencies. If the source of a gift is a nonprofit entity or a government agency, apply the materiality standards stated in 2 Cal. Code Regs. section 18705.3(b)(2).
(3) Sources of gifts who are indirectly involved individuals. If the source of a gift is an individual, apply the materiality standards stated in 2 Cal. Code Regs. section 18705.3(b)(3).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment of subsections (b)(1)-(3) filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
§18705.5. Materiality Standard: Economic Interest in Personal Finances.
Note • History
(a) A reasonably foreseeable financial effect on a public official's or his or her immediate family's personal finances is material if it is at least $250 in any 12-month period. When determining whether a governmental decision has a material financial effect on a public official's economic interest in his or her personal finances, neither a financial effect on the value of real property owned directly or indirectly by the official, nor a financial effect on the gross revenues, expenses, or value of assets and liabilities of a business entity in which the official has a direct or indirect investment interest shall be considered.
(b) The financial effects of a decision which affects only the salary, per diem, or reimbursement for expenses the public official or a member of his or her immediate family receives from a federal, state, or local government agency shall not be deemed material, unless the decision is to appoint, hire, fire, promote, demote, suspend without pay or otherwise take disciplinary action with financial sanction against the official or a member of his or her immediate family, or to set a salary for the official or a member of his or her immediate family which is different from salaries paid to other employees of the government agency in the same job classification or position, or when the member of the public official's immediate family is the only person in the job classification or position.
(c) Notwithstanding subsection (b), pursuant to Section 82030(b)(2) and Regulation 18232, a public official may make, participate in making, or use his or her official position to influence or attempt to influence, a government decision where all of the following conditions are satisfied:
(1) The decision is on his or her appointment as an officer of the body of which he or she is a member (e.g., mayor or deputy mayor), or to a committee, board, or commission of a public agency, a special district, a joint powers agency or authority, a joint powers insurance agency or authority, or a metropolitan planning organization.
(2) The appointment is one required to be made by the body of which the official is a member pursuant to either state law, local law, or a joint powers agreement.
(3) The body making the appointment referred to in paragraph (1) adopts and posts on its website, on a form provided by the Commission, a list that sets forth each appointed position for which compensation is paid, the salary or stipend for each appointed position, the name of the public official who has been appointed to the position and the name of the public official, if any, who has been appointed as an alternate, and the term of the position.
COMMENT: Cross-references: For the definition of “immediate family,” see Government Code section 82029.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending section heading filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Editorial correction of History 1 (Register 2000, No. 25).
4. Amendment of section heading and section filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 3).
5. Amendment of subsection (a) filed 1-16-2002; operative 2-15-2002 (Register 2002, No. 3).
6. Amendment of subsection (b) filed 6-21-2005; operative 7-21-2005 (Register 2005, No. 25).
7. Amendment of subsection (a) filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
8. New subsections (c)-(c)(3) filed 4-23-2012; operative 5-23-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 17).
§18706. Determining Whether a Material Financial Effect Is Reasonably Foreseeable.
Note • History
(a) A material financial effect on an economic interest is reasonably foreseeable, within the meaning of Government Code section 87103, if it is substantially likely that one or more of the materiality standards (see Cal. Code Regs., tit. 2, §§ 18704, 18705) applicable to that economic interest will be met as a result of the governmental decision.
(b) In determining whether a governmental decision will have a reasonably foreseeable material financial effect on an economic interest as defined in subdivision (a) above, the following factors should be considered. These factors are not intended to be an exclusive list of the relevant facts that may be considered in determining whether a financial effect is reasonably foreseeable, but are included as general guidelines:
(1) The extent to which the official or the official's source of income has engaged, is engaged, or plans on engaging in business activity in the jurisdiction;
(2) The market share held by the official or the official's source of income in the jurisdiction;
(3) The extent to which the official or the official's source of income has competition for business in the jurisdiction;
(4) The scope of the governmental decision in question; and
(5) The extent to which the occurrence of the material financial effect is contingent upon intervening events, not including future governmental decisions by the official's agency, or any other agency appointed by or subject to the budgetary control of the official's agency.
(c) Possession of a real estate sales or brokerage license, or any other professional license, without regard to the official's business activity or likely business activity, does not in itself make a material financial effect on the official's economic interest reasonably foreseeable.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87102.5, 87102.6, 87102.8 and 87103, Government Code.
HISTORY
1. New section filed 8-16-84; effective thirtieth day thereafter (Register 84, No. 33).
2. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
3. Editorial correction of History 2 (Register 2000, No. 25).
4. Designation of first paragraph as subsection (a) and new subsections (b)-(c) filed 1-22-2002; operative 2-21-2002 (Register 2002, No. 4).
Note • History
(a) Introduction.
Notwithstanding a determination that the reasonably foreseeable financial effect of a governmental decision on a public official's economic interests is material, a public official does not have a disqualifying conflict of interest in the governmental decision if the official can establish that the governmental decision will affect the public official's economic interests in a manner which is indistinguishable from the manner in which the decision will affect the public generally as set forth in 2 Cal. Code Regs. sections 18707.1-18707.10.
(b) Steps to Determine Application of Public Generally. To determine if the effect of a decision is not distinguishable from the effect on the public generally as set forth in subdivision (a) of this regulation, apply Steps One through Four:
(1) Step One: Identify each specific person or real property (economic interest) that is materially affected by the governmental decision.
(2) Step Two: For each person or real property identified in Step One, determine the applicable “significant segment” rule according to the provisions of 2 Cal. Code Regs. section 18707.1(b).
(3) Step Three: Determine if the significant segment is affected by the governmental decision as set forth in the applicable “significant segment” rule. If the answer is “no,” then the analysis ends because the first prong of a two-part test set forth in 2 Cal. Code Regs. section 18707.1(b) is not met, and the public official cannot participate in the governmental decision. If the answer is “yes,” proceed to Step Four.
(4) Step Four: Following the provisions of 2 Cal. Code Regs. section 18707.1(b)(2), determine if the person or real property identified in Step One is affected by the governmental decision in “substantially the same manner” as other persons or real property in the applicable significant segment. If the answer is “yes” as to each person or real property identified in Step One, then the effect of the decision is not distinguishable from the effect on the public generally and the public official may participate in the decision. If the answer is “no” as to any person or real property identified in Step One, the public official may not participate in the governmental decision unless one of the special rules set forth in 2 Cal. Code Regs. sections 18707.2 through 18707.10 applies to each person or real property triggering the conflict of interest.
(c) For purposes of Government Code section 87102.5 (Members of the Legislature) and Government Code section 87102.8 (elected state officers), Government Code section 87102.6(b)(2) applies.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Editorial correction of History 1 (Register 2000, No. 25).
3. Amendment filed 1-16-2001; operative 2-1-2001. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991); Third District Court of Appeals, 3 Civil C010924 (1992) (Register 2001, No. 3).
4. Amendment of subsections (a) and (b)(2)-(4) filed 12-20-2005; operative 1-19-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 51).
5. Change without regulatory effect amending subsections (a) and (b)(4) filed 8-13-2010 pursuant to section 100, title 1, California Code of Regulations. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2010, No. 33).
§18707.1. Public Generally. General Rule.
Note • History
(a) Except as provided in Government Code sections 87102.6 and 87103.5, the material financial effect of a governmental decision on a public official's economic interests is indistinguishable from its effect on the public generally if both subdivisions (b)(1) and (b)(2) of this regulation apply.
(b) Significant Segments and Indistinguishable Effects.
(1) Significant Segment. The governmental decision will affect a “significant segment” of the public generally if any of the following are affected as set forth below:
(A) Individuals. For decisions that affect the personal expenses, income, assets, or liabilities of a public official or a member of his or her immediate family, or that affect an individual who is a source of income or a source of gifts to a public official, the decision also affects:
(i) Ten percent or more of the population in the jurisdiction of the official's agency or the district the official represents; or
(ii) 5,000 individuals who are residents of the jurisdiction.
(B) Real Property. For decisions that affect a public official's interest in real property, the decision also affects:
(i) Ten percent or more of all property owners or all residential property owners in the jurisdiction of the official's agency or the district the official represents; or
(ii) 5,000 property owners or residential property owners in the jurisdiction of the official's agency.
(iii) While the public official must identify ten percent or more of residential property owners or 5,000 residential property owners as provided above, and not residential properties, for purposes of subdivision (b)(1)(B) the official may choose to count each residential property affected as being owned by one property owner if, and only if, the official counts himself or herself as the sole owner of the public official's residential property regardless of his or her actual ownership interest.
(iv) For purposes of this subdivision, residential property means any real property that contains a single family home, or a multi-family structure of four units or fewer, on a single lot, or a condominium unit.
(C) Business Entities. For decisions that affect a business entity in which a public official has an economic interest, the decision also affects either 2,000 or twenty-five percent of all business entities in the jurisdiction or the district the official represents, so long as the effect is on persons composed of more than a single industry, trade, or profession. For purposes of this subdivision, a not for profit entity other than a governmental entity is treated as a business entity.
(D) Governmental Entities. For decisions that affect a federal, state or local government entity in which the public official has an economic interest, the decision will affect all members of the public under the jurisdiction of that governmental entity.
(E) Exceptional Circumstances. The decision will affect a segment of the population which does not meet any of the standards in subsections (b)(1)(A) through (b)(1)(D), however, due to exceptional circumstances regarding the decision, it is determined such segment constitutes a significant segment of the public generally.
(2) Substantially the Same Manner: The governmental decision will financially affect a public official's economic interest in substantially the same manner as it will affect the significant segment identified in subdivision (b)(1) of this regulation. The financial effect need not be identical for the official's economic interest to be considered “financially affected” in “substantially the same manner.”
(A) Comparing Financial Effects on Real Property: For a decision that affects a public official's economic interest in his or her real property, financial effects are measured in terms of the overall dollar amount of the increase or decrease in the value of the property and not by a percentage increase or decease affecting property values as a whole. Factors to be considered in determining the financial effect on the official's property in comparison with the financial effect on the public generally include, but are not limited to, the following:
(i) The magnitude of the financial effect of the governmental decision on the official's property as compared with other properties contained within the significant segment;
(ii) The lot size of the official's property compared with other properties contained within the significant segment (e.g., one acre versus 10 acres);
(iii) The square footage of the building space of the property compared with the square footage of the building space of other properties contained within the significant segment;
(iv) The proximity of the official's property to the property that is the subject of the governmental decision compared with the proximity of other properties contained within the significant segment;
(v) The number of units/parcels owned by the official compared to others in the significant segment;
(vi) The physical characteristics or permitted use of the property (i.e., historical, commercial, residential) as compared to other properties in the significant segment;
(vii) The location of the official's property compared with the location of other properties contained within the significant segment;
(viii) The neighborhood in which the official's property is located is comparable to the neighborhoods in which other properties contained within the significant segment are located;
(ix) The quality of the structure contained on the official's property compared with the quality of other structures contained on properties within the significant segment;
(x) The current fair market value of the property as compared to other properties in the significant segment;
(xi) Improvements made to the official's property as compared with other properties contained within the significant segment;
(xii) The developmental potential or income producing potential of the real property in which the official has an economic interest compared with other properties contained within the significant segment; and
(xiii) The character of the effects on the neighborhood of the property in which the official has an economic interest including, but not limited to, substantial effects on: traffic, view, privacy, intensity of use, noise levels, air emissions, or similar traits of the neighborhood compared with the neighborhoods of other properties contained within the significant segment.
COMMENT: The term “affect all members of the public” as used in subdivision (b)(1)(D) above, is intended to cover decisions affecting the public in general but to exclude decisions that uniquely benefit a public official.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Renumbering of former section 18707.1 to section 18707.2 and new section 18707.1 filed 1-16-2001; operative 2-1-2001. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991); Third District Court of Appeals, 3 Civil C010924 (1992) (Register 2001, No. 3).
3. Amendment of subsections (b)(1)(B), (b)(1)(C) and (b)(2) filed 6-15-2004; operative 6-15-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 25).
4. Amendment filed 1-9-2007; operative 2-8-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 2).
§18707.2. Special Rule for Rates, Assessments, and Similar Decisions.
Note • History
The financial effect of a governmental decision on the official's economic interest is indistinguishable from the decision's effect on the public generally if any of the following apply:
(a) The decision is to establish or adjust assessments, taxes, fees, charges, or rates or other similar decisions which are applied on a proportional basis on the official's economic interest and on a significant segment of the jurisdiction, as defined in 2 Cal. Code of Regulations, section 18707.1(b).
(b) The decision is made by the governing board of a landowner voting district and affects the official's economic interests and ten percent of the landowners or water users subject to the jurisdiction of the district in proportion to their real property interests or by the same percentage or on an “across-the-board” basis for all classes.
(c) The decision is made by the governing board of a water, irrigation, or similar district to establish or adjust assessments, taxes, fees, charges, or rates or other similar decisions, such as the allocation of services, which are applied on a proportional or “across-the-board” basis on the official's economic interests and ten percent of the property owners or other persons receiving services from the official's agency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Change without regulatory effect amending subsection (a)(2) filed 3-26-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 13).
3. Amendment of subsection (a)(5) filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
4. Editorial correction of History 1 (Register 2000, No. 25).
5. Renumbering of former section 18707.2 to section 18707.3 and renumbering and amendment of former section 18707.1 to section 18707.2 filed 1-16-2001; operative 2-1-2001. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991); Third District Court of Appeals, 3 Civil C010924 (1992) (Register 2001, No. 3).
§18707.3. Public Generally -- Small Jurisdictions; Principal Residence. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Editorial correction of History 1 (Register 2000, No. 25).
3. Renumbering of former section 18707.3 to section 18707.7 and renumbering and amendment of former section 18707.2 to section 18707.3 filed 1-16-2001; operative 2-1-2001. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991); Third District Court of Appeals, 3 Civil C010924 (1992) (Register 2001, No. 3).
4. Repealer filed 2-25-2003; operative 2-25-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 9).
§18707.4. Public Generally: Appointed Members of Boards and Commissions.
Note • History
(a) For the purposes of Government Code section 87103, the “public generally” exception applies to appointed members of boards and commissions who are appointed to represent a specific economic interest, as specified in section 87103(a) through (d), if all of the following apply:
(1) The statute, ordinance, or other provision of law which creates or authorizes the creation of the board or commission contains a finding and declaration that the persons appointed to the board or commission are appointed to represent and further the interests of the specific economic interest.
(2) The member is required to have the economic interest the member represents.
(3) The board's or commission's decision does not have a reasonably foreseeable material financial effect on any other economic interest held by the member, other than the economic interest the member was appointed to represent.
(4) The decision of the board or commission will financially affect the member's economic interest in a manner that is substantially the same or proportionately the same as the decision will financially affect a significant segment of the persons the member was appointed to represent. For purposes of this regulation, a significant segment constitutes fifty percent of the persons the member was appointed to represent.
(b) In the absence of an express finding and declaration or requirement of the types described in 2 Cal. Code Regs. section 18707.4(a)(1) and (2), the “public generally” exception only applies if such a finding and declaration or requirement is implicit, taking into account the language of the statute, ordinance, or other provision of law creating or authorizing the creation of the board or commission, the nature and purposes of the program, any applicable legislative history, and any other relevant circumstance.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Editorial correction of History 1 (Register 2000, No. 25).
3. Amendment of subsections (a)(3)-(b) filed 7-11-2002; operative 8-10-2002 (Register 2002, No. 28).
§18707.5. Sources of Income to Owners of Retail Business Entities.
Note • History
(a) Significant Segment Test
(1) For purposes of Government Code section 87103.5(a), as to a business entity located in a jurisdiction with a population of more than 10,000 or which is located in a county with more than 350 retail businesses, the retail customers constitute a significant segment of the public generally if either of the following applies:
(A) The retail customers of the business entity during the preceding 12 months are sufficient in number to equal 10 percent or more of the population or households of the jurisdiction; or
(B) The retail customers of the business entity during the preceding 12 months number at least 10,000.
(2) For purposes of Government Code section 87103.5(b), as to a business entity located in a jurisdiction with a population of 10,000 or less which is located in a county with 350 or fewer retail businesses, the retail customers constitute a significant segment of the public generally if the retail customers of the business entity during the preceding 12 months are sufficient in number to equal 10 percent or more of the population or households of the jurisdiction.
(3) For purposes of this subdivision, a customer of a retail business entity is each separate and distinct purchaser of goods or services, whether an individual, household, business or other entity. If records are not maintained by customer name, a good faith estimate shall be made to determine what percentage of sales transactions represent multiple transactions by repeat customers. The total number of sales transactions shall then be reduced by the estimated percentage of repeat customers to yield the number of customers for purposes of applying this subdivision.
(b) Indistinguishable Income Test
(1) For purposes of Government Code section 87103.5(a), as to a business entity located in a jurisdiction with a population of more than 10,000 or which is located in a county with more than 350 retail businesses, the amount of income received from a retail customer is not distinguishable from the amount of income received from its other retail customers if the amount spent by the customer in question is less than one-tenth of one percent of the gross sales revenues that the business entity earned during the 12 months prior to the time the decision is made.
(2) For purposes of Government Code section 87103.5(b), as to a business entity located in a jurisdiction with a population of 10,000 or less which is located in a county with 350 or fewer retail businesses, the amount of income received from a retail customer is not distinguishable from the amount of income received from its other retail customers if the amount spent by the customer in question does not exceed one percent of the gross sales revenues that the business entity earned during the 12 months prior to the time the decision is made.
(c) For purposes of Government Code section 87100, an official who owns 10 percent or more of a retail business entity, whose retail customers meet the criteria in either subdivision (a)(l)(A), (a)(1)(B) or (a)(2), does not “have reason to know” that a decision will affect a source of income to the retail business entity when either of the following applies:
(1) If all of the following are true:
(A) The customer does not have a charge account or open book account with the retail business;
(B) The retail business does not maintain records for noncharge customer transactions by customer name or other method for tracking transactions which would provide the customer name; and
(C) The fact that the person is a customer is not personally known to the official; or
(2) If all of the following are true:
(A) The accounts and books of the retail business entity are maintained by someone other than the official or a member of the official's immediate family; and
(B) The fact that the person is a customer is not personally known to the official.
(d) For purposes of subdivision (c), a credit card transaction utilizing a credit card not issued by the retail business entity is considered a “noncharge customer transaction.”
(e) Subdivision (c) shall not be utilized in determining whether an official “knows” of a financial interest in a decision within the meaning of Government Code section 87100. When such knowledge exists, or the fact that a person is a source of income is brought to the attention of the official prior to the governmental decision, the provisions of subdivision (c) shall have no effect on the official's duty to disqualify.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87103 and 87103.5, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Editorial correction of History 1 (Register 2000, No. 25).
3. Amendment of section and Note filed 1-22-2004; operative 1-22-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 4).
§18707.6. States of Emergency.
Note • History
Notwithstanding Title 2, California Code of Regulations, sections 18707 through 18707.5, inclusive, the financial effect of a governmental decision on an official is indistinguishable from its financial effect on the public generally if both of the following apply:
(a) The decision will affect an economic interest of the official, other than an economic interest as defined in section 87103(e), in substantially the same manner as other persons subject to a state of emergency, proclaimed by the Governor pursuant to Government Code section 8625, or proclaimed by the governing body of a city or county.
(b) The decision is required to mitigate against the effects directly arising out of the emergency, and strict adherence to the Act will prevent, hinder, or delay the mitigation of the effects of the emergency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Editorial correction of History 1 (Register 2000, No. 25).
§18707.7. Public Generally: Industries, Trades, or Professions.
Note • History
Where a decision will affect an industry, trade, or profession in substantially the same manner as the decision will affect an official's economic interest, the industry, trade, or profession constitutes a “significant segment” of the jurisdiction only as set forth below:
(a) In the case of an elected state officer, an industry, trade, or profession constitutes a significant segment of the public generally, as set forth in section 87102.6 of the Government Code.
(b) In the case of any other official, an industry, trade, or profession constitutes a significant segment of the public generally if that industry, trade, or profession is a predominant industry, trade, or profession in the official's jurisdiction or in the district represented by the official. An industry, trade, or profession that constitutes fifty percent or more of business entities in the jurisdiction of the official's agency or the district the official represents is a “predominant” industry, trade, or profession for purposes of this regulation. For purposes of this subdivision, a not for profit entity other than a governmental entity is treated as a business entity.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. Renumbering and amendment of former section 18707.3 to section 18707.7 filed 1-16-2001; operative 2-1-2001. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991); Third District Court of Appeals, 3 Civil C010924 (1992) (Register 2001, No. 3).
2. Editorial correction of subsection (a) (Register 2001, No. 34).
§18707.9. Public Generally -- Residential Properties.
Note • History
(a) For purposes of this regulation, the effect of a governmental decision on a public official's real property interests is indistinguishable from the effect on the public generally if 5,000 or ten percent or more of all property owners or all homeowners in the jurisdiction of the official's agency or the district the official represents are affected by the decision and the official owns three or fewer residential property units. A public official's principal residence does not count as one of these residential property units.
(b) The effect of a governmental decision on any of a public official's economic interests (including real property and business interests) is indistinguishable from the effect on the public generally if all of the following apply:
(1) The decision is to establish, eliminate, amend, or otherwise affect the respective rights or liabilities of tenants and owners of residential property pursuant to a resolution, rule, ordinance, or other law of general application;
(2) No economic interest of the public official other than one created by ownership of residential real property, or the rental of that property, is analyzed under this regulation;
(3) The official's economic interests are not directly involved in the decision (as provided in 2 Cal. Code Regs. sections 18704.1, 18704.2(a), 18705.1);
(4) The decision affects at least ten percent of the residential property units in the jurisdiction of the public official or district he or she represents; and
(5) The decision will affect the official's economic interests in substantially the same manner as it will affect other residential property owners or owners of residential rental property. A public official will be affected in substantially the same manner for purposes of this subdivision if the decision will be applied on a proportional or “across-the-board” basis on the official's economic interests as on other residential property owners or other owners of residential rental property affected by the decision.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 1-16-2001; operative 2-1-2001. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991); Third District Court of Appeals, 3 Civil C010924 (1992) (Register 2001, No. 3).
2. Amendment of subsections (a), (b) and (b)(3) filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
§18707.10. Public Generally, Small Jurisdictions; Effects on Official's Domicile.
Note • History
(a) The effect of a governmental decision on the residential real property that is the domicile of a public official is not distinguishable from the effect on the public generally if all of the following conditions are met:
(1) The jurisdiction of the public official's agency has a population of 30,000 or less and covers a geographic area of ten square miles or less;
(2) The public official is required to live within the jurisdiction;
(3) The public official, if elected, has been elected in an at-large jurisdiction;
(4) The official's property is more than 300 feet from the boundaries of the property that is the subject of the governmental decision;
(5) The official's property is located on a lot not more than one-quarter acre in size or not larger than 125 percent of the median residential lot size for the jurisdiction; and
(6) There are at least 20 other properties under separate ownership within a 500 foot radius of the boundaries of the property that is the subject of the governmental decision that are similar in value.
(b) For purposes of this regulation, “domicile” means the real property upon which the official makes his or her true, fixed, and permanent residence and the place to which he or she has the intention of returning after any absence. A person may have more than one residence but only one domicile. With respect to an ownership interest in any real estate containing the official's domicile where portions of the real estate are designated for separate ownership and portions are designated for common ownership solely by the owners of the separate portions, the official's domicile is the unit, area, or space in which the official has a separate ownership interest.
(c) Nothing contained in this regulation shall preclude the application of the public generally provisions of regulation 18707.1 or any other regulations not applicable solely to small jurisdictions.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87103, Government Code.
HISTORY
1. New section filed 12-14-2006; operative 1-13-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 50).
§18708. Legally Required Participation.
Note • History
(a) A public official who has a financial interest in a decision may establish that he or she is legally required to make or to participate in the making of a governmental decision within the meaning of Government Code section 87101 only if there exists no alternative source of decision consistent with the purposes and terms of the statute authorizing the decision.
(b) Whenever a public official who has a financial interest in a decision is legally required to make or to participate in making such a decision, he or she shall state the existence of the potential conflict as follows:
(1) The public official shall disclose the existence of the conflict and describe with particularity the nature of the economic interest. “Particularity” as used in this regulation shall be satisfied if the official discloses:
(A) whether the conflict involves an investment, business position, interest in real property, or the receipt of income, loans or gifts;
(B) if the interest is an investment, the name of the business entity in which each investment is held; if the interest is a business position, a general description of the business activity in which the business entity is engaged; if the interest is real property, the address or another indication of the location of the property, unless the property is the official's principal or personal residence, in which case the official shall disclose this fact. For income, loans or gifts, the official shall disclose the person or entity that is the source.
(2) The public official or another officer or employee of the agency shall give a summary description of the circumstances under which he or she believes the conflict may arise.
(3) Either the public official or another officer or employee of the agency shall disclose the legal basis for concluding that there is no alternative source of decision.
(4) The disclosures required by this regulation shall be made in the following manner:
(A) If the governmental decision is made during an open session of a public meeting, the disclosures shall be made orally before the decision is made, by either the public official or by another officer or employee of the agency. The information contained in the disclosures shall be made part of the official public record either as a part of the minutes of the meeting or as a writing filed with the agency. The writing shall be prepared by the public official and/or any officer or employee and shall be placed in a public file of the agency within 30 days after the meeting; or
(B) If the governmental decision is made during a closed session of a public meeting, the disclosures shall be made orally during the open session either before the body goes into closed session or immediately after the closed session. The information contained in the disclosures shall be made part of the official public record either as a part of the minutes of the meeting or as a writing filed with the agency. The writing shall be prepared by the public official and/or any officer or employee and shall be placed in a public file of the agency within 30 days after the meeting; or
(C) If the government decision is made or participated in other than during the open or closed session of a public meeting, the disclosures shall be made in writing and made part of the official public record, either by the public official and/or by another officer or employee of the agency. The writing shall be filed with the public official's appointing authority or supervisor and shall be placed in a public file within 30 days after the public official makes or participates in the decision. Where the public official has no appointing authority or supervisor, the disclosure(s) shall be made in writing and filed with the agency official who maintains the records of the agency's statements of economic interests, or other designated office for the maintenance of such disclosures, within 30 days of the making of or participating in the decision.
(c) This regulation shall be construed narrowly, and shall:
(1) Not be construed to permit an official, who is otherwise disqualified under Government Code section 87100, to vote to break a tie.
(2) Not be construed to allow a member of any public agency, who is otherwise disqualified under Government Code section 87100, to vote if a quorum can be convened of other members of the agency who are not disqualified under Government Code section 87100, whether or not such other members are actually present at the time of the disqualification.
(3) Require participation by the smallest number of officials with a conflict that are “legally required” in order for the decision to be made. A random means of selection may be used to select only the number of officials needed. When an official is selected, he or she is selected for the duration of the proceedings in all related matters until his or her participation is no longer legally required, or the need for invoking the exception no longer exists.
(d) For purposes of this section, a “quorum” shall constitute the minimum number of members required to conduct business and when the vote of a supermajority is required to adopt an item, the “quorum” shall be that minimum number of members needed for that adoption.
COMMENT: Nothing in the provisions of subsection (b)(4)(B) is intended to cause an agency or public official to reveal the confidences of a closed session contemplated by law. For example, under the Brown Act (Government Code sections 54950 et seq.) a city council may enter a closed session to discuss personnel matters and need not publicly disclose the name of the employee who is the subject of the meeting. (Government Code section 54957.) This regulation does not require a city council person who is legally required to participate in that closed session to disclose that employee's name when the council member makes the record required by this regulation.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81002, 81003 and 87101, Government Code.
HISTORY
1. New section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
2. Editorial correction of History 1 (Register 2000, No. 25).
3. Amendment of section and Note filed 1-10-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2).
4. Amendment of subsections (b)(4)(A)-(B) filed 1-16-2002; operative 2-15-2002 (Register 2002, No. 3).
5. Amendment of subsections (a) and (b)(4)(A)-(B) and amendment of Comment filed 12-20-2005; operative 1-19-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third District Court of Appeal, unpublished decision, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 51).
§18709. Governmental Decision: Segmentation.
Note • History
(a) An agency may segment a decision in which a public official has a financial interest, to allow participation by the official, provided all of the following conditions apply:
(1) The decision in which the official has a financial interest can be broken down into separate decisions that are not inextricably interrelated to the decision in which the official has a disqualifying financial interest;
(2) The decision in which the official has a financial interest is segmented from the other decisions;
(3) The decision in which the official has a financial interest is considered first and a final decision is reached by the agency without the disqualified official's participation in any way; and
(4) Once the decision in which the official has a financial interest has been made, the disqualified public official's participation does not result in a reopening of, or otherwise financially affect, the decision from which the official was disqualified.
(b) For purposes of this regulation, decisions are “inextricably interrelated” when the result of one decision will effectively determine, affirm, nullify, or alter the result of another decision.
(c) Budget Decisions and General Plan Adoption or Amendment Decisions Affecting an Entire Jurisdiction: Once all the separate decisions related to a budget or general plan affecting the entire jurisdiction have been finalized, the public official may participate in the final vote to adopt or reject the agency's budget or to adopt, reject, or amend the general plan.
Comment: This regulation implements the segmentation principle outlined in the Commission's opinion In re Owen (1976) 2 FPPC Ops. 77.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87100 and 87103, Government Code.
HISTORY
1. New section filed 10-2-2003; operative 10-2-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 40).
§18720. Other Public Officials Who Manage Public Investments. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82019, 82048 and 87200, Government Code.
HISTORY
1. New section filed 5-25-94; operative 6-24-94 (Register 94, No. 21).
2. Editorial correction of subsection (a)(3) (Register 95, No. 17).
3. Repealer of “Comment” filed 4-9-97; operative 4-9-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
4. Editorial correction of subsection (a)(2) (Register 98, No. 44).
5. Repealer filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48).
6. Editorial correction of History 5 (Register 2000, No. 25).
Article 2. Disclosure
§18722. Filing Assuming and Leaving Office Statements of Economic Interests; Alternates and Designees.
Note • History
(a) For the purposes of Government Code sections 87202 and 87302:
(1) The date of assuming office is the date that a person either:
(A) Is authorized to serve in the position, as by being sworn in; or
(B) Except in the case of an elected official who is required to be sworn into office, begins to perform the duties of the position, as by making, participating in making, or attempting to use his or her official position to influence a governmental decision; whichever occurs earlier.
(2) For the purposes of Government Code sections 87202(a) and 87302(b), the date that a person is appointed or nominated to an office is the date the appointment or nomination is submitted to the confirming body.
(b) The date that a person permanently leaves office, for the purposes of Government Code sections 87204 and 87302, is the date that the person is no longer authorized to perform the duties of the office, and stops performing those duties, including making, participating in making, or attempting to use his or her official position to influence any governmental decision. For purposes of this subdivision, a person shall not be deemed to have left office permanently because he or she is on a leave of absence or serves as an intermittent employee. However, a person shall be deemed to have left office permanently if the person merely receives compensation for accrued leave credits.
(c) Every person who holds an office specified in Government Code sections 87200 or 87302, subdivision (a), as an alternate or as a designee, shall be required to disclose his or her economic interests in the same manner as any other person holding the office.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87202, 87204 and 87302, Government Code.
HISTORY
1. New section filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41). For prior history, see Register 77, No. 14.
§18723. Dates for Filing Annual Statements of Economic Interests.
Note • History
(a) Each person who holds an office specified in Government Code Section 87200 shall file a Statement of Economic Interests each year in accordance with the schedule set forth in subsection (b) disclosing his or her investments, interests in real property and income during the period since the closing date of his or her last statement filed pursuant to Government Code Sections 87202 or 87203. The statement shall include any investments and interests in real property held at any time during the period covered by the statement, regardless of whether they are still held at the time of filing.
(b) The closing date for all persons required to file Statements of Economic Interests pursuant to Government Code Section 87203 shall be December 31. The filing deadlines for the Statements are as follows:
(1) For the Governor, Lieutenant Governor, Attorney General, Insurance Commissioner, Controller, Secretary of State, Treasurer, Superintendent of Public Instruction, members of the Legislature, members of the State Board of Equalization, judges and commissioners of courts of the judicial branch of government, members of the Public Utilities Commission, members of the State Energy Resources Conservation and Development Commission, members of the Fair Political Practices Commission, members of the California Coastal Commission, members elected to the Board of Administration of the Public Employees' Retirement System, and members elected to the Board of Administration of the Teachers' Retirement Board, the filing deadline shall be March 1.
(2) For county supervisors, district attorneys, county counsels, county treasurers, county chief administrative officers, county planning commissioners, members of city councils, mayors, city managers, city attorneys, city treasurers, city chief administrative officers and city planning commissioners, the filing deadline shall be April 1.
(3) For “other public officials who manage public investments” as that term is used in Government Code Section 87200, the filing deadline shall be April 1.
(c) If a person assumes an office specified in Government Code Section 87200 between October 1 and December 31 and files an assuming office Statement of Economic Interests pursuant to Government Code Section 87202, that person need not file an annual Statement of Economic Interests pursuant to Section 87203 until one year later than the date specified in subsection (b).
(d) If a person leaves an office specified in Government Code Section 87200 between January 1 and the filing deadline for his or her annual Statement of Economic Interests, the leaving office Statement of Economic Interests filed pursuant to Government Code Section 87204 may serve as that person's annual Statement. Prior to the filing deadline for the annual Statement the person shall notify the filing officer in writing that he intends to follow this procedure.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82024, 87200, 87202, 87203 and 87204, Government Code.
HISTORY
1. New section filed 12-17-76 as an emergency, effective upon filing. Certificate of Compliance included (Register 76, No. 51).
2. New subsection (d) filed 4-20-77; effective thirtieth day thereafter (Register 77, No. 17).
3. Amendment of section title filed 10-11-78; effective thirtieth day thereafter (Register 78, No. 41).
4. Amendment of subsection (b) filed 3-27-80; effective thirtieth day there.after (Register 80, No. 13).
5. Amendment of subsection (b) filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
6. Amendment of subsection (b)(1) filed 11-13-85; effective thirtieth day thereafter (Register 85, No. 46).
7. Editorial correction filed 12-13-85 (Register 85, No. 50). Ed. Note: No change in text.
8. Amendment filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
9. Amendment of subsections (a), (b)(2), (d) and Note and new subsection (b)(3) filed 10-14-92; operative 11-13-92 (Register 92, No. 42).
10. Amendment of subsection (b)(1) and Note filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17).
11. Change without regulatory effect amending subsection (b)(1) filed 6-26-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 26).
12. Amendment of subsection (b)(1) filed 12-20-2010; operative 1-19-2011. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 52).
§18724. Filing of Statements of Economic Interests by Temporary or Part-Time Court Commissioners, Pro Tem and Retired Judges.
Note • History
(a) Temporary or part-time court commissioners and pro tem or temporary judges shall file statements of economic interests pursuant to Government Code Sections 87200 et seq., if they serve or expect to serve 30 days or more in any calendar year. Provided, however, that this section shall not excuse these individuals from any filing obligations imposed by a conflict of interest code adopted pursuant to Government Code Sections 87300 et seq.
(b) Retired judges who serve on assignment pursuant to Article VI, Section 6 of the California Constitution shall file annual statements of economic interests pursuant to Government Code Sections 87200 et seq., for each calendar year in which they serve 30 days or more. Statements filed by retired judges shall cover the period January 1 through December 31 of the calendar year in which 30 days or more were served, and shall be filed no later than March 1 of the following year. Such statements shall be filed with the Fair Political Practices Commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87200, Government Code.
HISTORY
1. New section filed 11-13-85; effective thirtieth day thereafter (Register 85, No. 46).
2. Amendment of section heading, designation and amendment of subsection (a), and new subsection (b) filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
§18725. Anniversary Date for Filing Statements of Economic Interests. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code.
HISTORY
1. New Chapter 7 (Sections 18725 and 18727) filed 9-18-75; effective thirtieth day thereafter (Register 75, No. 38).
2. Repealer of Section 18725 filed 5-27-77; effective thirtieth day thereafter (Register 77, No. 22).
3. Change without regulatory effect adding Note filed 8-31-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 35).
§18726. Valuation of Gifts. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Amendment of subsection (a) filed 5-26-87; operative 6-25-87 (Register 87, No. 26).
3. Renumbering and amendment of former section 18726 to section 18946 filed 1-24-94; operative 1-24-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 2).
4. Editorial correction of printing error removing previously relocated language and adding History 3 (Register 94, No. 9).
§18726.1. General Rule for Receipt of Gifts, Promised Gifts and for Return, Donation, or Reimbursement of Gifts. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Renumbering of former section 18726.1 to section 18943 filed 1-26-94; operative 1-26-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 4).
§18726.2. Valuation of Gifts to an Official and His or Her Family. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Renumbering of former section 18726.2 to section 18944 filed 1-26-94; operative 1-26-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 4).
§18726.3. Valuation of Gift Passes and Season Tickets. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 6-22-87; operative 6-22-87 (Register 87, No. 26). For travel and lodging, see 2 Cal. Code of Regulations section 18726.
2. Renumbering of section 18726.3 to section 18946.1 filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
§18726.4. Testimonial Dinners and Events. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Amendment filed 5-26-87; operative 6-25-87 (Register 87, No. 26).
3. Renumbering of section 18726.4 to section 18946.2 filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
§18726.5. Valuation of Wedding Gifts. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Renumbering and amendment of former section 18726.5 to section 18946.3 filed 1-24-94; operative 1-24-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 2).
3. Editorial correction of printing error removing previously relocated language and adding History 2 (Register 94, No. 9).
§18726.6. Reporting of Gifts from Multiple Donors. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Renumbering of section 18726.6 to section 18945.4 filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
§18726.7. Passes or Tickets Given to an Agency. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 6-22-87; operative 6-22-87 (Register 87, No. 26). For travel and lodging provided to an official's agency, see Stone Opinion, 3 FPPC Opinions 52 (No. 77-003, June 7, 1977).
2. New subsection (e) filed 6-26-90; operative 7-26-90 (Register 90, No. 35).
3. Renumbering of former section 18726.7 to new section 18944.1 filed 6-22-94; operative 6-22-94 (Register 94, No. 25).
§18726.8. Valuation of Gift Tickets to Charitable and Political Fundraisers. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 5-26-87; operative 6-25-87 (Register 87, No. 26).
2. Renumbering of section 18726.8 to section 18946.4 filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
§18727. Gifts to Officials: Section 87207(a). [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87207(a), Government Code.
HISTORY
1. Amendment filed 10-11-78; designated effective 1-1-79 (Register 78, No. 41).
2. Repealer filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
§18727.5. Travel Costs and Other Payments from Campaign Committees.
Note • History
(a) Travel costs and reimbursements therefor paid by a “committee” as defined by Government Code Section 82013(a), including a “controlled committee,” shall be valued as follows:
(1) A reimbursement, advance, or other payment for actual travel expenses (including meals and lodging) or for other actual and legitimate campaign expenses made by such a committee or controlled committee is neither income nor a gift to an official and need not be disclosed on the official's or candidate's Statement of Economic Interests if the expenditures are reported by the committee in accordance with the provisions of Government Code Sections 84100, et seq.
(2) A reimbursement, advance, or other payment for personal travel expenses not covered by subsection (1) shall be reported by the recipient pursuant to Government Code Sections 87207 or 87302.
(b) Any other payment not covered by subsection (a), including a payment for personal services, such as salary, consulting fees, etc., from a committee is income or a gift (except as provided in Section 18950.3) and reported by the recipient pursuant to Government Code Section 87207 or 87302.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028 and 82030, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2).
2. Amendment of subsections (a)(1) and (b) filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18728. Reporting of Income and Gifts; Honoraria and Awards (87207).
Note • History
Comment: For free admission, food, beverages, transportation, lodging, and subsistence provided to an official, or state candidate in connection with a speech, panel, seminar, or similar service, see California Code of Regulations, Title 2, Section 18950.3.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87207, Government Code.
HISTORY
1. New section filed 10-24-75; effective thirtieth day thereafter (Register 75, No. 43).
2. Repealer and new section filed 6-17-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 25).
3. Amendment of subsection (b) filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
4. Repealer and new Comment filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
§18728.5. Reporting of Commission Income and Incentive Compensation.
Note • History
(a) A public official required to disclose income pursuant to this title must disclose commission income, as defined in 2 Cal. Code Regs. section 18703.3(c)(1), and incentive compensation, as defined in 2 Cal. Code Regs. section 18703.3(d), as described by this regulation.
(b) Disclosure of Commission Income.
A public official shall report commission income as follows:
(1) The total amount of commission income received by the official during the period covered by the statement shall be reported if it equals $500 or more.
(A) The source of income shall be listed as the official if he or she is self-employed or is reporting as a business entity. For purposes of this subdivision, a public official who receives commission income on a regular basis is a business entity.
(B) If the official conducts business through a firm or other business entity, the source of income shall be listed as the firm or other business entity.
(2) If the official reports commission income as a business, in addition to the information reported pursuant to subdivision (b)(1) of this regulation, the name of each source of gross commission income shall be reported if the source provided commission income of $10,000 or more during the period covered by the statement.
(3) The full gross value of any commission income for a specific sale or similar transaction shall be attributed to each source of income in that sale or transaction.
(c) Disclosure of Incentive Compensation.
(1) In addition to salary, reimbursement of expenses, and other income received from his or her employer, a public official shall separately report the name of each person who purchased products or services sold, marketed or represented by the public official if the official received incentive compensation of five hundred dollars ($500) or more attributable to the purchaser during the period covered by the statement.
(2) If an official's incentive compensation is paid by his or her employer in a lump sum, without allocation of amounts to specific customers, the official shall determine the amount of the incentive compensation attributable to each of the official's customers. This may be based on the volume of sales to or purchases made by those customers and the amount of incentive compensation attributable to each customer according to the formula utilized by the official's employer.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82030 and 87207, Government Code.
HISTORY
1. New section filed 11-10-2003; operative 11-10-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 46).
§18729. Leasehold Interests--Value, Disclosure.
Note • History
(a) When an official is required to disclose a leasehold interest as defined in Government Code Section 82033, the official shall:
(1) Identify the interest as a leasehold interest.
(2) Disclose the number of years remaining on the lease.
(3) Provide the address or other precise location of the leased property.
(4) Provide the date upon which the lease became effective or terminated if either such date occurred during the period covered by the statement.
(5) Disclose the value of the leasehold interest in the manner required by Government Code Section 87206(d).
(b) The value of a leasehold interest is the amount of rent owed during a 12-month period. For purposes of disclosure on a Statement of Economic Interests, the value of a leasehold interest is the amount of rent owed during a 12-month period. The 12-month period shall be computed as follows:
(1) In the case of an annual or leaving office statement, the first day of the 12-month period is the first day of the reporting period or the first day of the lease, which occurs later.
(2) In the case of an assuming office or candidate's statement, the first day of the 12-month period is the date the statement is due.
(c) If the value of an official's leasehold interest is less than $2,000 when the rent owed is computed under subsection (b), but the official knows that the actual fair market value of the leasehold during the 12-month period exceeds $2,000, the value of the leasehold is the actual fair market value, rather than the rent owed, during the 12-month period.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82033 and 87206, Government Code.
HISTORY
1. New section filed 1-8-86; effective thirtieth day thereafter (Register 86, No. 2). For history of former section see Registers 85, No. 25 and 76, No. 40.
2. Amendment of subsection (c) filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
§18730. Provisions of Conflict-of-Interest Codes.
Note • History
(a) Incorporation by reference of the terms of this regulation along with the designation of employees and the formulation of disclosure categories in the Appendix referred to below constitute the adoption and promulgation of a conflict-of-interest code within the meaning of Section 87300 or the amendment of a conflict-of-interest code within the meaning of Section 87306 if the terms of this regulation are substituted for terms of a conflict-of-interest code already in effect. A code so amended or adopted and promulgated requires the reporting of reportable items in a manner substantially equivalent to the requirements of article 2 of chapter 7 of the Political Reform Act, Sections 81000, et seq. The requirements of a conflict-of-interest code are in addition to other requirements of the Political Reform Act, such as the general prohibition against conflicts of interest contained in Section 87100, and to other state or local laws pertaining to conflicts of interest.
(b) The terms of a conflict-of-interest code amended or adopted and promulgated pursuant to this regulation are as follows:
(1) Section 1. Definitions.
The definitions contained in the Political Reform Act of 1974, regulations of the Fair Political Practices Commission (Regulations 18110, et seq.), and any amendments to the Act or regulations, are incorporated by reference into this conflict-of-interest code.
(2) Section 2. Designated Employees.
The persons holding positions listed in the Appendix are designated employees. It has been determined that these persons make or participate in the making of decisions which may foreseeably have a material effect on economic interests.
(3) Section 3. Disclosure Categories.
This code does not establish any disclosure obligation for those designated employees who are also specified in Section 87200 if they are designated in this code in that same capacity or if the geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction in which those persons must report their economic interests pursuant to article 2 of chapter 7 of the Political Reform Act, Sections 87200, et seq.
In addition, this code does not establish any disclosure obligation for any designated employees who are designated in a conflict-of-interest code for another agency, if all of the following apply:
(A) The geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction of the other agency;
(B) The disclosure assigned in the code of the other agency is the same as that required under article 2 of chapter 7 of the Political Reform Act, Section 87200; and
(C) The filing officer is the same for both agencies.1
Such persons are covered by this code for disqualification purposes only. With respect to all other designated employees, the disclosure categories set forth in the Appendix specify which kinds of economic interests are reportable. Such a designated employee shall disclose in his or her statement of economic interests those economic interests he or she has which are of the kind described in the disclosure categories to which he or she is assigned in the Appendix. It has been determined that the economic interests set forth in a designated employee's disclosure categories are the kinds of economic interests which he or she foreseeably can affect materially through the conduct of his or her office.
(4) Section 4. Statements of Economic Interests: Place of Filing.
The code reviewing body shall instruct all designated employees within its code to file statements of economic interests with the agency or with the code reviewing body, as provided by the code reviewing body in the agency's conflict-of-interest code.2
(5) Section 5. Statements of Economic Interests: Time of Filing.
(A) Initial Statements. All designated employees employed by the agency on the effective date of this code, as originally adopted, promulgated and approved by the code reviewing body, shall file statements within 30 days after the effective date of this code. Thereafter, each person already in a position when it is designated by an amendment to this code shall file an initial statement within 30 days after the effective date of the amendment.
(B) Assuming Office Statements. All persons assuming designated positions after the effective date of this code shall file statements within 30 days after assuming the designated positions, or if subject to State Senate confirmation, 30 days after being nominated or appointed.
(C) Annual Statements. All designated employees shall file statements no later than April 1.
(D) Leaving Office Statements. All persons who leave designated positions shall file statements within 30 days after leaving office.
(5.5) Section 5.5. Statements for Persons Who Resign Prior to Assuming Office.
Any person who resigns within 12 months of initial appointment, or within 30 days of the date of notice provided by the filing officer to file an assuming office statement, is not deemed to have assumed office or left office, provided he or she did not make or participate in the making of, or use his or her position to influence any decision and did not receive or become entitled to receive any form of payment as a result of his or her appointment. Such persons shall not file either an assuming or leaving office statement.
(A) Any person who resigns a position within 30 days of the date of a notice from the filing officer shall do both of the following:
(1) File a written resignation with the appointing power; and
(2) File a written statement with the filing officer declaring under penalty of perjury that during the period between appointment and resignation he or she did not make, participate in the making, or use the position to influence any decision of the agency or receive, or become entitled to receive, any form of payment by virtue of being appointed to the position.
(6) Section 6. Contents of and Period Covered by Statements of Economic Interests.
(A) Contents of Initial Statements.
Initial statements shall disclose any reportable investments, interests in real property and business positions held on the effective date of the code and income received during the 12 months prior to the effective date of the code.
(B) Contents of Assuming Office Statements.
Assuming office statements shall disclose any reportable investments, interests in real property and business positions held on the date of assuming office or, if subject to State Senate confirmation or appointment, on the date of nomination, and income received during the 12 months prior to the date of assuming office or the date of being appointed or nominated, respectively.
(C) Contents of Annual Statements. Annual statements shall disclose any reportable investments, interests in real property, income and business positions held or received during the previous calendar year provided, however, that the period covered by an employee's first annual statement shall begin on the effective date of the code or the date of assuming office whichever is later, or for a board or commission member subject to Section 87302.6, the day after the closing date of the most recent statement filed by the member pursuant to Regulation 18754.
(D) Contents of Leaving Office Statements.
Leaving office statements shall disclose reportable investments, interests in real property, income and business positions held or received during the period between the closing date of the last statement filed and the date of leaving office.
(7) Section 7. Manner of Reporting.
Statements of economic interests shall be made on forms prescribed by the Fair Political Practices Commission and supplied by the agency, and shall contain the following information:
(A) Investment and Real Property Disclosure.
When an investment or an interest in real property3 is required to be reported,4 the statement shall contain the following:
1. A statement of the nature of the investment or interest;
2. The name of the business entity in which each investment is held, and a general description of the business activity in which the business entity is engaged;
3. The address or other precise location of the real property;
4. A statement whether the fair market value of the investment or interest in real property equals or exceeds $2,000, exceeds $10,000, exceeds $100,000, or exceeds $1,000,000.
(B) Personal Income Disclosure. When personal income is required to be reported,5 the statement shall contain:
1. The name and address of each source of income aggregating $500 or more in value, or $50 or more in value if the income was a gift, and a general description of the business activity, if any, of each source;
2. A statement whether the aggregate value of income from each source, or in the case of a loan, the highest amount owed to each source, was $1,000 or less, greater than $1,000, greater than $10,000, or greater than $100,000;
3. A description of the consideration, if any, for which the income was received;
4. In the case of a gift, the name, address and business activity of the donor and any intermediary through which the gift was made; a description of the gift; the amount or value of the gift; and the date on which the gift was received;
5. In the case of a loan, the annual interest rate and the security, if any, given for the loan and the term of the loan.
(C) Business Entity Income Disclosure. When income of a business entity, including income of a sole proprietorship, is required to be reported,6 the statement shall contain:
1. The name, address, and a general description of the business activity of the business entity;
2. The name of every person from whom the business entity received payments if the filer's pro rata share of gross receipts from such person was equal to or greater than $10,000.
(D) Business Position Disclosure. When business positions are required to be reported, a designated employee shall list the name and address of each business entity in which he or she is a director, officer, partner, trustee, employee, or in which he or she holds any position of management, a description of the business activity in which the business entity is engaged, and the designated employee's position with the business entity.
(E) Acquisition or Disposal During Reporting Period. In the case of an annual or leaving office statement, if an investment or an interest in real property was partially or wholly acquired or disposed of during the period covered by the statement, the statement shall contain the date of acquisition or disposal.
(8) Section 8. Prohibition on Receipt of Honoraria.
(A) No member of a state board or commission, and no designated employee of a state or local government agency, shall accept any honorarium from any source, if the member or employee would be required to report the receipt of income or gifts from that source on his or her statement of economic interests. This section shall not apply to any part-time member of the governing board of any public institution of higher education, unless the member is also an elected official.
Subdivisions (a), (b), and (c) of Section 89501 shall apply to the prohibitions in this section.
This section shall not limit or prohibit payments, advances, or reimbursements for travel and related lodging and subsistence authorized by Section 89506.
(8.1) Section 8.1. Prohibition on Receipt of Gifts in Excess of $420.
(A) No member of a state board or commission, and no designated employee of a state or local government agency, shall accept gifts with a total value of more than $420 in a calendar year from any single source, if the member or employee would be required to report the receipt of income or gifts from that source on his or her statement of economic interests. This section shall not apply to any part-time member of the governing board of any public institution of higher education, unless the member is also an elected official.
Subdivisions (e), (f), and (g) of Section 89503 shall apply to the prohibitions in this section.
(8.2) Section 8.2. Loans to Public Officials.
(A) No elected officer of a state or local government agency shall, from the date of his or her election to office through the date that he or she vacates office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the elected officer holds office or over which the elected officer's agency has direction and control.
(B) No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the public official holds office or over which the public official's agency has direction and control. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual.
(C) No elected officer of a state or local government agency shall, from the date of his or her election to office through the date that he or she vacates office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected officer has been elected or over which that elected officer's agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender's regular course of business on terms available to members of the public without regard to the elected officer's official status.
(D) No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected officer has been elected or over which that elected officer's agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender's regular course of business on terms available to members of the public without regard to the elected officer's official status. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual.
(E) This section shall not apply to the following:
1. Loans made to the campaign committee of an elected officer or candidate for elective office.
2. Loans made by a public official's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such persons, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section.
3. Loans from a person which, in the aggregate, do not exceed five hundred dollars ($500) at any given time.
4. Loans made, or offered in writing, before January 1, 1998.
(8.3) Section 8.3. Loan Terms.
(A) Except as set forth in subdivision (B), no elected officer of a state or local government agency shall, from the date of his or her election to office through the date he or she vacates office, receive a personal loan of $500 or more, except when the loan is in writing and clearly states the terms of the loan, including the parties to the loan agreement, date of the loan, amount of the loan, term of the loan, date or dates when payments shall be due on the loan and the amount of the payments, and the rate of interest paid on the loan.
(B) This section shall not apply to the following types of loans:
1. Loans made to the campaign committee of the elected officer.
2. Loans made to the elected officer by his or her spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section.
3. Loans made, or offered in writing, before January 1, 1998.
(C) Nothing in this section shall exempt any person from any other provision of Title 9 of the Government Code.
(8.4) Section 8.4. Personal Loans.
(A) Except as set forth in subdivision (B), a personal loan received by any designated employee shall become a gift to the designated employee for the purposes of this section in the following circumstances:
1. If the loan has a defined date or dates for repayment, when the statute of limitations for filing an action for default has expired.
2. If the loan has no defined date or dates for repayment, when one year has elapsed from the later of the following:
a. The date the loan was made.
b. The date the last payment of $100 or more was made on the loan.
c. The date upon which the debtor has made payments on the loan aggregating to less than $250 during the previous 12 months.
(B) This section shall not apply to the following types of loans:
1. A loan made to the campaign committee of an elected officer or a candidate for elective office.
2. A loan that would otherwise not be a gift as defined in this title.
3. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor has taken reasonable action to collect the balance due.
4. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor, based on reasonable business considerations, has not undertaken collection action. Except in a criminal action, a creditor who claims that a loan is not a gift on the basis of this paragraph has the burden of proving that the decision for not taking collection action was based on reasonable business considerations.
5. A loan made to a debtor who has filed for bankruptcy and the loan is ultimately discharged in bankruptcy.
(C) Nothing in this section shall exempt any person from any other provisions of Title 9 of the Government Code.
(9) Section 9. Disqualification.
No designated employee shall make, participate in making, or in any way attempt to use his or her official position to influence the making of any governmental decision which he or she knows or has reason to know will have a reasonably foreseeable material financial effect, distinguishable from its effect on the public generally, on the official or a member of his or her immediate family or on:
(A) Any business entity in which the designated employee has a direct or indirect investment worth $2,000 or more;
(B) Any real property in which the designated employee has a direct or indirect interest worth $2,000 or more;
(C) Any source of income, other than gifts and other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating $500 or more in value provided to, received by or promised to the designated employee within 12 months prior to the time when the decision is made;
(D) Any business entity in which the designated employee is a director, officer, partner, trustee, employee, or holds any position of management; or
(E) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $420 or more provided to, received by, or promised to the designated employee within 12 months prior to the time when the decision is made.
(9.3) Section 9.3. Legally Required Participation.
No designated employee shall be prevented from making or participating in the making of any decision to the extent his or her participation is legally required for the decision to be made. The fact that the vote of a designated employee who is on a voting body is needed to break a tie does not make his or her participation legally required for purposes of this section.
(9.5) Section 9.5. Disqualification of State Officers and Employees.
In addition to the general disqualification provisions of section 9, no state administrative official shall make, participate in making, or use his or her official position to influence any governmental decision directly relating to any contract where the state administrative official knows or has reason to know that any party to the contract is a person with whom the state administrative official, or any member of his or her immediate family has, within 12 months prior to the time when the official action is to be taken:
(A) Engaged in a business transaction or transactions on terms not available to members of the public, regarding any investment or interest in real property; or
(B) Engaged in a business transaction or transactions on terms not available to members of the public regarding the rendering of goods or services totaling in value $1,000 or more.
(10) Section 10. Disclosure of Disqualifying Interest.
When a designated employee determines that he or she should not make a governmental decision because he or she has a disqualifying interest in it, the determination not to act may be accompanied by disclosure of the disqualifying interest.
(11) Section 11. Assistance of the Commission and Counsel.
Any designated employee who is unsure of his or her duties under this code may request assistance from the Fair Political Practices Commission pursuant to Section 83114 and Regulations 18329 and 18329.5 or from the attorney for his or her agency, provided that nothing in this section requires the attorney for the agency to issue any formal or informal opinion.
(12) Section 12. Violations.
This code has the force and effect of law. Designated employees violating any provision of this code are subject to the administrative, criminal and civil sanctions provided in the Political Reform Act, Sections 81000-91014. In addition, a decision in relation to which a violation of the disqualification provisions of this code or of Section 87100 or 87450 has occurred may be set aside as void pursuant to Section 91003.
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1Designated employees who are required to file statements of economic interests under any other agency's conflict-of-interest code, or under article 2 for a different jurisdiction, may expand their statement of economic interests to cover reportable interests in both jurisdictions, and file copies of this expanded statement with both entities in lieu of filing separate and distinct statements, provided that each copy of such expanded statement filed in place of an original is signed and verified by the designated employee as if it were an original. See Section 81004.
2 See Section 81010 and Regulation 18115 for the duties of filing officers and persons in agencies who make and retain copies of statements and forward the originals to the filing officer.
3 For the purpose of disclosure only (not disqualification), an interest in real property does not include the principal residence of the filer.
4 Investments and interests in real property which have a fair market value of less than $2,000 are not investments and interests in real property within the meaning of the Political Reform Act. However, investments or interests in real property of an individual include those held by the individual's spouse and dependent children as well as a pro rata share of any investment or interest in real property of any business entity or trust in which the individual, spouse and dependent children own, in the aggregate, a direct, indirect or beneficial interest of 10 percent or greater.
5A designated employee's income includes his or her community property interest in the income of his or her spouse but does not include salary or reimbursement for expenses received from a state, local or federal government agency.
6Income of a business entity is reportable if the direct, indirect or beneficial interest of the filer and the filer's spouse in the business entity aggregates a 10 percent or greater interest. In addition, the disclosure of persons who are clients or customers of a business entity is required only if the clients or customers are within one of the disclosure categories of the filer.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87103(e), 87300-87302, 89501, 89502 and 89503, Government Code.
HISTORY
1. New section filed 4-2-80 as an emergency; effective upon filing (Register 80, No. 14). Certificate of Compliance included.
2. Editorial correction (Register 80, No. 29).
3. Amendment of subsection (b) filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2).
4. Amendment of subsection (b)(7)(B)1. filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
5. Amendment of subsection (b)(7)(A) filed 11-10-83; effective thirtieth day thereafter (Register 83, No. 46).
6. Amendment filed 4-13-87; operative 5-13-87 (Register 87, No. 16).
7. Amendment of subsection (b) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
8. Amendment of subsections (b)(8)(A) and (b)(8)(B) and numerous editorial changes filed 8-28-90; operative 9-27-90 (Reg. 90, No. 42).
9. Amendment of subsections (b)(3), (b)(8) and renumbering of following subsections and amendment of Note filed 8-7-92; operative 9-7-92 (Register 92, No. 32).
10. Amendment of subsection (b)(5.5) and new subsections (b)(5.5)(A)-(A)(2) filed 2-4-93; operative 2-4-93 (Register 93, No. 6).
11. Change without regulatory effect adopting Conflict of Interest Code for California Mental Health Planning Council filed 11-22-93 pursuant to title 1, section 100, California Code of Regulations (Register 93, No. 48). Approved by Fair Political Practices Commission 9-21-93.
12. Change without regulatory effect redesignating Conflict of Interest Code for California Mental Health Planning Council as chapter 62, section 55100 filed 1-4-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 1).
13. Editorial correction adding History 11 and 12 and deleting duplicate section number (Register 94, No. 17).
14. Amendment of subsection (b)(8), designation of subsection (b)(8)(A), new subsection (b)(8)(B), and amendment of subsections (b)(8.1)-(b)(8.1)(B), (b)(9)(E) and Note filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
15. Editorial correction inserting inadvertently omitted language in footnote 4 (Register 96, No. 13).
16. Amendment of subsections (b)(8)(A)-(B) and (b)(8.1)(A), repealer of subsection (b)(8.1)(B), and amendment of subsection (b)(12) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
17. Amendment of subsections (b)(8.1) and (9)(E) filed 4-9-97; operative 4-9-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
18. Amendment of subsections (b)(7)(B)5., new subsections (b)(8.2)-(b)(8.4)(C) and amendment of Note filed 8-24-98; operative 8-24-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 35).
19. Editorial correction of subsection (a) (Register 98, No. 47).
20. Amendment of subsections (b)(8.1), (b)(8.1)(A) and (b)(9)(E) filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
21. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 12-6-2000; operative 1-1-2001 pursuant to the 1974 version of Government Code section 11380.2 and Title 2, California Code of Regulations, section 18312(d) and (e) (Register 2000, No. 49).
22. Amendment of subsections (b)(3) and (b)(10) filed 1-10-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2).
23. Amendment of subsections (b)(7)(A)4., (b)(7)(B)1.-2., (b)(8.2)(E)3., (b)(9)(A)-(C) and footnote 4. filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
24. Amendment of subsections (b)(8.1)-(b)(8.1)(A) filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
25. Editorial correction of History 24 (Register 2003, No. 12).
26. Editorial correction removing extraneous phrase in subsection (b)(9.5)(B) (Register 2004, No. 33).
27. Amendment of subsections (b)(2)-(3), (b)(3)(C), (b)(6)(C), (b)(8.1)-(b)(8.1)(A), (b)(9)(E) and (b)(11)-(12) filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1).
28. Amendment of subsection (b)(7)(A)4. filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
29. Amendment of subsections (a), (b)(1), (b)(3), (b)(8.1), (b)(8.1)(A) and (b)(9)(E) filed 12-18-2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
30. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
31. Amendment of section heading and section filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
§18732. Filing Dates for Annual Statements Filed Pursuant to Conflict of Interest Codes (87302).
Note • History
(a) When a person assumes office or comes under the coverage of a newly effective conflict of interest code between October 1 and December 31 and files an initial Statement of Economic Interests pursuant to the conflict of interest code, that person need not file an annual Statement of Economic Interests until one year following the date specified in the code if the filing deadline for the annual statement is April 1 or earlier.
(b) If a person leaves an office subject to a conflict of interest code between January 1 and the filing deadline for his annual Statement of Economic Interests, the leaving office statement may serve as that person's annual statement, provided that prior to the deadline of the annual statement, the person notifies the filing officer in writing of his intention to follow this procedure.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87302, Government Code.
HISTORY
1. New section filed 12-27-77; effective thirtieth day thereafter (Register 77, No. 53).
2. Amendment of subsection (a) filed 6-22-78; effective thirtieth day thereafter (Register 78, No. 25).
§18732.5. Statements of Economic Interests from Filers of Abolished Agencies.
Note • History
(a) This regulation specifies the manner in which statements of economic interests, required to be filed with abolished agencies or agencies that are designated to be abolished by legislation or order, shall be handled, including filing, processing and retention.
(b) “Successor agency,” for purposes of this regulation, means the agency specified by legislation or order to retain records of the agency that has been, or is designated to be, abolished.
(c) Statements required to be filed with an agency for which the Commission is the code reviewing body shall be handled as follows:
(1) At any point over 30 days prior to the abolishment of an agency, statements shall be filed with that agency and may be forwarded to the successor agency, or if no successor agency is specified, to the Commission. Statements filed under this subsection shall be forwarded by the agency upon completion of its filing officer duties, as specified in subdivision (f) of this regulation. The statements shall not be forwarded any earlier than six months prior to abolishment and no later than the date of abolishment.
(2) Within 30 days prior to, and after, the abolishment of an agency, statements shall be filed with the agency to be abolished, the successor agency, or with the Commission, as determined by the Commission. If filed with the agency to be abolished, the statements shall be forwarded to the successor agency or the Commission, as determined by the Commission, no later than the date of abolishment.
(d) Statements required to be filed with a local government agency to be abolished and for which the Commission is not the code reviewing body shall be handled as determined by the code reviewing body of the agency to be abolished.
(e) Original statements filed prior to or following abolishment of the agency for which the Commission is the filing officer pursuant to Government Code section 87500 shall continue to be filed with and retained by the Commission.
(f) Any agency required to receive statements filed under the provisions of this regulation shall perform all applicable filing officer duties as prescribed in Government Code section 81010 and 2 Cal. Code Regs. section 18115.
(g) All statements covered by this regulation shall be retained as provided for in subdivision (e) of Government Code section 81009.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 81010, 87200-87350 and 87500, Government Code.
HISTORY
1. New section filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
§18733. Disclosure Categories for Auditors, Investigators and Inspectors and Persons Similarly Situated (87302).
Note • History
(a) Code reviewing bodies may, in their discretion, approve conflict of interest codes which permit designated employees of the type described in subsection (b) of this regulation to report their financial interests in the manner set forth in subsection (c) of this regulation.
(b) This regulation is applicable to designated employees who satisfy all of the following criteria:
(1) The designated employee is not a high level decision or policy maker;
(2) The designated employee's job functions primarily involve case assignments which are drawn from a large number of persons, business entities or parcels of real property;
(3) The persons or business entities which are the subject of the designated employee's case assignments are varied in nature and are not selected from a single or limited number of industries, trades or professions;
(4) The total number of cases assigned to the designated employee during a year constitutes only a small percentage of the total number of persons, business entities or parcels of real property from which the case assignments are drawn.
(5) The decisions made or participated in by the designated employee generally will affect only the person, business entity or parcel of real property which is the subject of the case assignment and will not create material secondary effects on other persons, business entities or parcels of real property.
(c) Designated employees described in subsection (b) of this regulation shall disclose the information required by Government Code Sections 87206 and 87207 with respect to any person, business entity or parcel of real property which was the subject of a case assignment during the period covered by the statement.
(d) This regulation does not relieve any employee from his obligation under Section 87100 and his conflict of interest code to disqualify himself from making, participating in the making, or using his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.
COMMENT: This regulation was adopted in order to clarify the disclosure obligations of auditors, investigators and inspectors and others who make or participate in the making of decisions which could foreseeably and materially affect virtually any person, business entity or parcel of real property in the jurisdiction, yet who are not at such a high level so as to justify disclosure of all investments, interests in real property and sources of income. The regulation is expressly inapplicable to persons employed to inspect or investigate the members of a single or limited number of industries, trades or professions.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87302, Government Code.
HISTORY
1. New section filed 8-25-78; effective thirtieth day thereafter (Register 78, No. 34).
§18734. Designated Employees and Consultants -- Positions Pending Code Amendment.
Note • History
(a) New Positions and Consultants@#151;Interim Disclosure: Consultants and newly created positions as set forth in Regulation 18219 that make or participate in the making of decisions that may foreseeably have a material effect on any financial interest shall file interim disclosure under this category.
(b) Disclosure Requirements: Persons in positions specified in subdivision (a) of this regulation shall file under the broadest disclosure category in the agency's conflict-of-interest code until the agency amends its code to reflect the position. However, the agency may determine that the broadest disclosure is not necessary and set interim disclosure that is more tailored to positions with a limited range of duties. This determination shall include a description of the position's duties and, based upon that description, a statement of the extent of disclosure requirements.
(c) Public Records: Records pertaining to positions that file under this category are public records and must be retained for the public's inspection in the same manner and location as the agency's conflict-of-interest code as set forth in Section 81008(a). This includes any written documents that support a limited disclosure category.
(d) Time of Filing: Persons in positions specified in this regulation shall file an initial statement within 30 days of assuming office and shall continue to file annually in the same manner and location specified in the agency's conflict-of-interest code.
(e) Annual Statement: Any statement filed under this provision is deemed to satisfy the requirement of Section 87302(b), which requires that an initial or annual statement be filed.
(f) Nothing in this regulation shall be construed to exempt any agency from complying with provisions of Section 87306.
(g) Effective Date: This regulation shall be effective January 1, 2010.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87302, Government Code.
HISTORY
1. New section filed 11-12-2009; operative 1-1-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 46).
2. Amendment of section heading and section filed 2-23-2011; operative 2-10-2011, pursuant to California Code of Regulations, title 2, section 18312(c)(3). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 8). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 6-11-2011.
3. Editorial correction of History 2 (Register 2011, No. 13).
4. Amendment of subsection (b), new subsections (c)-(c)(3), repealer of subsection (g) and subsection relettering filed 4-1-2011; operative 2-10-2011, pursuant to California Code of Regulations, title 2, section 18312(c)(3). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 13). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 6-11-2011.
5. Reinstatement of section as it existed prior to the 2-10-2011 emergency amendments filed 2-23-2011 and 4-1-2011 by operation of Government Code section 11422.1(c) (Stats. 1971, c. 1303). See Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 34).
§18735. Change of Position or Disclosure Category Within Same Agency.
Note • History
(a) Except as specified otherwise in this regulation, a designated employee who transfers from one designated position to another designated position within the same agency has not assumed or left office within the meaning of Section 87302 or the agency's conflict-of-interest code. The next Statement of Economic Interests the employee files shall disclose both of the following:
(1) Interests made reportable by the employee's original disclosure category that were held or received at any time during the period from the opening date of the statement to the transfer date.
(2) Interests made reportable by the employee's new disclosure category that were held or received at any time during the period from the date of the transfer through the closing date of the statement.
(b) A designated employee who transfers to the position of board member, commissioner, head of an agency, executive director, or other chief executive officer within the same agency and designated in the agency's conflict-of-interest code shall:
(1) Within 10 days of the transfer, file with the person or agency specified in Section 87500, for the position to which the employee is transferring, an amendment to his or her most recent Statement of Economic Interests providing the following information:
(A) The employee's new position or office.
(B) The date of the transfer.
(C) Investments, business positions, and interests in real property held on the date of the transfer, and income received during the 12 months before the date of the transfer, which must be disclosed under the employee's new disclosure category and were not reported on the employee's last Statement of Economic Interests.
(2) Disclose interests on his or her next Statement of Economic Interests held or received since the employee's last statement as required by subdivisions (a)(1) and (a)(2).
(c) A designated employee who, at the expiration of his or her term, begins a term in the same position within the same agency within 30 days has not assumed or left office within the meaning of Section 87302 or the agency's conflict-of-interest code. The employee shall continue filing annual statements at the time specified in his or her agency's conflict-of-interest code.
(d) A designated employee has not assumed or left office within the meaning of Section 87302 or the agency's conflict-of-interest code if the employee's agency changes the disclosure category for the employee's position between the filing dates for the designated position. The next Statement of Economic Interests the employee files shall disclose both of the following:
(1) Interests made reportable by the employee's original disclosure category that were held or received at any time during the period from the opening date of the statement to the date the agency's code was amended.
(2) Interests made reportable by the employee's new disclosure category that were held or received at any time during the period from the date the agency's code was amended through the closing date of the statement.
(e) A designated employee of the Legislature who holds a position with the same disclosure requirements as a member of the Legislature and who, within 30 days of leaving the position, assumes office in the month of December or January as a member of the Legislature, may file an annual Statement of Economic Interests disclosing investments, business positions, interests in real property, and income held or received during the period since the last statement he or she filed as a designated employee. If filed, this statement serves as both the leaving office statement required under Section 87302(b) and the assuming office statement required under Section 87202(b).
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87202(b) and 87302(b), Government Code.
HISTORY
1. New section filed 6-1-79; effective thirtieth day thereafter (Register 79, No. 22).
2. New subsection (c) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
3. Amendment of subsection (c) filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
4. Amendment of section heading, section and Note filed 3-24-2008; operative 4-23-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil CO10924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 13).
§18735.5. Filing Dates for Assuming Office, Annual, or Leaving Office Statements of Economic Interests for Multi-Agency Filers of Joint Powers Insurance Agencies.
Note • History
(a) An individual who holds a designated position with more than one joint powers insurance agency may elect to file a single multi-agency statement of economic interests pursuant to the filing requirements set forth below in lieu of filing disclosure statements with each agency.
(1) The multi-agency statement of economic interests shall be filed with the Commission and, in addition, a declaration shall be filed with each agency at which the individual is designated in the conflict of interest code. The declaration shall state that the individual's statement of economic interests is on file with the Commission and available upon request.
(2) The multi-agency statement of economic interests shall disclose all investments in entities doing business in the state, all interests in real property located within the state, and all income (including loans, gifts and travel payments) received during the applicable time period.
(b) Time of Filing and Content of Statements of Economic Interests.
(1) Assuming Office Statements of Economic Interest:
(A) The multi-agency assuming office statement of economic interests shall be filed within 30 days of assuming office with a second joint powers insurance agency. This multi-agency assuming office statement of economic interests will satisfy the reporting requirements for any additional joint powers insurance agency in which the individual serves as long as the individual is continuously designated in the conflict of interest code of at least two joint powers insurance agencies.
(B) The multi-agency assuming office statement of economic interests shall disclose reportable investments and interests in real property held on the date of assuming office, as well as income (including loans, gifts and travel payments) received during the 12 months prior to assuming office.
(2) Annual Statements of Economic Interests:
(A) The multi-agency annual statements of economic interests shall be filed by April 1, each year. A multi-agency annual statement of economic interests may be filed as long as the individual is continuously designated in the conflict of interest code of at least two joint powers insurance agencies.
(B) The multi-agency annual statement of economic interests shall disclose reportable investments and interests in real property held, and income (including loans, gifts, and travel payments) received during the previous calendar year, provided that the period covered on the first multi-agency annual statement shall begin on the day after the last day of the period reported by the individual in his or her multi-agency assuming office statement of economic interests.
(C) If an individual assumes office between October 1 and December 31 and files a multi-agency assuming office statement of economic interests pursuant to this section, that individual need not file an annual statement of economic interests until one year later than the date applicable under subdivision (b)(2)(A) above.
(3) Leaving Office Statements:
(A) The multi-agency leaving office statement of economic interests shall be filed within 30 days of leaving office as defined in this subdivision. As used in subdivision (b)(3) of this regulation, the date of “leaving office” for a multi-agency filer is the date the filer is no longer designated in the conflict of interest codes of at least two joint powers insurance agencies. A filer who continues to serve for a single joint powers insurance agency must file statement of economic interests under that agency's conflict of interest code.
(B) The multi-agency leaving office statement of economic interests shall disclose reportable investments and interests in real property held, and income (including loans, gifts and travel payments) received during the period between the closing date of the last multi-agency statement filed and the date of leaving office.
(C) If an individual leaves office as defined in subdivision (b)(3)(A) of this regulation between January 1 and the filing deadline for his or her multi-agency annual statement of economic interests, the multi-agency leaving and annual statement of economic interests may be combined as long as the combined multi-agency statement of economic interests is filed within 30 days of leaving office or by April 1, whichever is the earlier due date.
(c) Multi-agency filers must list in any multi-agency statement of economic interests filed pursuant to this regulation all of the joint powers insurance agencies for which the filer is designated in the conflict of interest code.
(d) The requirements of this regulation are in addition to any other requirements imposed on designated employees with statewide jurisdiction.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87350 and 87500, Government Code.
HISTORY
1. New section filed 10-6-2005; operative 11-5-2005 (Register 2005, No. 40).
§18736. Contents of State Agency Biennial Reports.
Note • History
(a) Every state agency for which the Fair Political Practices Commission is the code reviewing body shall, no later than March 1 of each odd-numbered year, submit to the Commission a report which shall state either:
(1) That the agency has reviewed its conflict of interest code; that the code accurately designates all positions which make or participate in the making of governmental decisions; that the disclosure categories assigned those positions accurately require the disclosure of all investments, business positions, interests in real property, and sources of income which may foreseeably be affected materially by the decisions made by those designated positions; and that the code includes the provisions required by Government Code Sections 87302, 89502, and 89503; or
(2) That the agency has reviewed its conflict of interest code, and has determined that amendment is necessary to include new positions which must be designated; to make changes to the reportable sources of income, investments, business positions, or real property; to make changes to the positions assigned; or to change or add the provisions required by Government Code Sections 87302, 89502, and 89503.
(b) Changed circumstances which require an amendment to a code include, but are not limited to:
(1) The creation of positions which involve the making, or participation in the making, of decisions which may foreseeably have a material effect on any financial interest;
(2) The reclassification, renaming, or deletion of previously designated positions;
(3) The addition, deletion, or modification of statutorily required provisions of a code;
(4) The addition, deletion, or modification of the specific types of investments, business positions, interests in real property, and sources of income which are reportable.
(c) This report may be made on a form supplied by the Commission.
(d) When an agency submits a report pursuant to subdivision (a)(2) stating that amendment to its conflict of interest code is necessary, the agency shall submit the amendment to the Commission within 90 days of the date of the report.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87306, 89502 and 89503, Government Code.
HISTORY
1. New section filed 2-25-92; operative 3-26-92 (Register 92, No. 13).
2. Amendment of subsections (a)(1)-(2) and Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18736.1. Contents of Multi-County Local Agency Written Statements.
Note • History
(a) Every local government agency with jurisdiction in more than one county shall review its conflict of interest code and, no later than October
1 of each even-numbered year, submit to the Fair Political Practices Commission a written statement which shall state either:
(1) That the agency has reviewed its conflict of interest code; that the code accurately designates all positions which make or participate in the making of governmental decisions; that the disclosure categories accurately assigned those positions requires the disclosure of all investments, business positions, interests in real property, and sources of income which may foreseeably be affected materially by the decisions made by those designated positions; and that the code includes the provisions required by Government Code Section 87302; or
(2) That the agency has reviewed its conflict of interest code, and has determined that amendment is necessary to designate all positions which make or participate in the making of governmental decisions, or to update the disclosure categories assigned to require the disclosure of all investments, business positions, interests in real property and sources of income which may foreseeably be affected materially by the designated positions, or to include other provisions required by Government Code Section 87302.
(b) Changed circumstances which require an amendment of a code include, but are not limited to:
(1) The creation of positions which involve the making, or participation in the making, of decisions which may foreseeably have a material effect on any financial interest;
(2) The reclassification, renaming, or deletion of previously designated positions;
(3) The addition, deletion, or modification of statutorily required provisions of a code;
(4) The addition, deletion, or modification of the specific types of investments, business positions, interests in real property, and sources of income which are reportable.
(c) This statement shall be signed by the chief executive officer of the agency, or his or her designee, and may be made on a form supplied by the Commission.
(d) When an agency submits a report pursuant to subdivision (a)(2) stating that amendment to its conflict of interest code is necessary, the agency shall submit the amendment to the Commission within 90 days of the date of the report.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87306.5, Government Code.
HISTORY
1. New section filed 2-25-92; operative 3-26-92 (Register 92, No. 13).
§18737. Suspension of Code Provisions Pending Appeal (87307).
Note • History
Whenever a designated employee appeals a provision of his/her agency's Conflict of Interest Code pursuant to Section 87307, the code reviewing body may, in its discretion, suspend or modify the disclosure obligations of the appellant and persons similarly situated pending resolution of the appeal.
COMMENT: Government Code Section 87307 provides that whenever an agency denies a request to amend its Conflict of Interest Code, the person proposing the amendment may appeal the decision to the code reviewing body. This regulation makes it clear that the code reviewing body has the authority to suspend or modify the disclosure obligations of the appellant and persons similarly situated in order to protect their rights to privacy during the pendency of a legitimate appeal. This regulation, however, does not obligate the code reviewing body to suspend or modify the appellant's or any other person's disclosure obligations if the code reviewing body believes that such a suspension or modification would not be in the best interests of the agency and the public.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87307, Government Code.
HISTORY
1. New section filed 6-22-78; effective thirtieth day thereafter (Register 78, No. 25).
§18740. Privileged Information: Statement of Economic Interests.
Note • History
An official or candidate need not disclose under Government Code section 87207(b) the name of a person who paid fees or made payments to a business entity if disclosure of the person's name would violate a legally recognized privilege under California law. Such a person's name may be withheld in accordance with the following procedure:
(a) An official or candidate who believes that a person's name is protected by a legally recognized privilege may decline to report the name, but shall file with his or her Statement of Economic Interests an explanation for such nondisclosure. The explanation shall separately state for each undisclosed person the legal basis for assertion of the privilege and, as specifically as possible without defeating the privilege, facts which demonstrate why the privilege is applicable.
(b) With respect to each undisclosed person, the official or candidate shall state that to the best of his or her knowledge he or she has not and will not make, participate in making, or in any way attempt to use an official position to influence a governmental decision when to do so constituted or would constitute a violation of Government Code section 87100.
(c) The Executive Director may request further information from the official or candidate and, if no legal or factual justification sufficient to support assertion of the privilege is shown, may order that the disclosure required by the Act be made. The official or candidate shall, within 14 days after receipt of an order from the Executive Director, either comply with the order or, if he or she wants to challenge the determination of the Executive Director appeal the determination, in writing, to the Commission.
(d) If the Executive Director determines that nondisclosure is justified because of the existence of a privilege, the matter shall be referred to the Commission.
(e) The Commission shall review an appeal filed under paragraph (c) or a recommendation made by the Executive Director under paragraph (d) at a meeting held no less than 14 days after notice of the meeting is mailed to the official or candidate, the Attorney General and both the district attorney and the city attorney of the jurisdictions in which the official's or candidate's residence and principal place of business are located. The Commission shall decide whether nondisclosure is warranted by issuing an opinion under Government Code section 83114 and shall treat the explanation for nondisclosure accompanying the official's or candidate's Statement of Economic Interests as an opinion request. The procedures set forth in 2 Cal. Code Regs. sections 18320-18324, however, shall not apply to opinions issued pursuant to this regulation.
(f) If the Commission orders an official or candidate to disclose, the official or candidate must comply within 14 days. The Executive Director may, for good cause, extend any of the time periods established in this regulation.
COMMENT: A person's name is not ordinarily protected from disclosure by the law of privilege in California. Under current law, for example, a name is protected by the attorney-client privilege only when facts concerning an attorney's representation of an anonymous client are publicly known and those facts, when coupled with disclosure of the client's identity, might expose the client to an official investigation or to civil or criminal liability. See, e.g., Brunner v. Superior Court, 51 Cal. 2d 616, 618 (1959); Ex parte McDonough, 170 Cal. 230 (1915); Baird v. Koerner 279 F.2d 623, 630 (9th Cir. 1960); and cases compiled in re Grand Jury Proceedings, 517 F.2d 666, 670-71 (5th Cir. 1975). A patient's name has been protected by the physician-patient privilege only when disclosure of the patient's name would also reveal the nature of the treatment received by the patient because, for example, the physician is recognized as a specialist. See, e.g., Marcus v. Superior Court, 18 Cal. App. 3d 22, 24-25 (1971) and Ascherman v. Superior Court, 254 Cal. App. 2d 506, 515-16 (1967). The names of business customers are not protected by the trade secret privilege unless, because of surrounding circumstances, disclosure of a particular customer's identity would also result in disclosure of special needs and requirements of the customer that are not generally known to competitors. See, e.g., King v. Pacific Vitamin Corp. 256 Cal. App. 2d 841, 846-49 (1967) and Peerless Oakland Laundry Co. v. Hickman, 205 Cal. App. 2d 556, 559-60 (1962).
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87207(b), Government Code.
HISTORY
1. New section filed 7-28-76; effective thirtieth day thereafter (Register 76, No. 31).
2. Amendment of subsections (c)-(f) filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
3. Amendment filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
4. Amendment of first paragraph, subsection (e) and Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
Article 2.5. Post-Employment Laws
§18741.1. Revolving Door; State Permanent Ban.
Note • History
(a) The prohibitions of Sections 87401 and 87402 apply to any state administrative official if all of the following criteria are met:
(1) The official has permanently left or is on a leave of absence from, as defined in Regulation 18746.4(a), any particular state office or employment.
(2) The official is compensated, or is promised compensation, for making an appearance or communication, or for aiding, advising, counseling, consulting, or assisting in representing another person, other than the State of California, in a judicial, quasi-judicial or other proceeding. For purposes of Section 87401 and 87402, a payment made for necessary travel, meals, and accommodations received directly in connection with voluntary services is not considered compensation.
(3) The official makes an appearance or communication, or aids, advises, counsels, or assists in representing another person, other than the State of California, in making an appearance or communication, before any officer or employee of any state administrative agency for the purpose of influencing, as defined in Regulation 18746.2, a judicial, quasi-judicial or other proceeding, including but not limited to any proceeding described in Regulation 18202, subdivisions (a)(1)-(a)(7).
(4) The judicial, quasi-judicial or other proceeding includes any proceeding in which the official participated personally and substantially by making, participating in the making, or influencing of a governmental decision, as defined in Regulations 18702.1-18702.4, but excluding any proceeding involving the rendering of a legal advisory opinion not involving a specific party or parties. A supervisor is deemed to have participated in any proceeding that was “pending before,” as defined in subdivision (b) of Regulation 18438.2, the official's agency and that was under his or her supervisory authority. For purposes of this regulation, a proceeding is under a supervisor's “supervisory authority” if any of the following applies to the supervisor:
(A) The supervisor's duties include the primary responsibility within the agency for directing the operation or function of the program where the proceeding is initiated or conducted. However, this provision does not apply to a supervisor who is only responsible for the general oversight of the administrative actions or functions of a program in which the responsibilities concerning the specific or final review of the proceeding are expressly delegated to other persons in the agency.
(B) The supervisor directly supervises the person performing the investigation, review, or other action involved in the proceeding including, but not limited to, assigning the matter for which the required conduct is taken.
(C) The supervisor reviews, discusses, or authorizes any action in the proceeding.
(D) The supervisor has contact with any of the participants in the proceeding regarding the subject of the proceeding.
(5) The judicial, quasi-judicial or other proceeding is the same proceeding in which the official participated.
Comment: Also see In re Lucas (2000) 14 FPPC Ops. 15.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87401 and 87402, Government Code.
HISTORY
1. New section filed 2-19-99; operative 2-19-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 8).
2. Editorial correction moving section 18741.1 from article 2 to article 2.5 (Register 2001, No. 11).
3. Amendment filed 10-6-2005; operative 11-5-2005 (Register 2005, No. 40).
4. Amendment of section heading and section filed 6-15-2009; operative 7-15-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 25).
§18746.1. Revolving Door; State One-Year Ban.
Note • History
(a) The prohibitions of Section 87406 apply to the following:
(1) A member of the Legislature.
(2) An elected state officer.
(3) A member of a state board or commission with “decisionmaking authority,” as that term is defined in Regulation 18701(a)(1).
(4) An employee of a state administrative agency who holds a position that is designated or should be designated in the agency's conflict-of-interest code.
(5) An individual who holds a position enumerated in Section 87200 appointed to or employed by a state administrative agency.
(b) A public official covered by subdivision (a) of this regulation is prohibited from making any appearance or communication if all of the following apply:
(1) The official has permanently left, as defined in Regulation 18746.4(b), any particular office or employment specified in subdivision (a) of this regulation.
(2) The appearance or communication is made within 12 months after leaving that office or employment.
(3) The public official is compensated, or promised compensation, for the appearance or communication. For purposes of Section 87406, a payment made for necessary travel, meals, and accommodations received directly in connection with voluntary services is not considered compensation.
(4) The appearance or communication is made on behalf of any person as an agent, attorney, or representative of that person. An appearance or communication made by a public official solely to represent his or her personal interests, as defined in Regulation 18702.4, subdivision (b)(1), is not prohibited or limited by this section.
(5) The appearance or communication is made by any of the following for the purpose of influencing, as defined in Regulation 18746.2:
(A) A former member of the Legislature in a legislative action.
(B) A former elected state official, other than a former member of the Legislature, in an administrative action, or any discretionary action involving the issuance, amendment, awarding, or revocation of a permit, license, grant or contract, or the sale or purchase of goods or property.
(C) A former official as specified in subdivision (a)(3)-(a)(5) above in a legislative or administrative action, or any discretionary action involving the issuance, amendment, awarding, or revocation of a permit, license, grant or contract, or the sale or purchase of goods or property.
(6) The appearance or communication is any of the following:
(A) Made by a former member of the Legislature before the Legislature, any committee or subcommittee thereof, any present member of the Legislature, or any officer or employee thereof.
(B) Made by a former elected state official, other than a former member of the Legislature, before any state or administrative agency, or any officer or employee thereof.
(C) Made by any former official as specified in subdivision (a)(3)-(a)(5) before any of the following:
(i) The state administrative agency, or officer or employee thereof, that the public official worked for or represented as specified in subdivision (a)(3)-(a)(5). An employee loaned to an agency is deemed to have worked for or represented that agency.
(ii) Any state administrative agency, or officer or employee thereof, whose budget, personnel, and other operations are subject to the direction and control of any agency described in subdivision (b)(6)(C)(i). However, whether an agency is provided technical assistance or legal advice, or is subject to oversight, by another agency pursuant to state law, are not factors to be considered in determining whether an agency is subject to the direction and control of another.
(iii) Any state administrative agency, or officer or employee thereof, subject to the direction and control of the Governor, if the official was a designated employee of the Governor's office.
(c) Services performed to administer, implement, or fulfill the requirements of an existing permit, license, grant, contract, or sale agreement are excluded from the prohibitions of Section 87406 and this regulation, provided the services do not involve the issuance, amendment, awarding, or revocation of any of these actions or proceedings. However, the prohibitions of Government Code Sections 87401 and 87402 may apply.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87406, Government Code.
HISTORY
1. New section filed 2-18-99; operative 2-18-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 8).
2. Amendment of section heading and section filed 6-15-2009; operative 7-15-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 25).
§18746.2. Revolving Door; Appearances and Communications.
Note • History
(a) A formal or informal appearance or oral or written communication is for the purpose of influencing if it is made for the principal purpose of supporting, promoting, influencing, modifying, opposing, delaying, or advancing the action or proceeding. An appearance or communication includes, but is not limited to, conversing by telephone or in person, corresponding with in writing or by electronic transmission, attending a meeting, and delivering or sending any communication.
(b) An appearance or communication is not limited by this section when an individual:
(1) Participates as a panelist or formal speaker at a conference or similar public event for educational purposes or to disseminate research and the subject matter does not pertain to a specific action or proceeding;
(2) Attends a general informational meeting, seminar, or similar event;
(3) Requests information concerning any matter of public record; or
(4) Communicates with the press.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87401, 87406, 87406.1 and 87406.3, Government Code.
HISTORY
1. New section filed 2-18-99; operative 2-18-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 8).
2. Amendment of subsection (a) and Note filed 12-18-2006; operative 1-17-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
§18746.3. Revolving Door; Local Officials.
Note • History
(a) The prohibitions of Section 87406.3 apply to a public official who, on or after July 1, 2006, holds any of the following positions:
(1) Local elected official.
(2) Chief administrative officer of a county.
(3) City manager, including the chief administrator of a city.
(4) General manager or chief administrator of a special district who holds a position with a local government agency as defined by Section 82041, including the general manager or chief administrator of an air pollution control district or air quality management district.
(b) A public official covered by subdivision (a) of this regulation is prohibited from making any appearance or communication if all of the following apply:
(1) The official has permanently left, as defined in Regulation 18746.4(b), any particular office or employment specified in subdivision (a) of this regulation.
(2) The appearance or communication is made within 12 months after leaving that office or employment.
(3) The public official is compensated, or promised compensation, for the appearance or communication. For purposes of Section 87406.3, a payment made for necessary travel, meals, and accommodations received directly in connection with voluntary services is not considered compensation.
(4) The appearance or communication is made on behalf of any person as an agent, attorney, or representative of that person. An appearance or communication made by a public official to represent his or her personal interests, as defined in subdivision (b)(1) of Regulation 18702.4, is not prohibited or limited by this section unless the appearance or communication is made in a quasi-judicial proceeding, as defined in subdivision (b)(5)(C) of this regulation, in which the official participated while serving as a local government employee or officer.
(5) The appearance or communication is made for the purpose of influencing, as defined in Regulation 18746.2, any legislative or administrative action, or any discretionary act involving the issuance, amending, awarding, or revocation of a permit, license, grant, or contract, or the sale or purchase of goods or property. Notwithstanding Sections 82002 and 82037, for purposes of Section 87406.3, the following definitions apply:
(A) “Administrative action,” as defined in Section 87406.3(d)(1), means the proposal, drafting, development, consideration, amendment, enactment, or defeat by any local government agency of any matter, including any rule, regulation, or other action in any regulatory proceeding including a ratemaking proceeding, whether quasi-legislative or quasi-judicial. “Administrative action” does not include any action that is solely ministerial.
(B) “Quasi-legislative” means any proceeding involving the adoption of rules of general applicability, including but not limited to annexations of territory to a city or district, adoption or amendment of zoning ordinances, adoption of regulations, or granting of franchises.
(C) “Quasi-judicial” means any proceeding that determines the rights of specific parties, or applies existing laws to specific situations, including but not limited to any proceedings to issue or revoke licenses, building permits, zoning variances, conditional use permits, parcel and subdivision maps, or coastal development permits.
(D) “Legislative action,” as defined in Section 87406.3(d)(2), means the drafting, introduction, modification, enactment, defeat, approval, or veto of any ordinance, amendment, resolution, report, nomination, or other matter by the legislative body of a local government agency or by any committee or subcommittee thereof, or by a member or employee of the legislative body of the local government agency acting in his or her official capacity.
(6) The appearance or communication is made before any officer or employee of any of the following:
(A) The local government agency, including any officer or employee of any committee, subcommittee, or present member of that local government agency, that the public official worked for or represented as specified in subdivision (a) of this regulation. An employee loaned to a local government agency is deemed to have worked for or represented that agency.
(B) Any local government agency whose budget, personnel, and other operations are subject to the direction and control of any agency described in subdivision (b)(6)(A) of this regulation.
(c) The prohibitions of Section 87406.3 and this regulation do not apply to any individual who, at the time of the appearance or communication, was a board member, officer, or employee of another local government agency or an employee or representative of a public agency and is appearing or communicating on behalf of that agency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87406.3, Government Code.
HISTORY
1. New section filed 3-20-2007; operative 3-20-2007. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2007, No. 12).
2. Amendment filed 6-15-2009; operative 7-15-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 25).
§18746.4. Revolving Door; Permanently Left and Leave of Absence.
Note • History
(a) For the purposes of Regulations 18741.1, the following apply:
(1) The date on which an official permanently leaves office or employment or takes a leave of absence is the date on which the official is no longer authorized to perform the duties of the office or employment, and the official stops performing those duties, even if the official continues to receive compensation for accrued leave credits.
(2) An official on a leave of absence is considered to have “permanently left” office or employment on the first day of the leave if that official does not return from the leave of absence. An official has not returned from a leave of absence unless the official is authorized to perform the duties of the office or employment and the official returns to performing those duties, even if the official continues to receive compensation for accrued leave credits.
(b) For the purposes of Regulations 18746.1 and 18746.3, the date on which an official permanently leaves office or employment is the date on which the official is no longer authorized to perform the duties of the office or employment, and stops performing those duties, including making, participating in making, or attempting to use his or her official position to influence any governmental decision. For purposes of this subdivision, a person shall not be deemed to have left office permanently because he or she is on a leave of absence or serves as an intermittent employee. However, a person shall be deemed to have left office permanently if the person merely receives compensation for accrued leave credits.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87401, 87402, 87406 and 87406.3, Government Code.
HISTORY
1. New section filed 6-15-2009; operative 7-15-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 25).
§18747. Influencing Prospective Employment.
Note • History
(a) No public official shall “make,” “participate in making,” or “use his or her official position to influence” any governmental decision, as defined in 2 Cal. Code Regs., sections 18702.1, 18702.2, 18702.3, 18702.4, if the decision directly relates to a prospective employer.
(b) A governmental decision “directly relates” to a prospective employer if the public official knows or has reason to know:
(1) The prospective employer is “directly involved” in the decision, as defined in 2 Cal. Code Regs. section 18704.1(a); or
(2) It is reasonably foreseeable that the financial effect of a decision on a prospective employer is material as follows:
(A) For a business entity, the same as set forth in 2 Cal. Code Regs. section 18705.1(c);
(B) For a nonprofit entity, the same as set forth in 2 Cal. Code Regs. section 18705.3(b)(2); or
(C) For an individual, the same as set forth in 2 Cal. Code Regs. section 18705.3(b)(3).
(c) A person is a “prospective employer” of a public official if the official, either personally or through an agent, is “negotiating” or has an “arrangement” concerning prospective employment with that person.
(1) A public official is “negotiating” employment when he or she interviews or discusses an offer of employment with an employer or his or her agent.
(2) A public official has an “arrangement” concerning prospective employment when he or she accepts an employer's offer of employment.
(3) A public official is not “negotiating” or does not have an “arrangement” concerning prospective employment if he or she rejects or is rejected for employment.
(d) Notwithstanding subdivision (a), the prohibitions of Government Code section 87407 do not apply if:
(1) The governmental decision will affect the prospective employer in substantially the same manner as it will affect a “significant segment,” as set forth in 2 Cal. Code Regs. section 18707.1(b)(1), of the public generally;
(2) The public official is legally required to make or participate in the making of the governmental decision within the meaning of Government Code section 87101 and 2 Cal. Code Regs. section 18708; or
(3) The prospective employer is a state, local, or federal governmental agency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87407, Government Code.
HISTORY
1. New article 2.5 (section 18747) and section filed 10-28-98; operative 10-28-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 44).
2. Change without regulatory effect amending subsections (a), (b)(1), (b)(2)(A)-(C) and (d)(1)-(2) filed 12-15-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 51).
3. Change without regulatory effect amending section filed 10-6-2003 pursuant to section 100, title 1, California Code of Regulations (Register 2003, No. 41).
4. Amendment of subsections (a) and (b)(2)(A) filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
Article 3. Conflict of Interest Codes
§18750. Procedures for the Promulgation and Adoption of Conflict of Interest Codes for State Agencies.
Note • History
(a) Unless otherwise modified, the term “agency” as used in this section shall refer to a state agency other than an agency in the judicial branch of government. The term “Commission” as used in this section shall refer to the Fair Political Practices Commission.
(b) An agency proposing a conflict of interest code or an amendment to an existing code, other than a nonsubstantive amendment, shall follow the procedures described in this section. An agency proposing a nonsubstantive amendment shall follow the procedures described in 2 Cal. Code of Regs. section 18752.
(c) Every agency which proposes to adopt a conflict of interest code or to amend its existing code shall:
(1) Conduct a public hearing or establish a written comment period.
(2) Prepare an initial proposed code or an initial proposed amendment.
(3) Prepare a notice of intention to adopt a conflict of interest code, or to amend an existing code. This notice shall:
(A) Describe the proposed code or amendment in general terms and if the proposed action includes amendments to an existing code, include a concise, clear summary of the provisions of the existing code, if any, which will be affected by the proposed amendments, and a summary of how those provisions will be affected by the proposed amendments;
(B) State that copies of the proposed code or amendment are available to interested persons and indicate where the copies may be obtained;
(C) Specify the location where written comments concerning the proposed code or amendments may be submitted;
(D) Specify the date by which comments submitted in writing must be received to present statements, arguments, or contentions in writing relating to the proposed action in order for them to be considered by the agency before it adopts or amends the code;
(E) State the time and place of any public hearing that is scheduled on the proposed code or amendment;
(F) State the name and telephone number of an agency officer to whom inquiries concerning the proposed code or amendment may be directed;
(G) State that the agency has prepared a written explanation of the reasons for the designations and the disclosure responsibilities, or, in the case of an amendment, that the agency has prepared a written explanation of the reasons for the changes and has available all of the information upon which its proposal is based;
(H) If a code is being adopted, include a reference that the authority for the action is Government Code section 87300. If a code is being amended, include a reference that the authority for the action is Government Code section 87306. For both the adoption of and amendments to codes, provide a reference to Government Code sections 87300-87302 and 87306;
(I) If a public hearing on the proposed code or amendment is not scheduled, state that any interested person or his or her representative may request, no later than 15 days prior to the close of the written comment period, a public hearing;
(J) Include a statement that the adoption of the proposed code or amendment will not impose a cost or savings on any state agency, local agency or school district that is required to be reimbursed under Part 7 (commencing with section 17500) of Division 4 of the Government Code; will not result in any nondiscretionary cost or savings to local agencies; will not result in any cost or savings in federal funding to the state; will not impose a mandate on local agencies or school districts; and will not have any potential cost impact on private persons or businesses including small businesses.
(K) A statement that the adopting agency must determine that no alternative considered by the agency would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.
(4) File a copy of the notice with the Office of Administrative Law for publication in the California Notice Register at least 60 days before the public hearing or close of the comment period.
(5) File a copy of the notice (endorsed by the Office of Administrative Law) with the Commission at least 45 days before the public hearing or close of the written comment period.
(6) Provide notice pursuant to the requirements of Government Code section 87311, including providing a copy of the notice to each employee of the agency affected by the proposed code or amendment at least 45 days before the hearing or the close of the comment period by serving the employees individually with a copy of the written notice, by posting the notice on employee bulletin boards, or by publishing the notice in an employee newsletter.
(7) Make the exact terms of the proposed code or amendment available for inspection and copying to interested persons for at least 45 days prior to the public hearing or the close of the comment period.
(8) Accept written comments from interested persons through the conclusion of the public hearing or the close of the comment period.
(9) Conduct a public hearing on the proposed code or amendment, if, at least 15 days prior to the close of the written comment period, an interested party, or his or her duly authorized representative, requests a public hearing. The state agency shall to the extent practicable, provide notice of the time, date and place of the hearing by mailing the notice to every person who submitted written comments, or who requested a hearing, on the proposed code or amendment.
(d) If the procedures set forth in subdivision (c) have been followed, a proposed code or amendment, which has been changed or modified from that which was made available to the public, may, without further notice or hearing, be adopted if:
(1) The change or modification is nonsubstantial or solely grammatical in nature, or
(2) The resulting code or amendment is sufficiently related to the text made available to the public that the public was adequately placed on notice that the code or amendment could result from the original proposal and the full text of the resulting code or amendment has been available to the public for at least 15 days prior to the date on which the agency adopts the code or amendment.
(e) The agency shall submit three copies of the final proposed code or of the existing code with the final proposed amendment in strikeout/underline form to the Commission accompanied by one copy of the following:
(1) A code or amendment shall be accompanied by:
(A) A declaration of the chief executive officer of the agency declaring that the Code specifically enumerates each of the positions within the agency which involve the making or participation in the making of decisions which may foreseeably have a material financial effect on any financial interest and the agency has satisfied the requirements of subdivision (c) preliminary to formulation of the Code;
(B) A summary of any hearing held by the agency with appropriate identification of any areas of controversy and the manner of their resolution.
(C) Copies of all written submissions made to the agency regarding the proposed Code or amendment, unless the person making the written submission requests its omission;
(D) A written explanation of the reasons for the designations and the disclosure responsibilities of officers, employees, members or consultants of the agency. In the case of an amendment, written justification for any changes including all changes in or additions to the designations or disclosure responsibilities;
(E) The names and addresses of all persons who participated in any public hearing of the agency on the proposed code or amendment and all persons who requested notice from the agency of the date of the Commission hearing on the adoption of the code or amendment;
(F) The most current organizational chart of the agency;
(G) Job descriptions for all designated employees or employees newly designated by the amendment.
(2) A new conflict of interest code shall also be accompanied by:
(A) A copy of the statutory authority under which the agency was created with specific citations to the provisions setting forth the duties and responsibilities of the agency.
(B) The identity of the person or body to whom the agency reports;
(C) A copy of the last annual or regular report prepared by the agency or submitted by the agency to the person or body to whom the agency reports or, if there is no report, copies of recent minutes of agency meetings;
(D) A brief description of the duties and the terms of all consultants working for the agency who are not designated employees.
(f) When an agency proposes a new conflict of interest code or an amendment to an existing code, the Executive Director shall either:
(1) Prepare a notice which specifies the establishment of a written comment period; specifies the date by which comments submitted in writing must be received in order for them to be considered; includes a statement that any interested person or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing; includes a clear and concise summary of the proposed action; provides the name and telephone number of the agency officer to whom inquiries concerning the proposed administrative action may be directed, and specifies that the text of the proposed code or amendment is available for inspection and copying at the agency and at the Commission offices. This notice shall be sent to the agency and to all persons who have requested notice at least 45 days before the hearing close of the written comment period; or
(2) Return the proposed code or amendments to the agency with written recommendations for revision. Any agency which objects to the recommendations for revision may request a full hearing by the Commission pursuant to subdivision (h) of this section.
(g) If no hearing is requested as set forth above, the Executive Director at the end of the 45-day written comment period shall either:
(1) approve the code as submitted; or
(2) return the proposed code or amendment to the agency for revision.
Any agency which objects to the recommendations for revision may request a full hearing by the Commission pursuant to subdivision (h) of this regulation.
(h) If a proposed hearing on this matter has been requested, the Commission shall afford any agency or interested person or his or her duly authorized representative, or both, the opportunity to present statements, arguments or contentions in writing on, or prior to, the date of the hearing. Oral testimony shall be encouraged; however, oral statements may be limited at the discretion of the Chairman. The Commission shall consider all relevant matter presented to it prior to and during the public hearing, or appearing on the record of such hearing prior to taking action on the proposed Code or amendments.
(i) After a full hearing as provided hereinabove, the Commission shall:
(1) Approve the proposed code or amendments as submitted;
(2) Revise the proposed code or amendments and approve it as revised; or
(3) Direct the Executive Director to return the proposed code or amendments to the agency for revision and resubmission within 60 days.
(j) If a code or amendment is approved, the Executive Director shall return a copy of the code or amendment to the agency with notification of Commission approval.
(k) Code or amendments, as approved by the Fair Political Practices Commission, shall be transmitted within 30 days by the agency to the Office of Administrative Law, which shall file the code or amendment promptly with the Secretary of State without further review pursuant to Article 6 (commencing with section 11349) of Chapter 3.5 of Division 1 of Title 2 of the Government Code. When the agency files the code or amendments with the Office of Administrative Law it shall:
(1) Indicate that it is transmitting a conflict of interest code approved by the Commission for filing; and
(2) Request that the Office of Administrative Law publish the code in its entirety, or request that the Office of Administrative Law print an appropriate reference to the agency's code in its title of the California Code of Regulations.
(l) A conflict of interest code or amendment to a code shall become effective on the thirtieth day after the date of filing with the Secretary of State.
(m) Each agency's code shall be maintained in the office of the chief executive officer of the agency, who shall make the code available for public inspection and reproduction during regular business hours commencing the effective date of the code. No conditions whatsoever shall be imposed upon persons desiring to inspect the conflict of interest code of the agency, nor shall any information or identification be required from such person. Copies shall be provided at a charge not to exceed ten cents ($.10) per page.
(n) The Commission shall maintain copies of each agency's code for public inspection and copying at its offices at 428 J Street, Suite 800, Sacramento, California.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87300, 87303 and 87306, Government Code.
HISTORY
1. New section filed 3-30-76; effective thirtieth day thereafter (Register 76, No. 14).
2. Amendment of subsections (l), (m), (n) and (q) filed 7-28-76; effective thirtieth day thereafter (Register 76, No. 31).
3. Amendment of subsections (e), (g), (i), (j)(1) and (k) filed 11-2-78; effective thirtieth day thereafter (Register 78, No. 44).
4. Amendment of subsections (d) and (l) filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
5. Amendment filed 1-11-83; effective thirtieth day thereafter (Register 83, No. 3).
6. Amendment filed 6-22-83; effective thirtieth day thereafter (Register 83, No. 26).
7. Amendment filed 5-18-87; operative 5-18-87 (Register 87, No. 21).
8. Amendment of section heading, subsections (c)(3)(J) and (k) and new subsection (c)(3)(K) filed 11-28-88; operative 12-28-88 (Register 88, No. 52).
9. Amendment of subsections (b), (c), (k)(2), (m) and Note filed 4-21-92; operative 5-21-92 (Register 92, No. 19).
10. Amendment of subsections (a), (b), (c)(3)(H), (c)(3)(J), (c)(6), (d), (e)(1)(A), (f)(2), (g)(2) and (k) filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
§18750.1. Procedures for the Promulgation and Adoption of Conflict of Interest Codes for Local Government Agencies with Jurisdiction in More Than One County.
Note • History
(a) Unless otherwise modified, the term “agency” as used in this section shall refer to a local government agency with jurisdiction in more than one county. The term “Commission” as used in this section shall refer to the Fair Political Practices Commission.
(b) An agency proposing a conflict of interest code or an amendment to an existing code, other than a nonsubstantive amendment, shall follow the procedures described in this section. An agency proposing a nonsubstantive amendment shall follow the procedures described in 2 Cal. Code of Regs. Section 18752.
(c) Every agency which proposes to adopt a conflict of interest code or to amend its existing code shall:
(1) Conduct a public hearing or establish a written comment period.
(2) Prepare an initial proposed code or an initial proposed amendment.
(3) Prepare a notice of intention to adopt a conflict of interest code, or to amend an existing code. This notice shall:
(A) Describe the proposed code or amendment in general terms and if the proposed action includes amendments to an existing code, include a concise, clear summary of the provisions of the existing code, if any, which will be affected by the proposed amendments, and a summary of how those provisions will be affected by the proposed amendments;
(B) State that copies of the proposed code or amendment are available to interested persons and indicate where the copies may be obtained;
(C) Specify the location where written comments concerning the proposed code or amendments may be submitted;
(D) Specify the date by which comments submitted in writing relating to the proposed code or amendments must be received in order for them to be considered by the agency before it adopts or amends the code;
(E) State the time and place of any public hearing that is scheduled on the proposed code or amendment; or if a public hearing on the proposed code or amendment is not scheduled, include a statement that any interested person or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing;
(F) State the name and telephone number of an agency officer to whom inquiries concerning the proposed code or amendment may be directed;
(G) State that the agency has prepared a written explanation of the reasons for the designations and the disclosure responsibilities, and has available all of the information upon which its proposal is based.
(4) File a copy of the notice with the Commission at least 45 days before the public hearing or close of the comment period.
(5) Provide notice pursuant to the requirements of Government Code Section 87311, including providing a copy of the notice to each employee of the agency affected by the proposed code or amendment at least 45 days before the hearing or close of the comment period by serving the employees individually with a copy of the written notice, by posting the notice on employee bulletin boards, or by publishing the notice in an employee newsletter.
(6) Make the exact terms of the proposed code or amendment available for inspection and copying to interested persons for at least 45 days prior to the public hearing or the close of the comment period.
(7) Accept written comments from interested persons through the conclusion of the public hearing or the close of the comment period.
(d) If the procedures set forth in subsection (c) have been followed, a proposed code or amendment, which has been changed or modified from that which was made available to the public, may, without further notice or hearing, be adopted if the code or amendment adopted is substantially similar to the initially proposed code or amendment and all employees affected by the proposed code or amendment as adopted by the agency had adequate notice.
(e) The agency shall submit three copies of the final proposed code or of the existing code with the final proposed amendment in strikeout/underline form to the Commission accompanied by one copy of the following:
(1) For a code or amendment:
(A) A declaration by the chief executive officer of the agency declaring that the Code specifically enumerates each of the positions within the agency which involve the making or participation in the making of decisions which may foreseeably have a material financial effect on any financial interest and the agency has satisfied the requirements of subsection (c) preliminary to formulation of the Code;
(B) A summary of any hearing held by the agency with appropriate identification of any areas of controversy and the manner of their resolution.
(C) Copies of all written submissions made to the agency regarding the proposed Code or amendment, unless the person making the written submission requests its omission;
(D) A written explanation of the reasons for the designations and the disclosure responsibilities of officers, employees, members or consultants of the agency. In the case of an amendment, provide a written justification for any changes including all changes in or additions to the designations or disclosure responsibilities;
(E) The names and addresses of all persons who participated in any public hearing of the agency on the proposed code or amendment and all persons who requested notice from the agency of the date of the Commission hearing on the adoption of the code or amendments;
(F) The most current organizational chart of the agency;
(G) Job descriptions for all designated employees or employees newly designated by the amendment.
(2) For a new conflict of interest code:
(A) A copy of a joint powers agreement or a copy of the statutory authority under which the agency was created with specific citations to the provisions setting forth the duties and responsibilities of the agency;
(B) A copy of the last annual or regular report prepared by the agency or submitted by the agency to the person or body to whom the agency reports or, if there is no report, copies of recent minutes of agency meetings;
(C) A brief description of the duties and the terms of all consultants working for the agency who are not designated employees.
(f) When an agency proposes a new conflict of interest code or an amendment to an existing code, the Executive Director shall either:
(1) Prepare a notice which specifies the establishment of a written comment period; includes a statement that any interested person, or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing; specifies the date by which comments submitted in writing must be received in order for them to be considered; includes a clear and concise summary of the proposed action; provides the name and telephone number of the agency officer to whom inquiries concerning the proposed action may be directed and that the text of the proposed code or amendment is available for inspection and copying at the agency and at the Commission offices. This notice shall be sent to the agency and to all persons who have requested notice at least 45 days before the close of the written comment period; or
(2) Return the proposed code or amendment to the agency with written recommendations for revision. Any agency which objects to the recommendations for revision may request a full hearing by the Commission pursuant to subsection (h) of this regulation.
(g) If no hearing is requested as set forth in subsection (f)(1) above, the Executive Director at the end of the 45-day written comment period shall either:
(1) Approve the code as submitted; or
(2) Return the proposed code or amendment to the agency for revision. Any agency which objects to the recommendations for revision may request a full hearing by the Commission pursuant to subsection (h) of this regulation.
(h) If a public hearing on this matter has been requested, the Commission shall afford any agency or interested person or his or her duly authorized representative, or both, the opportunity to present statements, arguments or contentions in writing on, or prior to, the date of the hearing. Oral testimony shall be encouraged; however, oral statements may be limited at the discretion of the Chairman. The Commission shall consider all relevant matters presented to it prior to and during the public hearing, or appearing on the record of such hearing prior to taking action on the proposed code or amendment.
(i) After a full hearing as provided herein above, the Commission shall:
(1) Approve the proposed code or amendment as submitted and return the code or amendments to the agency;
(2) Revise the proposed code or amendment and approve it as revised; or
(3) Direct the Executive Director to return the proposed code or amendment to the agency for revision and resubmission within 60 days.
(j) If a code or amendment is approved, the Executive Director shall return a copy of the code or amendment to the agency with notification of approval.
(k) A conflict of interest code or amendment to a code shall become effective on the thirtieth day following the approval of the code or amendment.
(l) Each agency's code shall be maintained in the office of the chief executive officer of the agency, who shall make the code available for public inspection and reproduction during regular business hours commencing with the effective date of the code. No conditions whatsoever shall be imposed upon persons desiring to inspect the conflict of interest code of the agency, nor shall any information or identification be required from such person. Copies shall be provided at a charge not to exceed ten cents ($.10) per page.
(m) The Commission shall maintain copies of each agency's code for public inspection and copying at its offices in Sacramento, California.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87300, 87303 and 87306, Government Code.
HISTORY
1. New section filed 5-18-87; operative 5-18-87 (Register 87, No. 21).
2. Amendment of subsection (b), new subsection (c) and relettering of following subsections, amendment of new subsections (d), (f)(2), (g), (g)(2), (l) and Note filed 4-21-92; operative 5-21-92 (Register 92, No. 19)
§18750.2. Procedures for the Promulgation and Adoption of Conflict of Interest Codes for State Agencies Exempt from the Administrative Procedures Act.
Note • History
(a) Unless otherwise modified, the term “exempt agency” as used in this section shall refer to any state agency, other than an agency in the judicial branch of government, that is not subject to, or otherwise exempt from, the requirement in Government Code section 11346.4(a)(5) of the Administrative Procedures Act that requires publication of the proposed conflict of interest code in the California Regulatory Notice Register. The term “Commission” as used in this section shall refer to the Fair Political Practices Commission.
(b) An exempt agency proposing adoption of a conflict of interest code or an amendment to an existing code, other than a nonsubstantive amendment, shall follow the procedures described in this section. An exempt agency proposing a nonsubstantive amendment shall follow the procedures described in 2 Cal. Code of Regs. section 18752(a) through (e).
(c) Every exempt agency which proposes to adopt a conflict of interest code or to amend its existing code shall:
(1) Conduct a public hearing or establish a written comment period.
(2) Prepare an initial proposed code or an initial proposed amendment.
(3) Prepare a notice of intention to adopt a conflict of interest code, or to amend an existing code. This notice shall:
(A) Describe the proposed code or amendment in general terms and if the proposed action includes amendments to an existing code, include a concise, clear summary of the provisions of the existing code, if any, which will be affected by the proposed amendments, and a summary of how those provisions will be affected by the proposed amendments.
(B) State that copies of the proposed code or amendment are available to interested persons and indicate where the copies may be obtained.
(C) Specify the location where written comments concerning the proposed code or amendments may be submitted.
(D) Specify the date by which comments submitted in writing relating to the proposed code or amendments must be received in order for them to be considered by the exempt agency before it adopts or amends the code.
(E) State the time and place of any public hearing that is scheduled on the proposed code or amendment; or if a public hearing on the proposed code or amendment is not scheduled, include a statement that any interested person or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing.
(F) State the name and telephone number of an agency officer to whom inquiries concerning the proposed code or amendment may be directed.
(G) State that the agency has prepared a written explanation of the reasons for the designations and the disclosure responsibilities, or, in the case of an amendment, that the agency has prepared a written explanation of the reasons for the changes and has available all of the information upon which its proposal is based.
(H) If a code is being adopted, include a reference that the authority for the action is Government Code section 87300. If a code is being amended, include a reference that the authority for the action is Government Code section 87306. For both the adoption of and amendments to codes, provide a reference to Government Code sections 87300-87302, and 87306.
(I) If a public hearing on the proposed code or amendment is not scheduled, state that any interested person or his or her representative may request, no later than 15 days prior to the close of the written comment period, a public hearing.
(4) File a copy of the notice with the Commission at least 45 days before the public hearing or close of the comment period.
(5) Provide notice pursuant to the requirements of Government Code section 87311, including providing a copy of the notice to each employee of the exempt agency affected by the proposed code or amendment at least 45 days before the hearing or the close of the comment period by serving the employees individually with a copy of the written notice, by posting the notice on employee bulletin boards, or by publishing the notice in an employee newsletter. In addition, notice must be provided by posting the notice on the home page of the agency website.
(6) Make the exact terms of the proposed code or amendment available for inspection and copying to interested persons for at least 45 days prior to the public hearing or the close of the comment period.
(7) Accept written comments from interested persons through the conclusion of the public hearing or the close of the comment period.
(8) Conduct a public hearing on the proposed code or amendment, if, at least 15 days prior to the close of the written comment period, an interested party, or his or her duly authorized representative, requests a public hearing. The agency shall to the extent practicable, provide notice of the time, date and place of the hearing by mailing the notice to every person who submitted written comments, or who requested a hearing, on the proposed code or amendment.
(d) If the procedures set forth in subdivision (c) of this regulation have been followed, a proposed code or amendment, which has been changed or modified from that which was made available to the public, may, without further notice or hearing, be adopted if:
(1) The change or modification is nonsubstantial or solely grammatical in nature, or
(2) The resulting code or amendment is sufficiently related to the text made available to the public, that the public was adequately placed on notice that the code or amendment could result from the original proposal and the full text of the resulting code or amendment has been available to the public for at least 15 days prior to the date on which the agency adopts the code or amendment.
(e) The exempt agency shall submit three copies of the final proposed code, or of the existing code with the final proposed amendment in strikeout/underline form, to the Commission accompanied by one copy of the following:
(1) For a code or amendment, it shall be accompanied by:
(A) A declaration by the chief executive officer of the exempt agency declaring that the code specifically enumerates each of the positions within the agency which involve the making or participation in the making of decisions which may foreseeably have a material financial effect on any financial interest and the agency has satisfied the requirements of subdivision (c) of this regulation preliminary to formulation of the code;
(B) A summary of any hearing held by the agency with appropriate identification of any areas of controversy and the manner of their resolution;
(C) Copies of all written submissions made to the agency regarding the proposed code or amendment, unless the person making the written submission requests its omission;
(D) A written explanation of the reasons for the designations and the disclosure responsibilities of officers, employees, members or consultants of the agency. In the case of an amendment, provide a written justification for any changes including all changes in or additions to the designations or disclosure responsibilities;
(E) The names and addresses of all persons who participated in any public hearing of the agency on the proposed code or amendment and all persons who requested notice from the agency of the date of the Commission hearing on the adoption of the code or amendments;
(F) The most current organizational chart of the agency; and
(G) Job descriptions for all designated employees or employees newly designated by the amendment.
(2) If a new conflict of interest code, it shall also be accompanied by:
(A) A copy of the statutory authority under which the agency was created with specific citations to the provisions setting forth the duties and responsibilities of the agency;
(B) The identity of the person or body to whom the agency reports;
(C) A copy of the last annual or regular report prepared by the agency or submitted by the agency to the person or body to whom the agency reports or, if there is no report, copies of recent minutes of agency meetings; and
(D) A brief description of the duties and the terms of all consultants working for the agency who are not designated employees.
(f) When an agency proposes a new conflict of interest code or an amendment to an existing code, the Executive Director of the Commission shall either:
(1) Prepare a notice which specifies the establishment of a written comment period; includes a statement that any interested person, or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing; specifies the date by which comments submitted in writing must be received in order for them to be considered; includes a clear and concise summary of the proposed action; provides the name and telephone number of the agency officer to whom inquiries concerning the proposed action may be directed and that the text of the proposed code or amendment is available for inspection and copying at the agency and at the Commission offices. This notice shall be sent to the agency and to all persons who have requested notice at least 45 days before the close of the written comment period; or
(2) Return the proposed code or amendment to the agency with written recommendations for revision. Any agency which objects to the recommendations for revision may request a full hearing by the Commission pursuant to subdivision (h) of this regulation.
(g) If no hearing is requested as set forth in subsection (f)(1) above, the Executive Director at the end of the 45-day written comment period shall either:
(1) Approve the code as submitted; or
(2) Return the proposed code or amendment to the agency for revision. Any agency which objects to the recommendations for revision may request a full hearing by the Commission pursuant to subdivision (h) of this regulation.
(h) If a public hearing on this matter has been requested, the Commission shall afford any agency or interested person or his or her duly authorized representative, or both, the opportunity to present statements, arguments or contentions in writing on, or prior to, the date of the hearing. Oral testimony shall be encouraged; however, oral statements may be limited at the discretion of the Chairman. The Commission shall consider all relevant matters presented to it prior to and during the public hearing, or appearing on the record of such hearing prior to taking action on the proposed code or amendment.
(i) After a full hearing as provided herein above, the Commission shall:
(1) Approve the proposed code or amendment as submitted and return the code or amendment to the agency;
(2) Revise the proposed code or amendment and approve it as revised; or
(3) Direct the Executive Director to return the proposed code or amendment to the agency for revision and resubmission within 60 days.
(j) If a code or amendment is approved, the Executive Director shall return a copy of the code or amendment to the agency with notification of approval.
(k) A conflict of interest code or amendment to a code shall become effective on the thirtieth day following the approval of the code or amendment.
(l) Each agency's code shall be maintained in the office of the chief executive officer of the agency, who shall make the code available for public inspection and reproduction during regular business hours commencing the effective date of the code. No conditions whatsoever shall be imposed upon persons desiring to inspect the conflict of interest code of the agency, nor shall any information or identification be required from such person. Copies shall be provided at a charge not to exceed ten cents ($.10) per page.
(m) The Commission shall maintain copies of each agency's code for public inspection and copying at its offices in Sacramento, California.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87300, 87303 and 87306, Government Code.
HISTORY
1. New section filed 6-14-2005; operative 7-14-2005 (Register 2005, No. 24).
§18751. Procedure and Standards for Obtaining Exemption from Government Code Section 87300, Requiring Adoption and Promulgation of a Conflict of Interest Code.
Note • History
(a) This section sets forth the procedure and standards by which the Fair Political Practices Commission will determine whether to grant an exemption from Government Code section 87300 to an agency for which the Commission is the code reviewing body. Other code reviewing bodies are encouraged to adopt the same or similar procedure and standards. Nothing in this section shall be construed to mean that a government agency is not required to adopt a conflict of interest code if it has not been granted an exemption.
(b) A governmental body qualifying as an agency, and therefore required to adopt and promulgate a Conflict of Interest Code pursuant to Government Code section 87300, or be included within another agency's Conflict of Interest Code, may submit a request to the Fair Political Practices Commission for exemption from that requirement if the Commission would be the agency's code reviewing body. Obtaining an exemption as provided in this regulation is the exclusive means by which an agency may obtain an exemption from the requirement to adopt and promulgate a Conflict of Interest Code. The term “agency” as used in this section means any state agency or local government agency with jurisdiction in more than one county.
(c) An exemption shall be granted to an agency by the Executive Director only if he or she finds:
(1) That if the agency were to adopt a Conflict of Interest Code, there would be no “designated employees,” within the meaning of Government Code Sections 82019 and 87302(a), subject to its provisions; or
(2) That the agency is, or within one year will be, inoperative and nonfunctioning; or
(3) That the agency is a committee, board, or commission that does not possess decisionmaking authority as defined in 2 Cal. Code Regs. section 18701(a)(1), and both of the following apply:
(A) The agency will not acquire real property in the foreseeable future; and
(B) The annual operating budget exclusive of salaries for the agency is less than $150,000; or
(4) That good cause exists for granting an exemption due to extraordinary circumstances that indicate the burden on the agency of adopting a conflict of interest code is not warranted by the degree of likelihood that a conflict of interest may occur.
(d) An exemption may be granted to an agency or extended by the Executive Director on his or her own initiative or in response to a request by the agency. A request by an agency shall be signed by the chief executive officer or a legal representative of the agency and shall be accompanied by a statement of the alleged basis for a grant of exemption with supporting documentation, as described in subdivisions (e) through (g) of this regulation.
(e) A request for exemption under subdivision (c)(1) shall be accompanied by:
(1) A list of every position in the agency, including each officer, employee, member and consultant with the agency;
(2) A copy of the job description for each position listed in subsection (1) above;
(3) A copy of the statutory authority under which the agency was created with specific citations to the provisions setting forth the duties and responsibilities of the agency;
(4) Identification of the person or body to whom the agency reports;
(5) A copy of the last annual or regular report submitted by the agency to the person or body to whom the agency reports;
(6) A detailed justification of the request for exemption including an explanation of why none of the positions listed in subsection (1) above, are designated employees. In preparing this justification, particular note should be taken of Government Code section 82019.
(f) A request for exemption under subdivision (c)(2) shall be accompanied by:
(1) A copy of the statutory or legal authority under which the agency ceased, or soon will cease, to operate or function;
(2) The date, time and place of the last meeting of the agency;
(3) Identification of the positions and names of any staff who continue to work for or represent the agency, whether salaried or unsalaried; and
(4) A detailed explanation of the reasons the agency is, or soon will be, inoperative and nonfunctioning.
(g) A request for exemption under subdivision (c)(3) shall be accompanied by:
(1) A copy of the statutory authority under which the agency was created with specific citations to the provisions setting forth the duties and responsibilities of the agency;
(2) Identification of the person or body to whom the agency reports; and
(3) A copy of the last annual or regular report submitted by the agency to the person or body to whom the agency reports;
(h) Within 90 days after receiving a request for exemption, the Executive Director shall:
(1) Approve the request;
(2) Deny the request; or
(3) Return the request for additional information and resubmission within 60 days. Upon resubmission, the Commission shall, within 60 days, either approve the request for exemption or deny the request.
(i) In the case of a newly created agency, the time limits prescribed by Government Code sections 87302.6 and 87303 for the members of a board or commission to file statements of economic interests, and for the agency to submit a proposed Conflict of Interest Code, shall be tolled while a request for exemption is under initial consideration by the Executive Director or reconsideration by the Commission, provided the request is submitted prior to the time limit expiring.
(j) When an exemption is granted, the Executive Director shall issue an exemption letter and transmit it to the requesting agency. The exemption letter shall state a legal and factual basis for the granting of an exemption. When an exemption is granted under subdivision (c)(4), the letter shall also describe the particular extraordinary circumstances that warrant the granting of an exemption under that subdivision. A copy of the exemption letter shall be transmitted to any person requesting it, and shall be posted on the Commission's website. Within 30 days after the exemption is granted, any interested party may submit a request that the grant of exemption be reconsidered by the Commission. The Chairman shall consider the request and, if in his or her discretion good cause exists for reconsideration, he or she shall schedule the matter for hearing before the Commission.
(k) When a request for exemption is denied, the Executive Director shall issue a letter denying the request for exemption, transmit it to the requesting agency, and establish a new deadline by which the agency requesting the exemption shall submit a proposed Conflict of Interest Code to the Commission, or be included within the Conflict of Interest Code of another agency. If the request is from a newly created agency having a board or commission whose members are subject to the filing requirements imposed by Government Code section 87302.6, the letter denying the request for exemption shall also establish a new deadline, not exceeding 30 days from the date the letter is issued, by which the board or commission members shall file statements of economic interests pursuant to Government Code section 87200. A copy of the letter denying the exemption shall be transmitted to any person requesting it, and shall be posted on the Commission's website. Within 30 days after the request for exemption is denied, any interested party may submit a request that the denial be reconsidered by the Commission. The Chairman shall consider the request and, if in his or her discretion good cause exists for reconsideration, he or she shall schedule the matter for hearing before the Commission.
(l) An exemption granted under subdivision (c)(3) of this regulation does not constitute formal written advice or informal assistance pursuant to 2 Cal. Code Regs. sections 18329 and 18329.5 concerning the duty of an individual to file a statement of economic interests under the provisions of an existing Conflict of Interest Code.
(m) Upon being issued, an exemption shall remain in effect until the basis for the grant of exemption no longer exists or the expiration of 2 years, whichever occurs earlier. When an agency's exemption expires without being renewed on the Executive Director's own initiative, the agency shall either adopt and promulgate a Conflict of Interest Code pursuant to Government Code section 87300, submit a request for the exemption to be extended, or submit a new request for exemption.
(n) A request to extend an exemption need only consist of a declaration signed by the chief executive officer or a legal representative of the agency stating that the circumstances that served as the basis for the original grant of exemption have not changed. The request shall then be granted or denied according to the procedures set forth in subdivisions (h) through (k) of this regulation, and if granted, subject to the provisions of subdivision (l) of this regulation, just as an original exemption.
NOTE
Authority cited: Sections 83108 and 83112, Government Code. Reference: Section 87300 et seq., Government Code.
HISTORY
1. New section filed 7-28-76; effective thirtieth day thereafter (Register 76, No. 31).
2. Amendment filed 3-3-86; effective thirtieth day thereafter (Register 86, No. 10).
3. Amendment of subsections (c), (e), repealer of former subsection (h) and relettering, and amendment of new subsections (h)-(j), repealer of subsection (l) and amendment of Note filed 4-21-92; operative 5-21-92 (Register 92, No. 19).
4. Amendment of subsection (g) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment of section heading and section filed 12-29-2005; operative 1-28-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992. (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 52).
6. Amendment filed 2-23-2011; operative 2-10-2011, pursuant to California Code of Regulations, title 2, section 18312(c)(3). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 8). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 6-11-2011.
7. Editorial correction of History 6 (Register 2011, No. 13).
8. Reinstatement of section as it existed prior to the 2-10-2011 emergency amendment filed 2-23-2011 by operation of Government Code section 11422.1(c) (Stats. 1971, c. 1303). See Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2011, No. 34).
§18752. Nonsubstantive Amendments of Conflict of Interest Codes.
Note • History
(a) A state agency or a local government agency with jurisdiction in more than one county may make nonsubstantive alterations of a conflict of interest code for its agency.
(b) No alteration of a conflict of interest code shall be deemed nonsubstantive until the agency has requested and received prior written approval from the Executive Director of the Fair Political Practices Commission, or his or her designee, to classify the alteration as nonsubstantive.
(c) Each request for a nonsubstantive alteration shall be in writing and shall be accompanied by:
(1) The conflict of interest code for the agency showing the proposed nonsubstantive amendments in strikeout/underscore format;
(2) A brief description of the proposed amendments; and
(3) A declaration by the chief executive officer of the agency declaring that the code specifically enumerates each of the positions within the agency which involve the making or participation in the making of decisions which may foreseeably have a material financial effect on any financial interest.
(d) The Executive Director, or his or her designee, shall respond in writing to each request for interim approval within 30 calendar days or receipt.
(e) Nonsubstantive alterations of conflict of interest codes shall be limited to the following:
(1) The reclassification or renaming of previously designated positions, provided no designated positions are created, and provided no existing disclosure responsibilities are modified;
(2) The deletion of a position for which the classification has been abolished by the agency;
(3) The addition, deletion or modification of definitional or operational provisions of a conflict of interest code in conformity to a statutory amendment, a regulation of the Fair Political Practices Commission, a decision of the California Supreme Court, or a final decision of a California Court of Appeal; or
(4) The modification of any provision of a conflict of interest code, provided no disclosure or disqualification obligation of any designated employee is disturbed thereby.
(f) Nonsubstantive amendments to a state agency conflict of interest code which have been approved by the Executive Director or his or her designee shall be transmitted within 30 days by the agency to the Office of Administrative Law for filing with the Secretary of State without further review pursuant to Article 6 (commencing with Section 11349) of Chapter 3.5 of Division 1 of Title 2 of the Government Code. When the agency files the nonsubstantive amendments with the Office of Administrative Law, it shall:
(1) Indicate that it is transmitting a conflict of interest code approved by the Fair Political Practices Commission for filing; and
(2) Request that the Office of Administrative Law publish the code in its entirety, or request that the Office of Administrative Law print an appropriate reference to the agency's code in its title of the California Code of Regulations.
(g) The nonsubstantive amendments to the conflict of interest code shall become effective on the thirtieth day after approval by the Executive Director or his or her designee or in the case of a state agency, the thirtieth day after the date of filing with the Secretary of State.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 87306, Government Code.
HISTORY
1. New section filed 6-3-77; effective thirtieth day thereafter (Register 77, No. 23).
2. Amendment of subsection (a) filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
3. Amendment filed 1-11-83; effective thirtieth day thereafter (Register 83, No. 3).
4. Amendment filed 4-21-92; operative 5-21-92 (Register 92, No. 19).
5. Editorial correction of subsection (f)(2) (Register 95, No. 40).
§18753. Statements of Economic Interests; Where to File.
Note • History
City and county treasurers and “other public officials who manage public investments” as that term is used in Government Code Section 87200, who are required to file statements of economic interests pursuant to Title 9, Chapter 7, Article 2 of the Government Code shall file those statements as follows:
(a) County treasurers and other county public officials who manage public investments for the county shall file one original with the county clerk who shall make and retain a copy and forward the original to the Fair Political Practices Commission which shall be the filing officer.
(b) City treasurers and other city officials who manage public investments for the city shall file one original with the city clerk who shall make and retain a copy and forward the original to the Fair Political Practices Commission which shall be the filing officer.
(c) Except as otherwise provided in Government Code Section 87500, state officials who manage public investments for a state agency shall file one original with the filing officer for the agency who shall make and retain a copy and forward the original to the Fair Political Practices Commission which shall be the filing officer.
(d) Except as provided in subdivisions (a) and (b) of this section, members of local government agencies, boards, or commissions who manage public investments on behalf of their agency shall file one original with the filing officer of the local agency, board, or commission who shall make and retain a copy and forward the original to the Fair Political Practices Commission which shall be the filing officer. At its discretion, the Fair Political Practices Commission may provide that the original be filed directly with the local government agency, board, or commission.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87200 and 87500, Government Code.
HISTORY
1. New section filed 10-14-92; operative 11-13-92 (Register 92, No. 42).
§18754. Statements of Economic Interests (Members of Boards or Commissions of Newly Created Agencies); When and Where to File.
Note • History
(a) Applicability:
(1) Pursuant to Government Code section 87302.6, a member of a governing board or commission of a newly created agency shall disclose his or her economic interests pursuant to Government Code sections 87202 through 87210. This requirement applies until such time as the member is included in an approved conflict of interest code in effect for the governing board or commission of which he or she is a member.
(2) For purposes of Government Code section 87302.6, “newly created agency” means any state agency or local government agency, as defined in Government Code sections 82003, 82041, and 82049, which has come into existence on or after January 1, 2003.
(3) A member of a governing board or commission of a newly created agency is not subject to this regulation if subsection (A), (B), (C) or (D) of subdivision (a)(3) of this regulation applies:
(A) The member also holds a position specified in Government Code section 87200 and the geographical jurisdiction of the newly created agency is the same as or is wholly included within the jurisdiction in which the member must report his or her economic interests pursuant to article 2 of chapter 7 of this title, Government Code sections 87200 et seq.
(B) The member is also designated in a conflict of interest code for another agency and all of the following apply:
(i) The geographical jurisdiction of the newly created agency is the same as or is wholly included within the jurisdiction of the other agency;
(ii) The disclosure assigned to the member in the code of the other agency is the same as that required under article 2 of chapter 7 of this title, Government Code sections 87200 et seq.; and
(iii) The filing officer is the same for both agencies.
(C) The newly created agency was formed as a result of the merger of two or more agencies and all of the following apply:
(i) The member served on the governing board or commission of an agency abolished in the merger in substantially the same capacity as the member will serve on the governing board or commission of the newly created agency;
(ii) The geographical jurisdiction of the newly created agency is the same as the jurisdiction of the abolished agency; and
(iii) The member was previously subject to the same disclosure as required for persons listed in Government Code section 87200.
(D) The board or commission does not possess decisionmaking authority as defined in 2 Cal. Code Regs. section 18701(a)(1).
(b) When to file:
(1) Assuming Office Statements of Economic Interests:
(A) Every member of a governing board or commission of a newly created agency that has come into existence on or after January 1, 2003, but prior to the effective date of this regulation, shall file an assuming office statement within 30 days from the effective date of this regulation.
(B) Except as provided in subdivision (b)(1)(A) above, every member of a governing board or commission of a newly created agency shall file an assuming office statement not more than 30 days after assuming office or, if his or her nomination or appointment is subject to State Senate confirmation, not more than 10 days after being nominated or appointed to office.
(2) Annual Statements of Economic Interests:
(A) Every member of a governing board or commission of a newly created agency shall, no later than April 1 of each year, file an annual statement.
(B) Every person who assumes office as a member of a governing board or commission of a newly created agency between October 1 and December 31 and files an assuming office statement pursuant to this section need not file his or her first annual statement until one year later than the date applicable under subsection (b)(2)(A), above.
(3) Leaving Office:
(A) Every person who leaves his or her position as a member of a governing board or commission of a newly created agency shall, within 30 days after leaving office, file a leaving office statement.
(B) If a person leaves his or her position as a member of a governing board or commission of a newly created agency between January 1 and the filing deadline for his or her annual statement of economic interests, the person's leaving office statement may serve as his or her annual statement if, prior to the filing deadline for the annual statement, the person notifies the filing officer in writing that he or she intends to follow this procedure.
(4) Members Beginning and Completing a Term of Office: A member of a governing board or commission of a newly created agency who completes a term of office under this regulation and, within 30 days thereafter, begins a term of the same office or another such office of the same jurisdiction, is not deemed to assume office or leave office for purposes of filing statements under this regulation.
(c) Where to file: Pursuant to subdivision (o) of Government Code section 87500 and 2 Cal. Code Regs. section 18730, subdivision (b)(4), members of governing boards or commissions of newly created agencies shall file the statements required under this regulation with their newly created agency or with the agency's code reviewing body, as provided by that code reviewing body.
(d) Effect Upon Initial Statement Required Under Government Code section 87302(b): An assuming office statement or annual statement filed under this section by a member of a governing board or commission of a newly created agency is deemed to satisfy the requirement at Government Code section 87302(b) that an initial statement be filed by that member within 30 days after the effective date of the new conflict of interest code applicable to that member.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87300-87302.6, Government Code.
HISTORY
1. New section filed 3-27-2003; operative 3-27-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2003, No. 13).
2. Amendment of subsection (a)(3)(B) filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
3. Amendment of section and Note filed 9-27-2006; operative 10-27-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 39).
§18755. Statements of Economic Interests: Person or Persons at an Institution of Higher Education with Principal Responsibility for a Research Project.
Note • History
(a) Disclosure shall be required under Government Code section 87302 or any conflict of interest code in connection with a decision made by a person or persons at an institution of higher education with principal responsibility for a research project to undertake such research, if it is to be funded or supported, in whole or in part by:
(1) A contract or grant from a nongovernmental entity sponsor, or
(2) Other funds from a nongovernmental entity earmarked by the donor for a specific research project or for a specific researcher.
(b) Types of Statements of Economic Interests.
(1) Initial Statement: The initial statement must be submitted to the university filing officer for the statements of economic interests before final acceptance of a contract, grant, or gift. The statement shall include reportable investments in and positions with the sponsor as of the date of the offer of funding, and income and gifts received from the sponsor within the 12 months prior to the date of the offer.
(2) Interim Statements: A statement must be filed within 30 days after funding is renewed and shall disclose reportable investments, income and business positions held or received during the period between the date the initial statement was filed and the date the funding for the project was renewed.
(c) Content: The disclosure statement shall contain the name and address of the sponsor, a general description of the sponsor's business activity, if any, and the amount of funding.
(1) Business Positions with Sponsor. When the principal investigator is a director, officer, partner, trustee, employee, or holds any position of management with the sponsor, the disclosure statement shall contain the title of any position held in the entity by the principal investigator.
(2) Investments and Equity Interest in the Sponsor. When the principal investigator holds an investment or equity (ownership) interest in the sponsor, the disclosure statement shall contain a statement of the fair market value of the investment or interest and whether the value of the investment or interest is $2,000 but does not exceed $10,000, exceeds $10,000 but does not exceed $100,000, exceeds $100,000 but does not exceed $1,000,000; or greater than $1,000,000.
(3) Income from the Sponsor. When the principal investigator has received reportable income from the sponsor, the disclosure statement shall contain:
(A) A statement whether the aggregate value of income from the sponsor, or in the case of a loan, the highest amount owed to the sponsor, was $500 but does not exceed 1,000, exceeds $1,000 but does not exceed $10,000, exceeds $10,000 but does not exceed $100,000, or greater than $100,000.
(B) In the case of a loan, the annual interest rate and whether the loan was secured or unsecured.
(4) Gifts from the Sponsor. In the case of a gift of $50 or more from the sponsor, the disclosure statement shall contain:
(A) A description of the gift;
(B) The amount or value of the gift; and
(C) The date the gift was received.
(5) Payments for Travel from the Sponsor. In the case where a payment for travel was received from the sponsor, the disclosure statement shall contain:
(A) A description of the nature of the payment and whether it is a gift or income;
(B) The amount of the payment; and
(C) The dates the travel occurred.
(d)(1) Disclosure shall not be required under Government Code section 87302 (or under a conflict of interest code) in connection with a decision made by a principal investigator to undertake such research, if the nongovernmental entity funding or supporting the research is one of the following:
Alzheimer's Disease & Related Disorders Association
American Academy of Dermatology
American Academy of Pediatrics
American Association for the Advancement of Science
American Association for State & Local History
American Association of Colleges of Pharmacy
American Association of Obstetricians & Gynecologists
American Association of Retired Persons
American Cancer Society
American Chemical Society
American College of Obstetricians & Gynecologists
American College of Radiology
American Committee for the Weizmann Institute of Science
American Council of Learned Societies
American Diabetes Association
American Foundation for Pharmaceutical Education
American Fund for Dental Education, Inc.
American Gastroenterologic Association
American Health Assistance Foundation
American Heart Association
American Kidney Fund
American Library Association
American Liver Foundation
American Lung Association
American Lupus Society, The
American Nurses Foundation
American Parkinson Disease Association
American Philological Association
American Philosophical Society
American Red Cross
Amyotrophic Lateral Sclerosis Society of America
Arthritis Foundation
Asthma & Allergy Foundation of America
Bush Foundation, The
California Association for Neurologically Handicapped Children
California Division of the American Cancer Society
California Heart Association
California Lung Association
Cargill Foundation
Carnegie Corporation of New York
Carnegie Foundation for the Advancement of Teaching
Cerebral Palsy Foundation
Chicago Community Trust, The
Childs Memorial Fund, The Jane Coffin
Christian Children's Fund
Clark Foundation, The Edna McConnell
Columbia Foundation
Commonwealth Fund, The
Cooley's Anemia Foundation
Council on Library Resources
Culpeper Foundation, Inc., Charles E.
Cystic Fibrosis Foundation
Deafness Research Foundation, The
Donner Foundation, William H.
Dover Fund, Inc.
Dreyfus Foundation, Inc., The Camille & Henry
Dreyfus Foundation, The Max & Victoria
Dysautonomia Foundation
Earhart Foundation
Easter Seal Research Foundation
Epilepsy Foundation of America
Eye Research Institute of Retina Foundation
Fight for Sight
Ford Foundation, The
Foundation for Child Development
Fuller Fund, The Anna
German Marshall Fund of the U.S.
Giannini Foundation
Grant Foundation, The William T.
Guggenheim Foundation, H.F.
Guggenheim Memorial Foundation, John Simon
Haas Fund, The Walter & Elise
Hartford Foundation, John A.
Haynes Foundation, The John Randolf & Dora
Hearst Foundation, William R.
Hewlett Foundation, The William & Flora
Institute for Educational Affairs
International Research & Exchanges Board
Japan Foundation
Johnson Foundation, The Robert Wood
Juvenile Diabetes Foundation
Kade Foundation, Inc., The Max
Kaiser Family Foundation, The Henry J.
Keck Foundation, William M.
Kellogg Foundation, W.K.
Klingenstein Fund, The Esther & Joseph
Knights Templar Eye Foundation
Kresge Foundation, The
Kunstadter Family Foundation, The Albert
Leakey Foundation, The L.S.B.
Leukemia Society
Levi Strauss Foundation
Lilly Endowment, Inc.
Luce Foundation, Inc., The Henry
Lupus Foundation of America
MacArthur Foundation, John D. & Catherine T.
McKnight Foundation, The
March of Dimes
Markle Foundation, The John & Mary R.
Mellon Foundation, The Andrew W.
Mott Foundation, Charles Stewart
Muscular Dystrophy Association
Myasthenia Gravis Foundation
National Academy of Sciences
National Collegiate Athletic Association
National Council of Teachers of English
National Foundation for Ileitis & Colitis
National Foundation for Infectious Diseases
National Fund for Medical Education
National Geographic Society
National Head Injury Foundation
National Hemophilia Foundation
National Kidney Foundation
National Leukemia Association
National Migraine Foundation
National Multiple Sclerosis Society
National Research Council
National Retinitis Pigmentosa Foundation
National Society to Prevent Blindness
National Sudden Infant Death Syndrome Foundation
National Tuberous Sclerosis Association
Northern California Society to Prevent Blindness
Noves Foundation, Inc., Jessie Smith
Organization for Tropical Studies
Packard Foundation, The David & Lucille
Paralyzed Veterans of America
Pardee Foundation, Elsa U.
Peierls Foundation, Inc., The
Picker Foundation, James
Population Council
Presiding Bishop's Fund for World Relief
Project HOPE
Research Corporation
Research to Prevent Blindness
Resources for the Future, Inc.
Retirement Research Foundation
Richardson Foundation, Smith
Rippel Foundation, Fannie E.
Rockefeller Brothers Fund
Rockefeller Foundation
Rosenberg Foundation
Rubin Foundation, Inc., Samuel
Runyon-Walter Winchell Cancer Fund, Damon
Sage Foundation. Russell
San Francisco Foundation
Scaife Foundation, Inc., Sara
Schiff Foundation
Scottish Rite Schizophrenia Research Program
Sherman Foundation, Nate H.
Skaggs Foundation, L.J. & Mary C.
Skin Cancer Foundation
Sloan Foundation, Alfred P.
Social Science Research Council
Spencer Foundation, The
Teagle Foundation
Tinker Foundation, Inc., The
Treadwell Foundation, Nora Eccles
United Cerebral Palsy
United Scleroderma Research Foundation
U.S. Olympic Committee
Webb Foundation, Del E.
Weingart Foundation
Wenner-Gren Foundation for Anthropological Research, Inc.
Whitehall Foundation
Whitney Foundation, the Helen Hay
Wood Charitable Trust, W.P.
Woods Hole Oceanographic Institution
Zellerbach Family Fund
(d)(2) An entity shall be considered a qualified nonprofit entity under this section based on the following factors:
(A) The nonprofit organization has been in existence for an extended period of time;
(B) The nonprofit organization does not receive major funding, nor is it tied to, a corporate source;
(C) The nonprofit organization has a national reputation; and
(D) The nonprofit organization serves, or funds research in, a broad geographic area.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87300, 87303 and 87306, Government Code.
HISTORY
1. New section filed 6-14-2005; operative 7-14-2005 (Register 2005, No. 24).
§18760. Conflict of Interest Codes Affected by Health Department Reorganization. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code.
HISTORY
1. New section filed 6-22-78 as an emergency; effective upon filing (Register 78, No. 25).
2. Certificate of Compliance filed 8-25-78 (Register 78, No. 34).
3. Repealer filed 4-28-82; effective thirtieth day thereafter (Register 82, No. 18).
Chapter 9. Incumbency
§18901. Mass Mailings Sent at Public Expense.
Note • History
(a) Except as provided in subdivision (b), a mailing is prohibited by section 89001 if all of the following criteria are met:
(1) Any item sent is delivered, by any means, to the recipient at his or her residence, place of employment or business, or post office box. For purposes of this subdivision (a)(1), the item delivered to the recipient must be a tangible item, such as a videotape, record, or button, or a written document.
(2) The item sent either:
(A) Features an elected officer affiliated with the agency which produces or sends the mailing, or
(B) Includes the name, office, photograph, or other reference to an elected officer affiliated with the agency which produces or sends the mailing, and is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer.
(3)(A) Any of the costs of distribution is paid for with public moneys; or
(B) Costs of design, production, and printing exceeding $50.00 are paid with public moneys, and the design, production, or printing is done with the intent of sending the item other than as permitted by this regulation.
(4) More than two hundred substantially similar items are sent, in a single calendar month, excluding any item sent in response to an unsolicited request and any item described in subdivision (b).
(b) Notwithstanding subdivision (a), mass mailing of the following items is not prohibited by section 89001:
(1) Any item in which the elected officer's name appears only in the letterhead or logotype of the stationery, forms (including “For Your Information” or “Compliments of” cards), and envelopes of the agency sending the mailing, or of a committee of the agency, or of the elected officer, or in a roster listing containing the names of all elected officers of the agency. In any such item, the names of all elected officers must appear in the same type size, typeface, type color, and location. Such item may not include the elected officer's photograph, signature, or any other reference to the elected officer, except as specifically permitted in this subdivision (b)(1) or elsewhere in this regulation.
(2) A press release sent to members of the media.
(3) Any item sent in the normal course of business from one governmental entity or officer to another governmental entity or officer.
(4) Any intra-agency communication sent in the normal course of business to employees, officers, deputies, and other staff.
(5) Any item sent in connection with the payment or collection of funds by the agency sending the mailing, including tax bills, checks, and similar documents, in any instance where use of the elected officer's name, office, title, or signature is necessary to the payment or collection of the funds. Such item may not include the elected officer's photograph, signature, or any other reference to the elected officer except as specifically permitted in this subdivision (b)(5) or elsewhere in this regulation.
(6) Any item sent by an agency responsible for administering a government program, to persons subject to that program, in any instance where the mailing of such item is essential to the functioning of the program, where the item does not include the elected officer's photograph; and where use of the elected officer's name, office, title, or signature is necessary to the functioning of the program.
(7) Any legal notice or other item sent as required by law, court order, or order adopted by an administrative agency pursuant to the Administrative Procedure Act, and in which use of the elected officer's name, office, title, or signature is necessary in the notice or other mailing. For purposes of this subdivision (b)(7), inclusion of an elected officer's name on a ballot as a candidate for elective office, and inclusion of an elected officer's name and signature on a ballot argument, shall be considered necessary to such a notice or other item.
(8) A telephone directory, organization chart, or similar listing or roster which includes the names of elected officers as well as other individuals in the agency sending the mailing, where the name of each elected officer and individual listed appears in the same type size, typeface, and type color. Such item may not include an elected officer's photograph, name, signature, or any other reference to an elected officer, except as specifically permitted in this subdivision (b)(8) or elsewhere in this regulation.
(9)(A) An announcement of any meeting or event of the type listed in paragraphs 1 or 2.
1. An announcement sent to an elected officer's constituents concerning a public meeting which is directly related to the elected officer's incumbent governmental duties, which is to be held by the elected officer, and which the elected officer intends to attend.
2. An announcement of any official agency event or events for which the agency is providing the use of its facilities or staff or other financial support.
(B) Any announcement provided for in this subdivision (b)(9) shall not include the elected officer's photograph or signature and may include only a single mention of the elected officer's name except as permitted elsewhere in this regulation.
(10) An agenda or other writing that is required to be made available pursuant to sections 11125.1 and 54957.5 of the Government Code, or a bill, file, history, journal, committee analysis, floor analysis, agenda of an interim or special hearing of a committee of the Legislature, or index of legislation, published by the Legislature.
(11) A business card which does not contain the elected officer's photograph or more than one mention of the elected officer's name.
(c) The following definitions shall govern the interpretation of this regulation:
(1) “Elected officer affiliated with the agency” means an elected officer who is a member, officer, or employee of the agency, or of a subunit thereof such as a committee, or who has supervisory control over the agency, or who appoints one or more members of the agency.
(2) “Features an elected officer” means that the item mailed includes the elected officer's photograph or signature, or singles out the elected officer by the manner of display of his or her name or office in the layout of the document, such as by headlines, captions, type size, typeface, or type color.
(3) “Substantially similar” is defined as follows:
(A) Two items are “substantially similar” if any of the following applies:
1. The items are identical, except for changes necessary to identify the recipient and his or her address.
2. The items are intended to honor, commend, congratulate, or recognize an individual or group, or individuals or groups, for the same event or occasion; are intended to celebrate or recognize the same holiday; or are intended to congratulate an individual or group, or individuals or groups, on the same type of event, such as birthdays or anniversaries.
3. Both of the following apply to the items mailed:
a. Most of the bills, legislation, governmental action, activities, events, or issues of public concern mentioned in one item are mentioned in the other.
b. Most of the information contained in one item is contained in the other.
(B) Enclosure of the same informational materials in two items mailed, such as copies of the same bill, public document, or report, shall not, by itself, mean that the two items are “substantially similar.” Such informational materials may not include the elected officer's name, photograph, signature, or any other reference to the elected officer except as permitted elsewhere in this regulation.
(4) “Unsolicited request” is defined as follows:
(A) A written or oral communication (including a petition) which specifically requests a response and which is not requested or induced by the recipient elected officer or by any third person acting at his or her behest. However, an unsolicited oral or written communication (including a petition) which contains no specific request for a response, will be deemed to constitute an unsolicited request for a single written response.
(B) An unsolicited request for continuing information on a subject shall be considered an unsolicited request for multiple responses directly related to that subject for a period of time not to exceed 24 months. An unsolicited request to receive a regularly published agency newsletter shall be deemed an unsolicited request for each issue of that newsletter.
(C) A previously unsolicited request to receive an agency newsletter or mass mailing on an ongoing basis shall not be deemed to have become solicited by the sole fact that the requestor responds to an agency notice indicating that, in the absence of a response, his or her name will be purged from the mailing list for that newsletter or mass mailing. A notice in the following language shall be deemed to meet this standard:
“The law does not permit this office to use public funds to keep you updated on items of interest unless you specifically request that it do so.”
Inclusion of a similar notice in other items shall not constitute a solicitation under this regulation.
(D) A communication sent in response to an elected officer's participation at a public forum or press conference, or to his or her issuance of a press release, shall be considered an unsolicited request.
(E) A person who subscribes to newspapers or other periodicals published by persons other than elected officers shall be deemed to have made unsolicited requests for materials published in those subscription publications.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82041.5 and 89001, Government Code.
HISTORY
1. New section filed 10-18-77; effective thirtieth day thereafter (Register 77, No. 43). For prior history, see Register 77, No. 14.
2. Amendment filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
3. Editorial correction of subsection (d)(5) (Register 82, No. 17).
4. Amendment filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
5. Amendment filed 8-8-88 as an emergency; operative 8-8-88 (Register 88, No. 33). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 12-6-88.
6. Reinstatement of section as it existed prior to 8-8-88 emergency amendment by operation of Government Code Section 11346.1(f) (Register 88, No. 52).
7. Amendment filed 12-9-88 as an emergency readoption of amendment originally filed 8-8-88; operative 12-9-88 (Register 88, No. 52). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 4-8-89.
8. Certificate of Compliance including repealer of Section 18901 and new Section 18901 transmitted to OAL 2-9-89 and filed 3-13-89; operative 4-12-89 (Register 89, No. 11).
9. Repealer and new section filed 6-29-90; operative 7-29-90 (Register 90, No. 35).
10. Editorial correction of History 1 (Register 95, No. 21).
11. Editorial correction inserting previously deleted History Notes 1-8 and renumbering remaining History Notes (Register 95, No. 25).
12. Editorial correction of subsection (c)(3)(A)1. (Register 95, No. 30).
§18901.1. Campaign Related Mailings Sent at Public Expense.
Note • History
(a) Except as provided in subdivision (b), a mailing is prohibited by Section 89001 if all of the following criteria are met:
(1) The item sent is a tangible item, such as a written document, videotape, record, or button and is delivered, by any means, to the recipient at his or her residence, place of employment or business, or post office box.
(2) The item sent either:
(A) Expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage, or defeat of a clearly indentified measure, as defined in Regulation 18225(b)(1).
(B) When taken as a whole and in context, unambiguously urges a particular result in an election.
(3) Public moneys are paid for either of the following:
(A) The costs of distributing the item.
(B) Costs, exceeding $50, that are reasonably related to designing, producing, printing, or formulating the content of, the item including, but not limited to, payments for polling or research and payments for the salary, expenses, or fees of the agency's employees, agents, vendors, and consultants, and the costs are paid by the agency with the intent of sending the item other than as permitted by this regulation.
(4) More than two hundred substantially similar items are sent during the course of an election, including items sent during the qualification drive or in anticipation of an upcoming election, but excluding any item described in subdivision (b).
(b) Notwithstanding subdivision (a), a mailing of the following items is not prohibited by Section 89001:
(1) An agency report providing the agency's internal evaluation of a measure sent to a member of the public upon the individual's request.
(2) A written argument sent to a voter in the voter information pamphlet.
(3) A communication clearly and unambiguously authorized by law.
(c) For the purposes of subdivision (a)(2)(B), an item unambiguously urges a particular result in an election if it meets either of the following criteria:
(1) It is clearly campaign material or campaign activity such as bumper stickers, billboards, door-to-door canvassing, or other mass media advertising including, but not limited to, television or radio spots.
(2) When considering the style, tenor, and timing of the communication, it can be reasonably characterized as campaign material and is not a fair presentation of facts serving only an informational purpose.
(d) For purposes of subdivision (a)(4), an item is “substantially similar” to another item if both items expressly advocate or unambiguously urge the election or defeat of the same candidate or measure.
(e) For purposes of subdivision (c)(2), when considering the style, tenor, timing of an item, factors to be considered include, but are not limited to, whether the item is any of the following:
(1) Funded from a special appropriation related to the measure as opposed to a general appropriation.
(2) Is consistent with the normal communication pattern for the agency.
(3) Is consistent with the style of other communications issued by the agency.
(4) Uses inflammatory or argumentative language.
(f) A mailing sent at public expense that features, or includes the name, office, photograph, or other reference to, an elected officer affiliated with the agency which produces or sends the mailing may also be prohibited under Section 89001 as provided in Regulation 18901.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82041.5 and 89001, Government Code.
HISTORY
1. New section filed 9-22-2009; operative 10-22-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 39).
§18902. Declaration of Candidacy. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 89001, Government Code.
HISTORY
1. New section filed 8-20-76; effective thirtieth day thereafter (Register 76, No. 34).
2. Amendment of section heading filed 10-29-81; effective thirtieth day thereafter (Register 81, No. 44).
3. Repealer filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
Chapter 9.5. Ethics
§18930. Guide to Honorarium Regulations.
Note • History
(a) Prohibition on Acceptance of Honoraria -- Government Code Section 89502;
(b) Definition of “Honorarium” -- Government Code Section 89501(a);
(1) Definition of “Speech Given” -- Section 18931.1;
(2) Definition of “Article Published” -- Section 18931.2;
(3) Definition of “Attendance” -- Section 18931.3;
(c) Exceptions to and Exclusions from “Honorarium”:
(1) Earned Income -- Section 18932;
(2) Bona Fide Business, Trade or Profession -- Section 18932.1;
(3) Teaching As A Bona Fide Profession -- Section 18932.2;
(4) Definition of “Predominant Activity” -- Section 18932.3;
(5) General Exceptions -- Section 18932.4;
(6) Direct Donations to Charitable Organizations -- Section 18932.5;
(7) Travel -- Section 18950, et seq.
(d) Returning Honoraria -- Section 18933.
NOTE
Authority cited: Sections 83112 and 89501, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 11-12-92; operative 12-14-92 (Register 92, No. 46).
2. Change without regulatory effect adopting new chapter 9.5 and relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section heading, first paragraph, subsections (a), (e), (f) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amendment of section heading, repealer of first paragraph, amendment of subsections (a), (b) and (d), repealer of subsections (e)-(f), and amendment of Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18930.1. Prohibition on Acceptance of Honoraria. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 and 89502, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
. 3 Amendment of section heading and subsection (c) filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
4. Repealer of section and amendment of Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18931. Definition of “Honorarium.” [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 and 89502, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Repealer of section and amendment of Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18931.1. Definition of “Speech Given”.
Note • History
For purposes of Government Code Sections 89501 through 89506, “speech given” means a public address, oration, or other form of oral presentation, and includes participation in a panel, seminar, or debate. A “speech given” does not include a comedic, dramatic, musical, or other similar artistic performance.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18931.2. Definition of “Article Published”.
Note • History
(a) For purposes of Government Code Sections 89501 through 89506, an “article published” means a nonfictional written work:
(1) That is produced in connection with any activity other than the practice of a bona fide business, trade, or profession; and
(2) That is published in a periodical, journal, newspaper, newsletter, magazine, pamphlet, or similar publication.
(b) For purposes of this regulation, an individual receives payment for an article published if he or she receives a payment for:
(1) Drafting any part of an article published, except activities solely involving secretarial assistance.
(2) Being identified as an author of or contributor to the article.
(c) “Article” does not include books, plays, or screenplays.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsections (a) and (b) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18931.3. Definition of “Attendance”.
Note • History
For purposes of Government Code Sections 89501 through 89506, “attendance” means being present during, making an appearance at, or serving as host or master of ceremonies for, any public or private conference, convention, meeting, social event, meal, or like gathering.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18932. Exceptions to “Honorarium”: Earned Income.
Note • History
(a) “Honorarium” does not include income earned for personal services if:
(1) The services are provided in connection with an individual's business or the individual's practice of or employment in a bona fide business, trade, or profession, such as teaching, practicing law, medicine, insurance, real estate, banking, or building contracting, pursuant to California Code of Regulations, Title 2, Sections 18932.1 through 18932.3; and
(2) The services are customarily provided in connection with the business, trade, or profession.
(b) For purposes of Government Code Sections 89501 through 89506 and this section, a nonprofit entity may be a “business.”
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsection (b) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18932.1. Exceptions to “Honorarium”: Bona Fide Business, Trade, or Profession.
Note • History
(a) For purposes of Government Code Sections 89501 through 89506, a business is presumed to be “bona fide” if the owner of the business has maintained the following documents for the two calendar years immediately preceding the year in which the consideration for the payment was provided:
(1) Books and records of accounting consistent with the operation of a business; and
(2) Copies of tax returns filed in connection with the operation of the claimed business.
(b) For purposes of Government Code Sections 89501 through 89506, a business that has been in existence for less than two calendar years is presumed to be “bona fide” if:
(1) Its owner has maintained records of income and expenses, consistent with the operation of a business, from the date of inception of the claimed business; and,
(2) Any three of the following are maintained:
(A) Copies of tax returns filed in connection with the operation of the claimed business for one year;
(B) Records of bank accounts or lines of credit in the name of the business;
(C) Records of purchase, lease, or rental of equipment and supplies for use solely by the business;
(D) Records of expenditures for rent, wages, business or professional insurance, or other similar, customary costs of doing business;
(E) Records of efforts to market goods or services provided by the business; or
(F) Documentation of expertise by the business operator in connection with the service provided or product sold by the business.
(c) For purposes of Government Code Sections 89501 through 89506, a trade or professional practice is presumed to be “bona fide” if either of the following applies:
(1) The tradesperson or professional practitioner possesses current licensure or certification which is issued by state or federal occupational licensing authority, the issuance of which requires a demonstration of skill and knowledge in connection with the relevant trade or profession.
(2) Where licensure or certification is not required by a governmental licensing authority, the practitioner is employed as a researcher or is a member of the faculty of a college or university.
(d) A business whose predominant activity is making speeches is not “bona fide” for purposes of Government Code Sections 89501 through 89506.
NOTE
Authority cited: Sections 83112 and 89502, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsections (a), (b), (c), (d) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18932.2. Exceptions to “Honorarium”: Teaching as a Bona Fide Profession.
Note • History
For purposes of Government Code Sections 89501 through 89506, an individual is presumed to be engaged in the bona fide profession of teaching in any of the following circumstances:
(a) The individual is under contract or employed to teach at a school, college, or university accredited approved or authorized as an educational institution by an agency of the State of California; or by an agency of any other state in the United States; or by an agency of the Federal government; or by a bona fide independent accrediting organization.
(b) The individual receives payment for teaching a course, presented to assist in maintenance or improvement of professional skills or knowledge where the course provides credit toward continuing education requirements of the pertinent profession.
(c) The individual receives payment for teaching students enrolled in an examination preparation program, such as a State Bar examination review course.
NOTE
Authority cited: Sections 83112 and 89502, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of first paragraph and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18932.3. Definition of “Predominant Activity”.
Note • History
For purposes of Government Code Sections 89501 through 89506, speechmaking is presumed to be the “predominant activity” of an individual's business, trade, or profession in the following circumstances:
(a) For a business, trade, or profession in existence for one year or more:
(1) During the 12-month period prior to and including the date of the speech, more than 50 percent of the hours spent on an individual's business, trade, or profession is devoted to the preparation and/or delivery of speeches; or
(2) During the 12-month period prior to and including the date of the speech more than 50 percent of the gross income of the individual's business, trade, or profession is derived from the preparation and/or delivery of speeches.
(b) For a business, trade or profession in existence less than one year:
(1) During the 30-day period prior to and including the date of the speech, more than 50 percent of the hours spent on an individual's business, trade, or profession is devoted to the preparation and/or delivery of speeches; or
(2) During the 30-day period prior to and including the date of the speech, more than 50 percent of the gross income of an individual's business, trade, or profession is derived from the preparation and/or delivery of speeches.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of first paragraph, subsections (a)(1)-(2) and (b)(1)-(2), and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18932.4. Exceptions to “Honorarium”: General Exceptions.
Note • History
None of the following is an “honorarium,” as defined by Government Code Section 89501(a), and none is subject to any prohibitions on honoraria.
(a) Information materials as defined by California Code of Regulations, Title 2, Section 18942.1.
(b) A payment received from one's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle or first cousin or the spouse of any such person. However, a payment from any such person is an honorarium if the donor is acting as an agent or intermediary for any person not identified in this subdivision.
(c) A campaign contribution required to be reported under Chapter 4 (commencing with Section 84100) of Title 9 of the Government Code.
(d) A personalized plaque or trophy with an individual value of less than two hundred fifty dollars ($250).
(e) Free admission, and refreshments and similar non-cash nominal benefits provided to a filer during the entire event at which the filer gives a speech, participates in a panel or seminar, or provides a similar service, and actual intrastate transportation and any necessary lodging and subsistence provided directly in connection with the speech, panel, seminar, or service, including but not limited to meals and beverages on the day of the activity.
(f) Any of the following items, when provided to an individual who attends any public or private conference, convention, meeting, social event, meal, or like gathering without providing any substantive service:
(1) Benefits, other than cash, provided at the conference, convention, meeting, social event, meal, or gathering.
(2) Free admission and food or beverages provided at the conference, convention, meeting, social event, meal, or gathering.
(3) The foregoing items may be reportable as gifts and limited by Government Code Section 89503. Reference should be made to Government Code Section 82028 and to California Code of Regulations, Title 2, Sections 18940, et seq., to determine whether or not these items are gifts that are reportable or otherwise limited.
(g) Any payment made for transportation, lodging and subsistence that is exempted from prohibitions on honoraria by Government Code Section 89506 or California Code of Regulations, Title 2, Sections 18950, et seq.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 89501 through 89506, Government Code.
HISTORY
1. New section filed 11-12-92; operative 12-14-92 (Register 92, No. 46).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of first paragraph, subsections (b), (f) and (g), and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amendment of first paragraph and subsection (f)(3) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment of subsection (e) filed 3-11-2010; operative 3-11-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 11).
§18932.5. Exclusions From “Honorarium”: Direct Charitable Donations.
Note • History
The following payments are excluded from the definition of “honorarium”:
(a) A charitable donation, if all of the following apply:
(1) The donation is made directly to a bona fide charitable, educational, civic, religious, or similar tax-exempt, nonprofit organization, and is not delivered to the individual;
(2) The individual does not make the donation a condition for his or her speech, article, or attendance;
(3) The individual does not claim the donation as a deduction from income for tax purposes;
(4) The donation will have no reasonably foreseeable financial effect on the individual, or on any member of his or her immediate family; and
(5) The individual is not identified to the recipient organization in connection with the donation. If the individual knows or has reason to know that a donor intends to make such a donation, the individual must inform the donor that the donation cannot be made in the individual's name.
NOTE
Authority: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 10-14-92; operative 11-13-92 (Register 92, No. 42).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsections (a)(1)-(5) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
Note • History
(a) The prohibitions imposed on acceptance of an honorarium by Government Code Section 89502 do not apply if, within 30 days of receipt of an honorarium, any of the following occurs:
(1) The individual returns the honorarium, unused, to the donor or the donor's agent or intermediary, if any;
(2) The individual delivers the honorarium to the Controller for donation to the General Fund (in the case of state officials or candidates), or to the individual's agency for donation to an equivalent fund (in the case of local officials or candidates), and does not claim the donation as a deduction for income tax purposes; or
(3) If the honorarium is not a payment of money and if the individual is unable to comply with subdivision (a)(1) or subdivision (a)(2) above, the individual reimburses the donor or the donor's agent or intermediary, if any, for the value or use of the honorarium.
(b) Neither the individual nor the donor shall be required to report any honorarium returned, delivered or reimbursed pursuant to subdivision (a) as an honorarium, income, gift, or activity expense.
NOTE
Authority cited: Section 83112 Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 7-1-92; operative 7-31-92 (Register 92, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amendment of subsections (a) and (a)(2), repealer of subsections (b)-(b)(3), subsection relettering, and amendment of newly designated subsection (b) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18935. Reporting Honoraria. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87207 and 89501 through 89506, Government Code.
HISTORY
1. New section filed 11-12-92; operative 12-14-92 (Register 92, No. 46).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section heading, section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Repealer filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18940. Guide to the Gift Regulations.
Note • History
(a) Basic Rule. A gift is a payment made by any person of any thing of value, whether tangible or intangible, real or personal property, a good or service that provides a personal benefit to an official when the official does not provide full consideration for the value of the benefit received. A gift includes the forgiveness of a debt or obligation and a rebate or a discount in the price of anything of value unless the rebate or discount is offered in the ordinary course of business without regard to official status. (See Sections 82028, 82044, and 82047.) A gift may be reportable by the official under Sections 87200, 87202, 87203, and 87204 or Sections 87300 and 87302; subject to limits under Sections 89503 and 86203 and Regulation 18940.2; result in a disqualifying conflict of interest for the official under Sections 87100 and 87103 and Regulation 18703.4; and/or require the filing of an activity expense report by a lobbyist, lobbying firm, or lobbyist employer, or person who directly or indirectly makes payments to influence legislative or administrative action of $5,000 or more in any calendar quarter as defined in Section 86111.
(b) Exceptions. Certain payments that otherwise meet the Act's definition of gift, are excepted from the definition of gift as provided by statute and these regulations. (See Section 82028(b) and Regulation 18942.) These payments are neither a gift nor income. Certain payments that do not meet the Act's definition of gift may be considered income.
(c) Valuation. Generally, the value of a gift is determined by its fair market value. (Regulation 18946, exceptions are provided in Regulations 18946.1 through 18946.6.) An official must report gifts received from a source subject to disclosure if the cumulative value is $50 or more within a reporting period. (Section 87207(a)(1).) With certain exceptions (See Wedding Gifts, Regulation 18946.3; Travel Payments, Section 89506) if a gift is reportable under the Act, it is prohibited if the value is more than the amount specified in the gift limits identified in Regulation 18940.2 (Section 89503(c) or Section 86203.) Whether or not a gift is reportable, if an official receives any gift(s) from one source with a cumulative value that meets the amount specified in Regulation 18940.2 within 12 months before the making or participating in the making of a governmental decision, the official has an economic interest in that source pursuant to Regulation 18703.4, and the official may have a conflict of interest with respect to that source under the Act's conflict of interest provisions (Sections 87100, 87103)(e).)
(d) Disclosure. For officials required to disclose under Section 87200 of the Act (“statutory filers”), any gift, or combination of gifts, received from any source is reportable by the official if the value of the gift, or the cumulative value of multiple gifts, received from the source in the reporting period is $50 or more. For officials required to disclose under an agency conflict of interest code (“code filers”) the gift, or combination of gifts valued at $50 or more is only reportable by the official if received from a source identified in the disclosure category under which the official files pursuant to the official's agency conflict of interest code. For those making gifts required to be disclosed under Section 86113 (Lobbyists), 86114 (Lobbying Firms), and 86116 (Lobbyist Employers), and $5,000 filers, any gift, or combination of gifts, of any amount must be disclosed by the donor to the extent required under Section 86111.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 82030, 87100, 87103, 87207, 87302 and 89501-89506, Government Code.
HISTORY
1. New section filed 6-22-94; operative 6-22-94 (Register 94, No. 25).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. New subsection (a), subsection relettering and amendment of Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Repealer of first pragraph and subsection (a), amendment and relettering of former subsection (b) to subsection (a), new subsection (b), and amendment of subsections (c)-(c)(1) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Repealer and new section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18940.1. General Definitions.
Note • History
In addition to the definition provided in the Act, for purposes of the gift regulations (Regulations 18940 through 18946.6), the following definitions apply:
(a)(1) Reportable Gift. A “gift” is reportable only if it is received from a source that the official is required to identify pursuant to the official's filing obligations under the Act.
(b) Official. For purposes of these regulations, “official” means any individual who holds a position designated in Section 87200 or 87201, or a position that is involved in the making or participation in the making of governmental decisions that may foreseeably have a material effect on any of the official's financial interests as provided in Section 87302, or who is otherwise required to file a statement of economic interests. “Official” includes a public official, agency official, candidate, judge, court commissioner, and state or local public employee who is designated, or is required to be designated under Section 87302, in the official's agency's conflict of interest code. (See Sections 82007 and 82048.)
(c) Official's Filing Obligations. “Filing obligations” means the financial interest disclosure requirements imposed on an official by Sections 87200 and 87201 or the official's conflict of interest code adopted pursuant to Article 3 of Chapter 7 of the Act beginning with Section 87300.
(d) Official Status/Official Position. “Official status” or “official position” means the official's status or position as a public official, candidate, judge, court commissioner, or any position for which filing obligations are imposed.
(e) Rebate or Discount. A “rebate or discount” as set forth in Section 82028 is not “made in the regular course of business to members of the public without regard to official status” if the rebate or discount is made solely to the official or to a select group of specific officials, such as one agency or one department or unit within an agency. A group consisting of all state, all local officials without regard to jurisdiction, or all officials in a specified local jurisdiction or jurisdictions with more than 1,000 officials is not considered “a select group of specific officials” so long as the benefit is available to all officials in that jurisdiction or jurisdictions.
(f) Food. “Food” includes food and beverages.
(g) Specific definitions applicable to certain exceptions provided in Regulation 18942 are listed in Regulation 18942.1, 18942.2, and 18942.3.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 82048, 87200, 87300 and 87302, Government Code.
HISTORY
1. New section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4). For prior history, see Register 96, No. 43.
Note • History
(a) For purposes of Section 89503, the adjusted annual gift limit amount in effect for the period January 1, 2011, to December 31, 2012, is $420.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87103(e), 89503 and 89506, Government Code.
HISTORY
1. Renumbering of former section 18954 to new section 18940.2, amendment of section heading, new subsection (a), subsection relettering, repealer of former subsection (c), and amendment of footnote filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
2. Amendment of subsections (a) and (b) and Note filed 4-9-97; operative 4-9-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
3. Amendment filed 12-10-98; operative 12-10-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 50).
4. Amendment of subsection (a) and amendment of Note filed 12-6-2000; operative 1-1-2001 pursuant to the 1974 version of Government Code section 11380.2 and Title 2, California Code of Regulations, section 18312(d) and (e) (Register 2000, No. 49).
5. Amendment of subsection (a) filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
6. Editorial correction of History 5 (Register 2003, No. 12).
7. Amendment of subsection (a) filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1).
8. Amendment of subsection (a) filed 12-18-2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
9. Amendment of subsection (a) filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
10. Repealer and new subsection (c) filed 7-6-2009; operative 8-5-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2009, No. 28).
11. Amendment of subsections (a)-(b) and (d)(2) filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
12. Amendment of subsection (a) and repealer of subsections (b)-(d)(2) filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18941. Receipt, Promise, Acceptance and Return of Gift.
Note • History
(a) Receipt or Acceptance of a Gift. Except as otherwise provided in subdivision (c), a gift is both “received” and “accepted” when the official, or the official's family member pursuant to Regulation 18943, knowingly takes actual possession of the gift or is provided the benefit of the gift, or takes any action exercising direction or control over the gift.
A gift of a rebate or discount is both “received” and “accepted” under subdivision (a) when the official knows that the rebate or discount given to the official is not made in the regular course of business to members of the public without regard to official status. An official who receives a rebate or discount has the burden of showing that the rebate or discount was made in the regular course of business to members of the public without regard to official status.
(b) Promise of a Gift. For the purposes of Sections 87100 and 87103(e), a gift is “promised” on the date it is offered to the official provided he or she thereafter obtains actual possession of the gift or takes any action exercising direction or control over the gift or, with respect to family members under Regulation 18943, on the date the official becomes aware of a promise of a gift to a family member provided that the family member obtains actual possession of the gift or takes any action exercising direction or control over the gift.
(c) General Rule for Return, Donation, or Reimbursement of a Gift. A gift is neither accepted nor received if, within 30 days:
(1) The gift is returned to the donor, the donor's agent, or the donor's intermediary from whom the item was received, unused and without receiving anything of value in exchange for the returned payment or;
(2) The gift is donated, unused, to a 501(c)(3) charitable organization with which the official, or a member of the official's immediate family, holds no position, or to a state, local, or federal government agency, without being claimed as a deduction for tax purposes or;
(3) The official reimburses the donor, donor's agent, or the donor's intermediary from whom the payment was received, in full, or for a portion thereof. If the donor is not reimbursed for the full value of the payment, the value of the gift the official has received is reduced by the amount of the reimbursement.
(d) Relief from Disqualification. In order to relieve the official of an otherwise disqualifying financial interest under Section 87100 the return, donation, or reimbursement of the gift pursuant to subdivision (c) above:
(1) Must occur within 30 days of receipt and before the date the official makes, participates in making, or uses his or her official position to influence the governmental decision in question; or
(2) If the return, donation, or reimbursement has not been made before the decision, and the gift would otherwise cause the official to be disqualified from participating in a governmental decision, the official must publicly disclose the receipt of the gift on the public record, disclose its value, and declare that the return, donation, or reimbursement will occur within two working days following the decision. The subsequent return, donation, or reimbursement of the gift must be made within two working days, and within 30 days after receipt or acceptance, and it must be documented in the public record.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028(b)(2), 87100, 87103, 87207, 87302 and 89503, Government Code.
HISTORY
1. New section filed 1-26-94; operative 1-26-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 4).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsections (b)-(c) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amemdment of section heading, repealer of subsection (a), subsection relettering, and amendment of newly designated subsection (a)(1) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment of section heading, section and Note filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18941.1. Payments for Food. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207 and 89501 through 89506, Government Code.
HISTORY
1. New section filed 1-12-94; operative 1-12-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 2).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Change without regulatory effect amending Note filed 7-27-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 30).
4. Amendment filed 5-2-2005; operative 5-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
5. Repealer filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18942. Exceptions to Gift and Exceptions to Gift Limits.
Note • History
(a) For purposes of Sections 82028, 82030, and the gift regulations, except as otherwise indicated, the following payments that otherwise meet the definition of gift as provided in Section 82028, subdivision (a) are neither gifts nor income:
(1) Informational material as defined by Regulation 18942.1. (Section 82028(b)(1).)
(2) A payment that is not used and that, pursuant to Regulation 18941 is returned, donated, or for which reimbursement is paid. (Section 82028(b)(2).)
(3) A payment from: the official's spouse or former spouse; child or step-child; parent; grandparent; grandchild; brother; sister; current or former parent-in-law, brother-in-law, or sister-in-law; nephew; niece; aunt or uncle; including grand nephew, grand niece, grand aunt, or grand uncle, or first cousin including first cousin once removed or the spouse, or former spouse, of any such person other than a former in-law, unless the donor is acting as an agent or intermediary for any person not identified in this paragraph. (Section 82028(b)(3).)
(4) A campaign contribution required to be reported under Chapter 4 of the Act (commencing with Section 84100). (Section 82028(b)(4).)
(5) Any devise or inheritance. (Section 82028(b)(5).)
(6) A personalized plaque or trophy valued at less than $250. (Section 82028(b)(6).)
(7)(A) The cost of home hospitality, as defined in Regulation 18942.2, provided to an official by an individual in the individual's home when the individual is present, unless one of the following provisions applies:
(i) Any part of the cost of the hospitality provided by the host is paid directly or reimbursed by another person.
(ii) Any person deducts any part of the cost of such hospitality as a business expense on any government tax return.
(iii) There is an understanding between the individual extending the hospitality and another person that any amount of compensation the individual receives from that person includes a portion to be utilized to provide gifts of hospitality in the individual's home.
(B) In determining the applicability of subparagraph (A), the following apply:
(i) The cost of providing hospitality does not include any part of the value or rental cost of the home nor does it include any depreciation value on the home where the hospitality is extended.
(ii) An official may presume that the cost of home hospitality is paid by the host unless the host discloses to the official, or it is clear from the surrounding circumstances at the time the hospitality is provided, that a person, other than the host, paid the cost of the hospitality.
(8)(A) Benefits commonly exchanged between an official and an individual who is not a lobbyist who is registered to lobby the official's agency, on a holiday, birthday, or other occasions, including reciprocal exchanges as identified in subparagraph (B) below where benefits are commonly exchanged, to the extent that the value of the benefits exchanged is not substantially disproportionate and includes food, entertainment, and nominal benefits provided to guests at an event, by an honoree or another individual, other than a lobbyist, hosting the event.
(B) Reciprocal Exchanges made in a social relationship between an official and another individual, who is not a lobbyist who is registered to lobby the official's agency, with whom the official participates in repeated social events or activities such as lunches, dinners, rounds of golf, attendance at entertainment or sporting events, where the parties typically rotate payments on a continuing basis so that, over time, each party pays for approximately his or her share of the costs of the continuing activities, so long as the total value of payments received by the official within the calendar year is not substantially disproportionate to the amount paid by the official. If the official receives a disproportionate amount relative to what the official paid, the official has received a gift for the excess amount. This reciprocal exchange payment provision does not apply to any single payment that is equal to or greater than the amount specified in Regulation 18940.2.
(9) Leave credits, including vacation, sick leave, or compensatory time off, donated to the official in accordance with a bona fide catastrophic or similar emergency leave program established by the official's employer and available to all employees in the same job classification or position except for donations of cash.
(10) Payments received under a government agency program or a program established by a bona fide charitable organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code designed to provide disaster relief or food, shelter, or similar assistance to qualified recipients if the payments are available to members of the public without regard to official status.
(11) Payments for campaign activities as specified in Regulation 18950.4.
(12) A ticket provided to an official and one guest of the official for his or her admission to a facility, event, show, or performance for an entertainment, amusement, recreational, or similar purpose at which the official performs a ceremonial role on behalf of his or her agency, as defined in Regulation 18942.3, so long as the official's agency complies with the posting provisions set forth in Regulation 18944.1, subdivision (d). Any official who attends the event as part of his or her job duties to assist the official who is performing the ceremonial role has not received a gift or income by attending the event.
(13) A prize or award received in a manner not related to the official's status in a bona fide contest, competition, or game of chance. A prize or award that is not reported as a gift shall be reported as income unless the prize or award is received as a winning from the California State Lottery.
(14) Benefits received as a guest attending a wedding or civil union so long as the benefits are substantially the same as the benefits received by the other guests attending the event.
(15) Bereavement offerings typically provided in memory of and concurrent with the passing of a spouse, parent, child, or sibling or other relative of the official.
(16) Acts of Neighborliness. A service performed, such as a loan of an item, an occasional needed ride, personal assistance in making a repair, bringing in the mail or feeding the cat while the official is away, and other similar acts of ordinary assistance consistent with polite behavior in a civilized society that would not normally be part of an economic transaction between like participants under similar circumstances.
(17)(A) Bona Fide Date or Dating Relationship. Personal benefits commonly exchanged between people on a date or in a dating relationship, unless the individual providing the benefit to the official is listed under (D)(i-iii) below. If the benefit is from an individual listed under (D)(i-iii) the benefit is a gift that is not reportable or subject to limits but the aggregate value is subject to the Act's conflict of interest provisions if the value meets the amount specified in Regulation 18940.2.
(B) Acts of Human Compassion. Payments provided to an official, or an official's family member, by an individual to offset family medical or living expenses that the official can no longer meet without private assistance because of an accident, illness, employment loss, death in the family, or other unexpected calamity; or to defray expenses associated with humanitarian efforts such as the adoption of an orphaned child, so long as the source of the donation is an individual who has a prior social relationship with the official of the type where it would be common to provide such assistance (such as a relative, long-term friend, neighbor, co-worker or former co-worker, member of the same local religious or other similar organization, etc.), or the payment is made without regard to official status under other circumstances in which it would be common to receive community outreach, unless the individual providing the benefit to the official is listed under (D)(i-iii) below.
(C) A payment provided to an official by an individual with whom the official has a long term, close personal friendship unrelated to the official's position with the agency, unless the individual providing the benefit to the official is listed under (D)(i-iii) below.
(D) The limitations placed on the exceptions contained within this paragraph (17) apply to the following persons:
(i) A lobbyist, lobbying firm, lobbyist employer, or other person required to file reports under Chapter 6 (commencing with Section 86100) of the Act and who is registered to lobby the official's agency.
(ii) A person who has, or may reasonably foreseeably have, a contract, license, permit, or other entitlement for use pending before the official's agency, and for 12 months following the date a contract is signed or a final decision is rendered in the proceeding, if the official makes or participates in making a governmental decision, as defined in the Act's conflict of interest regulations (Regulation 18702 et seq.) regarding the contract, license, permit, or other entitlement for use.
(iii) A person, or an agent of a person, involved in a licensing or enforcement proceeding before a regulatory agency that employs the official and in which the official may reasonably foreseeably participate, or has participated, within 12 months of the time the gift is made.
(18) Any other payment not identified above, that would otherwise meet the definition of gift, where the payment is made by an individual who is not a lobbyist registered to lobby the official's agency, where it is clear that the gift was made because of an existing personal or business relationship unrelated to the official's position and there is no evidence whatsoever at the time the gift is made that the official makes or participates in the type of governmental decisions that may have a reasonably foreseeable material financial effect on the individual who would otherwise be the source of the gift.
(b) The following gifts are exempt from the limitations on gifts described in Section 89503:
(1) Payments for transportation, lodging, and subsistence that are exempt from limits on gifts by Section 89506.
(2) Wedding gifts.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 86113, 86203, 87100, 87103, 87207, 87302 and 89503, Government Code.
HISTORY
1. New section filed 1-12-94; operative 1-12-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 2).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsections (b)-(b)(2) and amendment of Note filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
4. New subsections (a)(9) and (a)(10), subsection renumbering and amendment of subsection (b)(2) filed 4-15-98; operative 4-15-98 pursuant to 2CCR section 18312(e) (Register 98, No. 16).
5. Amendment filed 5-25-2006; operative 6-24-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 21).
6. Amendment of section and Note filed 3-19-2010; operative 4-18-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 12).
7. Amendment of subsection (a)(6) and new subsection (a)(13) filed 9-27-2010; operative 10-27-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2010, No. 40).
8. Amendment filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18942.1. Definition of “Informational Material.”
Note • History
“Informational material” means any goods or service that serves primarily to convey information and that is provided to the official for the purpose of assisting him or her in the performance of his or her official duties or the duties of the elective office he or she seeks. Informational material may include:
(a) Books, reports, pamphlets, calendars, periodicals, photographs, audio and video recordings, flash drives, CD-ROMS, or DVD ROMS or other similar recordings, or free or discounted admission to informational conferences or seminars.
(b) Scale models, pictorial representations, maps, and other such items, provided that when the item has a fair market value in excess of the gift limit amount specified in Regulation 18940.2, the burden shall be on the recipient to demonstrate that the item is informational material.
(c) On-site demonstrations, tours, or inspections. Transportation provided to or in connection with an on-site demonstration, tour, or inspection is also considered “informational material” when any of the following apply:
(1) The transportation serves as the means by which the information is conveyed and is integral to the conveyance of the information, such as an aerial tour over an area.
(2) The transportation is provided solely at the site of a demonstration, tour, or inspection, including to and from an area of that site that is legally inaccessible to the public.
(3) The transportation is to or from a site when there is no reasonable, publicly-available commercial transportation available to that site and the transportation provided is limited to the segment for which public transportation is not available.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87103(e), 87207 and 89503, Government Code.
HISTORY
1. New section filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amendment of subsection (b) and Note filed 4-9-97; operative 4-9-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
5. Amendment of subsection (b) filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
6. Amendment of subsection (b) filed 12-6-2000; operative 1-1-2001 pursuant to the 1974 version of Government Code section 11380.2 and Title 2, California Code of Regulations, section 18312(d) and (e) (Register 2000, No. 49).
7. Amendment of subsection (b) filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
8. Editorial correction of History 7 (Register 2003, No. 12).
9. Amendment of subsection (b) filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1).
10. Amendment of subsection (b) filed 12-18-2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
11. Amendment of subsection (b) filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
12. Amendment of section and Note filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18942.2. Definition of Home Hospitality.
Note • History
Home Hospitality. “Home hospitality” means any benefit received by the official, and the official's spouse and family members when accompanying the official, consisting of food, typical home entertainment, or occasional overnight lodging provided by an individual with whom the official has a relationship, connection, or association unrelated to the official's position and the hospitality is provided as part of that relationship, connection, or association in the individual's home when the individual is present. Home hospitality includes any food provided by other guests at the event and benefits received by the official when the official serves as the host. “Home” includes a vacation home owned, rented, or leased, by the individual for use as his or her residence, including a timeshare with deeded ownership or a continual right-to-use ownership benefit, and a motor home or boat owned, rented, or leased by the individual for use as his or her residence. “Home” also includes any facility in which the individual has a right-to-use benefit by his or her home residency, such as a community clubhouse. Any benefit received, other than the use of the premises, by any guests of the official other than the official's spouse and family members who are present at the request of the official or the official's agent are gifts to the official.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207 and 89503, Government Code.
HISTORY
1. New section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18942.3. Definition of Ceremonial Role.
Note • History
A “ceremonial role” is an act performed at an event by the official as a representative of the official's agency at the request of the holder of the event or function where, for a period of time, the focus of the event is on the act performed by the official. Examples of a ceremonial role include: throwing out the first pitch at a baseball game; cutting a ribbon at an opening; making a presentation of a certificate, proclamation, award, or other item, such as the key to the city. The filing officer of a local jurisdiction may adopt specific policies under this definition that either limit or expand the permissible ceremonial roles for an official in the local jurisdiction. If the local jurisdiction's filing officer does not have policy-making authority, the legislative body may adopt a specific policy. If a separate agency policy is adopted, the policy shall be forwarded to the Commission for posting on the Commission's website.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207 and 89503, Government Code.
HISTORY
1. New section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18943. Gift to Official Through Family Member.
Note • History
(a) Scope of Regulation. This regulation determines when a payment will be treated as if it were a gift to the official even though the payment is made to the official's family member.
(b) For purposes of this regulation, the term “family member” means any of the following individuals:
(1) The official's spouse as defined in Regulation 18229.
(2) A “dependent child” of the official as defined in Regulation 18229.1.
(3) The official's child (including an adoptive child or stepchild) who meets all of the following criteria:
(A) Is at least 18 but no more than 23 years old and is a full-time or part-time student.
(B) Has the same principal place of residence as the official. For purposes of this provision, a place, located away from the official's residence, at which the child resides for the purpose of attending school, is not the child's “principal place of residence.”
(C) Does not provide over one-half of his or her own support.
(c) Absent an exception under Regulation 18942, a payment provided to or for the use of a family member is a gift to the official under either of the following conditions:
(1) There is no established working, social, or similar relationship between the donor and the family member that would suggest an association between the donor and the family member suitable or appropriate for making the type of payment provided to the family member.
(2) There is evidence to suggest the donor had a purpose to influence the official. Evidence to suggest the donor had a purpose to influence the official exists in any of the following circumstances:
(A) The payment is made to a family member of a state agency official by a donor who is a lobbyist, lobbying firm, lobbyist employer, or other person required to file reports under Chapter 6 (commencing with Section 86100) of the Act and who is registered to lobby the official's agency.
(B) The payment is made to a family member of a state or local government agency official by a donor, or the donor's agent, if the donor is involved in an action or decision before the official's agency, in which the official will reasonably foreseeably participate or in an action or decision in which he or she has participated within the last 12 months.
(C) The payment is made to a family member by a person who has a contract with the official's agency or by a person who engages in a business that regularly seeks contracts with or comes before the agency for the purpose of receiving a license, permit, or other entitlement and the official may reasonably foreseeably make or participate in a governmental decision, as defined in the Act's conflict of interest regulations (Regulation 18702 et seq.), related to the person, or has participated in any decision related to the person within 12 months of the time the gift is made. For purposes of this subparagraph, a person who “has a contract with the official's agency” or who “engages in a business that regularly seeks contracts with or comes before the agency” does not include any individual who has less than a ten percent interest in the business contracting with or appearing before the agency.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. Renumbering of former section 18726.1 to section 18943, including amendment of section heading, section and Note filed 1-26-94; operative 1-26-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 4).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsection (b) filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
4. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
5. Amendment of subsection (b) and Note filed 6-3-97; operative 6-3-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 23).
6. Amendment of subsection (b) filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
7. Amendment of subsection (b) filed 12-6-2000; operative 1-1-2001 pursuant to the 1974 version of Government Code section 11380.2 and Title 2, California Code of Regulations, section 18312(d) and (e) (Register 2000, No. 49).
8. Amendment of subsection (b) filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
9. Editorial correction of History 8 (Register 2003, No. 12).
10. Amendment of subsection (b) filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1).
11. Amendment of subsection (b) filed 12-18-2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
12. Amendment of subsection (b) filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
13. Amendment of subsection (b) filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
14. Repealer of former section 18943 and renumbering of former section 18944 to section 18943, including amendment of section heading and section, filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
15. Change without regulatory effect amending subsection (c)(2)(B) filed 2-13-2012 pursuant to section 100, title 1, California Code of Regulations. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 7).
Note • History
(a) Applicability. This regulation sets forth circumstances under which a payment made to a state or local government agency, that is controlled by the agency and used for official agency business, is not considered a reportable or limited gift to an individual public official, although the official receives a personal benefit from the payment.
(b) Definitions.
(1) “Payment” means a payment as defined in Section 82044 and includes a monetary payment to an agency, a loan, gift, or other transfer, and the payment for, or provision of, goods or services to an agency.
(2) “Agency head” means an individual in whom the ultimate legal authority of an agency is vested, or who has been delegated authority to make determinations by the agency for purposes of this regulation.
(c) Gift to an Agency. A payment, that is otherwise a gift to a public official, as defined in Section 82028, shall be considered a gift to the public official's agency and not a gift to the public official if all of the following requirements are met:
(1) Agency Controls Use of Payment. The agency head, or his or her designee, determines and controls the agency's use of the payment. The donor may identify a purpose for the payment, but the donor may not designate by name, title, class, or otherwise, an official who may use the payment. If the payment will provide a personal benefit to an official, the agency head, or his or her designee, shall select the individual who will use it. The agency official who determines and controls the agency's use of the payment may not select himself or herself as the individual who will use the payment.
(2) Official Agency Business. The payment must be used for official agency business.
(3) Agency Reports the Gift. Within 30 days after use of the payment, the agency reports the payment on a form prescribed by the Commission that includes the following information:
(A) A description of the payment, the date received, the intended purpose, and the amount of the payment (or the actual or estimated value of the goods or services provided).
(B) The name and address of the donor. If the donor is not an individual, the report shall also describe the business activity, or the nature and interests of the entity. If the donor has raised funds from other persons for the specific purpose of making the payment to the agency, the report shall contain the names of and amounts given by these persons.
(C) The agency's use of the payment, and the name, title, and department of the agency official for whom the payment was used. The report shall include the date(s) and place(s) of travel, and a breakdown of the total expenses for transportation, lodging, meals and other related expenses.
(D) The form is signed by the agency head, or his or her designee, and maintained by the agency as a public record subject to inspection and copying under Section 81008(a).
(E) A state agency shall provide the completed form to the Commission (or in the case of the Commission to the office of the Attorney General), within 30 days after use of the payment, by mail, personal delivery, electronic mail or facsimile. If the state agency maintains a website, the state agency shall also post a copy of the form or the information in the form on its website in a prominent fashion within 30 days after use of the payment. If the state agency does not maintain a website, the Commission shall post a copy of the form or the information in the form on its website.
(F) A local agency shall provide the completed form to the filing officer who receives the agency employees' statements of economic interests, within 30 days after use of the payment, by mail, personal delivery, electronic mail or facsimile. The filing officer shall post a copy of the form or the information in the form on its website, or if it does not maintain a website, shall provide a copy of the form to the Commission which shall post the information on its website.
(G) The individual in the agency who has official custody of these forms is the filing officer for the forms, keeps a log of the forms under both the name of the agency and official receiving the payment, and maintains the forms for a period of not less than four years.
(d) Limitations on Application of this Regulation. The exception provided in subdivision (c) does not apply to the following payments:
(1) A payment for travel, including transportation, lodging, and meals, for a state or local elected officer, as defined in Section 82020, or an official specified in Section 87200.
(2) A payment for travel to the extent that it exceeds the agency's reimbursement rates for travel, meals, and lodging, and other actual and necessary expenses, or if the agency has no standard policy or practice concerning reimbursement rates, the State per diem rates as set forth in applicable sections of the State Administrative Manual and Department of Personnel Administration regulations, or the Internal Revenue Service rates for reimbursement of these expenses as set forth in the U.S. General Service Administration's website under “Per Diem Rates” and Internal Revenue Service Publications 463 and 1542, or their successors.
(3) A payment for travel that the agency head, or his or her designee, has not preapproved in writing in advance of the date of the trip.
(4) Passes or tickets, as described in Regulation 18944.1, which shall be governed by that regulation.
(e) Public Colleges and University Research Projects. Notwithstanding this regulation, a donation to a California public college or university for a specific research project that is received consistent with the requirements of Regulation 18702.4(c) or a meal received in the course of the college's or university's official fundraising activity, which qualifies under federal and state law for a deduction as a charitable contribution for educational purposes, will be deemed a gift to the college or university.
(f) Payments from the Federal Government. Notwithstanding this regulation, a grant, reimbursement, funding, or other payment received by a state or local government agency from a federal government agency for education, training, or other inter-agency programs, will not be considered a gift to the public official who receives a personal benefit from the payment.
Comments:
1. Acceptance of a pass or discount from a transportation company by a public officer, other than a Public Utilities Commissioner, may result in forfeiture of the official's office pursuant to Article XII, Section 7 of the California Constitution.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 82030, 82044, 87100, 87103, 87207, 87302 and 89501-89506, Government Code.
HISTORY
1. Renumbering of former section 18726.2 to section 18944 filed 1-26-94; operative 1-26-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 4).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section heading and section filed 7-24-2006; operative 8-23-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 30).
4. Repealer and new section filed 1-11-2010; operative 2-10-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 3).
5. Renumbering of former section 18944 to section 18943 and renumberingof former section 18944.2 to section 18944 filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18944.1. Gifts: Agency Provided Tickets or Passes.
Note • History
For purposes of this regulation the terms “ticket” and “pass,” as defined in Regulation 18946, apply solely to an admission to a facility, event, show, or performance for an entertainment, amusement, recreational, or similar purpose provided by an agency to, or at the behest of, an official of that agency, other than an admission provided to a school, college or university district official, coach, athletic director, or employee to attend an amateur event performed by students of that school, college, or university district or an admission identified in Regulation 18942(a)(12).
(a)(1) A ticket or pass is not subject to the provisions of this regulation, if the official treats the ticket or pass as income consistent with applicable state and federal income tax laws and the agency reports the distribution of the ticket or pass as income to the official in compliance with the reporting provisions of subdivision (d) below.
(2) Any ticket or pass acquired by the agency under subdivision (b)(2) and distributed to an official, other than an elected official or member of the legislative or governing body of the agency, for the official's personal use, to support general employee morale, retention, or to reward public service is deemed to serve a public purpose, and any tickets distributed to an official for such purpose shall be reported as described under subdivision (d)(3). For purposes of this paragraph, “personal use” means use by the official, his or her family, or no more than one guest.
(b) The official will meet the burden under Section 82028 that equal or greater value has been provided in exchange for the ticket or pass if the official reimburses the agency for the ticket or if all of the following requirements are met:
(1) For a ticket or pass the agency receives from an outside source, other than as provided in subdivision (b)(2):
(A) The ticket or pass is not earmarked by the outside source for use by the agency official who uses the ticket or pass;
(B) The agency determines, in its sole discretion, who uses the ticket or pass.
(C) The distribution of the ticket or pass by the agency is made in accordance with a policy adopted by the agency that incorporates all of the provisions of subdivision (c) below.
(2) For a ticket or pass the agency obtains (i) pursuant to the terms of a contract for use of public property, (ii) because the agency controls the event (such as a state or county fair), or (iii) by purchase at fair market value, the distribution of the ticket or pass is made in accordance with a policy adopted by the agency that incorporates all of the provisions of subdivision (c) below.
(c) Agency Ticket/Pass Distribution Policy. Any distribution of a ticket or pass under this regulation to, or at the behest of, an agency official must be made pursuant to a written agency ticket distribution policy, duly adopted by the legislative or governing body of the agency or, if none, the agency head that contains, at a minimum, all of the following:
(1) A provision setting forth the public purposes of the agency for which tickets or passes may be distributed.
(2) A provision requiring that the distribution of any ticket or pass to, or at the behest of, an agency official accomplish a stated public purpose of the agency.
(3) A provision prohibiting the transfer of any ticket received by an agency official pursuant to the distribution policy except to members of the official's immediate family or no more than one guest solely for their attendance at the event.
(d) Public Posting. A record of a ticket or pass distributed pursuant to this regulation, must be completed, on a form provided by the Commission. The form must be maintained as a public record, be subject to inspection and copying under Section 81008(a), and be forwarded to the Commission for posting on its website.
(1) Except as provided in paragraphs (2) and (3) below, the information must include the following:
(A) The name of the person receiving the ticket or pass;
(B) A description of the event;
(C) The date of the event;
(D) The face value of the ticket or pass;
(E) The number of tickets or passes provided to each person;
(F) If the ticket or pass is behested, the name of the official who behested the ticket; and
(G) A description of the public purpose under which the distribution was made or, alternatively, that the ticket or pass was distributed as income to the official.
(2) If the ticket or pass is distributed to an organization outside the agency, the agency shall post the name, address, description of the organization, and the number of tickets or passes provided to the organization in lieu of posting the names of each individual from the organization as otherwise required in paragraph (1) above;
(3) If the ticket or pass is distributed pursuant to subdivision (b) the agency may post the name of the department or other unit of the agency and the number of tickets or passes provided to the department or other unit in lieu of posting the name of the individual employee as otherwise required in paragraph (1) above;
(e) The Commission recognizes the discretion of the legislative or governing body of an agency or, if none, the agency head to determine whether the distribution of a ticket or pass serves a legitimate public purpose of the agency, provided the determination is consistent with state law.
(f) The provisions of this regulation apply only to the benefits the official receives that are provided to all members of the public with the same class of ticket.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. Renumbering of former section 18726.7 to section 18944.1 with amendment of section heading filed 6-22-94; operative 6-22-94 (Register 94, No. 25).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of first paragraph and subsections (a)-(b) and (d)-(e) filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Repealer and new section filed 1-8-2009; operative 2-7-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 2).
5. Repealer of subsection (a), subsection relettering and amendment of newly designated subsections (a)(1), (a)(2)(A)(iii)-(b), (c) and (e) filed 9-27-2010; operative 10-27-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2010, No. 40).
6. Amendment of section heading and section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18944.2. Agency Raffles and Exchanges of Presents.
Note • History
(a) Applicability. This regulation identifies when a payment made by a state or local government agency of an item awarded to an agency official in a raffle open to all employees of the agency, or the unit of the agency holding the raffle, or received in an exchange of presents among agency employees, will be treated as a gift to the official.
(b) Agency Raffles.
(1) When an agency holds an employee raffle and the item awarded in the raffle has been received by the agency from a source other than an agency employee and the agency did not purchase the item from its funds, the item is a gift from the source who provided the item to the agency to the official who wins the item, and the agency is the intermediary of the gift. The value of the gift is the fair market value less any consideration that the official paid to participate in the raffle. If the value of the gift is $50 or more, the agency and the official shall comply with Section 87210 or Section 87313 if applicable.
(2) When an agency holds an employee raffle and the item awarded in the raffle has been obtained with agency funds or is otherwise an asset of the agency and not donated to the agency by a non-agency source, the provisions of Regulation 18944.3 apply.
(3) When an agency holds an employee raffle and the item awarded in the raffle has been received by the agency from an agency employee who is not acting as an intermediary for another donor, the item is not a gift to the employee who wins the raffle.
(c) Exchanges of Presents Among Agency Employees. When an employee of an agency receives a present in an exchange of presents, where all participants in the exchange are agency employees, any present received by the official in the exchange is not a gift so long as the present received is provided by another employee of the agency and is not substantially disproportionate in value from the item provided by the official.
(d) This regulation does not apply to a ticket or pass of the type described in Regulation 18944.1, which shall be governed by that regulation, if the ticket or pass is provided from a source other than an agency employee.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 6-22-94; operative 6-22-94 (Register 94, No. 25).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Change without regulatory effect amending Note filed 7-27-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 30).
4. Change without regulatory effect amending subsection (b) filed 7-18-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 29).
5. Repealer and new section filed 6-11-2008; operative 7-1-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 24).
6. Renumbering of former section 18944.2 to section 18944 and renumbering of former section 18944.4 to new section 18944.2, including amendment of section heading and section, filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18944.3. Gifts from a Government Agency to Officials in That Agency.
Note • History
Except as provided in Regulations 18944 and 18944.1, a payment by a government agency from that agency's assets that provides food, beverage, entertainment, goods, or services of more than a nominal value to an official in that agency is a gift to that official unless the payment is a lawful expenditure of public moneys.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 1-8-2009; operative 2-7-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 2).
2. Amendment filed 11-12-2009; operative 12-12-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 46).
3. Amendment filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18944.4. Agency Raffles and Gift Exchanges. [Renumbered]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. New section filed 11-12-2009; operative 12-12-2009. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2009, No. 46).
2. Renumbering of former section 18944.4 to new section 18944.2 filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
Note • History
(a) The person who makes the gift to the official(s) is the source of the gift unless that person is acting as an intermediary. The person is acting as an intermediary for the source of the gift when the gift to the official was provided under any of the following conditions:
(1) the person receives a payment from a source and the payment is made to the official after the source identifies the official as the intended recipient of the gift;
(2) the person receives a payment from a source after soliciting the payment with the understanding that the payment will be used for the sole or primary purpose of making a gift to an official; or
(3) the person receives a payment from a source after the payment was solicited by the official or the official's agent for the purpose of making a gift to the official.
(b) Under any of the conditions identified in subdivision (a)(1)-(3), the source of the payment is the source of the gift.
(c) If a public official's pro-rata share of the cost of the benefit provided at an event constitutes a gift to the official, the person hosting the event, unless the admission to the event was provided by someone other than the host, shall be deemed the source of the gift so long as the event is widely attended by persons other than governmental officials.
(d) Presumption of Source by Official. Notwithstanding subdivision (a), an official may presume that the person delivering the gift or, if the gift is offered but has not been delivered, the person offering the gift to him or her is the source of the gift unless it is clear from the surrounding circumstances at the time the gift is delivered or offered that the person delivering or offering the gift is not the actual source of the gift.
(e) Presumption of Source by Intermediaries. A person that qualifies as an intermediary as a result of a payment solicited from an official pursuant to subdivision (a)(3) may presume that he, she, or it is the source of the gift unless the person does not know or have reason to know of the official's solicitation.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 86111, 86201, 86203, 87100, 87103, 87207, 87210, 87302, 87313 and 89503, Government Code.
HISTORY
1. New section filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section and Note filed 5-11-2010; operative 6-10-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 20).
4. Repealer and new subsections (a)-(c), amendment of subsection (d), repealer of subsections (d)(1)-(3), amendment of subsection (e) and repealer of subsections (e)(1)-(2) filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18945.1. Aggregation of Gifts; “Single” Source.
Note • History
For purposes of the gift limits in Sections 86203 and 89503, and the Act's reporting requirements, separate gifts from two or more sources are aggregated as being from a single source in any of the following circumstances:
(a) The separate gifts are from an individual and an entity in which the individual has an ownership interest of more than 50 percent unless the individual did not direct and control the gift from the entity. An individual who has an ownership interest of more than 50 percent is presumed to direct and control the gift from the entity. This presumption may be rebutted if the payment is made by another individual who, in fact, directed and controlled the payment.
(b) The separate gifts are from an individual and an entity and the individual in fact directed and controlled the decision of the entity to make the gift.
(c) The gifts are from two or more entities and the same person or a majority of the same persons directed and controlled the decisions of the entities to make the gifts to the official.
(d) Business entities in a parent-subsidiary relationship, or business entities with the same controlling (more than 50 percent) owner, shall be considered a single source unless the business entities acted independently in their decisions to make the gifts. For purposes of this regulation, a parent-subsidiary relationship exists when one business entity owns more than 50 percent of another business entity.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89501 through 89506, Government Code.
HISTORY
1. New section filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of first paragraph, subsections (c)-(d) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amendment of section heading and section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
Note • History
If an official receives a gift valued at $50 or more from a group of persons, the official need only report any source(s) of the gift who donates $50 or more to the overall value of the gift. In addition, any donation to the group gift made by any person for whom the official is required to report a gift shall be aggregated with any other gift made by that person. A gift from a single organization is not a group gift from the members of that organization.
NOTE
Authority cited Section 83112, Government Code. Reference: Sections 82028 and 87207, Government Code.
HISTORY
1. Renumbering of former section 18945.4 to new section 18945.2, including amendment of section heading, section and Note, filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18945.3. Intermediary of a Gift. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86203, 87210 and 87313, Government Code.
HISTORY
1. New section filed 1-26-94; operative 1-26-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 4).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Repealer filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18945.4. A Gift from Multiple Donors. [Renumbered]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 82028, Government Code.
HISTORY
1. Renumbering of section 18726.6 to section 18945.4 with amendments filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Editorial correction deleting irrelevant History note (Register 94, No. 25).
3. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
4. Renumbering of former section 18945.4 to new section 18945.2 filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
Note • History
(a) General Gifts. Except as specified in subdivisions (b) and (c), a gift is valued at fair market value as of the date of receipt. Sections 18946.1 through 18946.5 provide for the valuation of specific types of gifts in the following situations:
Ticketed Events -- See Regulation 18946.1
Invitation-Only Events -- See Regulation 18946.2
Wedding Gifts -- See Regulation 18946.3
Tickets to Nonprofit and Political Fundraisers -- See Regulation 18946.4
Air Transportation -- See Regulation 18946.5
(b) Unique Gifts. Whenever the fair market value of a gift cannot be determined because the gift is unique or unusual, the official must make a reasonable approximation. In making such an approximation, the official must take into account the price of similar items. If similar items are not available as a guide, a good faith estimate shall be utilized.
(c) Except as specified in Regulation 18946.1(a) and (b), the value of a gift is its full value even if unused, partially used, discarded, or transferred to another person.
(d) Definitions: For purposes of this regulation and Regulations 18946.1 through 18946.5 and Regulation 18640, the following definitions apply:
(1) “Face Value.” “Face value” means the price as offered for sale to the general public indicated on the ticket or pass, or if that price is not indicated, the price at which the ticket or pass would otherwise be offered for sale to the general public by the operator of the venue or host of the event who offers the ticket for public sale.
(2) “Ticket.” A “ticket” is anything that provides access, entry, or admission to a specific future event or function and for which similar tickets are sold to the public to view, listen to, or otherwise take advantage of the attraction or activity for which the ticket is sold and includes any benefits that the ticket provides.
(3) “Pass.” A “pass” is a ticket that provides repeated access, entry, or admission to a facility or series of events and for which similar passes are sold to the public.
(4) “Invitation.” An “invitation” means a request to attend an event or function by the host, sponsor, or organizer of the event or function, where admission to the event is provided by the invitation only and not by a ticket or pass as defined above.
(5) “Invitation Only Event.” An “invitation only event” is a gathering of individuals, who attend by invitation and where costs are incurred to hold the event beyond the costs of providing food.
(6) “Specific Item.” “Specific item” means a tangible item the official receives at an event that is included among the non-cash nominal items presented to all attendees at the event.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207, 87302 and 89503, Government Code.
HISTORY
1. Renumbering of former section 18726 to section 18946, including amendment of section heading, section and Note filed 1-12-94; operative 1-12-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 2).
2. Editorial correction deleting irrelevant History notes (Register 94, No. 25).
3. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
4. Amendment of subsections (a) and (c) and new subsections (d)-(d)(4) filed 5-2-2005; operative 5-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
5. Amendment of section heading, section and Note filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18946.1. Exception -- Valuation of Gifts: Passes and Tickets.
Note • History
(a) Unless otherwise indicated herein, the value of a ticket is the face value of the ticket. A ticket has no reportable value unless it is ultimately used or transferred to another person.
(b) The value of a pass is determined as follows:
(1) For purposes of disclosure and the gift limits, the value of a pass is equal to the face value of an individual one-time admission multiplied by the actual use of the pass by the official and any other individuals who are admitted with the pass up to the face value of the pass.
(2) For purposes of disqualification, the value of a pass is the face value. If the official returns the pass before the decision, the value is the actual use of the pass made prior to the decision, as provided in subdivision (b)(1).
(3) A pass has no reportable value unless it is ultimately used or transferred to another person.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207 and 87302, Government Code.
HISTORY
1. Renumbering of section 18726.3 to section 18946.1 with amendment of section heading, text and Note filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Editorial correction deleting irrelevant History note (Register 94, No. 25).
3. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
4. Amendment of subsections (a) and (b)(1) filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
5. Amendment of subsections (a), (b) and (b)(2) filed 5-2-2005; operative 5-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
6. Amendment of section heading and section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18946.2. Exception -- Valuation of Gifts: Attendance at Invitation-Only Events.
Note • History
(a) The valuation of attendance at an invitation-only event under this regulation applies to the official and one guest of the official attending the event.
(b) Invitation-Only Events. Except as provided in subdivisions (d) through (f) of this regulation, and in Regulation 18946.4, the admission value of the benefit received by an official and one guest who attend an invitation-only event, is the official's and the guest's pro-rata share of the cost of the food, catering services, entertainment, and any item provided to the official and guest that is available to all guests attending the event. Any other specific benefit provided to the official and guest at the event, such as golf green fees, is valued at fair market value.
(c) “Pro-rata share of the cost of the food, catering services, entertainment, and any item provided to the official.” The term “pro-rata share of the cost of the food, catering services, entertainment, and any item provided to the official and guest” means the cost of all food, catering services, entertainment, and any specific item presented to all attendees as part of the event, divided by the number of acceptances or the number of attendees.
(d) Official or Ceremonial Functions. When an official performs an official or ceremonial function at an invitation-only event, as set forth in subdivision (b) of this regulation, in which the official is invited to participate by the event's sponsor or organizer to perform an official or ceremonial function, the value received is the pro rata cost of any meal provided to the official and guest plus the value of any specific item that is presented to the official and his or her guest at the event.
(e) Drop-In Visit. Except as provided in subdivision (f) of this regulation, if an official attends an invitation-only event and does not consume any meal or stay for any entertainment and consumes only minimal appetizers and drinks, the value of the gift received is the value of any specific item, other than food, presented to the official and guest accompanying the official at the event.
(f) Lobbyists, Lobbying Firms, and Lobbyists Employers. When an official attends an invitation-only event sponsored by any person required to file a periodic statement under Article 1 of Chapter 6 of the Act, the value of the gift is determined pursuant to the provisions of Regulation 18640.
For purposes of this regulation, “entertainment” means a feature show or performance intended for an audience, and does not include music provided for background ambiance.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 86201, 86203, 87103, 87207, 87302 and 89501 through 89506, Government Code.
HISTORY
1. Renumbering of section 18726.4 to section 18946.2 with amendment of section heading, text and Note filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Editorial correction deleting irrelevant History notes (Register 94, No. 25).
3. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
4. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
5. Amendment of section heading and section filed 5-2-2005; operative 5-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
6. Amendment of section heading, section and Note filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18946.3. Exception -- Valuation of Gifts: Wedding Gifts.
Note • History
Notwithstanding the provisions of Regulation 18943, the value to the official of a wedding gift given to an official and his or her spouse or spouse-to-be is one-half of the gift's total value.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207 and 87302, Government Code.
HISTORY
1. Renumbering of former section 18726.5 to section 18946.3, including amendment of section heading, section and Note filed 1-12-94; operative 1-12-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 2).
2. Editorial correction deleting irrelevant History note (Register 94, No. 25).
3. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
4. Amendment of section heading and section filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18946.4. Exception -- Valuation of Gifts: Attendance at Nonprofit or Political Organization Fundraising Event.
Note • History
This regulation establishes the value of a ticket, or admission by invitation, when the ticket or invitation to attend is to a fundraising event for a nonprofit or political organization.
(a) Nonprofit Fundraiser. Except as provided in subdivision (b), the value of a ticket or admission by invitation, to a fundraising event for a non-profit, tax-exempt organization that is not a committee covered by subdivision (c) is determined as follows:
(1) When the ticket clearly states that a portion of the ticket price is a donation to the organization, or the organization provides information indicating the portion of the admission price that constitutes the donation, the value of the ticket is the nondeductible portion of the admission.
(2) If there is no ticket, or other official information provided by the organization, indicating the value of the nondeductible portion of the admission, the value of the admission is the pro-rata share of the cost of any food, catering services, entertainment, and any other item provided to the official that is available to all guests attending the event, as determined under Regulation 18946.2 for invitation-only events. Any other specific benefit provided to the official at the event, such as golf green fees, is valued at fair market value.
(b) 501(c)(3) Organization Fundraiser. When the event is a fundraising event for an organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, the organization may provide two tickets or invitations per event to an official that shall be deemed to have no value. Additional tickets or admissions by invitation provided to or controlled by the official and any tickets not provided directly by the 501(c)(3) organization to the official are valued under subdivision (a) above.
(c) Political Fundraiser. For a ticket or invitation to attend a fundraising event for a committee defined in Section 82013(a), or a comparable committee regulated under federal law or the laws of another state, the committee or candidate may provide two tickets or invitations per event to an official that shall be deemed to have no value. Additional tickets or admissions by invitation provided to or controlled by the official and any tickets not provided directly by the committee or candidate to the official are valued under subdivision (a) above.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207 and 89503, Government Code.
HISTORY
1. Renumbering of section 18726.8 to section 18946.4 with amendment of section heading, text and Note filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Editorial correction deleting irrelevant History note (Register 94, No. 25).
3. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
4. Amendment of subsections (a)-(a)(2) and amendment of Note filed 5-2-2005; operative 5-2-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
5. Amendment of section heading and section filed 9-4-2008; operative 10-4-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2008, No. 36).
6. Amendment of section heading, section and Note filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18946.5. Exception -- Valuation of Gifts: Air Transportation.
Note • History
Air transportation is valued as follows:
(a) The value of transportation on a “commercial flight,” is the price the carrier charges the public for the same class seat on the flight provided to the official. For purposes of this regulation, “commercial flight,” means a flight where individual seats are sold to the public in the general course of business.
(b) The value of all other air transportation is the value of the normal and usual charter fare or rental charge for a comparable airplane of comparable size, divided by the number of passengers aboard the flight.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 87207, 87302 and 89501-89506, Government Code.
HISTORY
1. New section filed 1-25-93; operative 1-25-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Repealer of former section 18946.5 and renumbering of former section 18946.6 to section 18946.5, including amendment of section heading, section and Note, filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18946.6. Reporting and Valuation of Gifts: Air Transportation. [Renumbered]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87207, 87302 and 89501-89506, Government Code.
HISTORY
1. New section filed 7-16-2008; operative 8-15-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil CO10924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 29).
2. Renumbering of former section 18946.6 to section 18946.5 filed 1-23-2012. Pursuant to California Code of Regulations, title 2, section 18313(e), FPPC has designated an effective date of 1-1-2012. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2012, No. 4).
§18950. Guide to Travel Regulations.
Note • History
(a) Gifts of Travel: Exceptions: --Section 18950.1 and Government Code Section 89506;
(b) Travel in Connection With Speeches, Panels, and Seminars: Exception for All Individuals--Section 18950.3;
(c) Payments for Travel in Connection with Campaign Activities--Section 18950.4.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015, 82028, 86111, 87207, 87302 and 89501 through 89506, Government Code.
HISTORY
1. New section filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Repealer of first pragraph and amendment of subsections (a) and (c) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18950.1. Gifts of Travel: Exceptions.
Note • History
The following provisions shall apply to payments made for travel pursuant to Government Code Sections 89501 through 89506:
(a) Travel In Connection With Speeches, Panels, and Seminars.
(1) Only a reportable payment is subject to the limitations on gifts specified in Government Code Section 89503. See California Code of Regulations, Title 2, Section 18950.3, to determine whether a payment in connection with a speech, panel, or seminar is reportable.
(2) A payment made for travel, including actual transportation and related lodging and subsistence, is not subject to the prohibitions or limitations on honoraria and gifts specified in Government Code Sections 89501, 89502, or 89503 if:
(A) The travel is reasonably related to a legislative or governmental purpose, or to an issue of state, national, or international public policy, and
(B) The travel, including actual transportation and related lodging and subsistence, is in connection with a speech given by the official or candidate; the lodging and subsistence expenses are limited to the day immediately preceding, the day of, and the day immediately following the speech; and the travel is within the United States.
Except as otherwise provided by California Code of Regulations, Title 2, Section 18950.3, any payment made for travel specified in this subdivision (a)(2), shall be reported in accordance with Government Code Section 87207(c).
(b) Travel Provided by Governmental Entity or Charity. A payment made for travel, including actual transportation and related lodging and subsistence, is not subject to the prohibitions or limitations on honoraria and gifts specified in Government Code Sections 89501, 89502, or 89503 if:
(1) The travel is reasonably related to a legislative or governmental purpose, or to an issue of state, national, or international public policy; and
(2) The payment is provided by a government, a governmental agency, a foreign government, a governmental authority, a bona fide public or private educational institution, defined in Section 203 of the Revenue and Taxation Code, or by a nonprofit organization that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, or by a person that is domiciled outside the United States and that substantially satisfies the requirements for tax exempt status under Section 501(c)(3) of the Internal Revenue Code.
Except as provided by California Code of Regulations, Title 2, Section 18950.3, any payment made for transportation, lodging, and subsistence, specified by subdivision (b), shall be reported in accordance with Government Code Section 87207(c).
(c) Travel Paid From Campaign Funds. A payment made for transportation and necessary lodging and subsistence, which payment is made from campaign funds as permitted by Government Code Section 89513, or which is a contribution, is not an honorarium or a gift.
(d) Travel Provided By Official's Agency. A payment made for transportation and necessary lodging and subsistence, which payment is made by the agency of an official, is not an honorarium or a gift.
(e) Travel In Connection With Bona Fide Business. A payment made for transportation, lodging, and subsistence, which payment is reasonably necessary in connection with a bona fide business, trade, or profession, and which satisfies the criteria for federal income tax deductions for business expenses specified in Sections 162 and 274 of the Internal Revenue Code, is not an honorarium or gift unless the sole or predominant activity of the business, trade or profession is making speeches.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 86111, 87207 and 89501 through 89506, Government Code.
HISTORY
1. New section filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of section heading, first paragraph, subsections (a)(1)-(2), (a)(2)(B), (b), (d) and Note filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
4. Amendment of subsections (a)(1)-(2) and (b) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
5. Amendment of subsection (b)(2) filed 5-26-98; operative 5-26-98. Submitted to OAL for printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, Linda Stockdale Brewer, Sacramento Superior Court, Case No. 51275 (1991) (Register 98, No. 22).
§18950.2. Travel: Exceptions for Local Elected Officers. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 87207, 87302, 89501 and 89506, Government Code.
HISTORY
1. New section filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Repealer filed 7-25-95; operative 7-25-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 30).
§18950.3. Payments in Connection with Speeches.
Note • History
(a) Definitions: For the purposes of this regulation, the following definitions apply:
(1) “Speech” means making a speech, participating on a panel, or making a substantive formal presentation at a seminar or similar event.
(2) Lodging, food or beverages are “necessary” only when provided on the day immediately preceding, the day(s) of, and the day immediately following the speech, panel, seminar, or similar service.
(b) A payment made for admission to an event at which an official makes a speech, transportation, and necessary lodging, food, or beverages, and nominal non-cash benefits provided to the official in connection with making the speech is not a “payment” as defined in Section 82044 and is not reportable if all of the following apply:
(1) The speech is for official agency business and the official is representing his or her government agency in the course and scope of his or her official duties.
(2) The payment is a lawful expenditure made only by a federal, state, or local government agency for purposes related to conducting that agency's official business. For purposes of this subdivision, a payment made to the agency by a nongovernmental source that is earmarked for use by or reimbursement of an official specified by the source is not a “payment by a federal, state, or local government agency.”
(3) The official making the speech is not a state or local elected officer, as defined in Section 82020, or an official specified in Section 87200.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82028, 82030 and 89501-89506, Government Code.
HISTORY
1. New section filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Change without regulatory effect amending section heading and Note filed 7-27-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 30).
4. Repealer and new section heading and section and amendment of Note filed 2-11-2010; operative 3-13-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 7).
§18950.4. Payments for Travel in Connection with Campaign Activities.
Note • History
(a) Except as provided in Section 18727.5, a payment made to an elected officer or candidate for his or her transportation, lodging, or subsistence is a gift unless the transportation, lodging, or subsistence provided to the elected officer or candidate is in “direct connection” with campaign activities, including attendance at political fundraisers.
(1) Any payment made to an elected officer or candidate for his or her transportation, lodging, or subsistence, during the six month period prior to an election in which the elected officer or candidate is to be voted upon shall be considered “in direct” connection with campaign activities if the payment is for necessary transportation, lodging, or subsistence, used specifically for the purpose of the elected officer's or candidate's:
(A) Participation in candidate forums, debates or similar voter gatherings at which he or she makes a speech; or
(B) Attendance at meetings with campaign staff or political consultants to develop or implement campaign strategy.
(2) A payment made to an elected officer or candidate for necessary transportation to, or lodging and subsistence at, an event described in subdivision (a)(1)(A) or subdivision (a)(1)(B), but not made within the six month period prior to the election in which the elected officer or candidate is being voted upon, shall be considered gifts unless it is clear from the surrounding circumstances that the payment is made directly in connection with campaign activities.
(b) When a payment is made to an elected officer or candidate for his or her necessary lodging and subsistence or transportation in direct connection with attendance at a political fundraiser or an event listed in subdivision (a)(1)(A) or subdivision (a)(1)(B), which fundraiser event is conducted to benefit another elected officer or candidate, or to benefit a committee as defined in Government Code Section 82013(a), the payment is a contribution to the officer, candidate, or committee benefitting from the fundraiser.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 82015 and 82028, Government Code.
HISTORY
1. Renumbering and amendment of former section 18228 to section 18950.4 filed 1-27-93; operative 2-26-93 (Register 93, No. 5).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Change without regulatory effect amending section heading filed 7-18-96 pursuant to section 100, title 1, California Code of Regulations (Register 96, No. 29).
Note • History
For purposes of Government Code section 89519:
(a) Campaign funds raised after January 1, 1989, under the control of a candidate or elected officer shall be considered surplus campaign funds on the following dates:
(1) Incumbent Candidates: The date on which an incumbent candidate leaves any elective office for which the campaign funds were raised, or, if the candidate is defeated for reelection, the end of the postelection reporting period following his or her defeat, whichever is later. An incumbent candidate who wishes to use funds for a future election must transfer those funds to a new committee for a future election no later than this date.
(2) Non-Incumbent Defeated and Withdrawn Candidates: The end of the postelection reporting period following the election in which the candidate was defeated or from which the candidate withdrew. A defeated non-incumbent candidate or candidate who withdraws from an election who wishes to use funds for a future election must transfer those funds to a new committee for a future election no later than this date.
(3) Deceased Candidates: Funds belonging to a candidate who dies while in office or while running for office shall become surplus on the earlier of either June 30 or December 31 following the candidate's death.
(b) The “end of the postelection reporting period” means June 30 with respect to elections occurring in the first six months of the calendar year and December 31 for elections occurring in the latter six months of the calendar year.
(c) Campaign funds are “raised” at the time the funds are received, as disclosed on the candidate's campaign statements pursuant to 2 Cal. Code Regs. section 18421.1.
(d) Campaign funds raised on or before January 1, 1989, which have been commingled with campaign funds raised after January 1, 1989, are presumed to have been raised after January 1, 1989.
(e) Except as provided by Government Code section 85315, campaign funds raised by: (1) a committee, other than a candidate controlled committee; (2) a candidate controlled ballot measure committee; or (3) a candidate on or before January 1, 1989, that are not commingled with funds raised after that date are not considered surplus funds for purposes of this section and are governed by Government Code sections 89511 through 89518 and 89520 through 89522.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 89519, Government Code.
HISTORY
1. New section filed 9-15-2003; operative 9-15-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 38). For prior history, see Register 95, No. 5.
2. Editorial correction of subsection (a)(1) (Register 2004, No. 29).
3. Amendment of subsections (a)(1)-(2) filed 10-26-2004; operative 11-25-2004 (Register 2004, No. 44).
§18954. Gift Limit Adjustment. [Repealed]
Note • History
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 89504, 89505 and 89506, Government Code.
HISTORY
1. New section filed 7-6-93; operative 7-6-93 (Register 93, No. 28).
2. Change without regulatory effect relocating section filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).
3. Amendment of subsections (a) and (b)(1), repealer of subsection (c), subsection relettering and amendment of newly designated subsection (c) filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
4. Renumbering of former section 18954 to new section 18940.2 filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
§18960. Direct Personal Benefit Defined.
Note • History
(a) For purposes of Government Code section 89511(b)(3), an expenditure of campaign funds results in a direct personal benefit when, within six months of the expenditure and without the assistance of any intervening influence or interruption, the candidate or elected officer or member of his or her immediate family:
(1) Realizes an increase in his or her income or assets, or a decrease in his or her expenses or liabilities, of more than $200 from the expenditure; or
(2) Actually makes personal use of an asset obtained as a result of the expenditure.
(b) An expenditure of campaign funds does not result in a prohibited direct personal benefit if otherwise specifically permitted under any other provisions of Article 4 (commencing with Section 89510) of Chapter 9.5 of Title 9 of the Government Code, or interpretative regulations thereto.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 89511, Government Code.
HISTORY
1. Renumbering and amendment of former section 18580 to section 18960 filed 4-26-95; operative 4-26-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 17). For prior history, see Register 90, No. 50.
2. Change without regulatory effect amending subsection (a)(1) filed 6-26-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 26).
Note • History
(a) For purposes of Government Code Sections 89516(e) and 89517(c), the use of any real property, appliance, equipment, or vehicle is incidental to its use for political, legislative, or governmental purposes only if all of the following apply:
(1) The use occurs in conjunction with its use for a purpose which is directly related to a political, legislative, or governmental purpose;
(2) The value of the use constitutes 5 percent or less of the total use of the item in any one calendar month; and
(3) The value of the use does not exceed a fair market value of $100 in any one calendar month.
NOTE
Authority cited: Section 83112, Gov. Code. Reference: Sections 89516(e) and 89517(c), Gov. Code.
HISTORY
1. Change without regulatory effect renumbering former section 18951 to section 18961 filed 1-30-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 5).
2. Editorial correction of History 1 (Register 96, No. 13).
Chapter 10. Auditing
HISTORY
1. Sections 18910, 18913, 18914, 18915, and 18916 renumbered to sections 18991, 18992, 18993, 18994, and 18995, respectively (Register 95, No. 5). For prior history see Register 95, No. 30.
§18991. Audits of Campaign Reports and Statements of Local Candidates and Their Controlled Committees.
Note • History
(a) The Commission shall select local candidates and their controlled committees for audit by the Franchise Tax Board pursuant to Government Code section 90001(i) and this section.
(b) Local candidates and committees shall be selected for audit each odd-numbered year, at the same time that candidates for the Legislature in a direct primary or general election are selected for audit, or as soon as feasible thereafter.
(c) The Commission shall select a total of 20 local jurisdictions to be audited, in accordance with the schedules in subdivisions (d), (e), (f) and (g). The Commission shall then determine, by random selection, the order in which the Franchise Tax Board shall conduct the audits of the 20 local jurisdictions.
If the Commission receives notice that the Franchise Tax Board is able to conduct additional audits of local jurisdictions with the funds available during a two-year cycle, the Commission shall select an additional 20 local jurisdictions to be audited, in accordance with the schedules in subdivisions (d), (e), (f) and (g). The Commission shall determine, by random selection, the order in which the Franchise Tax Board shall conduct the additional audits.
If the Franchise Tax Board is unable to audit all of the jurisdictions selected with the funds available during a two-year audit cycle, the remaining jurisdictions shall be subject to random audit during the next audit cycle on the same basis as any other jurisdiction of the same type.
(d) A total of 40 percent of the jurisdictions selected for audit shall be counties, including any city and county. When a county is selected for audit, the audit shall include primary election candidates for county office, as defined in Elections Code section 34, and general election candidates for county office, as defined in Elections Code section 34, at the last county primary and general elections held prior to the audit selection. Those candidates who file pursuant to Government Code section 84206 shall not be audited under this provision.
Counties shall be grouped by population size, as determined by the most recent population estimates published by the Department of Finance, and the total number of jurisdictions selected for audit from each group, by random selection, shall be:
(1) Counties with a population of 700,000 or more--15 percent of the total jurisdictions selected.
(2) Counties with a population of at least 150,000 but less than 700,000--15 percent of the total jurisdictions selected.
(3) Counties with a population of less than 150,000--10 percent of the total jurisdictions selected.
(e) A total of 40 percent of the jurisdictions selected for audit shall be cities, not including any city and county. When a city is selected for audit, the audit shall include candidates for city elective office at the last general municipal election held prior to the audit selection. Those candidates who file pursuant to Government Code section 84206 shall not be audited under this provision.
Cities shall be grouped by population size, as determined by the most recent population estimates published by the Department of Finance, and the total number of jurisdictions selected for audit from each group, by random selection, shall be:
(1) Cities with a population of 100,000 or more--15 percent of the total jurisdictions selected.
(2) Cities with a population of at least 25,000 but less than 100,000--15 percent of the total jurisdictions selected.
(3) Cities with a population of less than 25,000--10 percent of the total jurisdictions selected.
(f) A total of 10 percent of the jurisdictions selected for audit shall be school districts and community college districts. These districts shall be selected by random selection. When a school district or community college district is selected for audit, the audit shall include candidates for governing board at the last regular school or community college district election held prior to the audit selection. Those candidates who file pursuant to Government Code section 84206 shall not be audited under this provision.
(g) A total of 10 percent of the jurisdictions selected for audit shall be special districts, not including school and community college districts. These districts shall be selected by random selection. When a special district is selected for audit, the audit shall include all candidates for governing board of the district at the last general district election held prior to the audit selection. Those candidates who file pursuant to Government Code section 84206 shall not be audited under this provision.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 90001(i), Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 18910 to section 18991 filed 1-30-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 5).
2. Editorial correction of History 1 (Register 95, No. 13).
3. Amendment of subsections (d), (e), (f) and (g) filed 2-8-99; operative 2-8-99 pursuant to Government Code section 11343.3(d) (Register 99, No. 7).
4. Amendment filed 2-18-2003; operative 2-18-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 8).
§18992. Terms Used in Section 90001.
Note • History
(a) The terms “committee . . . primarily in support of his or her candidacy,” as used in Government Code Section 90001(b), “committee . . . primarily supporting his or her candidacy,” as used in Government Code Section 90001(c) and (d) “committee primarily supporting or opposing a candidate,” as used in Government Code Section 90001(f), and “committee primarily supporting or opposing a state candidate,” as used in Government Code Section 90001(h) mean any committee (other than a controlled committee and other than a committee defined in Government Code Section 82013(c)) which has made more than one half of its expenditures on behalf of any one candidate for the period to be audited pursuant to Government Code Section 90002(c).
(b) The term “committee . . . primarily in support of or in opposition to a state measure or state measures” as used in Government Code Section 90001(g) means any committee which has made more than one half of its expenditures in support of or against one or more state ballot measures for the period to be audited pursuant to Section 90002(c).
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 90001, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 18913 to section 18992 filed 1-30-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 5).
2. Editorial correction of History 1 (Register 95, No. 13).
Note • History
The term “contain in detail” as used in Government Code Section 90004 means that the report of the Franchise Tax Board shall include specific findings of noncompliance, if the Franchise Tax Board determines that the noncompliance is material.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 90000, 90001, 90004 and 90007, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 18914 to section 18993 filed 1-30-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 5).
2. Editorial correction of History 1 (Register 95, No. 13).
3. Repealer and new section filed 2-8-99; operative 2-8-99 pursuant to Government Code section 11343.3(d) (Register 99, No. 7).
§18994. Auditing and Investigations.
Note • History
Audits and investigations conducted by the Franchise Tax to Government Code Sections 90000, et seq. shall be made as follows:
(a) To the extent applicable, in accordance with generally accepted auditing standards as prescribed by the authoritative bodies of the accounting profession; and
(b) To the extent necessary, using other tests of accounting records and auditing procedures appropriate under the circumstances of each audit or investigation.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 90000, et seq., Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 18915 to section 18994 filed 1-30-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 5).
2. Editorial correction of History 1 (Register 95, No. 13).
§18995. Standards and Guidelines for Auditing Statements and Reports.
Note • History
In addition to the requirements of 2 Cal. Code Regs., Section 18994, audits conducted pursuant to Government Code Section 90001 shall meet the following standards:
(a) General.
(1) The audit is to be performed by a person or persons having adequate technical training and proficiency for the tasks required.
(2) In all matters relating to the audit work, the audit organization and the individual auditors shall maintain an independent mental attitude.
(3) Due professional care is to be used in conducting the audit work and in preparing the report.
(b) Field Work.
(1) The work is to be adequately planned.
(2) Field auditors and assistants are to be properly supervised.
(3) An evaluation is to be made of the system of internal control to assess the extent it can be relied upon in the determination of the nature and extent of the audit tests to be applied.
(4) Sufficient, competent evidence, including source documents, is to be obtained through inspection, observations, inquiries, and confirmations to afford a reasonable basis for an opinion regarding the filing under examination.
(5) A review is to be made of compliance with legal and regulatory requirements.
(c) Reporting.
(1) At the completion of every audit, written audit reports are to be submitted to the Fair Political Practices Commission and to officials listed in Government Code Section 90004 as well as to the filer and be made available for public inspection.
(2) Reports are to be issued on or before the dates specified by law or regulation and, in any event, as promptly as possible to make the information available for timely use by the Fair Political Practices Commission and other enforcement agencies, as well as by the filer and the public.
(3) The content of each report will include:
A. A clear explanation of the scope of the audit.
B. An expression of the auditor's opinion on whether the information contained in the filings is presented fairly and in conformity with the provisions of the Act and related rules and regulations.
C. Explanations of instances of material noncompliance with legal or other regulatory requirements.
D. Relevant responses made by filers and, if appropriate, the auditor's comments on those responses.
(4) Report preparation, review and processing procedures should be applied to produce reports that contain no omissions of material findings or errors of fact, logic or reasoning.
(5) Findings shall be presented in an objective and unbiased manner and should include sufficient information to provide readers with proper perspective.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 90000, 90001, 90004 and 90007, Government Code.
HISTORY
1. Change without regulatory effect renumbering former section 18916 to section 18995 filed 1-30-95 pursuant to section 100, title 1, California Code of Regulations (Register 95, No. 5).
2. Editorial correction of History 1 (Register 95, No. 13).
3. Editorial correction of subsection (c)(3)D. (Register 96, No. 43).
4. Change without regulatory effect amending section heading and first paragraph filed 2-23-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 9).
§18996. Scope of Audits and Investigations.
Note • History
(a) Government Code Section 90002(c) states that the audit and investigation shall cover all campaign statements and reports filed for the primary and general or special or runoff elections, and any previous campaign statement or report filed pursuant to Section 84200 or 84200.5 since the last election for that office. For purposes of Section 90002(c), the audit or investigation shall not include those campaign statements or reports filed in conjunction with an election for any other office.
(b) Nothing in subsection (a) shall be interpreted to act as a limitation on the Franchise Tax Board or the Commission in undertaking a discretionary audit as set forth in Government Code Section 90003.
NOTE
Authority cited: Section 83112, Government Code. Reference: Sections 90002 and 90003, Government Code.
HISTORY
1. New section filed 2-8-99; operative 2-8-99 pursuant to Government Code section 11343.3(d) (Register 99, No. 7).
§18997. Audits of Campaign Reports and Statements of Candidates for the Board of Administration of the Public Employees' Retirement System.
Note • History
The Commission shall audit a candidate for an election to the Board of Administration of the Public Employees' Retirement System if the candidate receives contributions aggregating $5,000 or more for that election.
NOTE
Authority cited: Section 83112, Government Code. Reference: Section 90001, Government Code.
HISTORY
1. New section filed 12-21-2000. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2000, No. 51).
2. Amendment filed 9-12-2002 as a change without regulatory effect. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2002, No. 37).
3. Repealer and new section filed 4-9-2008; operative 5-9-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 15).
Division 7. Secretary of State
Chapter 1. Voter Registration
Article 1. Access to Voter Registration Information
Note • History
As used in this Article, the following words have the following meanings:
(a) “Person” includes any person, firm, association, organization, partnership, business trust, corporation or company.
(b) “Registration information” means all information maintained in the general index to the affidavits of registration whether set forth on electronic data processing tapes or tabulating cards pursuant to Elections Code Section 607 or in indices of registered voters pursuant to Elections Code Section 607 and includes all information partially or solely derived from the aforementioned information, whether displayed, transmitted or stored in any format or on any media whatsoever.
(c) “A registration record” means the information or any portion thereof, set forth in an affidavit of registration executed by any person pursuant to Division 1, Chapter 2 of the Elections Code.
(d) “Source Agency” means Secretary of State or local agency or person deputized by the state or local agency which maintains registration information.
NOTE
Authority cited: Section 12172, Government Code. Reference: Section 607, Elections Code.
HISTORY
1. New Division 7, Chapter 1, Article 1 (Sections 19001-19009) and Article 2 (Sections 19050-19059) filed 5-28-76; effective thirtieth day thereafter (Register 76, No. 22).
2. Amendment to section and NOTE filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
§19002. Use of Registration Information; Limitations.
Registration information obtained by any person from a source agency shall be used solely for election and governmental purposes.
Permissible uses of information obtained from a source agency shall include, but shall not be limited to, the following:
(a) Using registration information for purposes of communicating with voters in connection with any election.
(b) Sending communications, including but not limited to, mailings which campaign for or against any candidate or ballot measure in any election.
(c) Sending communications, including but not limited to, mailings by or in behalf of any political party; provided however, that the content of such communications shall be devoted to news and opinions of candidates, elections, political party developments and related matters.
(d) Sending communications, including but not limited to, mailings, incidental to the circulation or support of, or opposition to any recall, initiative, or referendum petition.
(e) Sending of newsletters or bulletins by any elected public official, political party or candidate for public office.
(f) Conducting any survey of voters in connection with any election campaign.
(g) Conducting any survey of opinions of voters by any government agency, political party, elected official or political candidate for election or governmental purposes.
(h) Conducting an audit of voter registration lists for the purpose of detecting voter registration fraud.
(i) Soliciting contributions or services as part of any election campaign on behalf of any candidate for public office or any political party or in support of or opposition to any ballot measure.
(j) Any official use by any local, state, or federal governmental agency.
The following uses of registration information obtained from a source agency shall be deemed other than for election and governmental purposes:
(a) Any communication or other use solely or partially for any commercial purpose.
(b) Solicitation of contributions or services for any purpose other than on behalf of a candidate or political party or in support of or opposition to a ballot measure.
(c) Conducting any survey of opinions of voters other than those permitted by Sections 19003(f) and (g).
§19005. Prior Written Authorization.
No person who obtains registration information from a source agency shall make any such information available under any terms, in any format, or for any purpose, to any person without receiving prior written authorization from the source agency. The source agency shall issue such authorization only after the person to receive such information has executed the written agreement set forth in Section 19008.
The source agency may designate the price which is to be charged for the use of such registration information. The source agency may also require the payment of a deposit or the execution of a bond to cover the costs of supplying such registration information.
History
Every person, who directly or indirectly obtains registration information from a source agency, shall be liable to the State of California, as a penalty for any use of said registration information which is not authorized by Section 607 of the Elections Code and the regulations promulgated pursuant thereto, for an amount equal to the sum of 50¢ multiplied by the number of registration records which such person used in an unauthorized manner. Unauthorized use by any applicant of any portion of the information obtained pursuant to this Chapter shall raise a presumption that all such information obtained by such applicant was so misused. Illustration: X Data Corp. obtains registration information from a source agency and uses this information to address a commercial mailing to 10,000 voters. Under the provision of this section, X Data Corp. is obligated to pay the State of California the sum of $5000, which constitutes the sum of 50¢ multiplied by 10,000, the number of registration records which were used in an unauthorized manner.
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
Every applicant shall execute and deliver to the source agency the following application:
APPLICATION
Name of Applicant:
Address of Applicant:
__________________________________________________________________________________(If committee, state
name of beneficiary)______________________________________________________
The above-named applicant, hereby applies to the Secretary of State of the State of California, directly or through a source agency, for: ________ electronic data processing tapes
________ indices of registered voters
________ pages of addressograph lists
The applicant hereby agrees that the aforementioned information set forth in affidavits of registration of voters and any information derived from said tabulating cards, electronic data processing tapes and indices (hereinafter collectively referred to as “registration information”) will be used only for election or governmental purposes, as defined by Title 2, Division 7, Article 1, Section 19003 of the California Administrative Code.
The applicant further agrees not to sell, lease, loan or deliver possession of the registration information, or a copy thereof, or any portion thereof, to any person, organization or agency without receiving written authorization to do so from the Secretary of State or from the source agency.
Subject to provisions of Title 2, Division 7, Article 1, Sections 19001 through 19007 of the California Administrative Code, the applicant agrees to pay the State of California, as compensation for any unauthorized use of each individual's registration information, an amount equal to the sum of 50¢ multiplied by the number of times each registration record is used by the applicant in an unauthorized manner.
Date:____________________
______________________________________________________
Applicant or Agent for Applicant
______________________________________________________
Title
§19009. Submissions to Secretary of State.
The Secretary of State may require that the applicant submit to the Secretary of State a copy of all mailings conducted by the applicant pursuant to this Chapter.
Article 2. Postal Registration of Voters
Foreword
These regulations are promulgated under authority vested in the Secretary of State by the California Legislature in Chapter 704 of the 1975-76 Regular Session. They may be cited as the Voter Registration Regulations.
§19050. Voter Registration Card; Format.
Note • History
The multipart voter registration card mandated by Elections Code Sections 506, 102 and 507 shall be substantially in the format set forth in Section 19055.
NOTE
Authority cited: Section 506, Elections Code. Reference: Sections 506, 102, 507, Elections Code.
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
Note • History
An elector's registration as a voter is valid notwithstanding the failure to complete the place of execution portion of the Voter Registration Card. It shall not be inferred from this regulation that failure to complete other portions of the Voter Registration Card necessarily invalidates or does not invalidate that elector's registration as a voter.
NOTE
Authority cited for Sections 19050.5-19050.7: Statutes 1975, Chapter 1119, Section 4. Reference: Sections 19055(a)(1) and 19055(a)(3), Title 2, California Administrative Code; Section 500, Elections Code.
HISTORY
1. New section filed 10-15-76 as an emergency; effective upon filing (Register 76, No. 42).
2. Repealed by operation of Section 11422.1(c), Government Code (Register 77, No. 21).
3. New section filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
§19050.6. Requirements for Valid Registration.
History
In the event that the county clerk receives an affidavit of registration that does not include portions of the information for which space is provided, the county clerk or registrar of voters shall apply the following rebuttable presumptions:
(a) If no middle name or initial is shown, it shall be assumed that none exists.
(b) If no occupation is shown, it shall be presumed that the person is unemployed or has no occupation.
(c) If no party affiliation is shown, it shall be assumed that the registrant has “declined to state” a party affiliation.
(d) If the year of birth is omitted, it shall be presumed that the year of birth was eighteen years or more prior to the date of the next succeeding election, in accordance with the voter's statement under penalty of perjury that he or she will be eighteen years of age at the time of the next election.
(e) If no prior registration is shown, it shall be presumed that the person is not registered to vote in California. An elector's affidavit of registration as a voter shall be valid notwithstanding the failure to complete the information to which the above presumptions apply, absent evidence rebutting the presumption.
(f) If the date of execution is omitted but:
(1) the affidavit is received in the office of the county clerk, on or before the 29th day prior to the election; or
(2) the registration affidavit is postmarked on or before the 29th day prior to the election and arrives in the office of the county clerk not later than four days after the 29th day, it shall be presumed that the affidavit was executed on or before the 29th day prior to the election.
HISTORY
1. New section filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
. 2. New subsection (f) filed 8-18-78; effective thirtieth day thereafter (Register 78, No. 33).
§19050.7. Receipt of Affidavit of Registration.
Note • History
Except as otherwise provided herein, a registration affidavit delivered to the county clerk shall be deemed to have been received for all purposes:
(a) On the date it actually arrives in the office of the county clerk authorized to receive registration affidavits, if subdivision (b) does not apply; or
(b) On the 29th day prior to an election scheduled to be held in the county in which the affiant resides, provided that the registration affidavit was executed by the voter on or before said 29th day and arrives by mail in the office of the county clerk to whom it is addressed not later than four days after said 29th day.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 301 and 305, Elections Code.
HISTORY
1. New section filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
2. Amendment filed 6-30-77 as an emergency; effective upon filing (Register 77, No. 27).
3. Certificate of Compliance filed 10-26-77 (Register 77, No. 44).
4. New subsection (b)(3) filed 9-27-78 as an emergency; effective upon filing (Register 78, No. 39).
5. Expired by own terms (Register 79, No. 38).
6. New subsection (b)(3) filed 9-21-79 as an emergency; effective upon filing (Register 79, No. 38). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 1-19-80.
7. Expired by own terms (Register 80, No. 15).
8. Amendment filed 6-8-84; effective thirtieth day thereafter (Register 84, No. 23).
§19050.8. Registration Affidavit: Secretary of State Form.
Note • History
(a) Registration affidavits printed by the Secretary of State with the mailing address of the Secretary of State are deemed to have been received by the county clerk upon arrival in the office of the Secretary of State in the same manner as if received by a county clerk under Elections Code Sections 301 and 311.
For affidavits referred to in subsection (a) above:
(b) Within one working day, the Secretary of State shall transmit the affidavit to the clerk of the county of affiant's residence, as stated on the affidavit.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 301 and 311, Elections Code.
HISTORY
1. New section filed 4-11-80 as an emergency; effective upon filing (Register 80, No. 15). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 8-10-80.
2. Certificate of Compliance transmitted to OAL 8-7-80 and filed 8-20-80 (Register 80, No. 34).
§19051. Provision by Secretary of State.
History
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
2. Amendment filed 9-16-77 as an emergency; effective upon filing (Register 77, No. 38).
3. Certificate of Compliance filed 1-6-78 (Register 78, No. 1).
4. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
History
Only those affidavits of registration provided by the Secretary of State through the county clerks shall be used for the registration of voters pursuant to Elections Code Section 301. Such voter registration cards shall not be altered, defaced, or changed in any way, other than by the insertion of a mailing address and the affixing of postage, if mailed, or as otherwise specifically authorized by the Secretary of State, prior to distribution to prospective registrants, nor shall the affidavit portion of the voter registration cards be marked, stamped, or partially or fully completed by anyone other than an elector attempting to register to vote or by another person assisting such elector after being requested by such elector to assist in completing the affidavit.
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
2. Amendment filed 9-16-77 as an emergency; effective upon filing (Register 77, No. 38).
3. Certificate of Compliance filed 1-6-78 (Register 78, No. 1).
§19053. Ninety Day Request Period for Shipments.
History
The forms prescribed by Elections Code Sections 500, 506, and 508 shall be supplied by the Secretary of State to the county clerks as requested by the clerks ninety days prior to the desired date of receipt.
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
History
HISTORY
1. Amendment filed 6-3-76 as an emergency; designated effective 6-27-76 (Register 76, No. 22).
2. Reinstatement of section as it existed prior to emergency amendment filed 6-3-76, by operation of Section 11422.1(b), Government Code (Register 77, No. 21).
3. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
4. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
§19055. Voter Registration Card.
(a) Postal Forms
(1) Affidavit of Registration Portion
Embedded Graphic 02.0042
(2) Reverse Side of Affidavit.
Embedded Graphic 02.0043
(3) Instructional Portion (English).
Embedded Graphic 02.0044
Instructional Portion (Spanish).
Embedded Graphic 02.0045
(4) Informational Portion
Embedded Graphic 02.0046
(5) Reverse Side of Spanish Instructions (sent to voter upon verbal or written request).
Embedded Graphic 02.0047
(b) Deputy Registrars' Forms.
(1) Affidavit of Registration Portion.
Embedded Graphic 02.0048
(2) Informational and Stub Portions.
Embedded Graphic 02.0049
Dimensions of voter registration card shall be 5” x 8” x .007.”
§19057. Reporting Requirement.
Note • History
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 500, 506 and 508, Elections Code.
HISTORY
1. Repealer filed 6-8-84; effective thirtieth day thereafter (Register 84, No. 23).
§19058. Voter Notification Card.
Note • History
NOTE
Authority cited: Section 505 Elections Code. Reference: Sections 504 and 505, Elections Code.
HISTORY
1. Repealer filed 6-8-84; effective thirtieth day thereafter (Register 84, No. 23).
History
The forms prescribed in Section 19055 shall be printed in the following languages:
(a) Monolingual English versions
(b) Bilingual versions
(1) English-Spanish
(2) English-Chinese
HISTORY
1. Amendment filed 6-3-76 as an emergency; designated effective 6-27-76 (Register 76, No. 22).
2. Amendment refiled 6-30-77 as an emergency; effective upon filing (Register 77, No. 27).
3. Certificate of Compliance filed 10-26-77 (Register 77, No. 44).
Article 3. County Programs to Identify and Register Qualified Electors
Note • History
All counties shall design and implement programs intended to identify qualified electors who are not registered voters, and to register such persons to vote, hereinafter referred to as outreach programs.
NOTE
Authority cited for Article 3 (Sections 20000-20006): Section 202, Elections Code. Reference: Section 202, Elections Code.
HISTORY
1. New Article 3 (Sections 20001-20007, not consecutive) filed 9-24-76 as an emergency; effective upon filing (Register 76, No. 39).
2. Article 3 (Sections 20000-20006) refiled 9-28-76 as an emergency; effective upon filing. Certificate of Compliance included (Register 76, No. 40).
History
As a minimum, each county's outreach program shall contain the following components which shall be described in an outreach program plan:
(a) Consultation. Each program shall include systematic effort by the clerk to consult on a continuing basis all persons who exhibit interest and special knowledge in any outreach methods contemplated by the clerk. This effort shall include, but not be limited to, a gathering of source lists of persons whose interest, knowledge, or experience suggests the potential for meaningful contribution to increased voter registrations in the county.
(b) Publicity. Each program shall make specific provision for publicity on all phases of voter registration, including the training and deputizing of registrars.
(c) Focus; Balance. Each program shall establish priorities for the direction of its outreach efforts. These priorities shall reflect the clerk's assessment as to which specific outreach methods will be the most cost-effective in the county. Each plan shall be reasonably balanced in the allocation of outreach efforts and resources among the major pools of unregistered voters.
(d) Budget. Each program shall include a budget with sections for personnel, equipment and materials for each outreach effort proposed.
(e) Schedule. Each program shall contain a schedule of critical dates and deadlines associated with each outreach effort proposed. This schedule shall be supported by contractual and voluntary commitments, if any, from those responsible for providing products or services to meet these dates.
(f) Solicitation of Local Assistance. Each program shall provide for the solicitation of assistance from local offices of all levels of government and of private entities in providing the incidental use of their premises and/or personnel for the purpose of outreach. The offices and entities whose assistance is solicited shall include those which, in the opinion of the county clerk, come into frequent contact with unregistered electors who would be least likely to register under county registration practices in effect prior to July 1, 1976.
(g) Distribution Controls. Each program shall establish orderly limits upon bulk distributions of registration affidavit forms. Such controls should include, but not be limited to, record keeping, training, and contingency plans for form allocation in the event that supplies become depleted.
All requests for more than 50 registration forms shall be accompanied by a brief statement of distribution plans, which shall be a necessary condition to issuance of the voter registration cards. This statement shall designate the name and address of the person or persons proposing such a distribution plan. This statement shall contain declarations executed under penalty of perjury that reasonable steps will be taken to insure that:
(1) The person or persons distributing such cards to potential registrants will not neglect or refuse to give a voter registration card to any elector requesting one for the purpose of registering to vote; and
(2) The voter registration cards issued will not be altered, defaced, or changed in any way, other than by the insertion of a mailing address and the affixing of postage, if mailed, or as otherwise specifically authorized by the Secretary of State, prior to distribution to prospective registrants and that the affidavit portion of the voter registration cards will not be marked, stamped, or partially or fully completed by anyone other than an elector attempting to register to vote or by another person assisting such elector after being requested by such elector to assist in completing the affidavit.
A copy of all statements for requests exceeding 2000 forms shall be sent to the Secretary of State.
HISTORY
1. Amendment of subsection (g) filed 9-16-77 as an emergency; effective upon filing (Register 77, No. 38).
2. Certificate of Compliance filed 1-6-78 (Register 78, No. 1).
History
Each outreach program shall stress the solicitation of voter registrations by persons whose daily activities place them in frequent contact with potential registrants.
Selection of outreach methods shall consider maximum cost-effectiveness in view of the population of unregistered electors intended to be reached. Selection of methodology shall consider not only the level of effort expended, but also the likelihood of actual registrations obtained thereby.
Nothing in these regulations shall be construed to limit the use of deputy registrars of voters, including bilingual registrars, pursuant to Sections 302 and 303 of the Elections Code. Outreach programs adopted pursuant to these regulations shall provide for the continued use of deputy registrars when a population of unregistered electors requires personal assistance in registration and the continued use of deputy registrars is therefore reasonably appropriate.
Each county shall provide for the solicitation of registrations by personnel of state agencies, to the extent that the state agency has made its personnel available for an outreach program.
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
§20003. Submission of Plan for Outreach Program.
No later than 20 days after the effective date of this Article, each county shall submit to the Secretary of State a plan describing its proposed outreach program. Each program shall be deemed to have met the minimum requirement if the Secretary of State has not interposed an objection within 21 days after such program has been submitted.
Annually in July, the Secretary of State will evaluate the county's program on the basis of two criteria:
(a) adherence to the adopted plan for the meeting of minimum requirements.
(b) effectiveness in terms of increase in number of registered voters over statistical/historical expectations.
§20005. Cost/Savings Comparison Reports.
Note • History
On or before August 31 of each year, the county shall report to the Secretary of State its actual net cost of complying with Chapter 704, Statutes of 1975, as amended, including any program adopted pursuant to Section 304 of the Elections Code, for the immediately preceding fiscal year along with an estimated net cost for the forthcoming fiscal year.
For the purposes of these regulations, net cost is defined as total cost as offset by any savings which may accrue as the result of Chapter 704, Statutes 1975, as amended.
For the purposes of these regulations, a fiscal year is defined as the period of time from July 1 of the calendar year through June 30 of the following calendar year.
NOTE
Authority cited: Statutes 1975, Chapter 1119, Section 4; Section 12172, Government Code. Reference: Statutes 1975, Chapter 704, Section 91.
HISTORY
1. Amendment filed 5-20-77; effective thirtieth day thereafter (Register 77, No. 21).
§20006. Reimbursement of Net Costs.
History
HISTORY
1. Order of Repeal filed 6-3-85 by OAL pursuant to Government Code Section 11349.7; effective thirtieth day thereafter (Register 85, No. 26).
Article 4. Overseas Citizens Registration and Voting
§20050. Overseas Citizen Affidavit of Registration.
Note • History
The affidavit of registration for overseas citizens shall be in substantially the following form:
Embedded Graphic 02.0050
NOTE
Authority and reference cited for Article 4 (Sections 20050 and 20051: Sections 1304 and 1309, Elections Code). Specific authority and reference cited for Section 20050: Sections 706 and 1306, Elections Code.
HISTORY
1. Amendment filed as an emergency 5-26-78; effective upon filing (Register 78, No. 21). For prior history, see Register 77, No. 2).
2. Certificate of Compliance filed 9-22-78 (Register 78, No. 38).
§20051. Overseas Citizens Absent Voters' Ballots.
Note • History
The ballot to be used by overseas voters may be the absentee ballot used by resident absentee voters, except that all measures and all offices appearing on the ballot other than federal offices shall be marked out with indelible marking, so that the overseas voter votes only for federal offices.
Alternatively, the county clerk may design an absentee ballot designated solely for overseas voters listing only candidates for nomination or election to federal offices.
NOTE
Additional authority and reference cited: Section 1306, Elections Code.
HISTORY
1. New section filed 10-14-76 as an emergency; effective upon filing (Register 76, No. 42).
2. Repealed by operation of Section 11422.1(c), Government Code (Register 77, No. 21).
3. New section filed 5-2-77; effective thirtieth day thereafter (Register 77, No. 21).
4. Amendment filed 9-12-78 as an emergency; effective upon filing (Register 78, No. 37).
5. Certificate of Compliance filed 9-22-78 (Register 78, No. 38).
Article 5. Cancellation of Voter Registration
Note • History
The notice to voters sent by the county clerk or registrar of voters under Elections Code section 706.1, notifying the voter that the voter's registration affidavit will be changed or cancelled, shall be in substantially the following form:
Embedded Graphic 02.0051
NOTE
Authority cited: Sections 706 and 1306, Elections Code. Reference: Sections 706 and 1306, Elections Code. Additional authority cited: Section 706.1, Elections Code. Additional reference: Section 706.1, Elections Code.
HISTORY
1. New Article 5 (Section 20070) filed 5-26-78 as an emergency; effective upon filing (Register 78, No. 21).
2. Amendment filed 9-12-78; effective thirtieth day thereafter (Register 78, No. 37).
§20075. State Registrar of Vital Statistics to Notify County Elections Official of Deaths of Voting Age Persons that Occur Outside of the County of Residence.
Note • History
At the time that the State Registrar of Vital Statistics sends notification pursuant to Health and Safety Code Section 102245 to the local registrar of births and deaths of the deaths of all residents of the county whose deaths occurred outside the county, he or she shall send a copy of the notification to the county elections official.
NOTE
Authority cited: Section 2206, Elections Code; and Section 12172.5, Government Code. Reference: Section 2205, Elections Code.
HISTORY
1. New section filed 11-4-96; operative 11-4-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 45).
§20076. County Elections Official to Provide Secretary of State with Correct Mailing Address to Receive from the State Registrar of Vital Statistics Notification of Out-of-County Deaths.
Note • History
No later than January 15 of each year the county elections official shall furnish to the Secretary of State the correct mailing address of the unit or person within his or her office to whom the notification of out-of-county deaths shall be sent by the State Registrar of Vital Statistics.
NOTE
Authority cited: Section 2206, Elections Code; and Section 12172.5, Government Code. Reference: Section 2205, Elections Code.
HISTORY
1. New section filed 11-4-96; operative 11-4-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 45).
Article 6. Independent Nomination Petition Signature Verification
§20085. Application of Article.
Note • History
This article shall apply to verification of independent nomination petition signatures. The purpose of these regulations is to achieve uniform interpretation of Elections Code Sections 6831-6833 and 6890-6894. “County Clerk” shall refer to “Registrar of Voters” where applicable.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
§20086. Signature Verification Methods.
Note • History
The clerk shall verify either (a) a sample consisting of 5 percent of the signatures submitted or 500 signatures, whichever is greater, or (b) 100 percent of the signatures submitted.
If subsection (b) is chosen, the clerk may arrange for the candidate or candidate's representative to deposit the petition sections with the clerk at intervals prior to the last day the petition is circulated, so that the clerk may begin verifying the signatures.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
§20087. Report of Total Signatures.
Note • History
The Secretary of State must receive actual notice of the total number of signatures submitted in each county and the method of verification to be used within two working days of the close of the circulation period or of final deposit of petition sections, whichever is earlier, but in no event later than 7 p.m. on the 88th day prior to the election. If telephonic communication is used to convey actual notice, written confirmation must be transmitted to the Secretary of State on the same day that telephone notice is given.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
Note • History
Upon final deposit of the nomination petitions for each candidate, clerks verifying a sample of signatures shall sequentially number the signatures. If a numbering scheme is adopted which results in some numbers not being assigned to a signature, these gaps between the first and last numbers assigned to the signature must also be reported to the Secretary of State in the notice required by Section 20087.
Upon receipt of this notice, the Secretary of State shall immediately generate a list of random numbers for that county, which shall determine which signatures are to be verified for each candidate. This list shall be transmitted to the clerk within one day of actual receipt of the total signature count. Upon receiving the random number list, the clerk shall verify each signature indicated thereon.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
§20089. Total Signature Reports.
Note • History
When the total number of signatures submitted in each county has been reported to the Secretary of State in writing, the Secretary of State shall immediately ascertain whether the number of signatures submitted for each candidate is greater than or less than that required to qualify the candidate.
(a) If the number of signatures is found to be less than that required to qualify the candidate, the Secretary of State shall notify each county clerk of the total number of signatures submitted and that such total was insufficient to qualify the candidate for the ballot. Upon such notification, the clerks need take no further action with respect to verification of the nomination papers.
(b) If the total number of signatures submitted is equal to or greater than the number of signatures required to qualify the candidate, the Secretary of State shall so notify each county clerk, and each clerk shall continue to verify signatures.
(c) The Secretary of State must receive actual notice of each county's total valid signature certification not later than the 83d day prior to the election. If telephonic communication is used to convey actual notice, written certification shall be transmitted on the same day that telephone notice is given.
(d) If no county in a district has chosen to verify a random sample of signatures pursuant to Section 20086(a), the reporting date under Section 20089(c) shall be not later than the 64th day prior to the election.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
§20090. Total Valid Signature Reports.
Note • History
Upon receipt of written notice under Section 20089(c) or (d), the Secretary of State shall compute the number of valid signatures submitted for each candidate in the district in which nomination papers are submitted, and will notify the clerks of the results within one day of receipt of the figures from the last reporting county.
If Section 20089(d) does not apply:
(a) If the total number of signatures submitted is found to be less than 90 percent or greater than 110 percent of the total number required for nomination, the Secretary of State shall notify clerks using the random sample verification method that the papers are sufficient or insufficient, whichever is appropriate according to Elections Code Section 6831.1, and no further action shall be taken relative to signature verification.
(b)(1) If the total computed is found to be between 90 percent and 110 percent of the number required, the Secretary of State shall notify the clerks who used the random sample verification method to verify each signature on the nomination papers.
(2) The total valid signature count must be reported to the Secretary of State not later than the 64th day prior to the election, in the same manner as Section 20089(c).
All county clerks must file candidates' nomination papers with the Secretary of State not later than the 64th day prior to the election.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
Note • History
In any report of valid signatures based on a sample of signatures, the clerk shall report separately the number of signatures rejected for being duplicate signatures.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6831-6833; 6890-6894, Elections Code.
HISTORY
1. New section filed 6-30-80 as an emergency; effective upon filing (Register 80, No. 27). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 10-28-80.
2. Certificate of Compliance transmitted to OAL 10-28-80 and filed 11-28-80 (Register 80, No. 48).
Note • History
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 6834 and 6838, Elections Code.
HISTORY
1. New Article 6 (Section 20095) filed 6-20-80 as an emergency; effective upon filing (Register 80, No. 25). A Certificate of Compliance must be transmitted to OAH within 120 days or emergency language will be repealed on 10-19-80. For prior history, see Registers 79, No. 33 and 78, No. 29.
2. Repealed by operation of Section 11346.1(g), Government Code (Register 81, No. 47).
Article 7. Voting
Note • History
When a voter has selected, by marking the ballot or writing in or a combination thereof, more candidates than there are candidates to be nominated or selected for the office, the vote for that office shall not be counted, regardless of whether the candidate whose name is written in has complied with the requirements of Chapter 8 (commencing with Section 7300) of Division 6 of the Elections Code.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 15242, 17007(c) and 17100-17101, Elections Code.
HISTORY
1. Editorial renumbering of Chapter 2 (Sections 20100-20128) to Title 2, Division 8, Chapter 24 (Sections 45000-45128) and new Article 7 (Section 20100) filed 9-19-80; effective thirtieth day thereafter (Register 80, No. 38).
Note • History
(a) For the purpose of Sections 20102-20105, “qualified write-in candidate” shall refer to candidates who have complied with Chapter 8 of Division 6 of the Elections Code (beginning at Section 7300).
(b) For the purpose of Sections 20102-20105, “ballot” shall include ballot envelope, card, or paper ballot on which write-in votes are authorized to be indicated by Elections Code § 10331.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 15242, 15304, 17100, 17101, 22603, Elections Code.
HISTORY
1. New section filed 10-20-80 as an emergency; effective upon filing (Register 80, No. 43). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 2-17-81.
2. Certificate of Compliance transmitted to OAL 2-6-81 and filed 3-5-81 (Register 81, No. 10).
§20102. Write-in Vote; No Office Indicated.
Note • History
The name of a qualified write-in candidate shall be counted when the name is written in on a voter's ballot and no office is indicated for the candidate, or the office is incompletely indicated (e.g., “Senator” without district number), if:
(a) the candidate is a qualified write-in candidate for an office properly appearing on the voter's ballot; and
(b) no other qualified write-in candidate for any office appearing on the voter's ballot bears a name so similar to the name as written in, considering the voter's misspellings or omission of portions of the name, if any, as to leave a reasonable doubt as to the voter's intention.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 15242, 15304, 17100, 17101 and 22603, Elections Code.
HISTORY
1. New section filed 10-20-80 as an emergency; effective upon filing (Register 80, No. 43). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 2-17-81.
2. Certificate of Compliance transmitted to OAL 2-6-81 and filed 3-5-81 (Register 81, No. 10).
§20103. Write-in Vote; Misspelled or Incomplete Name.
Note • History
The misspelled or incomplete name of a qualified write-in candidate written in on a ballot shall be counted for the candidate when the office for which the candidate has qualified is also indicated on the voter's ballot, if:
(a) the name as written bears a reasonable resemblance to the qualified candidate's name; and
(b) no other write-in candidate qualified for the indicated office has a name that is so similar to the name as written in as to leave a reasonable doubt as to the voter's intention.
NOTE
Authority cited: Section 1272.5, Government Code. Reference: Sections 15242, 15304, 17100, 17101, 22603, Elections Code.
HISTORY
1. New section filed 10-20-80 as an emergency; effective upon filing (Register 80, No. 43). A Certificate of Compliance must be transmitted to OAL, within 120 days or emergency language will be repealed on 2-17-81.
2. Certificate of Compliance transmitted to OAL 2-6-81 and filed 3-5-81 (Register 81, No. 10).
§20104. Write-in Vote; Misspelled or Incomplete Name, Office Omitted.
Note • History
The misspelled or incomplete name of a qualified write-in candidate written in on a ballot shall be counted for the candidate even though the office for which the candidate has qualified is omitted or incompletely indicated on the voter's ballot, when:
(a) the name as written bears a reasonable resemblance to the qualified candidate's name; and
(b) no other write-in candidate qualified for any office properly appearing on the voter's ballot has a name that is so similar to the name as written in as to leave a reasonable doubt as to the voter's intention.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 15242, 15304, 17100, 17101 and 22603, Elections Code.
HISTORY
1. New section filed 10-20-80 as an emergency; effective upon filing (Register 80, No. 43). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 2-17-81.
2. Certificate of Compliance transmitted to OAL 2-6-81 and filed 3-5-81 (Register 81, No. 10).
§20105. Write-in Vote; Wrong Office Indicated.
Note • History
The name of a write-in candidate qualified for an office appearing on the voter's ballot which is written in the pre-printed column designated for an office other than one for which the write-in candidate is qualified shall not be counted for any purpose.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 15242, 15304, 17100, 17101 and 22603, Elections Code.
HISTORY
1. New section filed 10-20-80 as an emergency; effective upon filing (Register 80, No. 43). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 2-17-81.
2. Certificate of Compliance transmitted to OAL 2-6-81 and filed 3-5-81 (Register 81, No. 10).
§20106. Voting System Inspection.
Note • History
On election day, every precinct inspector shall inspect every voting system or machine at least every two hours during hours the polls are open. Any marks, notations, or other matter found written or otherwise marked on the ballot assembly or machine which bears the candidate's names and titles of measures shall immediately be removed or the ballot assembly replaced.
This section shall apply only to elections using voting machines or voting systems on which the candidate's names and titles of measures are not printed on the punch card or paper on which the voter marks, punches or otherwise indicates the vote.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 29470 and 29612, Elections Code.
HISTORY
1. New section filed 10-20-80 as an emergency; effective upon filing (Register 80, No. 43). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 2-17-81.
2. Certificate of Compliance transmitted to OAL 2-6-81 and filed 3-5-81 (Register 81, No. 10).
§20107. Standards for Proof of Residency or Identity When Proof Is Required by Help America Vote Act.
Note • History
(a) This section shall apply in all instances where voters and new registrants are required by the federal Help America Vote Act of 2002 (Pub. L. 107-252, 116 Stat. 1666, 42 U.S.C. 15483) to prove residency or present documents to establish identity.
(b) This section shall be liberally construed to permit voters and new registrants to cast a regular ballot. Any doubt as to the sufficiency of proof or a document presented shall be resolved in favor of permitting the voter or new registrant to cast a regular ballot.
(c) If a voter or new registrant does not present proof or a document that complies with this section, then the voter or new registrant shall be advised by the poll worker or other election official with whom the voter or new registrant is conferring that he or she may vote a provisional ballot and the voter or new registrant shall be permitted to do so.
(d) For purposes of this regulation, proof of residency or identity, shall consist of presenting an original or copy of any of the documents described below in either paragraph (1) or (2).
(1) Current and valid photo identification provided by a third party in the ordinary course of business that includes the name and photograph of the individual presenting it. Examples of photo identification include, but are not limited to, the following documents:
(A) driver's license or identification card of any state;
(B) passport;
(C) employee identification card;
(D) identification card provided by a commercial establishment;
(E) credit or debit card;
(F) military identification card;
(G) student identification card;
(H) health club identification card;
(I) insurance plan identification card; or
(J) public housing identification card.
(2) Any of the following documents, provided that the document includes the name and address of the individual presenting it, and is dated since the date of the last general election, unless the document is intended to be of a permanent nature such as a pardon or discharge or unless the date requirements of paragraph (F) apply, including:
(A) utility bill;
(B) bank statement;
(C) government check;
(D) government paycheck;
(E) document issued by a governmental agency;
(F) sample ballot or other official elections document issued by a governmental agency dated for the election in which the individual is providing it as proof of residency or identity;
(G) voter notification card issued by a governmental agency;
(H) public housing identification card issued by a governmental agency;
(I) lease or rental statement or agreement issued by a governmental agency;
(J) student identification card issued by a governmental agency;
(K) tuition statement or bill issued by a governmental agency;
(L) insurance plan card or drug discount card issued by a governmental agency;
(M) discharge certificates, pardons, or other official documents issued to the individual by a governmental agency in connection with the resolution of a criminal case, indictment, sentence, or other matter;
(N) public transportation authority senior citizen and disabled discount cards issued by a governmental agency;
(O) identification documents issued by governmental disability agencies;
(P) identification documents issued by government homeless shelters and other government temporary or transitional facilities;
(Q) drug prescription issued by a government doctor or other governmental health care provider;
(R) property tax statement issued by a governmental agency;
(S) vehicle registration issued by a governmental agency; or
(T) vehicle certificate of ownership issued by a governmental agency.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 2124, Elections Code. Reference: Section 14310, Elections Code; and Section 303, Pub. L. No. 107-252, 116 Stat. 1666 (2002) [42 U.S.C. 15483].
HISTORY
1. New section filed 1-18-96 as an emergency; operative 1-16-96 pursuant to Government Code section 11349.3 (Register 96, No. 3). A Certificate of Compliance must be transmitted to OAL by 5-17-96 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 96, No. 39).
3. New section filed 9-27-96; operative 9-27-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 39).
4. Amendment of subsection (b) and new subsection (d) filed 1-20-98 as an emergency; operative 1-20-98 (Register 98, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-20-98 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 1-20-98 order, including amendment of section heading, transmitted to OAL 5-15-98 and filed 6-23-98 (Register 98, No. 26).
6. Amendment of section heading, repealer and new section and amendment of Note filed 2-5-2004 as an emergency; operative 2-5-2004 (Register 2004, No. 6). A Certificate of Compliance must be transmitted to OAL by 6-4-2004 or emergency language will be repealed by operation of law on the following day.
7. Amendment of section heading, repealer and new section and amendment of Note refiled 6-1-2004 as an emergency, including further amendment of subsection (a); operative 6-1-2004 (Register 2004, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-29-2004 or emergency language will be repealed by operation of law on the following day.
8. Amendment of section heading, repealer and new section and amendment of Note refiled 9-29-2004 as an emergency; operative 9-29-2004 (Register 2004, No. 40). A Certificate of Compliance must be transmitted to OAL by 1-27-2005 or emergency language will be repealed by operation of law on the following day.
9. Amendment of section heading, repealer and new section and amendment of Note refiled 1-26-2005 as an emergency; operative 1-27-2005 (Register 2005, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-27-2005 or emergency language will be repealed by operation of law on the following day.
10. Amendment of section heading, repealer and new section and amendment of Note refiled 5-27-2005 as an emergency; operative 5-27-2005 (Register 2005, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-26-2005 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 5-27-2005 order, including amendment of section, transmitted to OAL 9-23-2005 and filed 11-7-2005 (Register 2005, No. 45).
Chapter 2. Statewide Voter Registration Database
Note • History
(a) The purpose of this chapter is to establish standards and procedures for processing, transmitting, and maintaining voter registration records in a manner that conforms with the statewide voter registration list requirements set forth in the Help America Vote Act of 2002 (HAVA) (Pub. L. No. 107-252 (2002) 116 Stat. 1666, 42 U.S.C. § 15483.)
(b) This chapter applies to the Secretary of State and all elections officials within the State of California in processing, transmitting, and maintaining voter registration records in this state.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New chapter 2 (sections 20108-20108.80) and section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day. For prior history of chapter 2 (sections 20100-20128), see Register 80, No. 38.
2. New chapter 2 (sections 20108-20108.80) and section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New chapter 2 (sections 20108-20108.80) and section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New chapter 2 (sections 20108-20108.80) and section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
Note • History
As used in this Chapter, the following words have the following definitions:
(a) “Active voter” means any registered voter that is legally entitled to vote and has not been deemed an “inactive voter” pursuant to the voter registration provisions of Elections Code section 2221.
(b) “Business day” means each day in which the elections official, as defined below, is open for business.
(c) “Calvalidator” means the Secretary of State's computer application and system used to validate the California driver's license or state identification number or the last four digits of the social security number of new or existing registrants.
(d) “Calvoter” means the Secretary of State's computer application, system and hardware that receives, transmits, and stores voter registration data for all registered voters in California pursuant to the requirements of Section 303 of HAVA (42 U.S.C. § 15483).
(e) “Calvoter workstation” means the Secretary of State's owned personal computer located in the office of each elections official and connected directly to the Calvoter network, which is used to facilitate the exchange of data between each county and the Calvoter database.
(f) “Confirmed California driver's license or state identification number” means a driver's license or state identification number within Calvoter that has been provided to Calvoter by the elections official in the county where the individual registered to vote.
(g) “Deficient registration record” means those records submitted to Calvoter that do not contain the substantive information necessary to determine eligibility to vote, as well as those records that do not meet the Calvoter data exchange standards set forth in the Calvoter and Calvalidator Data Standards (05/2007).
(h) “Elections management system” means the computerized application and database that manages voter registration and related election functions for a jurisdiction.
(i) “Elections official” means a county clerk or registrar of voters who is responsible for collecting and processing voter registration data within a jurisdiction in the State of California.
(j) “Federal election” means any general, special, primary, or runoff election for any Federal office (President, Vice President, U.S. Senator or U.S. Representative), including presidential preference primaries.
(k) “Full load file” means an electronic data file containing all voter registration records from a county for submission to Calvoter. Such a file must adhere to the format standards set forth in the Calvoter and Calvalidator Data Standards (05/2007).
(l) “Inactive voter” means a voter for whom a county has received: 1) a returned residency confirmation mailing pursuant to California Elections Code section 2220 without a forwarding address within the same county, or 2) information obtained through the United States Postal Service National Change of Address (NCOA) database indicating that the voter has moved outside the county pursuant to California Elections Code sections 2222 and 2226. Per California Elections Code sections 2221 and 2226, such inactive registrants retain the legal right to vote, but need not be mailed election material. Further, inactive voters who do not vote in two consecutive Federal general elections are subject to cancellation of their voter registration pursuant to Section 303(a)(4)(A) of HAVA (42 U.S.C. § 15483(a)(4)(A)).
(m) “List maintenance notices” mean any notices mailed to a registered voter for the purpose of verifying registration information about a registrant and to determine a registrant's ongoing eligibility to vote.
(n) “Registration record” means electronically stored data associated with an individual registered voter.
(o) “Registration update file” means an electronic data file for submission to Calvoter that contains all voter registration record changes that have occurred since the last data submission from a county. Such a file must adhere to the format standards set forth in the Calvoter and Calvalidator Data Standards (05/2007).
(p) “Satisfactory proof of identity” means the forms of proof of residency and identity as defined in the California Code of Regulations, title 2, section 20107.
(q) “Verified California driver's license or state identification number” means a registrant's California driver's license or state identification number that has been verified against California Department of Motor Vehicle records.
(r) “Verified social security number” means the last four digits of a registrant's social security number issued by the Social Security Administration that has been verified against the Social Security Administration through the California Department of Motor Vehicle records.
(s) “Voter history” means the electronic record of each time a voter participates in a state or Federal election.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
Note • History
Unless otherwise provided in law, an elections official who receives a notice requesting a change to, or cancellation of, a voter's registration record pursuant to the California Elections Code or this chapter shall perform and complete the requested action within five (5) business days. During the five (5) business day period, county elections officials shall take all reasonable actions to research and resolve the requested action, including but not limited to, reviewing registration and voting history, reviewing source documents, matching signatures and contacting registrants directly. Performance shall not be complete until the elections official has submitted the fully complete and updated files or full load files to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.15. Data Exchange Standards.
Note • History
(a) The Secretary of State shall regularly check and identify records that are not compliant with the Calvoter and Calvalidator Data Standards (05/2007). Elections officials shall correct the deficient registration records in accordance with Section 20108.25 and Section 20108.40.
(b) Except as provided in Section 20108.18, elections officials shall submit all registration records to the Secretary of State. Such records shall be submitted through the Calvoter workstations and adhere to the format standards set forth in the Calvoter and Calvalidator Data Standards (05/2007).
(c) The Secretary of State shall transmit registration records, notices, and other information regarding the statewide voter registration database to elections officials through the Calvoter workstations.
(d) Each elections official shall access the Calvoter workstation each business day to obtain information transmitted by the Secretary of State.
(e) The publication entitled Calvoter and Calvalidator Data Standards (05/2007) may be accessed by elections officials through the county-vendor website or by contacting the Secretary of State's Office.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.18. Official Statewide Voter Registration List.
Note • History
(a) The official statewide voter registration list for Federal elections shall be maintained in Calvoter. Elections officials shall use the official statewide voter registration list to determine eligibility to vote, issuance of ballot, and whether or not to count a provisional ballot.
(b) For the purposes of establishing the official voter registration list for a Federal election and determining voter eligibility to vote in that election, including determining the validity of any provisional ballot cast in that election, only new or updated voter registration data received by county elections officials on or before the 15th day prior to the election shall be accepted by Calvoter after the 15th day prior to the election through the 28th day after the election, except under the following circumstances:
(1) New or updated voter registration data received pursuant to the production and filing of a certified copy of a judgment of the superior court directing registration to be made;
(2) New or updated voter registration data received by mail in a voter registration affidavit postmarked on or before the 15th day prior to the election;
(3) New or updated voter registration data received in an affidavit submitted to the Department of Motor Vehicles or accepted by any other public agency designated as a voter registration agency pursuant to the National Voter Registration Act of 1993 (42 U.S.C. § 1973gg) on or before the 15th day prior to the election;
(4) Voter registration data received from new residents in accordance with California Elections Code Section 3400;
(5) Voter registration data received from new citizens in accordance with California Elections Code Section 3500;
(6) Updated voter registration data received pursuant to subdivision (c); or
(7) Voter registration data regarding anyone else determined by the Secretary of State or an elections official to have been legally registered to vote as of election day.
(c) For the period beginning on the 14th day prior to a Federal election through the 28th day after the election, all voter registration record additions, updates and deletions not relevant to that election shall be held at the County and not added to Calvoter until the 29th day following that election.
(1) A registrant who has submitted an affidavit of registration on or before the 15th day prior to an election with insufficient information to determine eligibility may be placed in pending status. Elections officials shall permit those registrants who remain in pending status after the 15th day prior to an election, to vote a provisional ballot in accordance with Elections Code section 14310, notwithstanding that pending status.
(2) The elections official shall make all reasonable attempts to resolve the pending status of registrants described in paragraph (1) within 28 days of the election and shall count the provisional ballot if the pending status of the registrant within that time.
(d) Elections officials shall provide each polling place in a Federal election with an index of registration provided for the purpose described in California Elections Code section 14216. Elections officials shall ensure that the index of registration is identical to the county index of registration in Calvoter.
(e) New or updated voter registration data that is not received by county election officials on or before the 15th day prior to the Federal election and that is not subject to the circumstances described in paragraphs (b)(1) through (b)(7) above shall be submitted to and accepted by Calvoter in accordance with Section 20108.15 commencing with the 29th day after the election.
(f) Following the certification of election results by all elections officials, and beginning on the 29th day following the Federal election, the new or updated voter registration data shall be submitted to and accepted by Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. §15483; and Sections 2100, 2102, 2107, 2189, 3400, 3500 and 15372, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.20. Elections Management System Requirements.
Note • History
Each elections official shall maintain an elections management system that receives information from and submits information to Calvoter in accordance with Section 20108.15 and Section 20108.40. The elections management systems shall also maintain and process all of the following information:
(a) The registrant's California driver's license or state identification number and whether that number was verified against California Department of Motor Vehicle records; or, for registrants without a California driver's license or identification number issued by the Department of Motor Vehicles, the last four digits of the registrant's social security number and whether that number was verified against Social Security Administration records; or, for registrants without a California driver's license or state identification number or a social security number, the unique identifier issued to the registrant in accordance with Section 20108.70.
(b) Pending status for each voter registration record until such time as the pending status is resolved;
(c) Voting history of each registered voter in the county in which the elections official conducts and administers the elections;
(d) Identify those voters who registered by mail, and (i) if so, are required to present satisfactory proof of identity when voting for the first time in a Federal election or, (ii) if not, the reason for the exemption, which are (A) previously voted in a Federal election within the state, (B) submitted satisfactory proof of identification with the voter registration application, (C) provided a driver's license or state identification number or the last four digits of the social security number on the registration application which was verified, (D) entitled to vote absentee under the Uniformed and Overseas Citizens Absentee Voting Act, (E) entitled to vote otherwise than in person under the Voting Accessibility for the Elderly and Handicapped Act, or (F) entitled to vote otherwise than in person under any other Federal law.
(e) Date and type for each mailing list maintenance notice sent to a voter, whether the voter to whom the list maintenance notice was directed responded to the notice, and any resulting updates to voter registration records;
(f) For a voter who is listed in an elections management system as an inactive voter, the reason for the change in status to inactive voter and the date of the change; and
(g) For a voter who is listed in an elections management system as having a cancelled registration, the reason for the change in status to cancelled and the date of the change.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Sections 2150, 2201, 2203, 2220, 2221, 2223, 2224, 2225 and 2226, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.25. Deficient Registration Records.
Note • History
(a) A registration record submitted for the purposes of updating Calvoter that does not contain substantive information required to determine eligibility to vote shall not be accepted by Calvoter and shall automatically be returned to the elections official who submitted the deficient registration record with a deficiency notice. Within five (5) business days of receipt of a deficiency notice pursuant to this subdivision the elections official shall correct and resubmit the registration record to Calvoter in accordance with Section 20108.15 and Section 20108.40. An individual who is the subject of the deficient registration record shall not be registered to vote until the deficient registration record is resubmitted to and accepted by Calvoter. For purposes of this subsection, “substantive information required to determine eligibility to vote” means the facts necessary to determine eligibility to vote, including the registrant's name, whether the registrant is a citizen of the United States, place of residence and if the registrant does not possess a residence address at which mail may be received, his or her mailing address, date of birth, state or country of birth, and a statement that the registrant is not currently imprisoned or on parole for the conviction of a felony. An individual who is not registered to vote pursuant to this subsection may only vote by provisional ballot.
(b) When the Secretary of State identifies a registration record within Calvoter that lacks only nonsubstantive information or does not conform to the Calvoter and Calvalidator Data Standards (05/2007), the Secretary of State shall automatically send a deficiency notice in accordance with Section 20108.15 to the elections official who submitted the deficient registration record. Within five (5) business days of receipt of a deficiency notice, the elections official shall submit the corrections to Calvoter in accordance with Section 20108.15 and Section 20108.40. Voters whose registration records are identified as deficient pursuant to this subdivision shall remain as active voters and shall be permitted to vote using a regular ballot. For purposes of this subsection, “nonsubstantive information” means information that is not required to determine eligibility to vote.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Sections 2101 and 2150, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.30. Confirmation of California Driver's License and State Identification Numbers for Affidavits of Registration Submitted Prior to January 1, 2006.
Note • History
(a) On or before December 15, 2005 the Secretary of State shall process the driver's license and state identification data file from the California Department of Motor Vehicles to identify California driver's license and state identification numbers for all registered voters in Calvoter who do not have confirmed California driver's license or state identification numbers.
(b) The unconfirmed California driver's license and state identification numbers that are identified as a result of the process in subdivision (a) shall be sent to elections officials by December 15, 2005, in accordance with Section 20108.15 and Section 20108.40. Elections officials shall enter the unconfirmed California driver's license and state identification numbers in the files of registered voters in the counties and send registration update files or full load files to Calvoter in accordance with Section 20108.15 and Section 20108.40 on or before December 31, 2005.
(c) For each registered voter for whom the process in subdivision (a) does not identify a California driver's license or state identification number, elections officials shall generate a unique identification number for the registrant in accordance with the Calvoter and Calvalidator Data Standards (12/2005) on or before December 31, 2005.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Section 2150, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.35. Active Voter Files.
Note • History
Elections officials shall continuously submit all active voter files to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.36. Inactive Voter Files.
Note • History
Elections officials shall continuously submit all inactive voter files to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.37. Processing New Voter Registration Applications.
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. Repealer filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.38. Additional Processing for Voter Registration Applications Submitted by Mail for New Voters.
Note • History
(a) If a voter registration application is submitted by mail, the elections official shall determine if any of the following conditions are met before the voter registration data is submitted to Calvoter:
(i) Applicant provided satisfactory proof of identity with the voter registration application or otherwise provided satisfactory proof of identity prior to voting in a Federal election; or
(ii) California driver's license or state identification number or the last four digits of the social security number provided was verified with Calvalidator or the Department of Motor Vehicles; or
(iii) Applicant is registered to vote under the Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C. § 1973ff-1 et seq.), or is entitled to vote other than in person under the Voting Accessibility for the Elderly and Handicapped Act (42 U.S.C. § 1973ee-1(b)(2)(B)(ii)), or any other Federal law; or
(iv) Applicant has previously registered to vote in the State and the elections official has determined, after researching the applicant's voting history in the county election management system and Calvoter, that the applicant has previously voted in a Federal election in the State.
(b) If any of the conditions in subdivision (a) are satisfied, the registrant shall be exempt from providing further proof of identity under HAVA for the purpose of voting. The elections official shall enter into his or her election management system the reason for the exemption from the HAVA identification requirement and, if the registrant is determined to be otherwise eligible to vote, the elections official shall transmit that data to Calvoter in accordance with Section 20108.15 and Section 20108.40.
(c) If the elections official determines that none of the conditions in subdivision (a) are satisfied, but the registrant is determined to be otherwise eligible to vote, the elections official shall submit the record to Calvoter in accordance with Section 20108.15 and Section 20108.40 and that record shall indicate that proof of identity must be provided the first time the voter votes in a Federal election.
(d) Voters identified in subdivision (c) shall be required to provide proof of identity the first time they vote in a Federal election.
(e) Once voters identified in subdivision (c) have voted in a Federal election, the elections official shall update the county election management system and Calvoter to reflect that the voter is no longer required to provide proof of identity in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Section 2150, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.40. Updating Calvoter with New Registration Records and Changes to Existing Registration Records.
Note • History
Except as provided in Section 20108.18, whenever an elections official receives a new registration record or a change to an existing registration record or makes a change to an existing registration record, whether in response to a notice from the Secretary of State or otherwise, the elections official shall process such information in accordance with Section 20108.12 and transmit a registration update file or a full load file to Calvoter in accordance with Section 20108.15 on the business day in which the changes are made to the elections management system.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.45. Changes in the Mapping of Precincts to Statewide Political Jurisdictions.
Note • History
Whenever the elections official completes changes in the assignment of precincts to any state or federal political jurisdiction, the elections official shall transmit an updated precinct file to Calvoter in accordance with Section 20108.15 by the close of the next business day.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Section 12260 Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.50. National Change of Address Processing.
Note • History
Except during the 90 days prior to a Federal election, the Secretary of State shall conduct monthly voter registration list maintenance using a change of address service or services based on the United States Postal Service National Change of Address (NCOA) database to identify address changes for registered voters. For records showing a change of address, the Secretary of State shall automatically transmit a change of address notice to the elections official in the county from or within which a voter has moved. Within five (5) business days of receipt of a change of address notice from the Secretary of State the elections official shall process the change of address notice pursuant to California Elections Code Section 2225 and Section 2226 and submit any changes in the registration record to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Sections 2225 and 2226, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.51. Department of Motor Vehicles Change of Address Processing.
Note • History
Within five (5) business days of receipt of Department of Motor Vehicles information identifying a change of address for a voter, the elections official shall update the voter registration record accordingly and submit the registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.55. State Death and Felony Status Records.
Note • History
(a) The Secretary of State shall, on a weekly basis, compare all voter registration records with records of deceased persons from the Department of Health Services and records of persons with felony convictions ineligible to vote from the Department of Corrections and Rehabilitation.
(b) Whenever the Secretary of State receives new records of deceased persons from the Department of Health Services or records of persons with a felony conviction which renders them ineligible to vote from the Department of Corrections and Rehabilitation, the records shall be compared to the voter registration records in Calvoter to identify potential matches.
(c) Upon identifying potential matches, the Secretary of State shall transmit notices of the potential matches in accordance with Section 20108.15 and Section 20108.40 to the elections officials in the counties in which the potential matches are identified.
(d) Within five (5) business days of receipt of a notice of potential match the elections official shall take all necessary steps to determine whether or not the registration record matches a record of a deceased person or person with a felony conviction which renders that person ineligible to vote. If a match is confirmed by the elections official, the elections official shall update the registration records accordingly and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.
(e) Whenever the Secretary of State receives records of persons with a federal felony conviction which renders them ineligible to vote, the records shall be forwarded to the elections official of the person's county of residence. The elections official shall process the record in accordance with Section 20108.12.
(f) County elections officials shall process county death records in accordance with California Elections Code Section 2205 and Section 20108.12 of this chapter.
(g) County elections officials shall process county felony records in accordance with California Elections Code Section 2212.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Sections 2205, 2206 and 2212, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.60. Duplicate Registration Records.
Note • History
(a) The Secretary of State shall conduct checks at least once per month within the Calvoter statewide registration list to identify potential duplicate registrations for the same voter within that list, based on established rotating criteria. Upon identification of potential duplicate registration records, the Secretary of State shall automatically send an electronic notice to the county with the record that has the oldest date of registration.
(b) Within five (5) business days of receipt of a notice of potential duplicate registration the elections official shall take all necessary steps to determine whether or not the registration record is a duplicate of an existing newer registration, and if a duplicate registration is confirmed, shall cancel the older duplicate registration and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Sections 2168 and 2193, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.65. Verification of Driver's License Numbers, State Identification Numbers, and Social Security Numbers Listed on Affidavits of Registration.
Note • History
(a) For the purposes of complying with the voter registration requirements of HAVA, a state identification number issued by the California Department of Motor Vehicles shall satisfy the same requirements as a driver's license number issued by the California Department of Motor Vehicles.
(b) If a new affidavit for voter registration contains both a California driver's license or state identification number and the last four digits of a social security number, the elections official shall verify the California driver's license or state identification number and disregard the social security number.
(c) Prior to submitting a new voter registration record in a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40, the elections official shall verify that the California driver's license or state identification number or social security number provided by a registrant in an affidavit of registration was issued to the individual named therein by verifying the number through Calvalidator.
(d) If a California driver's license or state identification number or social security number has been previously verified through Calvalidator and the elections management system maintains the verification information, then the elections official is not required to verify the number again through Calvalidator.
(e) If an elections official is unable to verify a California driver's license or state identification number or social security number provided by a registrant on a new affidavit of registration, the elections official shall make reasonable attempts to contact the registrant and obtain a valid identification number. If the elections official is unable to verify a California driver's license or state identification number or social security number and the registrant is otherwise eligible to vote, the elections official shall generate a unique identification number for the registrant in accordance with the Calvoter and Calvalidator Data Standards (05/2007).
(f) If an elections official is unable to obtain a valid number after making reasonable attempts to contact the registrant and obtain such number, and if it is determined that the registrant has not been issued a California driver's license or state identification number or social security number, and the registrant is not otherwise eligible to vote, the elections official shall not generate a unique identification number for the registrant and shall not register the registrant to vote. If the elections official is unable to process the registration pursuant to this subsection, the elections official shall inform the affiant of the reason for the rejection in accordance with California Elections Code section 2153.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Section 2153, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency, including amendment of subsection (e); operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.70. No Driver's License Number, State Identification Number, or Social Security Number Listed on Affidavit of Registration.
Note • History
(a) If a registration record does not include a driver's license or state identification number issued by the California Department of Motor Vehicles or the last four digits of the social security number, the elections official shall determine whether a driver's license or state identification number is available through Calvalidator.
(b)(1) If a driver's license or state identification number has been issued and is available through Calvalidator, and Calvalidator identifies only one individual who possesses the last name, first name, and date of birth of the registrant, the elections official may enter that driver's license or state identification number in the registration record and update Calvoter in accordance with Section 20108.15 and Section 20108.40.
(2) If a driver's license or state identification number has been issued and is available through Calvalidator, and Calvalidator identifies more than one individual who possesses the last name, first name, and date of birth of the registrant, the elections official shall issue a unique identification number in accordance with the Calvoter and Calvalidator Data Standards (05/2007). The elections official shall enter the unique identification number into the elections management system and submit the registration record as a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40. In addition, the elections official shall contact the voter to confirm whether one of the driver's license or state identification numbers identified by Calvalidator is correct. If the elections official is able to confirm a number, he or she shall replace the unique identification number issued pursuant to this paragraph with that driver's license or state identification number in the registration record and update Calvoter in accordance with Section 20108.15 and Section 20108.40.
(c) If a driver's license or state identification number cannot be identified or verified through Calvalidator and the registrant is otherwise eligible to vote, then a unique identification number shall be issued in accordance with the Calvoter and Calvalidator Data Standards (05/2007). The elections official shall enter the unique identification number into the elections management system and submit the registration record as a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Section 2150(a)(7), Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Redesignation and amendment of subsection (b) as subsection (b)(2) and new subsection (b)(1) filed 4-24-2006 as an emergency; operative 4-24-2006 (Register 2006, No. 17). A Certificate of Compliance must be transmitted to OAL by 8-22-2006 or emergency language will be repealed by operation of law on the following day.
4. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
5. New section, including redesignation and amendment of subsection (b) as subsection (b)(2) and new subsection (b)(1) filed 4-24-2006 as a separate emergency, refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
6. New section refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.71. Replacement of Unique Identification Numbers.
Note • History
If at any time the elections official is able to obtain the California driver's license or state identification number or social security number for a voter whose registration record contains only a unique identification number, the elections official shall verify that number in accordance with Section 20108.65, and if the elections official is able to validate that number, he or she shall replace the unique identification number in the registration record with the California driver's license or state identification number or social security number and update Calvoter in accordance with Section 20108.15 and Section 20108.40.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
Note • History
Elections officials shall submit to the Secretary of State the voting history of all voters who cast a ballot in each statewide and Federal election by the 60th day after each election in accordance with the format and transmission requirements of Section 20108.15(b).
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; and 42 U.S.C. § 15483.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
§20108.80. Certification of Elections Official.
Note • History
Each elections official shall certify that the county in which the elections official has jurisdiction over the elections is in compliance with all provisions of this chapter for each Federal election. Elections officials shall do so by signing the certification form entitled Certification of Elections Official (01/2007), which is hereby incorporated by reference, and submit it to the Secretary of State with the statement of vote required pursuant to California Elections Code section 15375. The certification form entitled Certification of Elections Official (01/2007) shall be provided by the Secretary of State by electronic or regular mail or facsimile transmission to each elections official along with the statement of vote reporting instructions on or before the third day following a Federal election. Each elections official shall submit to the Secretary of State an original, fully executed Certification of Elections Official (01/2007) with the copy of the certified statement of results required by California Elections Code section 15375.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 10, Elections Code. Reference: Help America Vote Act of 2002, Pub. L. No. 107-252, § 303(a) (October 29, 2002) 116 Stat. 1666; 42 U.S.C. § 15483; and Sections 15372 and 15375, Elections Code.
HISTORY
1. New section filed 12-12-2005 as an emergency; operative 12-12-2005 (Register 2005, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-11-2006 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 4-10-2006 as an emergency; operative 4-10-2006 (Register 2006, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-8-2006 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(e) (Register 2006, No. 33).
4. New section refiled 8-15-2006 as an emergency; operative 8-15-2006 (Register 2006, No. 33). A Certificate of Compliance must be transmitted to OAL by 12-13-2006 or emergency language will be repealed by operation of law on the following day.
5. New section refiled refiled 12-13-2006 as an emergency; operative 12-13-2006 (Register 2006, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2007 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 12-13-2006 order filed with OAL on 4-10-2007; withdrawn 5-22-2007. New section filed 5-23-2007 as an emergency; operative 5-23-2007 (Register 2007, No. 21). A Certificate of Compliance must be transmitted to OAL by 9-20-2007 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 5-23-2007 order transmitted to OAL 6-6-2007 and filed 6-13-2007 (Register 2007, No. 24).
Chapter 3. Post Election Manual Tallies [Repealed]
§20120. Purpose and Applicability. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New chapter 3 (sections 20120-20127) and section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day. For prior history of chapter 3 (sections 20300-20308), see Register 78, No. 1.
2. New chapter 3 (sections 20120-20128) and section refiled 4-13-2009 as an emergency; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20121. Definitions. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Renumbering of former section 20121 to section 20122 and new section 20121 filed 4-13-2009 as an emergency; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20122. Increased Manual Tally in Contests With Narrow Margins of Victory. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Emergency readoption renumbering former section 20122 to section 20123 and renumbering and amending former section 20121 to section 20122 filed 4-13-2009; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20123. Contests Voted Upon in More Than One Jurisdiction. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Emergency readoption renumbering former section 20123 to section 20124 and renumbering and amending former section 20122 to section 20123 filed 4-13-2009; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20124. Determination, Counting and Disclosure of Variances. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Emergency readoption renumbering former section 20124 to section 20125 and renumbering and amending former section 20123 to section 20124 filed 4-13-2009; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20125. Manual Tally Escalation Requirements for Variances. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Emergency readoption renumbering former section 20125 to section 20126 and renumbering and amending former section 20124 to section 20125 filed 4-13-2009; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20126. Records to be Maintained During and After the Manual Tally Process. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Emergency readoption renumbering former section 20126 to section 20127 and renumbering former section 20125 to section 20126 filed 4-13-2009; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20127. Public Right to Observe. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. New section filed 10-20-2008 as an emergency; operative 10-20-2008 (Register 2008, No. 43). A Certificate of Compliance must be transmitted to OAL by 4-20-2009 or emergency language will be repealed by operation of law on the following day.
2. Emergency readoption renumbering former section 20127 to new section 20128 and renumbering and amending former section 20126 to section 20127 filed 4-13-2009; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
3. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
§20128. Completion Within Official Canvass Period. [Repealed]
Note • History
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10, 19100, 19205 and 19222, Elections Code. Reference: Sections 19100, 19205 and 19222, Elections Code.
HISTORY
1. Renumbering and amendment of former section 20127 to new section 20128 filed 4-13-2009 as an emergency; operative 4-13-2009 (Register 2009, No. 16). A Certificate of Compliance must be transmitted to OAL by 7-13-2009 or emergency language will be repealed by operation of law on the following day.
2. Repealed by operation of Government Code section 11346.1(g) (Register 2009, No. 31).
Chapter 4. Punch Cards and Ballot Paper
Article 1. General
§20200. Applicability of This Chapter.
Note • History
The procedure specified hereunder shall be used by all persons (hereinafter “user”) who wish to order the manufacture of their ballot cards for use in California elections.
These regulations also apply to those processes used by the Secretary of State to order the manufacture of unfinished ballot cards or of sheets, or to warehouse such sheets or unfinished ballot cards, for resale to local election jurisdictions.
NOTE
Authority cited: Sections 10002 and 10002.5, Elections Code. Reference: Sections 10002, 10002.5 and 10003, Elections Code.
HISTORY
1. New Chapter 4 (Articles 1-8, Sections 20200-20267, not consecutive) filed 2-11-81; effective thirtieth day thereafter (Register 81, No. 7).
Article 2. Definitions
Note
Ballot card means card stock processed to final form for use by voters to punch, slot, or mark their choices in California elections.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Card stock means paper manufactured in accordance with certain specifications rendering it suitable for use in card reading equipment.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Finisher means a Secretary of State certified vendor which processes sheets or unfinished ballot cards to make ballot cards to be used in California elections.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Format is a term used to distinguish the pattern of prescoring of unfinished ballot cards or ballot cards (eg. 312-, 228-, 52-Hole).
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Manufacturer means a Secretary of State certified vendor which processes card stock to make sheets or unfinished ballot cards, or to make ballot cards by a continuous process involving a single machine, to be used in California elections.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Release means:
(a) Authorization by the Secretary of State to manufacture ballot cards for a user or to remove sheets or unfinished ballot cards from the warehouse for finishing or shipment to a finisher. Each release will specify the items listed in Article 5, or
(b) Purchase order issued by the State of California to obtain sheets and unfinished ballot cards for warehousing by the Secretary of State and their subsequent resale to users.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Roll means card stock in web form, trimmed to a width of 3 1/4 inches or multiples thereof. Rolls are normally produced as an intermediate step in the production of unfinished ballot cards.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Sheet means card stock, tinted for use in California elections, sufficiently large for more than one ballot card and later to be cut, after printing, into individual ballot cards (compare unfinished ballot card).
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Tint means a color and design prescribed by the Secretary of State which is printed on card stock for ballots to be used in California elections. Both color and design will be prescribed by the Secretary of State for each election.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
§20212. Unfinished Ballot Card.
Note
Unfinished ballot card means card stock. Tinted for use in California elections, cut to the width and approximate length of a single ballot card, and requiring one or more steps in the production of a ballot card. Unfinished ballot cards may have a transitory existence in those processes in which ballot cards are produced directly from untinted card stock (compare sheet).
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
User means any local election jurisdiction--county, city, or district--which conducts elections pursuant to the California Elections Code.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note
Warehouse means any storage facility, including a building or portion of building, used for the storage of sheets or unfinished ballot cards until released to the finisher for production of ballot cards.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Article 3. Certification of Manufacturers and Finishers
§20220. Manufacturer and Finisher Certification Required.
Note
As either a principal or subcontractor, no vendor shall manufacture or finish ballot cards, sheets, or unfinished ballot cards for use in California elections, and no vendor shall accept or solicit orders for such cards, sheets, or unfinished ballot cards prior to certification as a manufacturer or finisher by the Secretary of State.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20221. Form of Application for Certification.
Note
Applications for certification shall be made in writing to the Secretary of State in the form prescribed by the Secretary of State.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20222. Inspections of Facilities Prior to Certification.
Note
Prior to certifying a manufacturer or finisher, or to certifying a change in equipment or procedures, the Secretary of State may make inspections, with or without prior notice, of such facilities and records of such manufacturer or finisher as the Secretary of State deems necessary.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20223. Approval of Application.
Note
The Secretary of State will approve in writing any applicant whom the Secretary of State determines to be capable of manufacturing or finishing ballot cards, sheets, rolls, or unfinished ballot cards, to Secretary of State specifications.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20224. Revocation of Certification.
Note
Certifications are valid until revoked by the Secretary of State. The Secretary of State will revoke a certification at any time upon determining tat the vendor is no longer capable of manufacturing or finishing ballot cards, sheets, or unfinished ballot cards or has failed to comply with these regulations without good cause which is acceptable to the Secretary of State.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20225. Change in Manufacturing and Finishing Procedures.
Note
No change in the equipment or procedures used by any manufacturer or finisher to manufacture or finish ballot cards, rolls, sheets, or unfinished ballot cards shall be made without the prior express written approval of the Secretary of State. Applications for such approval shall be in writing and shall show substantially the same information as the initial application for certification of the manufacturer or finisher.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20226. Publish List of Approved Manufacturers and Finishers.
Note
The Secretary of State will publish a list of approved manufacturers and finishers no later than January 1 of each year and within ten days of any changes to the list.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20227. Exception to Application Requirement for Certain Manufacturers and Finishers.
Note
For the purpose of implementing the provisions of this article, those manufacturers and finishers from whom the State of California has purchased sheets or unfinished ballot cards, or from whom users have purchased ballot cards prior to the effective date of this regulation, are authorized to manufacture or finish ballot cards, sheets, or unfinished ballot cards without having to submit an application for such authorization. The Secretary of State will include names of such manufacturers and finishers in the original list of approved manufacturers and finishers.
NOTE
Authority and reference cited:Section 10002, Elections Code.
Article 4. Inspection of Facilities
§20230. Inspections of Facilities; Enforcement of Regulations.
Note
To ensure compliance with these regulations, the Secretary of State will make biennial inspections, with or without prior notice, of each warehouse and of the facilities of each approved manufacturer or finisher, and of the records of any warehouse, manufacturer, or finisher as the Secretary of State deems necessary.
The Secretary of State reserves the right to make additional inspections and, should the Secretary of State find that any warehouse, manufacturer, or finisher is not or may not be in compliance with these regulations, will take corrective action necessary to enforce compliance. The action may include, for warehouses found to be not in compliance with these regulations, the requiring of the withdrawal of ballot cards, sheets, or unfinished ballot cards from such warehouse, and the transfer of such ballot materials to warehouses which are in compliance with these regulations. This action may also include, but is not limited to, the withdrawal of authorization of the manufacturer or finisher to manufacture, store, or finish ballot cards, sheets or unfinished ballot cards tinted for use in California elections.
NOTE
Authority and reference cited: Section 10002, Elections Code.
Article 5. Request for and Release of Ballot Cards, Sheets, and Unfinished Ballot Cards
§20235. Request for Ballot Card Release Required.
Note
(a) Any user wishing to purchase ballot cards directly from the manufacturer, or wishing to have a finisher remove sheets or unfinished ballot cards from a warehouse for finishing, shall request in writing a release from the Secretary of State.
(b) No ballot cards, sheets, or unfinished ballot cards shall be manufactured, and no sheets or unfinished ballot cards shall be removed from the warehouse for finishing, prior to issuance of a specific release from the Secretary of State for such manufacturing or finishing. No ballot cards shall be manufactured or finished except in the format, tint, and quantity specified in the applicable release.
(c) No tinted card stock shall be used for any purpose other than manufacturing ballot cards for use in California elections.
(d) Manufacturers wishing to tint rolls in anticipation of receiving releases shall request in writing authorization for the Secretary of State to tint a sufficient number of rolls to meet expected orders. Such requests shall be substantially in the form of a request for release.
(e) This requirement of a written request for a release will not prevent any user from making a request to obtain a release by telephone from the Secretary of State when time is of the essence. Such telephoned request shall be confirmed immediately in writing.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Note • History
Each telephoned or written request shall contain the following information.
(a) Whether the user wishes to buy the ballot cards directly from a vendor or through the Secretary of State.
(b) Name and date of election.
(c) (1) Name of finisher(s) if card stock is to be purchased from the Secretary of State; or
(2) Name of ballot card manufacturer, and finisher(s) if different, if card stock is not to be purchased from the Secretary of State.
(d) (1) Format of card if card stock is to be purchased from the Secretary of State; or
(2) Format and tint of card if card stock is not to be purchased from the Secretary of State.
(e) Quantity for each format and tint (quantity is to be in multiples of 1,000 cards, or in whole reams, if sheets).
(f) Name, address, and phone number of requestor.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10002.5, Elections Code.
HISTORY
1. Amendment filed 7-23-81; effective thirtieth day thereafter (Register 81, No. 30).
§20237. Purchase of Ballot Cards from the Secretary of State; Request.
Note
In order that the Secretary of State have sufficient time to purchase and warehouse sheets or unfinished ballot cards for those users who choose to purchase their ballot cards through the Secretary of State rather than directly from the manufacturer, the Secretary of State must receive notice of the quantity of ballot cards needed from such users no later than the 182nd day before the election in which the ballot cards are to be used. The Secretary of State will be unable to supply sheets or unfinished ballot cards to users who do not meet this deadline. It will be necessary for such users to obtain a release and to purchase directly from manufacturers.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
§20238. Subcontracting of Manufacturing or Finishing.
Note
If any part of any authorized order for manufacturing or finishing is to be subcontracted, then:
(a) The subcontractor shall be a vendor approved by the Secretary of State.
(b) The principal vendor shall inform the Secretary of State of the subcontract and shall state the quantity of ballot cards, sheets, or unfinished ballot cards to be manufactured or finished under the subcontract.
(c) The Secretary of State will issue releases in the same manner as for a principal contract.
(d) Subcontractors shall be governed under these regulations in the same manner as principal contractors.
NOTE
Authority and reference cited: Sections 10002 and 10002.5, Elections Code.
Article 6. Manufacture of Ballot Cards, Sheets, and Unfinished Ballot Cards
Note
An Activity Report shall be made and shall set forth the following:
(a) The process involved:
(1) If the process involved is manufacturing, the report shall show whether sheets or unfinished ballot cards are being produced for shipment to a warehouse or finisher, or ballot cards are being produced for shipment to a user.
(2) If the process involved is finishing, the report shall show that the sheets or unfinished ballot cards are withdrawn from the warehouse to produce ballot cards for shipment to a user.
(b) User Name.
(c) Release number; date of release; and quantity released.
(d) Purchase order number.
(e) Format or sheet dimension.
(f) Tint. Supply information requested in g(1), g(2), g(3), g(4), or g(5) as appropriate:
(g)(1) In the case of sheets or unfinished ballot cards received from a warehouse or manufacturer, or to be finished by the manufacturer:
(A) Quantity received, or transferred to finishing equipment if to be finished by manufacturer.
(B) Quantity finished and shipped to user (show date).
(C) Quantity scrapped in process.
(D) Quantity, in amounts of 1,000 per item, not finished and placed in warehouse or shipped to a warehouse specified by the user (show date).
(E) Quantity, less than 1,000, manufactured and destroyed (show date).
(2) In the case of ballot cards or unfinished ballot cards produced from rolls:
(A) Dates each printing plate, used for overprinting tint, removed from and returned to storage; Name of each person involved; and, the old and new seal numbers.
(B) Press counter start number and date.
(C) Press counter stop number and date.
(D) Quantity manufactured.
(E) Quantity finished and shipped to user (show date).
(F) Quantity manufactured and shipped to finisher (show date).
(G) Quantity scrapped in process.
(H) Quantity, in amounts of 1,000 per item, not finished and to warehouse or shipped to a warehouse specified by a user (show date).
(I) Quantity, in amounts less than 1,000 per item, not finished and destroyed (show date).
(3) In the case of production of sheets:
(A) Dates each printing plate, used for overprinting tint, removed from and returned to storage; Name of each person involved; and, the old and new seal numbers.
(B) Press counter start number and date.
(C) Press counter stop number and date.
(D) Number of sheets produced.
(E) Length and width of sheet.
(F) Number of ballot cards to be printed on each sheet.
(4) In the case of production of tinted rolls:
(A) Dates each printing plate, used for overprinting tint, removed from and returned to storage; Name of each person involved; and, the old and new seal numbers.
(B) Number of rolls produced.
(C) Length of roll.
(5) In the case of ballot cards or unfinished ballot cards produced from sheets or tinted rolls:
(A) Quantity manufactured.
(B) Quantity finished and shipped to user (show date).
(C) Quantity manufactured and shipped to finisher (show date).
(D) Quantity scrapped in process.
(E) Quantity, in amounts of 1,000 per item, not finished and to warehouse or shipped to a warehouse specified by a user (show date).
(F) Quantity, in amounts less than 1,000 per item, not finished and destroyed (show date).
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20247. Warehouse Inventory Control Record.
Note
A Warehouse Inventory Control Record shall be maintained by tint and format, or by tint and sheet dimension, and shall show:
(a) Release number.
(b) Purchase order number.
(c) Format or sheet dimension.
(d) Tint.
(e) Activity date.
(f) Quantity placed in warehouse.
(g) Quantity removed.
(h) Balance on hand in reams or number of unfinished ballot cards.
NOTE
Authority cited: Section 10002 Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20249. Printing Plate Secured with Seal; Report.
Note
(a) When not in use, printing plates used to overprint a tint on card stock for use in California elections shall be kept either in an enclosure which shall be secured with a numbered seal, or in other enclosure approved in writing by the Secretary of State.
(b) Each time the printing plates are removed from storage, used for tinting or returned to storage, an Activity Report shall be completed to record the transaction and use.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20250. Scrap Destruction; Report.
Note
During the manufacturing process, all scrap shall be cut or otherwise rendered unusable as ballot cards after each shift. Activity Report entries shall be prepared at the time of destruction.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20251. Unused Unfinished Ballot Cards; Report.
Note
(a) Unused unfinished ballot cards in units of 1,000 shall be returned to the warehouse and the quantity entered on the Activity Report and the Warehouse Inventory Control Record.
(b) Unused unfinished ballot cards in quantities less than 1,000 shall be rendered unusable as ballot cards, and an Activity Report entry setting forth destruction shall be made.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20252. Unused Sheets; Report.
Note
(a) Unused sheets, in ream lots, shall be returned to the warehouse and the quantity shall be entered on the Activity Report and the Warehouse Inventory Control Record.
(b) Unused sheets in less than ream-lot quantity shall be rendered unusable as ballot cards, and an Activity Report entry setting forth such destruction shall be made.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20253. Activity Reports Transmitted to the Secretary of State.
Note
Completed Activity Reports shall be sent to the Secretary of State by each manufacturer or finisher within seven (7) days of the manufacturer's or finisher's completion of any work authorized by any release.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
Note
Physical inventories shall be taken on January 15th, April 15th, July 15th, and October 15th of each year. Inventories shall be completed and a report in writing showing the quantity of each item in the warehouse shall be sent to the Secretary of State within seven (7) days of these dates.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
Article 7. Distribution of Ballot Cards, Sheets, and Unfinished Ballot Cards
Note
All tinted card stock not shipped from the manufacturer's facility shall remain in a secured area of the manufacturer's facility until converted to ballot cards, shipped, or placed in a warehouse. All sheets or unfinished ballot cards which are to be finished by the manufacturer will be placed in a warehouse unless finishing directly follows manufacturing. Finishers shall store in a warehouse all unfinished ballot cards they receive from a manufacturer until they are ready to finish them.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20256. Packaging Ballot Cards.
Note
All ballot cards shall be packaged in accordance with the instructions of the user.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20257. Shipment of Ballot Cards; Report.
Note
Upon finishing ballot cards, each finisher shall complete an Activity Report, and send it to the Secretary of State as prescribed in Section 20253. Upon receipt, each user shall report, independently of the finisher's report, the quantity of ballot cards of each format and tint received from the finisher. The shipment shall be identified by release number(s).
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20258. Shipment of Unfinished Ballot Cards; Report.
Note
Manufacturers shipping unfinished ballot cards shall complete an Activity Report, and:
(a) The unfinished ballot cards shall be packaged in cardboard containers which completely enclose them, one thousand (1,000) unfinished ballot cards per container.
(b) Such containers shall be placed in humidity-proof cardboard cases, five to a case.
(c) Each such case shall have affixed thereto a label containing the following information:
(1) Format.
(2) Tint.
(3) Purchase Order Number.
(4) Date of Shipment.
(5) Factory Order Number.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20259. Shipment of Sheets; Report.
Note
Manufacturers shipping sheets shall complete an Activity Report and:
(a) Sheets shall be packaged in multiples of whole reams, ream marked.
(b) Each such package shall be wrapped in waterproof paper covered with kraft paper wrapper, which bears a label stating:
(1) Sheet size.
(2) Tint.
(3) Number of Reams in the package.
(4) Direction of grain.
(5) Purchase Order Number.
(6) Date of Shipment.
(7) Factory Order Number.
(c) All sheets shall be shipped in accordance with the instructions of the user.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002 and 10003, Elections Code.
§20260. Transportation Methods.
Note
Unfinished ballot cards or sheets shall be shipped by covered motor freight, by train, or by air. Covered motor freight shall not include pickups, flat-beds, or stake-side vehicles whether or not covered by a tarpaulin.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20261. Security; Responsibility.
Note
The shipper is charged with full responsibility for the security of all ballot cards, sheets, or unfinished ballot cards until acceptance of delivery at destination.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20262. Shipment of Sheets or Unfinished Ballot Cards.
Note
Manufacturers shipping sheets or unfinished ballot cards shall report to the Secretary of State immediately upon shipment the quantity shipped and the scheduled delivery date.
NOTE
Authority cited: Section 10002, Elections Code. Reference: Sections 10002, 10002.5 and 10003, Elections Code.
Article 8. Warehouse Access Control
Note
At all times, a warehouse shall be secured with a numbered seal.
NOTE
Authority and reference cited: Section 10002, Elections Code.
§20266. Authorization for Access.
Note
(a) A letter listing those persons proposed for authorized access to each warehouse shall be submitted to the Secretary of State who will respond by letter and will add the names of the Secretary of State personnel authorized to enter the warehouse. A copy of this letter shall be placed in the warehouse inventory control record. Access shall be limited to those persons named therein.
(b) Secretary of State personnel who are listed as authorized for access may, when visiting a warehouse site, authorize additional persons to have temporary access during the visit.
NOTE
Authority and reference cited: Section 10002, Elections Code.
Note
An access log shall be maintained within the area of the warehouse wherein the sheets or unfinished ballot cards are stored. This log shall record:
(a) The name of each person entering the warehouse.
(b) The seal number destroyed in entering.
(c) The seal number resealing the warehouse.
NOTE
Authority and reference cited: Section 10002, Elections Code.
Chapter 5. Election Petition Signature Verification Random Sampling Verification Methodology
Article 1. General Provisions
Note • History
The purpose of this chapter is to establish procedures for determining the projected number of valid signatures on an elections petition based on a verification of a random sampling of the petition signatures.
NOTE
Authority cited: Sections 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New chapter 5, article 1 and section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Note • History
This chapter shall apply to the verification of signatures on the following petitions:
(a) Petitions circulated pursuant to Division 5 (commencing with Section 3500) of the California Elections Code.
(b) Signatures in Lieu of Filing Fee petitions circulated pursuant to Chapter 5 of Division 6 (commencing with Section 6400) of the California Elections Code.
(c) Independent nomination petitions circulated pursuant to Chapter 6 of Division 6 (commencing with Section 6800) of the California Elections Code.
(d) Recall petitions circulated pursuant to Division 16 (commencing with Section 27000) of the California Elections Code.
(e) Any other elections petition which is permitted by law to use a random sampling methodology to verify the validity of the signatures on the petition.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Note • History
The provisions of this chapter shall apply to the election petitions set forth in Section 20511, above, filed with the elections official on or after the effective date of these regulations.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Article 2. Definitions
Note • History
“Raw Count” means the total number of unverified signatures affixed to a petition and submitted to an elections official.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New article 2 and section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
§20521. Random Sample of Signatures.
Note • History
“Random Sample of Signatures” means signatures selected at random using a computerized random numbers generator. The sample of signatures to be verified shall be drawn in such manner that every signature filed with the elections official shall be given equal opportunity to be included in the sample. The percentage of signatures to be randomly sampled is specified in the Elections Code sections relating to the involved types of petitions.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Article 3. Random Sampling Formula for Verification of Elections Petitions
§20530. Signature Verification.
Note • History
The following steps shall be followed when verifying signatures on an elections petition based on an authorized use of a random sample of the petition signatures.
(a) Identify the random sample percentage from the applicable statute and apply it to the petition, thereby defining the random sample.
(b) Verify the signatures in the sample and determine the number of valid signatures in that sample.
(1) A signer of an elections petition may withdraw his/her signature from the petitions prior to the petition's filing pursuant to Elections Code sections 43, 4089, 5352 and 27304. If the withdrawn signature is drawn as part of the random sample, the signature is treated as a signature that is deemed not valid.
(c) Divide the number of valid signatures in the sample by the total number of signatures in the sample. Compute as a percentage to two decimal places.
(d) Multiply the raw count by the number computed in Section 20530(c), above. Round up to the nearest whole number.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Section 43, 3520, 3708, 3755, 4009, 4054, 4089, 4091, 5153.5, 5200, 5352, 6555.5, 6831.1, 27101, 27215 and 27304, Elections Code.
HISTORY
1. New article 3 and section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Note • History
(a) Divide the raw count by the sample size to determine the value of each signature. Compute to four decimal places.
(b) To determine the weight to be assigned to each duplicate signature found in the sample, multiply the value of each signature computed in Section 20531(a), above, times the computation in Section 20531(a), above, minus one.
(c) To determine the number of estimated duplicate signatures in the entire petition, multiply the number of duplicate signatures found in the random sample by the weight established in Section 20531(b), above. Round up to the nearest whole number.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
§20532. Number of Valid Signatures Based on the Verification of a Sampling of the Signatures.
Note • History
(a) To determine the number of verified signatures based on the random sampling, subtract Section 20531(c) from Section 20530(d).
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
§20533. Elections Petitions Allowed to be Verified on an On-Going Basis Before the Close of Filing.
Note • History
(a) Signatures in lieu of filing fee petitions verified pursuant to Elections Code section 6555.5 may be submitted to the elections official on an on-going basis prior to the close of the circulation period. The elections official may verify signatures using the random sampling methodology provided in these regulations, except that each submission must include the minimum number of signatures set forth in Elections Code section 6555.5.
(b) The elections official shall aggregate the statistically-computed signature counts for each submission to determine the total number of valid signatures on the petition.
(c) When verifying a signature in lieu of filing fee petition the elections official may use the random sampling methodology to verify signatures, the full signature verification method, or both methods. If both methods are used to verify signatures on a petition, the results shall be combined to determine the number of valid signatures on the petition.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Section 6555.5, Elections Code.
HISTORY
1. New section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Article 4. Miscellaneous
Note • History
(a) An initiative petition was filed in County X. The elections official counted the number of signatures affixed to the petition and determined the raw count to be 24,034. The required three percent random sample for initiative petitions was drawn and 722 signatures were randomly selected. The signatures were verified and the results were as follows:
Raw count: 24,034 signatures
Random sample (3%): 722 signatures
Signatures found valid in sample: 516 signatures
Signatures found not valid in sample: 205 signatures
Signatures requested to be withdrawn
found in sample (included in 205
signatures deemed not valid): 1 signature
Number of duplicate signatures
found in sample: 2 signatures
1. The elections official computed the
percent of valid signatures by dividing the
total number of signatures found valid in the
sample, 516, by the total number of 516 ÷ 722 = 71.47%
signatures in the sample, 722.
2. The elections official then multiplied the raw
count of 24,034 by the sample validity rate 24,034 x .7147 =
of 71.47% (or .7147) to determine the 17,177.0990
number of uncorrected total valid signatures. (Round up to 17,178)
The result was 17,178.
3. To calculate the duplicate signature factor,
the elections official divided the raw count 24,034 + 722 = 33.2881
sample size.
4. To determine the weight assigned to each
duplicate signature found in the sample, the
elections official multiplied the duplicate 33.2881 x 32.2881 =
signature factor computed at #3., above, by 1,074.8095
the factor computed at #3., above, minus one. (33.2881 - 1.0000 =
32.2881)
5. The elections official then multiplied the number
calculated in #4., above, times the number 1,074.8095 x 2 =
of duplicate signatures found in the 2,149.6190
sample (2). (Round up to 2,150)
6. The elections official determined the number
of valid signatures based on the random sample 17,178 - 2,150 =
by subtracting the figure computed at Step 15,028
#5., above, from the figure computed at Step #2.,
above.
In this example, out of the 24,034 initiative signatures submitted to the elections official, 15,028 signatures were projected to be valid based on the random sample of signatures.
NOTE
Authority cited: Section 12172.5, Government Code and Section 3520, Elections Code. Reference: Sections 3520, 3708, 3755, 4009, 4054, 4091, 5153.5, 5200, 6555.5, 6831.1, 27101 and 27215, Elections Code.
HISTORY
1. New article 4 and section filed 9-28-93; operative 10-28-93 (Register 93, No. 40).
Chapter 6. Escrow of Ballot Tally Software Program Source Codes
Article 1. General Purpose and Effective Date
§20610. Application of Regulations.
Note • History
These regulations shall apply to every election, all or any portion of which is conducted under the authority of the Elections Code, by any jurisdiction which conducts elections and canvasses those elections by means of ballot tally software programs.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New chapter 6, article 1 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20611. Reasons for Placing Software into Escrow.
Note • History
Ballot tally software program source code(s) (or hereinafter: `source code') shall be placed in escrow in order to:
(a) Protect and enhance the integrity of elections by ensuring that ballot tally software programs used in California elections have not been tampered with or otherwise altered and that elections continue to accurately reflect the will of the voters as expressed by their votes on computer-read ballots;
(b) Create a record of all versions, including changes or modifications of the source code materials placed in escrow;
(c) Create a record of all applications for access to the source code materials placed in escrow;
(d) Unless otherwise superseded by a contract between a vendor and an election jurisdiction, preserve the necessary source code information to permit the election jurisdiction to continue the use and maintenance of the source code in the event the vendor is unable, or otherwise fails, to provide maintenance.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20612. Use after Effective Date.
Note • History
Once Chapter 6 of Division 7 of Title 2 of the California Code of Regulations becomes effective, the source code for any ballot tally software program intended for use by an election jurisdiction in California must first have been placed in an approved escrow facility. If the source code has not been placed in an approved escrow facility, no ballot tally software program derived from that source code may be used to tally any votes in any California election conducted pursuant to the Elections Code.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20613. Escrow Facility Must be Approved.
Note • History
For purposes of this chapter, no escrow facility, including any which may have been providing such services for any vendor prior to the effective date of these regulations, may serve as an escrow facility for purposes of these regulations after the effective date without having first been approved by the Secretary of State pursuant to these regulations.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 2. Definitions
Note • History
“Software,” generally, refers to “computer programs,” a collection of instructions coded according to specific rules and in a specific sequence, which tell the computer equipment what to do and when and how to do it.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 2 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20621. Ballot Tally Software Program.
Note • History
The “ballot tally software program” consists of the computer program or programs used to tally voted ballots in an election.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20622. Ballot Tally Program Source Code(s).
Note • History
“Ballot tally software program source code(s)” or “source code” consists of the computer program or programs used to translate or otherwise recognize votes, accumulate the total of those votes, and store that accumulated total to a storage media for later retrieval and reporting, and includes the version of a computer program in which the programmer's original programming statements are expressed in a source language (e.g. Ada, Assembler, COBOL, Fortran, etc.) which must be compiled or assembled and linked into equivalent machine-executable object code, thereby resulting in an executable software program.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Note • History
“Escrow” is the process by which a third party having no direct or indirect financial interest with a vendor holds, for safekeeping, the source code, including all changes or modifications and new or amended versions. A financial interest would exist if the third party, for instance, included a vendor's stocks in its portfolio.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Note • History
“Escrow facility” is the physical location in which the source code may be stored. No election jurisdiction may act as an escrow facility to store its own source code.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Note • History
“Escrow company,” for the purposes of this chapter, is any business certified by the Secretary of State to store source code.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Note • History
An “escrow agreement” is a contract or subagreement to hold each source code in escrow. The contract may be a master contract with separate subagreements to hold each source code in escrow or an individual contract entered into for each source code placed in escrow.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Note • History
A “vendor” is any person, group, organization, company, or entity, whether or not incorporated, who sells, leases, or grants use of, with or without compensation therefor, a ballot tally software program for use by jurisdictions which conduct elections subject to these regulations. The term “vendor” includes election jurisdictions which provide or maintain ballot tally software programs for their own use or for the use of others.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 3. The Secretary of State
A. Certify Escrow Company
§20630. Consider all Applications.
Note • History
The Secretary of State shall consider all applicants for certification as an escrow company and shall certify, in writing, those that meet the minimum requirements set forth in these regulations.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 3 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
B. Approve Escrow Facility
Note • History
Prior to any approval, the Secretary of State shall review, for conformance with these regulations, the procedures proposed by each applicant escrow company for operation of its escrow facilities.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20632. Escrow Company Must be Certified and Escrow Facility Must be Approved.
Note • History
No escrow facility may be used for escrow of any source code until certification has been granted to the escrow company and approval of the escrow facility for such use is received by the escrow company and displayed pursuant to Section 20661, subsection (a), of this chapter.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20633. Review and Processing of Applications for Certification or Approval.
Note • History
(a) Within ten working days after receipt of an application for certification as an escrow company or approval of an escrow facility, the Secretary of State shall inform the applicant in writing whether the application is complete and accepted for filing or that it is deficient and what specific information or documentation is required to complete the application.
(b) Within thirty working days of receipt of a completed application, the Secretary of State will inform the applicant whether the application for certification or approval has been approved or denied.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 15376, Government Code and Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
C. Review of Facilities after Certification
§20635. Periodic Inspections of Escrow Facilities.
Note • History
(a) To ensure compliance with these regulations, the Secretary of State shall cause periodic inspections during normal business hours, with or without prior notice, of facilities used to escrow source code(s) and of such records maintained as required by this chapter.
(b) The Secretary of State reserves the right to inspect any facility for which a new application for approval is made.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20636. Action if Facility not in Compliance.
Note • History
If the Secretary of State determines that any escrow facility is not in compliance with these regulations and other applicable law, he or she shall:
(a) Withdraw approval of the escrow facility to store one or more source code(s); and,
(b) Order the temporary removal of source code(s) from such facility, and the transfer of such source code(s) to facilities which are in compliance.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20637. Procedure to Withdraw Approval from Escrow Facility.
Note • History
(a) No action to withdraw approval of a facility to store ballot tally software program source code shall commence until the Secretary of State has mailed a written 30-day notice. The notice shall be sent to the escrow company, the escrow facility, and the vendor(s) storing source code(s) at the facility.
(b) Within ten days of the date of mailing of the 30-day notice, a representative of the escrow facility may request an administrative hearing with the Secretary of State to appeal the determination of non-compliance. The escrow facility shall notify the vendor that a hearing has been requested. If the vendor has received notice of request for administrative hearing, he or she shall notify the election jurisdiction, no later than three days after receipt of such notice, that a hearing has been requested and shall send copies of such notification(s) to the Secretary of State.
(c) Any vendor receiving a notice pursuant to subdivision (a) shall within 10 days of the date of the notice advise in writing any election jurisdiction using a ballot tally software program derived from the source code which has been placed in escrow that the Secretary of State will conduct an administrative hearing. The vendor shall notify the affected election jurisdiction(s) that a hearing has been requested.
(d) Within ten days of receipt of the request for an administrative hearing, the Secretary of State shall schedule the hearing and notify the representative of the escrow facility, the vendor, and other interested parties.
(e) Within five days after the administrative hearing, the Secretary of State shall notify the representative of the escrow facility, the vendor, and other interested parties of the decision on the appeal.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20638. Escrow Company to Comply when Escrow Facility Approval Withdrawn.
Note • History
Once the Secretary of State has issued an order to remove or transfer the ballot tally software program source code and materials, the escrow company shall comply with the order within 24 hours of receipt of the order.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
D. List of Approved Companies and Facilities
§20639. List of Certified Escrow Companies and Approved Escrow Facilities.
Note • History
The Secretary of State shall mail, by first class mail, to the chairperson of each county board of supervisors, to each county chief elections official, to each certified escrow company, to each approved escrow facility, and to each vendor of ballot tally software source code, a complete list of all certified escrow companies and their facilities approved for use in California no later than January 30 of each year, and within ten days of any change affecting the list.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 4. The Vendor
A. General
§20640. Separation of Vendor Interests from Escrow Company.
Note • History
The vendor, its officers, and directors, shall not hold or exercise any direct or indirect financial interest(s) in the escrow company.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 4 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20641. Vendor Certification of Deposit.
Note • History
(a) Within five working days of any submission of source code materials, each vendor shall certify to each affected election jurisdiction, with a copy to the Secretary of State, that they have placed their source code or codes in escrow. The certification shall include a description of submitted materials sufficient to distinguish them from all other submissions.
(b) The certification shall state:
(1) That all source code information and materials required by these regulations and other applicable law are included in the deposit.
(2) The name of the certified escrow company and the location of the approved escrow facility where the source code materials have been placed in escrow.
(c) Any election jurisdiction which thereafter may desire to contract for use of a ballot tally software program shall be provided with a copy of the certificate as a condition precedent to the execution of the contract.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
B. What the Vendor is to Submit to the Escrow Company for Placement into the Escrow Facility
§20642. Requirements for Submission.
Note • History
(a) The vendor shall submit the source code, as defined in Article 2, to a certified escrow company for placement in the approved escrow facility.
(b) For each source code, the materials placed in escrow must be sufficient to maintain every related ballot tally software program used or intended to be used by any election jurisdiction.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
C. Updates to Materials in Escrow
§20645. Updates to Submission.
Note • History
(a) Once used to tally ballots in any election, no source code materials in escrow may be changed or modified. Except as specified in this section, change or modification requires that a new escrow be established.
(b) Once used to tally ballots in any election, the unchanged source code shall be retained, at a minimum, for the period of retention required by the Elections Code for other election materials at the same election.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20646. Deposit Software Modifications into Escrow.
Note • History
(a) Prior to being used to tally ballots in any election, the vendor shall submit all source code changes or modifications into escrow in the same manner and under the same conditions in which the source code materials originally were placed in escrow.
(b) Within five working days of the submission to the escrow facility of the changed or modified source code, the vendor shall notify each affected election jurisdiction as provided for in Section 20641, with a copy to the Secretary of State, that the source code placed in escrow has been changed or modified.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 5. The Escrow Company
A. Minimum Requirements and Standards of Performance
§20650. Minimum Requirements for Certification.
Note • History
A certified escrow company shall:
(a) Be authorized by the Secretary of State to operate its escrow facilities.
(b) Submit a copy of every escrow agreement to the Secretary of State. The copy shall be submitted by the escrow company within ten days of the date the escrow agreement is signed.
(c) For every submission of an escrow agreement, maintain records which sufficiently identify and describe the materials deposited in escrow to determine compliance with the agreement between the vendor and the escrow company. The escrow company shall not be required to verify the content of the materials submitted.
(d) Notify, in writing, the Secretary of State within five days of the initial deposit of source code. The notice shall include the name of the vendor and a list describing each of the items comprising the initial submission.
(e) Notify, in writing, the Secretary of State within five days of the termination of any escrow agreement.
(f) Notify, in writing, the Secretary of State within five days of the change of the name of the company or the name of the escrow facility, together with the address, phone number, and name of the contact person for the company and/or facility.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 5 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20651. Separation of Interest of Escrow Company with Vendor.
Note • History
The escrow company, its officers, and directors, shall not hold or exercise any direct or indirect financial interest(s) in the vendor.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
B. Start-Up
§20652. Escrow Company Certification and Escrow Facility Approval Required.
Note • History
Applications for certification as an escrow company and for approval of each escrow facility shall be made in writing to the Secretary of State on the form contained in Appendix A: Forms of Application for Certification and Approval (June 1995).
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20653. Approval for Additional Facilities Required.
Note • History
Applications for approval of an escrow facility not included in the original application shall be made in writing to the Secretary of State on the form contained in Appendix A: Forms of Application for Certification and Approval (June 1995).
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
C. Termination of Certification
§20654. Term of Certification.
Note • History
Certification remains valid until surrendered by the escrow company or until revoked by the Secretary of State.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 6. The Escrow Facility
A. Minimum Specifications
§20660. Location of Approved Escrow Facilities.
Note • History
Each approved escrow facility shall be physically located within the State of California.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 6 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20661. Escrow Facility to Post Notice of Approval.
Note • History
(a) The approved escrow facility shall post a copy of the `Notice of Approval (June 1995)' (see Appendix B: Form of Notice of Approval.) in its business office. The notice shall be posted in a place conspicuous to the public and must also be located so that it is easily readable by members of the public doing business at the escrow facility.
(b) No ballot tally software program source code shall be placed in escrow in the facility until the Notice of Approval is posted according to this section.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20662. Requirements for Escrow Facilities.
Note • History
For all ballot tally software program source code materials each escrow facility shall:
(a) Provide a secure and safe environment in which the humidity, temperature, and air filtration are controlled on a 24-hours-a-day, 7-days-a-week basis. The humidity shall be maintained at 35 percent, plus or minus 2 percent, and the temperature shall be maintained at 65 degrees, plus or minus 3 degrees, Fahrenheit.
(b) Maintain storage away from electrical, magnetic, and other fields which could potentially damage computer media over time.
(c) Have backup capability to maintain the properly secured environment in the event of power outages or natural disasters.
(d) Maintain physical security of the escrow facility with controlled and restricted access to source code materials placed in escrow.
(e) Store each source code separately. The source code materials placed in escrow shall be secured in a single container and no other material shall be placed in that container.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
B. Termination of Approval
§20663. Continued Approval of Escrow Facility.
Note • History
Approval remains valid until surrendered by the escrow company or until revoked by the Secretary of State.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 7. Access to and Review of Materials in Escrow
§20670. Conditions for Access to Materials Placed in Escrow.
Note • History
No access to materials placed in escrow shall occur except as specified in (a) or (b) of this section.
(a) Upon an order of an appropriate court in the course of an investigation or prosecution regarding vote counting equipment or procedures. The court order shall specify the procedures for reviewing the materials in escrow, including, but not limited to, the name of each person permitted to review the materials, the person or persons responsible for guaranteeing that the materials are not tampered with or otherwise altered, and the time, place, and other conditions under which the materials may be reviewed.
(b) Upon a finding by the Secretary of State that an escrow facility or escrow company is unable or unwilling to maintain materials in escrow in compliance with these regulations.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 7 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20671. Verification of Materials Placed in Escrow.
Note • History
The Secretary of State may, in furtherance of these regulations, for cause at any time, audit source code materials placed in escrow with an approved escrow facility or a facility for which approval has been withdrawn pursuant to these regulations, for purposes of verifying the contents.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20672. Integrity of Materials Placed in Escrow.
Note • History
No person having access to the ballot tally software program source code materials shall interfere with or prevent the escrow representative from monitoring the security and the integrity of the ballot tally software program source code materials.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Article 8. The Escrow Agreement
A. Minimum Elements
§20680. Vendor Agreement for Escrow Deposits.
Note • History
A vendor may enter into a written agreement with any certified escrow company for deposit of each source code.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New article 8 and section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
§20681. Minimum Terms Required in Agreement.
Note • History
The terms of the agreement between the vendor and the escrow company shall include, but not be limited to, the following elements:
(a) Conflict in Financial Interest:
(1) The escrow company, its officers, and directors, do not hold or exercise any direct or indirect financial interest(s) in the vendor.
(2) If a condition in financial interest(s) as specified in this section arises, the escrow company shall:
(a) Advise the vendor of the conflict in financial interest.
(b) Immediately notify any affected election jurisdictions of the conflict in financial interest.
(c) Transfer the ballot tally software program source code materials in escrow to another certified escrow company which has no financial interest(s) as specified in this article with the vendor.
(3) The vendor, its officer, and directors, do not hold or exercise any direct or indirect financial interest(s) in this escrow company.
(4) If a conflict in financial interest(s) as specified in this section arises, the vendor shall:
(a) Advise the escrow company of the conflict in financial interest.
(b) Immediately notify any affected election jurisdictions of the conflict in financial interest.
(c) Transfer the ballot tally software program source code materials in escrow to another certified escrow company which has no financial interest(s) as specified in the article with the vendor.
(b) Retention of Election Materials:
(1) Records maintained by the escrow company pursuant to these regulations and other applicable law shall be retained for the term of the escrow agreement, and for an additional period of 22 months after any election at which the source code was used. The vendor shall be entitled at reasonable times during normal business hours and upon reasonable notice to the escrow company during the term of the escrow agreement to inspect the records of the escrow company pertaining to the escrow agreement.
(2) If the Secretary of State informs the escrow company that an election contest, or a criminal prosecution involving fraudulent use of the ballot tally computer program, has been timely commenced, then the source code shall not be removed from the escrow facility until the later condition of either the 22-month period has expired or the Secretary of State has determined and notified the escrow company that the necessity for retention has ended.
(3) The escrow agreement shall provide for the disposition of the materials placed in escrow pursuant to subdivision (b)(1) or (b)(2).
(c) Change or Modification to Source Code:
(1) No source code placed in escrow shall be changed or modified except as permitted in this chapter.
(D) Duration and Renewal:
(1) The time period for the escrow agreement and the date for renewal of the agreement.
(2) A provision that the escrow agreement may be renewed for additional periods.
(3) The due date for renewal shall be no later than 30 days before expiration of the escrow agreement. In the event that the contract is not renewed, the escrow company shall so notify the vendor and the Secretary of State.
(4) In the event that a vendor does not enter into an escrow arrangement with the escrow company to renew the escrow contract, an election jurisdiction or jurisdictions may negotiate directly with an approved escrow company for continuance of the escrow, and shall so notify the Secretary of State and the vendor in writing within 30 days of the new contract.
(e) Access to Materials in Escrow:
(1) In the event that the escrow company is notified by an election jurisdiction of the occurrence of a condition as defined in the escrow agreement allowing access to ballot tally software program source code materials, the escrow company shall immediately so notify the vendor and the Secretary of State and shall provide a copy of the notice from the election jurisdiction.
(2) If the vendor provides an objection in writing within 10 days of the mailing or other service of the notice to the vendor, the escrow company shall not allow access. If the vendor does not object as provided in this subdivision, the escrow company shall permit access to the deposit to the election jurisdiction.
For the purposes of this section “object” or “objection” means the delivery by certified mail of an affidavit or declaration to the escrow company by the vendor, with a copy to the election jurisdiction which is demanding access and a copy to the Secretary of State. The objection shall state that an access condition either has not occurred or no longer exists. Upon receipt of the objection, the escrow company shall not permit access and shall continue to store the deposit pursuant to the escrow agreement.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
B. Statement of Non-Liability
§20682. State Not Liable for Any Costs or Any Other's Actions.
Note • History
Neither the Secretary of State nor the State of California shall be responsible for any of the fees claimed by the vendor, election jurisdictions, or the escrow company to establish the escrow contract. Further, neither the Secretary of State nor the State of California is a party to the agreement and shall not incur any liability for the actions of the parties involved in this escrow agreement.
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
HISTORY
1. New section and Appendices A-B filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
Appendix A. Forms of Application for Certification and Approval.
Application for Certification as an Escrow Company
I/We hereby apply for certification by the Secretary of State of California as an escrow company for the purpose of holding ballot tally software program source codes in escrow pursuant to these regulations and other applicable law.
I/We enclose a copy of each proposed escrow facility's procedures proposed for use, and declare that each escrow facility is in compliance with the physical and environmental conditions set forth in Section 20662 of these regulations.
Name of Escrow Company
Printed Name of Declarant
Signature of Declarant
Position of Declarant
Escrow Company Address
City
State, Zip Code
( ) ( )
Telephone and FAX Numbers
I have read and understand the contents of this application.
I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Signed at , this day of , 19 .
(City and State)
Signature of Declarant
Position of Declarant
(Form Date is: June, 1995)
Application for Approval of Escrow Facility
Information regarding each proposed escrow facility:
Name of Escrow Company
Name of Escrow Facility No. 1
Contact Name at Escrow Facility
Escrow Facility Address
City, State, Zip Code
Telephone and Fax Numbers ( ) ( )
Name of Escrow Facility No. 2
Contact Name at Escrow Facility
Escrow Facility Address
City, State, Zip Code
Telephone and Fax Numbers ( ) ( )
Name of Escrow Facility No. 3
Contact Name at Escrow Facility
Escrow Facility Address
City, State, Zip Code
Telephone and Fax Numbers ( ) ( )
Name of Escrow Facility No. 4
Contact Name at Escrow Facility
Escrow Facility Address
City, State, Zip Code
Telephone and Fax Numbers ( ) ( )
I have read and understand the contents of this application.
I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Signed at , this day of , 19 .
(City and State)
Signature of Declarant
Position of Declarant
(Form Date is: June, 1995)
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
Appendix B. Form of Notice of Approval.
Notice of Approval
I, , Secretary of State of the State of California, do hereby certify that:
1. The Company of , has applied for approval of their facility, located
at for the holding of ballot tally software program source code for use in California elections.
2. The Secretary of State has reviewed the application and the applicant escrow facility's procedures proposed for use by said escrow company, as required by these regulations and other applicable law.
3. The use of the escrow facility described in paragraph 1 is in accord with these regulations and other applicable law and is hereby approved for the holding of ballot tally software program source code for use in California elections.
4. Any vendor of ballot tally software programs may use the escrow facility described in paragraph 1 for the purpose of holding ballot tally software program source code(s) for use in California elections, subject to the provisions set forth in Title 2, California Code of Regulations, Division 7, Chapter 6.
5. No changes or modifications to the escrow facility's procedures shall be made until the Secretary of State has been notified in writing and has determined that the change or modification does not impair the ability of the escrow facility to store ballot tally software program source code(s).
IN WITNESS WHEREOF, I hereunto set my hand and affix the Great Seal of the State of California, at Sacramento, this day of , 19 .
Secretary of State
NOTE
Authority cited: Section 12172.5, Government Code and Section 19103, Elections Code. Reference: Section 19103, Elections Code.
Chapter 7. Ballot Designations
Note • History
(a) The regulatory purpose of this Chapter is to ensure the accurate designation of the candidate upon the ballot in order that an informed electorate may intelligently elect one of the candidates.
(b) The Secretary of State shall, at all times, apply and interpret the provisions of Elections Code § 13107 and the regulations included in this Chapter in a manner consistent with the regulatory purpose of this Chapter.
(c) Candidates are not required to use a ballot designation pursuant to Elections Code § 13107, subdivision (a), and may opt to leave the space for such a designation on the ballot blank. In order to notify the elections official as to whether he or she will use a ballot designation or will opt to leave the ballot designation space blank, the candidate must initial the appropriate box on the Declaration of Candidacy or otherwise so indicate on the Declaration of Candidacy.
(d) Pursuant to Elections Code § 13107, subdivision (a), a candidate may submit a proposed ballot designation pursuant to any one of the four provisions specified in Elections Code § 13107, subdivision (a), subparts (1) through (4), applicable to that candidate. The candidate shall be free to select from which of the applicable four subparts he or she is submitting his or her proposed ballot designation.
(e) The regulations set forth in this Chapter shall apply only to elections held for offices for which elections returns are certified by the Secretary of State of the State of California.
(f) Whenever, the word “should” is used in this Chapter, it is recommended, not mandatory.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Section 13107, Elections Code.
HISTORY
1. New chapter 7 (sections 20710-20719) and section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
§20711. Ballot Designation Worksheet.
Note • History
(a) In order to facilitate review of a candidate's proposed ballot designation by the Secretary of State pursuant to Elections Code §13107, the candidate shall submit, at the time of filing his or her proposed ballot designation on the Declaration of Candidacy, a completed Ballot Designation Worksheet on a form provided by the Secretary of State.
(b) All Ballot Designation Worksheets filed with the Office of the Secretary of State or the county elections officials pursuant to this section shall be public records and shall be available for inspection and copying at the public counter of the Elections Division of the Office of the Secretary of State, Fifth Floor, 1500 11th Street, Sacramento, California 95814, or at the office of the applicable county elections official.
(c) The Secretary of State shall provide a master copy or copies of the Ballot Designation Worksheet to all elections officials responsible for providing and accepting the nomination documents for candidates in elections for offices certified by the Secretary of State. The Ballot Designation Worksheet shall request that the candidate proposing the ballot designation provide the following information:
(1) The candidate's name, home, business and mailing addresses, telephone numbers, e-mail address, if available, and fax number;
(2) A designation of the office for which the candidate is seeking election;
(3) The name, home, business and mailing addresses, telephone numbers, e-mail address, if available, and fax number of the attorney representing the candidate or for any other person to be contacted in the event the Secretary of State requires further information regarding the proposed ballot designation;
(4) The proposed ballot designation submitted by the candidate;
(5) The candidate may submit one or more proposed alternate ballot designations ranked in order of the candidate's preference;
(6) A brief statement identifying the factual basis upon which the candidate claims the proposed ballot designation and each proposed alternate ballot designation, including the following:
(A) If the candidate holds elected office and is submitting his or her proposed ballot designation pursuant to Elections Code §13107, subdivisions (a)(1) or (a)(2), the candidate shall indicate the elective office he or she currently occupies and may attach a copy of his or her Certificate of Election;
(B) If the candidate is a judicial officer and is submitting his or her proposed ballot designation pursuant to Elections Code §13107, subdivisions (a)(1) or (a)(2), the candidate shall indicate the elective office he or she currently holds and may attach either (A) a copy of his or her Certificate of Election or (B) a copy of his or her commission or certificate of appointment, issued at the time the candidate was appointed to the judicial office which he or she currently occupies;
(C) If the candidate submits a ballot designation pursuant to Elections Code §13107, subdivision (a)(3), the candidate shall indicate:
(i) The title of the position or positions which he or she claims supports the proposed ballot designation;
(ii) The dates during which the candidate held such position;
(iii) A description of the work he or she performs in the position;
(iv) The name of the candidate's business or employer;
(v) The name and telephone number of a person or persons who could verify such information; and
(vi) A statement that the professions, vocations or occupations relied upon to support the proposed ballot designation constitute the primary, main or leading professions, vocations or occupations of the candidate, in accordance with the definition of the term “principal” as set forth at §20714, subdivision (b).
(D) If the candidate submits a ballot designation pursuant to Elections Code §13107, subdivision (a)(4), the candidate shall indicate the date on which he or she was appointed to the office for which he or she is an appointed incumbent.
(d) The candidate may attach or append any supporting documents or other exhibits to his or her Ballot Designation Worksheet which he or she believes support his or her proposed ballot designation. Such attached documents or other exhibits shall be deemed to be incorporated by reference as part of the candidate's Ballot Designation Worksheet and shall be considered as such by the Secretary of State.
(e) If a candidate requests a change of his or her ballot designation pursuant to Elections Code §13107(e), that request shall be accompanied by a Ballot Designation Worksheet.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 13107 and 13107.3, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment of subsections (a), (c)(5), (c)(6)(A)-(C) and (c)(6)(D), new subsection (e) and amendment of Note filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20712. Proposed Ballot Designations Submitted Pursuant to Elections Code §13107, Subdivision (a)(1).
Note • History
Proposed ballot designations submitted pursuant to Elections Code §13107, subdivision (a)(1), shall be subject to the following provisions:
(a) In the case of candidates holding elective city, county, district, state, or federal office, the candidate's ballot designation shall be the elective office which the candidate holds at the time of filing the nomination documents.
(b) In the case of judicial officers, the candidate's ballot designation shall be the elective office which the candidate holds at the time of filing the nomination documents.
(c) There shall be no word count limitation applicable to ballot designations submitted pursuant to Elections Code §13107, subdivision (a)(1).
(d) Proposed ballot designations indicating a position of legislative leadership or leadership in another elected body, such as “Majority Leader of the California Senate,” “Minority Leader of the California State Assembly,” “Speaker of the California State Assembly,” “President Pro Tempore of the California State Senate,” “City of Orange Mayor Pro Tem,” and the like, are not elective offices described in Elections Code §13107, subdivision (a)(1). Such ballot designations are improper, pursuant to Elections Code §13107, subdivision (a)(1). They may, however, subject to the three-word limit, be considered under the provisions of §13107(a)(3). Examples of acceptable ballot designations under this section include, but are not limited to, “Assembly Minority Leader,” “California Assembly Speaker,” and “Mayor Pro Tem.”
(e) Proposed ballot designations indicating that the candidate is a member of the state or county central committee of a political party, or an officer of a state or county central committee of a political party, are improper, as such positions do not constitute elective county or state offices as specified in Elections Code §13107, subdivision (a)(1).
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Section 13107, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment of subsection (d) filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20713. Proposed Ballot Designations Submitted Pursuant to Elections Code § 13107, Subdivision (a)(2).
Note • History
Proposed ballot designations submitted pursuant to Elections Code § 13107, subdivision (a)(2), shall be subject to the following provisions:
(a) A proposed ballot designation submitted pursuant to Elections Code § 13107, subdivision (a)(2), is limited “incumbent,” as that term is defined in Elections Code § 13107, subdivision (a)(2).
(b) The term “incumbent” must be used as a noun. It shall not be used in conjunction with any other words, including any accompanying adjectives or modifiers, and must stand alone. A candidate qualified to use this designation pursuant to Elections Code § 13107, subdivision (a)(2), shall be entitled to use the ballot designation “Incumbent.”
(c) The word “incumbent” is strictly limited for use in ballot designations submitted pursuant to Elections Code § 13107, subdivision (a)(2), and may not be used as an adjective in any other ballot designation.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Section 13107, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
§20714. Proposed Ballot Designations Submitted Pursuant to Elections Code §13107, Subdivision (a)(3).
Note • History
Proposed ballot designations submitted pursuant to Elections Code §13107, subdivision (a)(3), shall be subject to the following provisions:
(a) The terms “profession,” “vocation,” or “occupation,” as those terms are used in Elections Code §13107, subdivision (a)(3), are defined as follows:
(1) “Profession” means a field of employment requiring special education or skill and requiring knowledge of a particular discipline. The labor and skill involved in a profession is predominantly mental or intellectual, rather than physical or manual. Recognized professions generally include, but are not limited to, law, medicine, education, engineering, accountancy, and journalism. Examples of an acceptable designation of a “profession,” as defined in Elections Code §13107, subdivision (a)(3), include, but are not limited to, “attorney,” “physician,” “accountant,” “architect,” and “teacher.”
(2) “Vocation” means a trade, a religious calling, or the work upon which a person, in most but not all cases, relies for his or her livelihood and spends a major portion of his or her time. As defined, vocations may include, but are not limited to, religious ministry, child rearing, homemaking, elderly and dependent care, and engaging in trades such as carpentry, cabinetmaking, plumbing, and the like. Examples of an acceptable designation of a “vocation,” as defined in Elections Code §13107, subdivision (a)(3), include, but are not limited to, “minister,” “priest,” “mother,” “father,” “homemaker,” “dependent care provider,” “carpenter,” “plumber,” “electrician,” and “cabinetmaker.”
(3) “Occupation” means the employment in which one regularly engages or follows as the means of making a livelihood. Examples of an acceptable designation of an “occupation,” as defined in Elections Code §13107, subdivision (a)(3), include, but are not limited to, “rancher,” “restaurateur,” “retail salesperson,” “manual laborer,” “construction worker,” “computer manufacturing executive,” “military pilot,” “secretary,” and “police officer.”
(b) “Principal,” as that term is used in Elections Code §13107, subdivision (a)(3), means a substantial involvement of time and effort such that the activity is one of the primary, main or leading professional, vocational or occupational endeavors of the candidate. The term “principal” precludes any activity which does not entail a significant involvement on the part of the candidate. Involvement which is only nominal, pro forma, or titular in character does not meet the requirements of the statute.
(1) If a candidate is licensed by the State of California to engage in a profession, vocation or occupation, the candidate is entitled to consider it one of his or her “principal” professions, vocations or occupations if (i) the candidate has maintained his or her license current as of the date he or she filed his or nomination documents by complying with all applicable requirements of the respective licensure, including the payment of all applicable license fees and (ii) the status of the candidate's license is active at the time he or she filed his or her nomination documents.
(2) A candidate who holds a professional, vocational or occupational license issued by the State of California may not claim such profession, vocation or occupation as one of his or her “principal” professions, vocations or occupations if (i) the candidate's licensure status is “inactive” at the time the candidate files his or her nomination document, or (ii) the candidate's license has been suspended or revoked by the agency issuing the license at the time the candidate files his or her nomination documents.
(c) In order for a ballot designation submitted pursuant to Elections Code §13107, subdivision (a)(3), to be deemed acceptable by the Secretary of State, it must accurately state the candidate's principal professions, vocations or occupations, as those terms are defined in subdivisions (a) and (b) herein. Each proposed principal profession, vocation or occupation submitted by the candidate must be factually accurate, descriptive of the candidate's principal profession, vocation or occupation, must be neither confusing nor misleading, and must be in full and complete compliance with Elections Code §13107 and the regulations in this Chapter.
(d) If the candidate is engaged in a profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate's proposed ballot designation is entitled to consist of the candidate's current principal professions, vocations and occupations. In the event the candidate does not have a current principal profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate may use a ballot designation consisting of his or her principal professions, vocations or occupations, which the candidate was principally engaged in during the calendar year immediately preceding the filing of the candidate's nomination papers.
(e) A candidate may engage in multiple principal professions, vocations or occupations. Accordingly, the candidate may designate multiple principal professions, vocations or occupations. If a candidate proposes a ballot designation including multiple principal professions, vocations or occupations, the proposed ballot designation must comply with the following provisions:
(1) The proposed ballot designation must comply with the three-word limitation specified in Elections Code §13107, subdivision (a)(3), and as implemented pursuant to subdivision (f) herein.
(2) Each such proposed profession, vocation or occupation shall be separately considered by the Secretary of State and must independently qualify as a “principal” profession, vocation or occupation, as that term is defined pursuant to subdivision (b) herein.
(3) When multiple professions, vocations or occupations are proposed as a ballot designation, they shall be separated by a slash (“/”). An example of an acceptable designation would be “Legislator/Rancher/Physician.”
(f) Pursuant to Elections Code §13107, subdivision (a)(3), the candidate's ballot designation shall be limited to not more than three (3) words. The following rules shall govern the application of the three-word limitation:
(1) The proposed ballot designation shall be grammatically correct, generic, and all words must be spelled correctly.
(2) Punctuation shall be limited to the use of a comma (e.g., District Attorney, Los Angeles County) and a slash (e.g., Legislator/Rancher/Physician), pursuant to subdivision (e) of this section. A hyphen may be used if, and only if, the use of a hyphen is called for in the spelling of a word as it appears in a standard reference dictionary of the English language, which was published in the United States at any time within the 10 calendar years immediately preceding the election for which the words are counted.
(3) All California geographical names shall be considered to be one word and shall be limited to the names of cities, counties and states. The names of special districts and political subdivisions are not “geographical names,” as that term is used in Elections Code §13107, subdivision (a)(3). If the candidate desires, the geographical name may be used in the form of “City of . . . ,” “County of . . . ,” or “City and County of . . .” Examples of geographical names considered to be one word include Tehama County, Los Angeles County and County of Sacramento. Examples of designations containing a special district or political subdivision that are not geographical names include “Butte County Rural Fire District Captain,” “Huntington Beach Unified School District President,” and “South Bay Irrigation District Director.”
(4) An acronym shall be counted as one word.
(g) A candidate who chooses to include the name of his or her elective office with another profession, vocation, or occupation may do so pursuant to Elections Code section 13107(a)(3), but that ballot designation shall be limited to no more than three words. Examples of acceptable designations under this section include “State Senator/Rancher,” “California Assemblywoman/Attorney,” “County Supervisor/Teacher,” and “State Controller/Businessman.” Examples of unacceptable designations under this section include “Assemblyman, 57th District/Educator,” “California State Senator/Architect,” “Placer County Supervisor/Business Owner,” and “Member, Board of Equalization/Banker.”
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 9 and 13107, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment of subsections (a)(1), (c) and (f)(2)-(3), new subsection (g) and amendment of Note filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20714.5. “Community Volunteer.”
Note • History
(a) “Community Volunteer” means a person who engages in an activity or performs a service for or on behalf of, without profiting monetarily, one or more of the following:
(1) A charitable, educational, or religious organization as defined by the United States Internal Revenue Code section 501(c)(3);
(2) A governmental agency; or
(3) An educational institution.
(b) The activity or service must constitute substantial involvement of the candidate's time and effort such that the activity or service is the sole, primary, main or leading professional, vocational or occupational endeavor of the candidate within the meaning of subdivisions (a) and (b) of section 20714 of this Chapter.
NOTE
Authority cited: Section 12172.5, Government Code; and Section 13107.5(b), Elections Code. Reference: Sections 13107 and 13107.5, Elections Code; and Section 501(c)(3), United State Internal Revenue Code.
HISTORY
1. New section filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20715. Proposed Ballot Designations Submitted Pursuant to Elections Code § 13107, Subdivision (a)(4).
Note • History
(a) Pursuant to Elections Code § 13107, subdivision (a)(4), a candidate may propose a ballot designation consisting of the phrase “appointed incumbent” if the candidate holds an office, other than a judicial office, by virtue of appointment, and the candidate is a candidate for election to the same office. The candidate may not use the unmodified word “incumbent” or any words designating the office unmodified by the word “appointed.”
(b) Pursuant to Elections Code § 13107, subdivision (a)(4), a candidate may propose a ballot designation consisting of the word “appointed” in conjunction with the elective office, if the candidate is a candidate for election to the same office or to some other office. The candidate may not use any words designating the office unmodified by the word “appointed.”
(c) There shall be no word count limitation applicable to ballot designations submitted pursuant to Elections Code § 13107, subdivision (a)(4).
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Section 13107, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
§20716. Unacceptable Ballot Designations.
Note • History
(a) The Secretary of State shall reject as unacceptable any proposed ballot designation which fails to comply with Elections Code §13107, subdivision (a); is prohibited pursuant to Elections Code §13107, subdivision (b); is misleading; or is otherwise improper pursuant to the regulations set forth in this Chapter.
(b) The following types of activities are distinguished from professions, vocations and occupations and are not acceptable as ballot designations pursuant to Elections Code §13107, subdivision (a)(3):
(1) Avocations: An avocation is a casual or occasional activity, diversion or hobby pursued principally for enjoyment and in addition to the candidate's principal profession, vocation or occupation. Avocations may include, but are not limited to, hobbies, social activities, volunteer work (except as set forth in Section 20714.5 of this Chapter), and matters pursued as an amateur.
(2) Pro Forma Professions, Vocations and Occupations: Pro forma professions, vocations or occupations are positions held by the candidate which consume little or none of the candidate's time and which, by their nature, are voluntary or for which the candidate is not compensated, except as set forth in Section 20714.5 of this Chapter. Pro forma professions, vocations and occupations may include, but are not limited to, such pursuits as honorary peace officer, honorary chairperson, honorary professor, goodwill ambassador, official host or hostess and the like.
(3) Statuses: A status is a state, condition, social position or legal relation of the candidate to another person, persons or the community as a whole. A status is generic in nature and generally fails to identify with any particular specificity the manner by which the candidate earns his or her livelihood or spends the substantial majority of his or her time. Examples of a status include, but are not limited to, veteran, proponent, reformer, scholar, founder, philosopher, philanthropist, activist, patriot, taxpayer, concerned citizen, husband, wife, and the like.
(c) Pursuant to Elections Code §13107, subdivision (b)(1), the Secretary of State shall reject as unacceptable any proposed ballot designation which would mislead voters. In making this determination, the Secretary of State shall determine whether there is a substantial likelihood that a reasonably prudent voter would be misled as to the candidate's principal profession, vocation or occupation by the candidate's proposed ballot designation. The determination shall take into account the plain meaning of the words constituting the proposed ballot designation and the factual accuracy of the proposed ballot designation based upon supporting documents or other evidence submitted by the candidate in support of the proposed ballot designation, pursuant to §§20711 and 20717 of this Chapter.
(d) A ballot designation may not comprise or include commercial identification information, such as a trademark, service mark, tradename, or the specific name of a business, partnership, corporation, company, foundation, or organization. Examples of an improper use of commercial identification information include, but are not limited to, “Acme Company President,” “Universal Widget Inventor,” “Director, Smith Foundation,” “UCLA Professor,” and the like.
(e) Pursuant to Elections Code §13107, subdivision (b)(2), the Secretary of State shall reject as unacceptable any proposed ballot designation which would suggest an evaluation of the candidate's qualifications, honesty, integrity, leadership abilities or character. Any laudatory or derogatory adjectives which would suggest an evaluation of the candidate's qualifications shall not be permitted. Such impermissible adjectives include, but are not limited to, “senior,” “emeritus,” “specialist,” “magnate,” “outstanding,” “leading,” “expert,” “virtuous,” “eminent,” “best,” “exalted,” “prominent,” “famous,” “respected,” “honored,” “honest,” “dishonest,” “corrupt,” “lazy,” and the like.
(f) Pursuant to Elections Code §13107, subdivision (b)(3), the Secretary of State shall reject as unacceptable any proposed ballot designation which abbreviates the word “retired” or places it following any word or words which it modifies. Examples of impermissible designations include “Ret. Army General,” “Major USAF, Retired” and “City Attorney, Retired.”
(g) Pursuant to Elections Code §13107, subdivision (b)(4), the Secretary of State shall reject as unacceptable any proposed ballot designation which uses a word or prefix to indicate a prior profession, vocation, occupation or elected, appointed or judicial office previously held by the candidate. Such impermissible words or prefixes include, but are not limited to, “Ex-,” “former,” “past,” and “erstwhile.” Examples of impermissible designations include “Former Congressman,” “Ex-Senator,” and “Former Educator.”
(h)(1) Subject to the provisions of Elections Code §13107, subdivision (b)(4), use of the word “retired” in a ballot designation is generally limited for use by individuals who have permanently given up their chosen principal profession, vocation or occupation.
(2) In evaluating a proposed ballot designation including the word “retired,” the Secretary of State will consider the following factors in making a determination as to the propriety of the use of the term “retired”:
(A) Prior to retiring from his or her principal profession, vocation or occupation, the candidate worked in such profession, vocation or occupation for more than 5 years;
(B) The candidate is collecting, or eligible to collect, retirement benefits or other type of vested pension;
(C) The candidate has reached at least the age of 55 years;
(D) The candidate voluntarily left his or her last professional, vocational or occupational position; and,
(E) The candidate's retirement benefits are providing him or her with a principal source of income.
(3) If a candidate is requesting a ballot designation that he or she is a retired public official, the candidate must have previously voluntarily retired from public office, not have been involuntarily removed from office, not have been recalled by voters, and not have surrendered the office to seek another office or failed to win reelection to the office. If such a candidate did not voluntarily retire from public office, he or she may not use the word “retired” in his or her ballot designation.
(4) A candidate may not use the word “retired” in his or her ballot designation if that candidate possesses another more recent, intervening principal profession, vocation, or occupation.
(i) Pursuant to Elections Code §13107, subdivision (b)(5), the Secretary of State shall reject as unacceptable any proposed ballot designation which uses the name of any political party, whether or not it has qualified for recognized ballot status.
(j) Pursuant to Elections Code §13107, subdivision (b)(6), the Secretary of State shall reject as unacceptable any proposed ballot designation which uses a word or words referring to a racial, religious, or ethnic group.
(1) The Secretary of State shall reject as unacceptable any ballot designation which expressly contains or implies any ethnic or racial slurs or ethnically or racially derogatory language.
(2) If the candidate is a member of the clergy, the candidate may not make reference to his or her specific denomination. However, the candidate may use his or her clerical title as a ballot designation (e.g., “Rabbi,” “Pastor,” “Minister,” “Priest,” “Bishop,” “Deacon,” “Monk,” “Nun,” “Imam,” etc.)
(k) Pursuant to Elections Code §13107, subdivision (b)(7), the Secretary of State shall reject as unacceptable any proposed ballot designation which refers to any activity prohibited by law. Unlawful activity includes any activities, conduct, professions, vocations, or occupations prohibited by state or federal law.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Section 13107, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20717. Requests for Supporting Documentation.
Note • History
In addition to the Ballot Designation Worksheet required to be filed with the Secretary of State pursuant to Elections Code §13107.3 and §20711 of this Chapter, the Secretary of State may request that a candidate submit additional supporting documentation or other evidence to support the proposed ballot designation.
(a) Time is of the essence regarding all matters pertaining to the review of proposed ballot designations submitted by candidates for public office. Failure to promptly submit requested supporting materials will preclude consideration of such materials in and the rendering of a final decision on the candidate's proposed ballot designation.
(b) The Secretary of State will communicate, whenever possible, with the candidate in the most expeditious manner, including, but not limited to, telephone, facsimile transmission and electronic mail at the number or address provided by the candidate. When the candidate does not have reasonable access to a facsimile machine or electronic mail, the Secretary of State will transmit written communication to the candidate by means of overnight express delivery to the address provided by the candidate.
(c) The candidate shall have the burden of establishing that the proposed ballot designation that he or she has submitted is accurate and complies with all provisions of Elections Code §13107 and this Chapter.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 13107 and 13107.3, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment of section and Note filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20718. Communication of Decisions Regarding Ballot Designations.
Note • History
(a) If a candidate's proposed ballot designation has been rejected, an official copy of the decision of the Secretary of State will be made in writing and transmitted directly to the candidate by registered or certified mail, return receipt requested, to the address provided by the candidate. The Secretary of State shall also provide a copy to the elections official in the candidate's county of residence and to the elections official of each county within the political subdivision. Copies may also be made available to all other candidates in the race.
(b) At the request of the candidate, the Secretary of State will transmit a copy of the decision of the Secretary of State regarding the candidate's proposed ballot designation by facsimile transmission or e-mail to the facsimile number or e-mail address listed on the candidate's Ballot Designation Worksheet.
(c) All written decision of the Secretary of State regarding ballot designations are public records and are available for inspection and copying at the public counter of the Elections Division of the Office of the Secretary of State, 1500 11th Street, Fifth Floor, Sacramento, California 95814.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Section 13107, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
§20719. Service of Legal Process Regarding Ballot Designations.
Note • History
(a) In the event a candidate or other interested party files a petition for the issuance of an extraordinary writ with the court or other legal action pertaining to a candidate's ballot designation, the summons and any other legal process should be served upon the Chief Counsel to the Secretary of State, 1500 11th Street, Sixth Floor, Sacramento, California 95814. The Chief Counsel may designate a Deputy Secretary of State to accept service of process on behalf of the Secretary of State.
(b) Telephone notice pertaining to any ex parte applications filed with the court by any candidate or other interested party should be directed to the attention of the Chief Counsel to the Secretary of State at (916) 653-7244. Counsel for all parties to such ex parte matters are admonished that waivers of the Secretary of State's right to timely notice and the right to personally appear at the ex parte hearing will be granted in writing and only in limited instances.
(c) The Secretary of State shall provide a copy of any legal actions in subdivision (a) or (b) above to the elections official in the county of the candidate's residence and any other county in the district.
(d) The Secretary of State shall be named as a respondent in any legal action pertaining to a ballot designation for a candidate described in Elections Code §15375, except for a candidate for judge of the superior court.
NOTE
Authority cited: Section 12172.5, Government Code. Reference: Sections 13107 and 13314, Elections Code.
HISTORY
1. New section filed 1-14-98; operative 1-14-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 3).
2. Amendment of subsection (a), new subsection (d), and amendment of Note filed 12-21-2009; operative 12-21-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 52).
Chapter 8. Notary Public
§20800. Notary Public Education and Certificate of Approval.
Note • History
(a) Prior to offering any course of study pursuant to paragraph (3) of subdivision (a) or paragraph (2) of subdivision (b) of Section 8201 of the Government Code, a vendor shall obtain a certificate of approval from the Secretary of State for each course of study offered.
(b) To apply for a certificate of approval, a vendor shall submit to the Secretary of State for approval a completed Notary Public Education Vendor Application or Amendment, form NP40 (03/05), hereby incorporated by reference, and a lesson plan satisfying the requirements in Section 20800.1.
(c) The Secretary of State shall issue a certificate of approval in accordance with subdivision (d) or deficiency notice in accordance with Section 20800.2 within ninety (90) business days of receipt of an application and lesson plan.
(d) Upon approval of an application and lesson plan, the Secretary of State shall send a certificate of approval for the course of study as identified in the lesson plan to the vendor by first class mail to the address listed on the Notary Public Education Vendor Application or Amendment, form NP40 (03/05). The certificate of approval shall include the following: the name of the approved vendor as listed on the Notary Public Education Vendor Application or Amendment, form NP40 (03/05); the address listed on the Notary Public Education Vendor Application or Amendment, form NP40 (03/05); the vendor identification number issued by the Secretary of State; and the date on which the course of study was approved by the Secretary of State. A certificate of approval is non-transferable and shall not be transferred to another vendor or another course of study.
(e) An approved vendor shall not alter or substitute the lesson plan reviewed and approved by the Secretary of State, unless such revisions are approved by the Secretary of State in accordance with Section 20800.4.
(f) For the purposes of this chapter, an approved vendor shall be responsible for all employees, agents, instructors, contractors, and subcontractors providing an approved course of study on behalf of the approved vendor and the acts of the employees, agents, instructors, contractors, and subcontractors shall be deemed the acts of the approved vendor.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 9-25-2000; operative 9-25-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 39).
2. Renumbering of former section 20800 to section 20802 and new section 20800 filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
Note • History
A lesson plan shall meet the following requirements:
(a) The lesson plan shall be based on the laws of California concerning the functions and duties of a notary public.
(b) The lesson plan shall contain a table of contents and the pages of the lesson plan shall be consecutively numbered.
(c) The lesson plan shall be in sufficient detail to enable the Secretary of State to evaluate the specific information to be presented and to determine the accuracy of the information to be presented.
(d) The lesson plan shall contain the procedures to establish the identity of a person attending a course of study to whom proof of completion may be issued in accordance with Section 20800.5 and ensure that the information contained in the certificate of completion pursuant to subdivision (c) of Section 20800.5 cannot be viewed by any person other than the approved vendor issuing the certificate, an employee, agent, instructor, contractor, or subcontractor of the approved vendor issuing the certificate, or the notary public applicant or notary public named in the certificate.
(e) The lesson plan shall contain the procedures to ensure that a person attending a course of study is present for the required time.
(f) The lesson plan shall include a schedule of the time allotted for the following:
(1) Lunch and break periods;
(2) Each major subject area;
(3) Each audio visual aid to be used, if any;
(4) Each student participation activity, if any; and
(5) Completion, correction, and discussion of any tests used and the method of correction to be used, if any.
(g) The lesson plan shall reflect where visual aids and student participation will be used to supplement lecture material. It shall explain the purpose of visual aids and student participation activity and describe how the instructor will generate the intended student participation. It shall include a brief synopsis of the information presented in any movie or video presentation, sufficient to enable the Secretary of State to determine what specific information is presented by the movie or video.
(h) Copies of any handout materials, workbooks, or tests used during the course of study shall be submitted for approval as part of the lesson plan.
(i) If the course provides for an evaluation by the students, a sample of the evaluation form shall be submitted with the lesson plan. Completion of the evaluation shall not exceed ten (10) minutes of class time.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.2. Deficient Application or Lesson Plan.
Note • History
(a) If the Secretary of State determines that a Notary Public Education Vendor Application or Amendment, form NP40 (03/05), is incomplete or a lesson plan does not satisfy the requirements of Section 8201 or 8201.2 of the Government Code or this chapter, the Secretary of State shall issue a deficiency notice containing an itemized description of the deficiencies identified. The deficiency notice shall be sent by the Secretary of State to the vendor by first class mail to the address listed on the Notary Public Education Vendor Application or Amendment, form NP40 (03/05). The Secretary of State shall use his or her discretion in determining whether or not to return the lesson plan with the deficiency notice. The decision shall be based on cost effectiveness and efficiency to the Secretary of State.
(b) A vendor shall have thirty (30) business days from the date on which the deficiency notice was mailed by the Secretary of State to submit documentation to the Secretary of State curing the deficiencies identified in the deficiency notice.
(c) The Secretary of State may issue more than one deficiency notice to a vendor regarding the same Notary Public Education Vendor Application or Amendment, form NP40 (03/05), and lesson plan at any time during the review process.
(d) The Secretary of State shall disapprove a Notary Public Education Vendor Application or Amendment, form NP40 (03/05), if the deficiencies are not cured in accordance with subdivision (b).
(e) Prior to the disapproval of an application or amendment, the vendor affected shall have the right to a hearing on the matter and the proceeding shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of the Government Code.
(f) Upon the effective date of a decision disapproving an application or amendment, a vendor may cure the deficiencies identified in the decision and submit a Notary Public Education Vendor Application or Amendment, form NP40 (03/05), in accordance with Section 20800.
NOTE
Authority cited: Sections 8201.2, 8220 and 11415.10, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.3. Notification of Changes of Approved Vendor Information.
Note • History
Within thirty (30) business days of any changes in the information contained in the application approved by the Secretary of State or most current amendment submitted to the Secretary of State, an approved vendor shall submit to the Secretary of State a Notary Public Education Vendor Application or Amendment, form NP40 (03/05), identifying the changes. It shall be the responsibility of an approved vendor to confirm receipt by the Secretary of State.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.4. Lesson Plan Revisions.
Note • History
(a) An approved vendor shall revise an approved lesson plan as necessary to ensure that the information provided in an approved course of study reflects current California law concerning the duties and functions of a notary public.
(b) Any proposed revisions to an approved lesson plan shall be approved by the Secretary of State prior to implementing the proposed revisions in an approved course of study.
(c) To apply for a certificate of approval for a revised lesson plan, an approved vendor shall submit a completed Notary Public Education Vendor Application or Amendment, form NP40 (03/05), and a revised lesson plan in accordance with Section 20800.
(d) The provisions in Sections 20800, 20800.1, and 20800.2 shall apply to a revised lesson plan.
(e) Upon approval of a revised lesson plan, the Secretary of State shall issue a certificate of approval for the course of study as identified in the revised lesson plan. The certificate of approval shall include the following: the name of the approved vendor as listed on the most current Notary Public Education Vendor Application or Amendment, form NP40 (03/05); the address on file with the Secretary of State as listed on the most current Notary Public Education Vendor Application or Amendment, form NP40 (03/05); the vendor identification number issued by the Secretary of State; and the date on which the revised lesson plan was approved by the Secretary of State. A certificate of approval for a revised lesson plan is non-transferable and shall not be transferred to another vendor or another course of study.
(f) As of the approval date of the revised lesson plan as indicated in the certificate of approval, an approved vendor shall only utilize the revised lesson plan in an approved course of study.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.5. Proof of Completion.
Note • History
(a) An approved vendor shall issue proof of completion to a notary public applicant or notary public upon completion of an approved course of study, as provided in subdivision (c).
(b) An approved vendor shall ensure that only a person who has completed an approved course of study receives proof of completion, as provided in subdivision (c). If a notary public applicant or notary public fails to be present during any portion of an approved course of study, the approved vendor shall not issue a proof of completion to the notary public applicant or notary public, and the notary public applicant or notary public shall not receive credit for the time in which he or she was present.
(c) Proof of completion shall consist of a certificate signed by an approved vendor or an employee, agent, instructor, contractor, or subcontractor of an approved vendor, which contains the following information:
(1) The name of the approved vendor as it appears on the certificate of approval issued by the Secretary of State for the approved course of study.
(2) The name of the notary public applicant or notary public who completed the approved course of study.
(3) The type of photograph identification, identification number, expiration date, and state or country of issuance of the documentation establishing the identity of the notary public applicant or notary public who attended and completed the approved course of study.
(4) The date the notary public applicant or notary public completed the approved course of study.
(5) Whether the proof of completion is for a three-hour or six-hour course of study.
(6) The following statements: (A) proof of completion shall be valid for a period of two (2) years from the date of issuance; and (B) proof of completion must be attached to the notary public application when submitted to the Secretary of State.
(d) Proof of completion of an approved course of study shall be valid for a period of two (2) years from the date of issuance. If proof of completion is submitted to the Secretary of State more than two (2) years after the proof of completion was issued, the Secretary of State shall notify the notary public applicant or notary public that the proof of completion is not valid and instruct the notary public applicant or notary public to complete an approved course of study and submit a valid, current proof of completion to the Secretary of State.
(e) Proof of completion submitted to the Secretary of State with a notary public application shall not be returned to the notary public applicant or notary public.
(f) If a notary public application is submitted without proof of completion or proof of completion is submitted without a notary public application, the Secretary of State shall return it to the notary public applicant or notary public with notification of the deficiency.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
Note • History
(a) An approved vendor shall maintain and secure a list of persons who attend each session of an approved course of study for a period of two (2) years from the date of issuance of proof of completion for the session in which a list refers. The list shall include the following:
(1) The name of the approved vendor as listed in the certificate of approval for the approved course of study;
(2) The vendor identification number issued by the Secretary of State;
(3) The name of the instructor or instructors who taught the approved course of study;
(4) The date, time, and location of the approved course of study;
(5) The names of all the attendees in alphabetical order by the last name of the attendee and whether or not proof of completion was issued to each attendee; and
(6) The type of photograph identification, identification number, expiration date, and state or country of issuance of the documentation establishing the identity of the notary public applicant or notary public who attended and completed the approved course of study.
(b) An approved vendor shall not collect the social security numbers of any attendees.
(c) “Secure” as used in this section means that an approved vendor, former approved vendor, or employee, agent, instructor, contractor, or subcontractor of an approved vendor or former approved vendor shall not copy or release any list of attendees or any information contained therein to any person, except the Secretary of State, district attorney, city attorney, or Attorney General.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.7. Secretary of State Attending Approved Course of Study.
Note • History
An approved vendor shall permit the Secretary of State or representatives of the Secretary of State to attend any approved course of study without prior notice at no charge for the purpose of observation, monitoring, auditing, or investigating. Upon arrival at an approved course of study, the Secretary of State or representatives of the Secretary of State shall provide an approved vendor with a letter identifying the individual(s) attending the course pursuant to this section signed by the Secretary of State or a representative of the Secretary of State.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.8. Duty to Respond to a Written Request from the Secretary of State.
Note • History
It shall be the duty of an approved vendor to respond in writing within thirty (30) business days of receiving a written request from the Secretary of State for any information relating to a course of study offered by the approved vendor. The Secretary of State shall send a written request to the address, facsimile number, or email address listed on the most current Notary Public Education Vendor Application or Amendment, form NP40 (03/05), filed pursuant to Section 20800 or 20800.3.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20800.9. Cancellation or Delay of Scheduled Approved Course of Study.
Note • History
(a) Prior to charging any fees to a notary public applicant or notary public for an approved course of study, an approved vendor shall disclose the refund policy of the approved vendor.
(b) An approved vendor shall refund all fees within thirty (30) business days of a scheduled course date to any notary public applicant or notary public who registered to attend an approved course of study if one of the following occurs: (1) an instructor fails to appear at the scheduled time, date, and place of the approved course of study; or (2) an approved course of study is delayed in starting more than fifteen minutes (15) after the scheduled time, a notary public applicant or notary public immediately informs the approved vendor of his or her request for a refund, and leaves the approved course of study prior to it starting.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20801. List of Approved Vendors.
Note • History
(a) The list compiled in accordance with subdivision (c) of Section 8201.2 of the Government Code shall list approved vendors in alphabetical order according to the name of each vendor as listed on the most current Notary Public Education Vendor Application or Amendment, for NP40 (03/05), submitted to the Secretary of State.
(b) The Secretary of State may include the following information on the list of approved vendors for each approved vendor: the name of approved vendor in accordance with subdivision (a); a mailing address; a maximum of two (2) telephone numbers; a facsimile number; an email address; and a website address.
(c) The Secretary of State shall only update the list of approved vendors to add, delete, or amend approved vendor information, which is filed in accordance with Section 20800.3. An updated list of approved vendors shall be available by the first (1st) day of each month following the month during which there were additions, deletions, or amendments to the list of approved vendors. A certificate of approval must be issued by the Secretary of State or an amendment must be submitted to the Secretary of State by the fifteenth (15th) day of the preceding month to be reflected in the updated list of approved vendors available by the first (1st) day of the following month. If a certificate of approval is issued by the Secretary of State or an amendment submitted to the Secretary of State after the fifteenth (15th) day of a month, then the additions, deletions, or amendments shall be reflected in the updated list of approved vendors available by the first (1st) day of the second (2nd) month following the month in which the certificate of approval was issued by the Secretary of State or an amendment was submitted to the Secretary of State.
(d) The Secretary of State may also make a list of approved vendors available online at www.ss.ca.gov. The online list of approved vendors shall be in random order and searchable by the county or counties in which approved vendors provide approved courses of study. The online list shall be updated in accordance with subdivision (c).
(e) The Secretary of State reserves the right to delete any information from the list compiled pursuant to subdivision (c) of Section 8201.2 of the Government Code or subdivision (d) of this section that the Secretary of State determines may be misleading to the public or of an inappropriate nature.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 9-25-2000; operative 9-25-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 39).
2. Renumbering of former section 20801 to section 20803 and new section 20801 filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20801.1. Grounds for Termination of a Certificate of Approval
Note • History
(a) The Secretary of State may terminate a certificate of approval upon any of the following grounds:
(1) Violation of any of the provisions of this chapter or Sections 8201 or 8201.2 of the Government Code.
(2) Misrepresentation of the laws of California concerning the duties and functions of a notary public.
(3) Deviation from the lesson plan for a course of study approved by the Secretary of State.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20801.2. Termination of Certificate of Approval.
Note • History
(a) Prior to the termination of a certificate of approval, the approved vendor affected shall have a right to a hearing on the matter and the proceeding shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of the Government Code.
(b) If the Secretary of State determines, after proceedings conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of the Government Code, that any approved vendor has committed or omitted acts constituting grounds for termination of the approved vendor's certificate of approval, the cancellation of the approved vendor's certificate of approval in accordance with Section 20801.3 shall not bar the Secretary of State from instituting or continuing an investigation or disciplinary proceedings. Upon completion of the disciplinary proceedings, the Secretary of State shall enter an order finding the facts and stating the conclusion that the fact would or would not have constituted grounds for termination of the certificate of approval if the certificate of approval had still been in effect.
NOTE
Authority cited: Sections 8201.2, 8220 and 11415.10, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20801.3. Cancellation of Certificate of Approval.
Note • History
(a) An approved vendor may cancel its certificate of approval by submitting a written notice of cancellation to the Secretary of State. Unless otherwise stated in the notice of cancellation, the effective date of the cancellation of the certificate of approval shall be thirty (30) business days after receipt of the notice of cancellation. It shall be the responsibility of a vendor to confirm receipt by the Secretary of State.
(b) Within thirty (30) business days of the effective date of a cancellation of a certificate of approval, a vendor shall refund all fees to all individuals who paid to take an approved course from a vendor if the course is scheduled after the effective date of the cancellation.
NOTE
Authority cited: Sections 8201.2 and 8220, Government Code. Reference: Sections 8201 and 8201.2, Government Code.
HISTORY
1. New section filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
Note • History
(a) The Secretary of State shall charge a twenty dollar ($20) processing fee for notary public applications to cover the costs of administering the program. The processing fee is nonrefundable.
(b) Upon written request, a notary public may obtain a duplicate commission certificate from the Secretary of State for a fee of ten dollars ($10) per certificate.
NOTE
Authority cited: Sections 8220 and 12182.1, Government Code. Reference: Sections 8201(c) and 8207.3, Government Code.
HISTORY
1. New chapter 8 (section 20802) and section filed 6-1-98; operative 6-1-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 23).
2. Amendment filed 3-1-2001; operative 3-31-2001 (Register 2001, No. 9).
3. Renumbering of former section 20802 to section 20804 and renumbering of former section 20800 to section 20802 filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20803. Notary Public Examination.
Note • History
The written examination prescribed by the Secretary of State to determine the fitness of an applicant to exercise the functions of the office of notary public shall be a proctored examination administered by the Secretary of State or an agent of the Secretary of State. The Secretary of State or an agent of the Secretary of State shall charge a twenty dollar ($20) examination fee which shall be payable at the examination site. The examination fee is nonrefundable. The examination results shall be valid for a period of one (1) year from the date of the examination.
NOTE
Authority cited: Sections 8220 and 12182.1, Government Code. Reference: Section 8201(c), Government Code.
HISTORY
1. Renumbering of former section 20801 to new section 20803 filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
§20804. Notary Public Disciplinary Guidelines.
Note • History
(a) In reaching a decision on a disciplinary action under the Administrative Procedure Act (Government Code Section 11400 et seq.), the Secretary of State shall consider the disciplinary guidelines entitled “Notary Public Disciplinary Guidelines 2001” which are hereby incorporated by reference. Deviation from the “Notary Public Disciplinary Guidelines 2001” and orders is appropriate where the Secretary of State in his or her sole discretion determines that the facts of the particular case warrant such deviation (e.g., nature and severity of the act, the presence of mitigating factors or evidentiary problems).
(b) The publication entitled “Notary Public Disciplinary Guidelines 2001” is available on the internet at www.ss.ca.gov or contact the Secretary of State, Notary Public Section, Attention: Publications, 1500 11th Street, Sacramento, California 95814.
NOTE
Authority cited: Sections 8220 and 11400.20, Government Code. Reference: Sections 11400.20 and 11425.50(e), Government Code.
HISTORY
1. Renumbering of former section 20802 to new section 20804, including amendment of section heading, filed 5-3-2005; operative 5-3-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 18).
Chapter 8.1. Recounts
Article 1. General Provisions
Note • History
(a) The purpose of this chapter is to establish standards and procedures for conducting recounts of votes cast for all elections in the State of California requested pursuant to Chapter 9 of Division 15 of the California Elections Code.
(b) This chapter applies to the Secretary of State and all elections officials within the State of California in conducting recounts of votes cast for all elections in this state.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15600 and 15601, Elections Code.
HISTORY
1. New chapter 8.1 (articles 1-3, sections 20810-20842), article 1 (sections 20810-20823) and section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) “Election data media device” means a card, cartridge, USB flash memory stick or other digital storage device that stores ballot information and/or voting results information in a non-volatile form.
(b) “Governing body” includes, but is not limited to, a city council or a county board of supervisors.
(c) “Interested party” means the requestor and those persons identified in Elections Code section 15628.
(d) “Observer” means any representative of a qualified political party, representative of a bona fide association of citizens, or other person who wishes to observe the recount proceedings subject to space limitations.
(e) “Qualified political party” means only a political party qualified to participate in the last primary election.
(f) “Relevant material” includes but is not limited to unvoted ballots, vote by mail and provisional ballot envelopes, voting system redundant vote data, ballot definition files, language translation files and the central database or other electronic repository of results for the election in which the contest subject to recount occurred, election data media devices, audit logs, system logs, pre- and post-election logic and accuracy testing plans and results, polling place event logs, precinct tally results, central count tally results and consolidated results in a structured, non-proprietary format, surveillance video recordings and chain of custody logs, including logs of security seals and access to election-related storage areas.
(g) “Requestor” means a voter who requests a recount or any other voter who, during the conduct of a recount and for 24 hours thereafter, requests the recount of additional precincts not recounted as a result of the original request.
(h) “Vote tabulating device” means any piece or combination of pieces of equipment, other than a voting machine operated by levers or other mechanical means, that compiles a total of votes cast by means of electronic data processing and ballot card sorting, ballot card scanning, or paper ballot scanning.
(i) “Voter” means any elector who is registered under the Elections Code.
(j) “Vote for One” means an election for an office in which the voter may select only one candidate.
(k) “Vote for Multiple” means an election for an office in which the voter may select two or more candidates.
(l) “Voter verified paper audit trail paper copy” does not include a voter verified paper audit trail paper copy from a direct recording electronic voting machine that was used only with a ballot definition or ballot definitions that did not include the contest being recounted.
(m) “Voting system redundant vote data” means each and every electronic record of election results for ballots cast in a contest subject to recount on one or more voting system units that is stored in any part of the voting system other than the jurisdiction's central electronic repository of results for that election. Some voting systems do not have redundant vote data on all tabulating or recording devices.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 358, 359, 361, 15620, 15621, 15623 and 15625, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
2. Amendment of subsection (c) filed 5-29-2012; operative 5-29-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 22).
§20812. Who May Request Recount.
Note • History
(a) Any voter may, pursuant to Elections Code sections 15620, 15621 or 15623, request a recount.
(b) Upon receipt of a request for recount, the elections official shall verify that the person requesting the recount is registered to vote in this state.
(c) Any time during the conduct of a recount and for 24 hours thereafter, any voter other than the original requestor may, pursuant to Elections Code sections 15620, 15621 or 15623, request the recount of any precincts not recounted as a result of the original recount request.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15620, 15621 and 15623, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20813. Material to Be Examined; Relevant Material.
Note • History
(a) Requests to examine specific categories of relevant material shall be made by the requestor in writing and shall be received by the elections official before the recounting of ballots commences.
(b) The elections official shall produce any relevant material requested.
(c) The elections official may establish reasonable guidelines for the production and examination of relevant material. The guidelines shall permit photocopying, photography and videotaping of all relevant material except in a manner that would record un-redacted voter signatures.
(d) The elections official shall communicate any request to examine ballots or other relevant material to each interested party or to his or her representative. The interested parties and their representatives appointed pursuant to section 20816(a)(1) may be present during the examination of ballots or other relevant material.
(e) The elections official, or his or her designee, shall be present during the examination of original ballots or original relevant material, but is not required to be present during the examination of copies of relevant material if the written request specified production of copies for examination.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15629 and 15630, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) If no order in which precincts are to be counted is specified in the request for recount, the elections official shall determine the counting order of precincts.
(b) The requestor may request, in writing, a change to the order of precinct counting determined by the elections official or specified in the requestor's initial request for a recount. Any change in the counting order of precincts is subject to the approval of the elections official.
(c) Any additional estimated costs associated with requests to change the order of precinct counting shall be paid by the requestor prior to re-ordering the precincts.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Section 15622, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) The elections official shall estimate the costs necessary to produce relevant material and the requestor shall pay an advance deposit of the estimated amount at least one day prior to the materials being produced.
(b) The requestor shall pay the advance deposit using cash, cashier's check or money order. At the elections official's discretion, electronic payment by credit or debit card may be accepted.
(c) At least one day prior to the commencement of the recount, the elections official shall determine the estimated cost for the first day of the recount and shall advise the requestor in writing of the advance deposit required. The requestor shall, before the recount is commenced, deposit this amount with the elections official. The same procedure shall be followed for each subsequent day of the recount. Daily estimates may vary based upon experience or additional requests made during the course of the recount.
(d) The requestor shall pay the advance deposit using cash, cashier's check or money order. At the elections official's discretion, electronic payment by credit or debit card may be accepted.
(e) All actual costs of the recount that would not have been incurred but for the requestor's particular recount request shall be directly recoverable from the requestor and may include, but are not limited to, additional supervision hours, security guard hours, the elections official's staff hours, space rental, transportation of ballots and materials and administrative costs.
(f) The elections official shall issue a receipt for payment of the deposits and shall maintain a daily log of estimated costs, deposits, actual expenses and amount of refund due, if any.
(g) If the advance deposit is not paid by a particular requestor, the elections official will terminate the recount of precincts specified by that requestor.
(h) When the recount is completed or discontinued, any amount collected from a voter requesting the recount, which exceeds the actual costs, shall be refunded to that requestor.
(i) If upon completion or discontinuation of the recount actual costs exceed the prepaid estimated costs, the elections official shall charge and the requestor shall pay the additional amount.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15624 and 15625, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) The recount shall take place in a location to be determined by the elections official. The elections official shall choose a location that is large enough to accommodate the presence of the following:
(1) Not more than two representatives of each interested party and each qualified political party to check and review the preparation, testing and operation of the tabulating devices, and to attend any or all phases of the recount; and
(2) Not more than two representatives of any bona fide association of citizens or a media organization to check and review the preparation, testing and operation of the tabulating devices, and have the representatives in attendance at any or all phases of the recount.
(3) In the event the elections official determines that more than two recount boards are necessary, each interested party may designate one additional representative for every additional recount board appointed, solely for the purpose of viewing the recount of ballots and challenging ballots.
(b) The elections official may limit the total number of representatives employed pursuant to subdivision (a)(2) in attendance to no more than 10 by a manner in which each interested bona fide association of citizens or media organization has an equal opportunity to participate. Any representatives employed and in attendance pursuant to subdivision (a)(1) or (a)(3) shall not be subject to the limit specified in this subdivision.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 5100, 15004, 15625, 15628 and 15629, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) The elections official shall, within six (6) months of the effective date of these regulations, submit to the Secretary of State written security measures for recounts to ensure the integrity of the recount proceedings. The security measures shall include, but not be limited to, chain of custody controls and signature-verified documentation for all voter verified paper audit trail paper copies, voted, spoiled and unused ballots, and all “relevant material” as described in section 20811(f). If submission by the vendor of a security plan to the Secretary of State is a condition of approval of voting system use, written notice to the Secretary of State of designation of that security plan to govern recounts satisfies the requirement of this subdivision.
(b) Upon request, all persons authorized to observe the recount pursuant to section 20816 must be permitted to observe and inspect, without physical contact, the integrity of all externally visible security seals used to secure all ballot materials, voter verified paper audit trail paper copies, printed ballot images, relevant material as described in section 20811(f), and recount documentation in a reasonable time and manner that does not interfere with the conduct of the recount.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15624 and 15625, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) Prior to the commencement of the recount, the elections official shall determine the number of special recount boards necessary to complete the recount in a timely manner. The elections official shall appoint four voters of the county to each special recount board. A voter who is also an employee of the elections' official's jurisdiction shall not be compensated as a special recount board member pursuant to Elections Code section 15625 for any day for which the jurisdiction otherwise compensates the employee unless the employee uses one of his or her vacation days.
(b) There shall be one supervisor for every four special recount boards. The supervisor's function is to enforce the rules and transport ballots and reports. The supervisor shall not resolve challenges.
(c) At the end of each day, the elections official or his or her designee shall post and announce publicly the following:
(1) The results of the recount tally of each precinct recounted that day;
(2) The certified election results tally for each precinct recounted that day;
(3) A running tally of the total recount results for all precincts recounted to date; and
(4) A running tally of the total certified election results for all precincts recounted to date.
(d) The elections official shall determine whether additional personnel is necessary for tasks such as producing relevant material, sorting or retrieving materials, or checking signatures.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Section 15625, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
The elections official shall set the daily schedule for the recount, including hours of operation, approximate break and lunch times, in accordance with the requirements of Elections Code section 15626. The schedule shall be posted in a conspicuous place at the office of the elections official and at the location where the recount takes place, if different.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15625 and 15626, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20820. Spokespersons and Observers.
Note • History
(a) Any person may observe the recount proceedings, subject to space limitations of the recount location selected by the elections official pursuant to section 20816.
(b) Upon request by the elections official, each interested party shall appoint one of his or her representatives to serve as a spokesperson authorized to make decisions with respect to the recount on behalf of the interested party, or the interested party may serve as his or her own spokesperson. When accompanied by an elections official or his or her designee, the spokesperson shall have access to all areas where ballots are recounted by hand or tabulated by machine.
(c) Questions other than ballot challenges shall be routed through the spokesperson, who shall then direct the question to the elections official or his or her designee. Official discussions with any interested party concerning resolution of questions shall include each interested party or his or her spokesperson.
(d) The elections official may require any requestor, interested party, representative, or observer of the recount proceedings to log in and receive an identification badge before entering the recount location. If required, identification badges shall be worn at all times and returned to the elections official at the end of the day.
(e) Requestors, interested parties, representatives, and observers shall not interfere in any way with the conduct of the recount, touch any voting system components, ballots, tally sheets or other special recount board materials, sit at the official recount worktables, place any material on the official recount worktables, talk to members of the special recount boards or supervisors while they are processing ballots or other recount materials or assist in recount procedures.
(f) The elections official may deny entry to the recount location to any person who fails to comply with the requirements of this section.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15625, 15629 and 15630, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20821. Media, Photography and Recording Devices.
Note • History
(a) The elections official shall, within six (6) months of the effective date of these regulations, develop a written policy providing reasonable access to the recount location by the media, and the use of cameras or audio or video recording devices in the recount location in a manner that will not interfere with the recount, compromise the anonymity of any ballot or record the signature of any voter. Interested parties and observers shall be permitted the same access for use of cameras or audio or video recording devices as members of the media.
(b) No interviews shall be permitted in the recount location while the recount is being conducted.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15625 and 15629, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) Upon completion of the recount, the elections official shall post the results of the recount in a highly visible public location in the elections official's office.
(b) In a recount of an election for a statewide office or measure, Assembly, State Senate, Presidential convention delegate or slate of electors, Congress, State Board of Equalization, Supreme Court or Courts of Appeal, transmit one complete copy of all results of the recount to the Secretary of State. The Secretary of State shall compile the results of the recount and notify the affected counties within five (5) business days of receipt of all of the results of the recount as to whether the recount has changed the outcome of the election, as provided in Elections Code section 15632.
(c) If the outcome of an election has changed as a result of a recount, as provided in Elections Code section 15632, the elections official shall:
(1) In a recount of an election for a statewide office or measure, Assembly, State Senate, presidential convention delegate or elector, Congress, State Board of Equalization, Supreme Court or Courts of Appeal, recertify the official returns for the recounted election with the new official count for each precinct involved in the recount and send a copy of the recertification to the Secretary of State.
(2) In a recount of an election for any office or measure not included in subdivision (c)(1), recertify the official returns for the election with the new official count for each precinct involved in the recount and send a copy of the recertification to the public official or governing body that declares the results of the election subject to the recount, in order that they may adopt the recertification and re-declare the results of the election.
(3) Refund all monies deposited for the recount by any requestor in whose favor the recount changed the outcome of the election. If a recount conducted in multiple counties changed the overall outcome of the election, all monies deposited in all affected counties by such a requestor shall be refunded. No refund shall be made if the recount did not change the overall outcome of the election.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15624, 15625, 15632 and 15633, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Note • History
(a) A challenged ballot shall be set aside with a notation indicating the precinct number, the method by which it was originally counted for the official canvass, e.g., direct recording electronic voting system, scanner or hand count, the challenge number assigned to the ballot, the reason for the challenge, and the identity of the person making the challenge.
(1) A ballot that was counted in the official canvass, including a counted vote by mail or provisional ballot, may be challenged only on grounds of disqualifying distinguishing marks or some other grounds visible on the face of the ballot so that the ballot can be isolated and removed from the count if the elections official determines that the ballot was not properly cast.
(2) A voted ballot that was not counted in the official canvass, including a rejected unopened vote by mail or provisional ballot, may be challenged and added to the count if the elections official determines that the ballot was properly cast.
(b) Resolution of challenged ballots shall take place in a segregated area within the recount location, separate from that being used to perform the recount, as determined by the elections official, to avoid confusion and mixing of ballots.
(c) Challenges shall be resolved each day after all special recount boards complete their work, or more often if necessary, as determined by the elections official, but in any event before the conclusion of all recount proceedings. The determination of the elections official on a challenge shall be final. The elections official shall maintain a record of each challenge and the determination on each challenge.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15625 and 15631, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Article 2. Recount of Votes Cast on Ballot Cards or Paper Ballots and Originally Tabulated Automatically
§20830. Recounts Using the Type of Vote Tabulating Devices Used In the Election.
Note • History
(a) Prior to conducting a recount of ballot cards or paper ballots using the type of vote tabulating devices used in the election, a logic and accuracy test limited to the contest subject to recount shall be conducted on each of the vote tabulating devices to be used in the recount, using a test deck created to test logic and accuracy for the contest to be recounted. The test shall be conducted publicly, subject to any limit made necessary by space limitations on the number of additional public observers beyond those that must be accommodated under section 20816. The results of the test, as well as the test deck used, shall be made available for inspection by any requestor, spokesperson, member of the media or observer present at the recount location between the time the test is completed and the posted time for recounting of ballots to begin.
(b) A recount using the type of vote tabulating devices used in the election shall, to the maximum extent possible, be conducted using the same methods used to tabulate the ballots originally, and shall include the following:
(1) On equipment capable of producing a paper tape or print-out, a zero-results tape or report shall be printed from each vote tabulating device, if feasible without new election coding and if supported by the device in the configuration used in the election, and verified by the requestor and spokespersons prior to any processing of ballots with that device.
(2) If necessary to preserve the original vote count record, a backup of the election results shall be made and the same type of memory media that was used in the election shall be prepared to capture the recount vote results.
(3) Each voted ballot shall be processed with the same type of vote tabulating devices used in the election.
(4) Ballots that cannot be read by the vote tabulating devices shall be corrected or duplicated in accordance with Elections Code sections 15208, 15210 and 15211.
(c) Once all eligible ballots cast in a precinct have been processed by a tabulating device, the device shall, if supported by the voting system, be rendered incapable of accepting further ballots for that precinct and the vote results shall be printed from that device and made available for public inspection. If supported by the voting system, the following steps shall also be taken:
(1) Recount vote results of ballots cast in each precinct subject to recount shall be uploaded to the voting system's central tabulation and reporting application; and
(2) The elections official shall report separately the recount vote results for each precinct subject to recount. Such reporting will include the number of ballots undervoted and overvoted in the recounted contest.
(d) At the conclusion of tabulation of all precincts designated for the recount, a logic and accuracy test limited to the contest subject to recount shall be conducted on each tabulating device used in the recount, using the same test deck created prior to the recount to test logic and accuracy for the contest. The test shall be conducted publicly, subject to any limit made necessary by space limitations on the number of additional public observers beyond those that must be accommodated under section 20816. The elections official shall make the results of the logic and accuracy test, as well as the test deck used for the test, available for inspection by the requestor, spokespersons, members of the media and observers at the recount location before the conclusion of the recount.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15633, 19220, 19360, 19370, 19380, 19381, 19382, 19383 and 19384, Elections Code.
HISTORY
1. New article 2 (sections 20830-20833) and section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20831. Manual Recounts Generally.
Note • History
(a) One of the four special recount board members shall read the ballot and call out the vote cast for the contest subject to recount on that ballot; one shall observe that the correct call was made, and two members shall each separately and independently record the votes as called out.
(b) Prior to beginning the actual manual recount, the elections official shall instruct all members of the special recount boards, requestor, interested parties, representatives and observers on the procedures to be followed for the recount and shall provide them with copies of these recount regulations, any local documentation concerning recount procedure, and documentation on how to interpret and read the votes cast on the ballot, consistent with federal and state law and the State Uniform Vote Count Standards. The instructions and documentation shall include a statement that in the event of a challenge, the determination of the elections official shall be final.
(c) Vote by mail and early-voted ballots cast from a precinct subject to recount shall be tabulated separately from ballots cast in a polling place on Election Day.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15101-15110, 15276, 15290 and 15625, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20832. Manual Recounts, “Vote for One” Contests.
Note • History
Manual recount tabulation on a voting system in a “Vote for One” contest is subject to the following requirements:
(a) Prior to counting the ballots, and in the clear view of the requestor, spokespersons and observers, all ballots for the precinct shall be separated into stacks that do and do not contain the contest. Those that contain the contest shall be sorted as follows:
(1) Ballots that were not voted for the contest (under-voted);
(2) Ballots that were over-voted for the contest; and
(3) Ballots that were voted for the contest, sorted by candidate or position.
(b) Starting with the voted ballots, one member of the special recount board shall state the candidate or position for which the vote was cast making sure the requestor, interested parties and their representatives can observe the contest subject to recount.
(c) After the vote is stated and counted, the counted ballot shall be placed on the table, with the counted ballots placed in stacks of either 10 or 25, at the discretion of the elections official.
(d) Two members of the special recount board shall record the votes stated, marking hashes in succession on their individual tally sheets. Each of these two board members shall announce when he or she has counted 10 (or 25) votes. If both members call out the same number of counted votes at the same time, the tally shall continue forward for the next 10 (or 25) ballots. If both recorders do not reach 10 (or 25) additional votes on the same ballot, then the count for the last interval of 10 (or 25) ballots shall be stricken from their tally sheets and those ballots recounted.
(e) A requestor or an authorized spokesperson may request to inspect any ballot. Tallying shall be halted while the ballot is presented to the requestor or spokesperson for closer inspection. At no time may any requestor or spokesperson touch or come into physical contact with any of the ballots. Tallying will resume once the requestor or spokesperson has completed the inspection, which the requestor or spokesperson shall complete in a reasonable amount of time.
(f) Tallying shall continue in this manner, until all stacks of voted ballots have been tallied.
(g) After all voted ballots have been counted and tallied, the two special recount board members who have been recording the votes shall each independently calculate the total votes for each candidate or position on their tally sheets. When both have completed totaling, they shall each announce their totals one candidate or vote position at a time. If both announce the identical vote total for each candidate or position in the recounted contest, the recount of that precinct shall be deemed complete and the results reported to the elections official. If the special recount board members announce different vote totals for any candidate or vote position in the recounted contest, the recount tallies recorded will be examined. If the difference can be explained by the special recount board or supervisor, or by the elections official or his or her designee, it shall be corrected on the tally sheet. A written report shall be made on an attachment to the tally sheet. In the event of an unexplained discrepancy, the results for that precinct shall be discarded and the recount of that precinct shall start over.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15276, 15290, 15629, 15630 and 19380, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20833. Manual Recounts, “Vote for Multiple” Contests.
Note • History
Manual recount tabulation on a voting system in a “Vote for Multiple” contest is subject to the following requirements:
(a) Prior to counting the ballots for the contest subject to recount, and in the clear view of the requestor, spokespersons and observers, all ballots for the precinct shall be separated into stacks that do and do not contain the contest. Those that contain the contest shall be sorted as follows:
(1) Ballots that were not voted for the contest (under-voted);
(2) Ballots that were over-voted for the contest;
(3) Ballots indicating a vote for the first candidate listed on the ballot for the contest; and
(4) Ballots that do not indicate a vote for the first candidate listed on the ballot for the contest.
(b) Starting with the voted ballots, one member of the special recount board shall state the candidate or position for which the vote was cast making sure the requestor, interested parties and their representatives can observe the contest subject to recount.
(c) After the vote is stated and counted, the counted ballot shall be placed on the table, with the counted ballots placed in stacks of 10 (or 25).
(d) Two members of the special recount board shall record the votes stated, marking hashes in succession on their individual tally sheets. Each of these two board members shall announce when he or she has counted 10 (or 25) votes. If both members call out 10 (or 25) counted votes at the same time, the tally shall continue forward for the next 10 (or 25) ballots. If both recorders do not reach 10 (or 25) additional votes on the same ballot, then the count for the last interval of 10 (or 25) ballots shall be stricken from their tally sheets and those ballots recounted.
(e) A requestor or an authorized spokesperson may request to inspect any ballot. Tallying shall be halted while the ballot is presented to the requestor or spokesperson for closer inspection. At no time may any requestor or spokesperson touch or come into physical contact with any of the ballots. Tallying will resume once the inspection is completed, which the requestor or spokesperson shall complete in a reasonable amount of time.
(f) Once all the votes for the first candidate have been recorded, the valid voted ballots shall be resorted into two stacks:
(1) Ballots that were voted for the second candidate in the contest; and
(2) Ballots that do not indicate a vote for the second candidate in the contest.
The ballots voted for the second candidate shall be calculated in accordance with (b) through (e) above. Tallying shall continue in this manner, until the votes for each candidate in the contest have been recounted and tallied.
(g) After all voted ballots have been counted and tallied, the two special recount board members who have been recording the votes will each independently calculate the total votes for each candidate or position on their tally sheets. When both have completed totaling, they will each announce their totals one candidate or vote position at a time. If both announce the identical vote total for each candidate or position in the recounted contest, the recount of that precinct shall be deemed complete and the results reported to the elections official. If the special recount board members announce different vote totals for any candidate or vote position in the recounted contest, the recount tallies recorded and announced will be examined. If the difference can be explained by the special recount board or supervisor, or by the elections official or his or her designee, it shall be corrected on the tally sheet. A written explanation shall be made on an attachment to the tally sheet. In the event of an unexplained discrepancy, the results for that precinct shall be discarded and the recount of that precinct will start over.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 15276, 15290, 15629, 15630 and 19380, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Article 3. Recount of Votes Cast on Direct Recording Electronic Voting Systems
§20840. Recounts on Direct Recording Electronic Voting Systems Using Electronic Vote Results.
Note • History
(a) Prior to conducting the actual recount of ballots, a logic and accuracy test limited to the contest subject to recount shall be conducted on each direct recording electronic voting system being used in the recount, using a test pattern created to test the logic and accuracy for the contest. The test shall be conducted publicly, subject to any limit made necessary by space limitations on the number of additional public observers beyond those that must be accommodated under section 20816. The elections official shall make the results of the logic and accuracy test, as well as the test pattern used for the test, available for inspection by the requestor, spokespersons and observers at the recount location before the conclusion of the recount.
(b) If supported by the voting system, electronic recount tabulation on a direct recording electronic voting system shall be based on a re-import and re-tabulation of the vote results from the electronic media originally used to capture and transfer the vote results from the direct recording electronic voting system devices into the election management system for that voting system. If re-import from electronic media is not supported by the voting system, the DRE vote results shall be manually added to the final results. The elections official shall generate a report for each recounted precinct detailing the aggregated direct recording electronic voting system vote results for the recounted contest.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 19220, 19381, 19382 and 19383, Elections Code.
HISTORY
1. New article 3 (sections 20840-20842) and section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20841. Automated Recounts on Direct Recording Electronic Voting Systems Using Voter Verified Paper Audit Trail Paper Copies.
Note • History
(a) The voter requesting the recount of votes cast on a direct recording electronic voting system may request that it be conducted based on an automated scan and tabulation of the voted ballots directly from the voter verified paper audit trail paper copies. An automated scan shall not be used unless the Secretary of State has tested and approved the automated scan method as part of the certification of the voting system.
(b) Prior to conducting the recount of voter verified paper audit trail paper copies from the direct recording electronic voting system, a logic and accuracy test limited to the contest subject to recount shall be conducted, using a test pattern and a test verified paper audit trail paper roll, on each automated scan and tabulation device to be used in the recount. The test shall be conducted publicly, subject to any limit made necessary by space limitations on the number of additional public observers beyond those that must be accommodated under section 20816. The elections official shall make the results of the logic and accuracy test, as well as the test pattern and test paper roll used for the test, available for inspection by the requestor, spokespersons and observers at the recount location before the conclusion of the recount.
(c) Once all vote results have been scanned and captured from each scanning and tabulating device used for the recount, the elections official shall generate a report for each precinct detailing the aggregated direct recording electronic voting system vote results for the recounted contest.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 19201, 19220, 19250, 19251 and 19253, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
§20842. Manual Recounts of Ballots Cast on Direct Recording Electronic Voting Systems Using Voter Verified Paper Audit Trail Paper Copies.
Note • History
The manual recount, using voter verified paper audit trail paper copies, shall include the following:
(a) If the direct recording electronic voting system used in the election subject to recount created continuous roll voter verified paper audit trail paper copies, the roll shall be re-spooled if necessary to permit the recount to begin at the start of the roll. The roll may not be cut to separate the voter verified paper audit trail paper copies of individual voters.
(b) One member of the special recount board shall be designated to review the voter verified paper audit trail paper copy and call out the vote results for the recounted contest from that paper copy. If it was printed and retained, this member shall begin by reviewing and verifying the zero-results tape printed prior to the opening of the polls and before any votes were captured. The zero-results tape, if it was printed and retained, shall also be reviewed and verified by the supervisor of the special recount board and by the requestor and spokespersons.
(c) The board member designated to review and call out the vote results shall then proceed to review the voter verified paper audit trail paper copies in succession, calling out each ballot in turn and stating how the ballot was voted in the challenged contest until either 10 or 25 (at the discretion of the elections official) have been called out. If there is no legible voter verified paper audit trail paper copy for a ballot due to a malfunction of the voter verified paper audit trail printer, the elections official shall print the ballot image for that ballot from the memory device used by the direct recording electronic voting system to record the ballot. The board member designated to review and call out the votes shall review the printed ballot image and shall state how the ballot was voted in the challenged contest.
(d) Two members of the special recount board shall record the votes stated, marking hashes in succession on their individual tally sheets. The board member designated to call out the votes shall announce when either 10 or 25 votes (at the discretion of the elections official) have been called out, and the recorders shall confirm that their vote counts match exactly. If the vote counts match exactly, the board member reviewing and calling out the vote results shall draw a distinct line on the continuous voter verified paper audit trail roll between the individual voter verified paper audit trail paper copy containing the 10th or 25th counted vote and the individual voter verified paper audit trail paper copy for the next voted ballot, and the tally shall continue forward for the next 10 or 25 counted votes. If the vote counts do not match exactly, then the count for the last interval of voter verified paper audit trail paper copies shall be stricken from their tally sheets and those voter verified paper audit trail paper copies recounted.
(e) The individual voter verified paper audit trail paper copies or printed ballot images shall be displayed to permit the requestor, spokespersons and observers to view the contest subject to recount, either directly or indirectly, as the voter verified paper audit trail paper copy or printed ballot image is reviewed and called. Voter verified paper audit trail paper copies for ballots that were canceled or canceled and re-voted, shall be noted but not counted toward the vote results.
(f) A requestor or an authorized spokesperson may request to inspect any voter verified paper audit trail paper copy or printed ballot image. Tallying shall be halted while the voter verified paper audit trail paper copy or printed ballot image is presented to the requestor or spokesperson for closer inspection. At no time may any requestor or spokesperson touch or come into physical contact with any of the voter verified paper audit trail paper copies or printed ballot images. Tallying shall resume once the inspection is completed, which the requestor or spokesperson shall complete in a reasonable amount of time.
(g) Tallying shall continue in this manner, breaks and meal times excepted, until the entire continuous voter verified paper audit trail record has been reviewed and tallied.
(h) After all ballots of a direct recording electronic voting system have been reviewed and tallied from its voter verified paper audit trail paper copies and, where necessary, printed ballot images, the special recount board members who have been recording the votes shall independently calculate the total votes for each candidate or vote position on their tally sheets. When both have completed totaling, each shall announce his or her totals for that candidate or vote position. If both announce the identical vote total for each candidate or vote position in the recounted contest, the recount of that direct recording electronic voting system shall be deemed complete and the recount shall proceed with the continuous voter verified paper audit trail roll for the next direct recording electronic voting system with voted ballots for the challenged contest.
(i) If the special recount board members announce different vote totals for the candidate or position, the recount tallies recorded and announced for that candidate or position shall be examined. If the difference can be explained by the special recount board or supervisor, or by the elections official or his or her designee, it shall be corrected on the tally sheet. A written explanation shall be made on an attachment to the tally sheet. In the event of an unexplained discrepancy, the results for that direct recording electronic voting system shall be discarded and the recount of that candidate or position shall start over.
(j) Once all the voter verified paper audit trail paper copies and, where necessary, printed ballot images containing votes for a precinct have been reviewed and tallied, the recount of that precinct shall be deemed complete and the results reported to the elections official.
NOTE
Authority cited: Section 12172.5, Government Code; and Sections 10 and 15601, Elections Code. Reference: Sections 19250 and 19382, Elections Code.
HISTORY
1. New section filed 11-17-2009; operative 12-17-2009 (Register 2009, No. 47).
Chapter 8.5. Business Entity Names
§21000. Rules of General Application.
Note • History
(a) Business entity names must use the English alphabet or Arabic numerals (0, 1, 2, 3, 4, 5, 6, 7, 8, 9) or symbols as listed in Section 21002(b)(6)(B) or a combination thereof. Except as provided in Section 21003(c), for the purposes of determining whether a proposed name is the same, deceptively similar to, substantially the same as, or distinguishable from an existing name, letters of the English alphabet shall not be interpreted as Roman numerals and will not be considered to have numeric value.
(b) For the purposes of determining whether a proposed name is the same, deceptively similar to, substantially the same as, or distinguishable from an existing name:
(1) No distinction between upper and lower case letters, typeface or font will be recognized.
(2) Accent marks above letters and other English language diacritics will not be recognized.
(3) Subscript or superscript characters will be treated as standard characters and will not appear above or below other characters in a business entity name.
(c) The conditions and examples used in these regulations are not exclusive, nor will these regulations be used to limit the Secretary of State's discretion in determining whether a proposed name is likely to mislead the public, is the same as, deceptively similar to, or distinguishable on the record from the name of an existing business entity, or whether a proposed name will require consent from an existing business entity of record for use of a proposed name.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 15901.08, 15909.05, 17052 and 17452, Corporations Code. Reference: Sections 8, 167, 171, 201, 2101, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15611, 15612, 15613, 15693, 15901.02, 15901.08, 15901.09, 15909.05, 17001, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New chapter 8.5 (sections 21000-21009) and section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
Note • History
(a) “Active” means not revoked, cancelled, merged out, converted, dissolved, surrendered, term expired, inactive, suspended or forfeited.
(b) “Deceptively similar” means to resemble so closely as to tend to deceive. A resemblance is considered as tending to deceive when a person using that care, caution and observation which the public uses and may be expected to use, would mistake a proposed name with an existing name.
(c) “Business entity” means a domestic corporation, foreign corporation, limited liability company, foreign limited liability company, limited partnership or foreign limited partnership.
(d) “Business entity ending” means one or more letters or words at the end of a business entity name denoting existence as a business entity. The following are examples of words or letters presumed to be business entity endings:
(1) Corporations:
(A) Corporation
(B) Company
(C) Incorporated
(D) Incorporation
(E) Limited
(F) Corp
(G) Co
(H) Inc
(I) Ltd
(J) PC
(K) Professional Corporation
(2) Limited Liability Companies:
(A) Limited Liability Company
(B) LLC
(C) L.L.C.
(D) The words “Limited” and “Company” in a limited liability company name may also be abbreviated to “Ltd.” and “Co.”, respectively.
(3) Limited Partnerships:
(A) Limited Partnership
(B) LP
(C) L.P.
(e) “Existing name” means:
(1) With respect to a corporation:
(A) The current name of an active domestic corporation;
(B) The name under which a qualified foreign corporation currently is authorized to transact intrastate business in California or the registered name pursuant to Corporations Code section 2101;
(C) The current name which an active foreign corporation has assumed pursuant to Corporations Code section 2106;
(D) A name which will become the name of record of a domestic corporation or foreign corporation upon the effective date of a filed corporate instrument when there is a delayed effective date pursuant to Corporations Code section 110(c), 5008(c) or 12214(c); or
(E) A corporate name, which is under reservation with the Secretary of State.
(2) With respect to a limited liability company:
(A) The current name of an active domestic limited liability company;
(B) The name under which a qualified foreign limited liability company currently is authorized to transact intrastate business in California;
(C) A name which will become the name of record of a domestic limited liability company or foreign limited liability company upon the effective date of a filed limited liability company instrument when there is a delayed effective date pursuant to Corporations Code section 17056(c); or
(D) A limited liability company name that is under reservation with the Secretary of State.
(3) With respect to a limited partnership:
(A) The current name of an active domestic limited partnership;
(B) The name under which a qualified foreign limited partnership currently is authorized to transact intrastate business in California;
(C) A name which will become the name of record of a domestic limited partnership or foreign limited partnership upon the effective date of a filed limited partnership instrument when there is a delayed effective date pursuant to Corporations Code section 15620(a) or 15902.06(b); or
(D) A limited partnership name, which is under reservation with the Secretary of State.
(f) “Proposed Name” means:
(1) With respect to a corporation name:
(A) The name of a corporation contained in articles of incorporation, in a statement and designation by foreign corporation or association, or in an application to register a name pursuant to Corporations Code section 2101 submitted to the Secretary of State for filing;
(B) The name of a corporation contained in a certificate of amendment to the articles of incorporation, restated articles of incorporation, agreement of merger or amended statement and designation by foreign corporation submitted to the Secretary of State for filing, if that name is different than the existing name of the corporation or foreign corporation; or
(C) The name of a corporation contained in an application for name reservation with the Secretary of State.
(2) With respect to a limited liability company name:
(A) The name of a limited liability company contained in articles of organization or in an application for registering a foreign limited liability company submitted to the Secretary of State for filing;
(B) The name of a limited liability company contained in a certificate of amendment to the articles of organization, certificate of merger or an amendment to an application for registering a foreign limited liability company submitted to the Secretary of State for filing, if that name is different than the existing name of the limited liability company or foreign limited liability company; or
(C) The name of a limited liability company contained in an application for name reservation with the Secretary of State.
(3) With respect to a limited partnership name not subject to the Uniform Limited Partnership Act of 2008:
(A) The name of a limited partnership contained in a certificate of limited partnership or in an application for registering a foreign limited partnership submitted to the Secretary of State for filing;
(B) The name of a limited partnership contained in a certificate of amendment to the certificate of limited partnership, certificate of merger or an amendment to an application for registering a foreign limited partnership submitted to the Secretary of State for filing, if that name is different than the existing name of the limited partnership or foreign limited partnership; or
(C) The name of a limited partnership contained in an application for name reservation with the Secretary of State.
(4) With respect to a limited partnership name subject to the Uniform Limited Partnership Act of 2008 see Section 21009.
(g) Additional definitions.
(1) “Domestic Corporation” has the same meaning found in Corporations Code section 167.
(2) “Foreign Corporation” has the same meaning found in Corporations Code section 171.
(3) “Limited Liability Company” or “Domestic Limited Liability Company” has the same meaning found in Corporations Code section 17001(t).
(4) “Foreign Limited Liability Company” has the same meaning found in Corporations Code section 17001(q).
(5) “Limited Partnership” has the same meaning found in Corporations Code section 15611(r).
(6) “Foreign Limited Partnership” has the same meaning found in Corporations Code section 15901.02(k).
NOTE
Authority cited: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 17052 and 17452, Corporations Code. Reference: Sections 8, 167, 110, 171, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15611, 15612, 15613, 15693, 15910.02, 17001, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21002. Same or Deceptively Similar Names.
Note • History
(a) Except as provided in Section 21009, and except as provided in Sections 2106 and 13409(a) of the Corporations Code, the Secretary of State shall not file a document or grant a name reservation that includes a proposed name that is the same as or deceptively similar to an existing name.
(b) Without limiting the discretion of the Secretary of State to determine that a proposed name is the same as or deceptively similar to an existing name, a proposed name is the same as or deceptively similar to an existing name in the following circumstances:
(1) If a proposed name and the existing name are identical in all respects.
(2) If the difference between the proposed name and existing name is the use of upper case letters, lower case letters, the use of superscript or subscript letters or numerals or the use of an ampersand in place of “and” or vice versa.
(3) If the difference between the proposed name and existing name is the existence or absence of one or more business entity endings. However, the use of the words “and company” at the end of a proposed name is not considered a business entity ending because the word “Company” is used to indicate an association or fellowship with another person.
Examples:
Sampson, Incorporated, Sampson Corporation and Sampson Ltd. are deceptively similar to each other.
Northwest Services Limited, Northwest Services Company and Northwest Services are deceptively similar to each other.
Grandma's Cookies, Limited Liability Company and Grandma's Cookies, LLC and Grandma's Cookies, Ltd. Liability Co. are deceptively similar to each other.
(4) If the difference between the proposed name and existing name is the use of a possessive “s”, or a plural.
Examples:
Southern State Contractors, Inc., Southern States Contractor, Corp. and Southern State's Contractor, Co. are deceptively similar to each other.
Manufacturing Category, Corporation and Manufacturing Categories, Corporation are deceptively similar to each other.
(5) If the difference between the proposed name and existing name is the use of different or added articles of speech (such as: “a,” “an,” “the”) or a conjunction or disjunction (such as: “and,” “&,” “or”).
Examples:
The Long Co. and Long Co. are deceptively similar to each other.
The Finish Line Company and A Finish Line Company are deceptively similar to each other.
Westside Kitchen or Bath, Westside Kitchen and Bath and Westside Kitchen & Bath are deceptively similar to each other.
(6) If the difference between the proposed name and existing name is the addition or omission of distinctive lettering or typeface, punctuation, symbols or spaces.
(A) The following items are considered punctuation:
Period .
Slash /
Comma ,
Back Slash “
Semicolon ;
Hyphen or Dash -
Colon :
Underline _
Apostrophe `
Swung Dash ~
Single Quotation Mark `
Parentheses ( )
Double Quotation Mark “ ”
Brackets [ ]
Question Mark ?
Angle Brackets < >
Exclamation Mark !
Braces { }
(B) The following items are considered symbols:
At / each @
Number / pounds #
Dollars $
Percent %
Caret ^
Ampersand &
Asterisk *
Plus / positive +
Equal =
Examples:
A B C Corp, AB C Corp. , A.B.C. Corp. and A-B-C Inc. are deceptively similar to each other.
Good Time Rest Home, Inc. and Goodtime Rest Home Inc. are deceptively similar to each other.
D.R.E.A.M. Incorporated and Dream Corporation are deceptively similar to each other.
(C) Notwithstanding this Section, a proposed name might not be deceptively similar to an existing name when the difference between the proposed name and existing name is the addition or omission of a space or spaces so that the proposed name is pronounced differently and creates a new word or words that have different meanings.
Example: Got Ham Company and Gotham Company are not deceptively similar to each other.
(7) If the difference between the proposed name and existing name is a numerical number and the same number spelled with letters of the alphabet.
Example: United 7 Company and United Seven, Inc. are deceptively similar to each other.
(8) If the difference between the proposed name and existing name is any combination of subsections (1) through (7) of this subsection (b).
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12302, 13409, 15612, 15693, 17052 and 17452, Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 11214, 12302, 13409, 15612, 15613, 15693, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21003. Substantially Similar Names Available with Consent.
Note • History
(a) Notwithstanding Section 21002, and without limiting the discretion of the Secretary of State to determine that a proposed name is the same as or deceptively similar to an existing name and except as provided in Section 21009 and Section 2106(b) of the Corporations Code, the Secretary of State may file a document containing a proposed name that is substantially the same as (sometimes referred to as “substantially similar” or “substantially similar to”) an existing name only upon:
(1) Proof of consent to the proposed name by the business entity possessing the existing name that is substantially the same; and
(2) A finding by the Secretary of State that the public is not likely to be misled.
(b) A proposed name is substantially the same as an existing name if it implies an affiliation with, or a subsidiary relationship to, a business entity possessing an existing name.
(1) A proposed name is rebuttably presumed to imply an affiliation with, or a subsidiary relationship to, a business entity possessing an existing name if the proposed name is the same or deceptively similar to the existing name except for the addition or absence of the word “of” followed by a geographic designation at the end of the name or immediately preceding a business entity ending.
(2) A proposed name may imply an affiliation with, or a subsidiary relationship to, a business entity possessing an existing name if the proposed name is the same or deceptively similar to the existing name except for:
(A) The addition or absence of a numerical expression or a compass direction;
(B) The addition of a geographic designation at the beginning or at the end of the name or immediately preceding a business entity ending; or
(C) The addition or absence of the word “holding” or “holdings”.
(3) For purposes of this Section, geographic designation includes the recognized name or abbreviation of a city, county, state, a recognized subdivision within a state or country, a lake or ocean, a region (such as: Central California, Bay Area, etc.), a country, or a continent. For purposes of this Section, the term geographic designation does not include street names.
Examples:
Burger King, Burger King No. 5 and Burger King No. 57 are substantially the same as each other requiring consent from the oldest existing entity of record.
Johnson Products, Inc. is substantially the same as Johnson Products of California, Inc. requiring consent.
(c) Notwithstanding Section 21000(a), letters of the English alphabet that may be perceived as Roman numerals (such as “I,” “V,” or “X”), when located at the end of a name or immediately preceding a business entity ending may imply an affiliation with or subsidiary relationship to a business entity with a name that is otherwise the same or deceptively similar.
(d) When the only difference between a proposed name and an existing name is the addition of an Internet suffix including, but not limited to “.com”, “.net” or “.org,” the proposed name may be considered substantially the same as the existing name and require consent.
Example:
Grandma's Cookies.Com is substantially the same as Grandma's Cookies, Inc., requiring consent.
(e) When the only difference between a proposed name and an existing name is the use of the word “dot” in place of a period, or vice versa, immediately preceding an Internet suffix (including, but not limited to “com,” “net” or “org”), the proposed name may be substantially the same as the existing name.
Example:
Grandma's Cookies.Com is substantially the same as Grandma's Cookies Dot Com, requiring consent.
(f) A proposed name that would otherwise imply an affiliation with or subsidiary relationship to an existing business entity under subsection (b) of this Section, shall not require consent if:
(1) The proposed name belongs to a church formed or forming as a nonprofit religious corporation and it contains the word “church” or another word indicating that it is a church or religious denomination or religious order.
Example: First Baptist Church of Sacramento and First Baptist Church of San Francisco do not require consent.
(2) The proposed name belongs to a corporation formed or forming a nonprofit public benefit corporation or a nonprofit mutual benefit corporation and the proposed name contains language indicating that it is a homeowners association.
Example: Sacramento Homeowners Association, Sacramento Owners Association, Sacramento Condominium Association and Sacramento Town Homes Associations do not require consent.
(3) The proposed name belongs to a business entity formed or forming as a nonprofit corporation and the Secretary of State determines that it is a subordinate chapter under the authority of a head organization.
Example: Veterans Of Foreign Wars Montebello Post 2317 and Veterans Of Foreign Wars Inc. Post No. 2627 do not require consent.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 17052 and 17452, Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15612, 15613, 15693, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
Note • History
(a) When consent is required pursuant to Section 21003, it must be submitted to the Secretary of State in writing on business letterhead showing the name of the business entity with the existing name. While no particular form of consent is required, the letter of consent to the use of the proposed name must:
(1) Be unequivocal,
(2) Be without conditions,
(3) Include express consent to the use of the proposed name,
(4) Include the name of the person or business entity to whom consent is given, and
(5) Be signed by an authorized officer, partner or manager of the consenting business entity.
(b) Without limiting the discretion of the Secretary of State to determine the sufficiency of the consent letter, the following language meets the requirements of Subsections (a)(1), (2), (3) and (4) of this Section 21004: “[Insert name of existing business entity giving consent] hereby consents to the use of the name [insert proposed name] by [insert name of person or business entity to whom consent is given] in forming a [insert type of business entity].
(c) In the event there is more than one existing name that is substantially the same as a proposed name, consent must be obtained from the business entity that acquired the substantially similar name of record on the earliest date.
(d) Consent must be obtained prior to filing a document containing a proposed name that is substantially the same as an existing name regardless of how many times a business entity previously may have consented to other names that are substantially the same or how many other existing names also are substantially the same. Consent by a business entity to a particular proposed name shall not be construed as consent to the use of any future proposed name that is substantially the same.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 17052 and 17452, Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15612, 15613, 15693, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21005. Names That Are Likely to Mislead the Public.
Note • History
(a) Except as provided in Section 21009, the Secretary of State shall not file a document or grant a name reservation that sets forth a proposed name that is likely to mislead the public.
(b) Without limiting the discretion of the Secretary of State to determine that a name is likely to mislead the public, a proposed name is likely to mislead the public in the following circumstances:
(1) If it creates a false implication of government affiliation.
(A) A proposed name may imply a government affiliation if the proposed name contains the recognized name or abbreviation of a city, county, state, country, region or recognized subdivision within a state or country and/or includes a word or words that commonly denote governmental organization or authority.
(B) Words that commonly denote governmental organization include, but are not limited to, “Agency,” “Commission,” “Department,” “Bureau,” “Division,” “Municipal” or “Board.”
Examples:
San Mateo County Sewer Commission implies a government affiliation.
United States Export Development Agency implies a government affiliation.
(2) If the proposed name creates a false implication that it is a professional corporation within the meaning of the Moscone-Knox Professional Corporation Act. The use of the words “Professional Corporation,” “Prof Corp” or the letters “P.C.” or “PC” at the end of a proposed name by a corporation that is not a professional corporation or foreign professional corporation within the meaning of the Moscone-Knox Professional Corporation Act is likely to mislead the public.
(3) If the proposed name creates a false implication that it is a business entity formed pursuant to a different law other than that under which it is actually formed. The use of a business entity ending identified under Section 21001(d) for a business entity type other than specified in that section is misleading.
(4) If the proposed name creates the false implication that the business entity's purpose is to be an insurer. The words “insurance,” “reinsurance,” “assurance” and “surety” in a proposed name for a business entity that is not subject to the Insurance Code as an insurer may mislead the public unless the words are accompanied by other words that remove the implication that the business entity's purpose is to be an insurer. The addition of the words “agency,” “agent,” “services” or “broker” (such as “insurance agency,” “insurance agent” or “insurance broker”) may remove the implication that the business entity's purpose is that of an insurer.
(5) If the proposed name of a nonprofit mutual benefit corporation includes the words “Charitable Foundation” or “Foundation” at the end of the name or immediately preceding a business entity ending.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 17052 and 17452, Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15612, 15613, 15693, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21006. Name Reservations & Verbal Opinions.
Note • History
(a) A business entity name that (1) is substantially the same as an existing name under Section 21003, (2) is prohibited by federal or state law except with consent, approval or endorsement or (3) is subject to other state or federal laws may be reserved in writing with the Secretary of State; provided, however, that the Secretary of State will require appropriate evidence of the required consent, approval, endorsement or compliance prior to filing the document containing the reserved name.
(b) A name reservation or written or oral opinion given by an employee of the Secretary of State on the similarity of a name to an existing name or a name reservation issued by the Secretary of State is advisory only and is not a final determination that the name reservation is acceptable. A final determination on the availability of a business entity name is made only when the document is submitted to the Secretary of State for filing.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 17052 and 17452, Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15612, 15613, 15693, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21007. Additional Guidelines.
Note • History
(a) Without limiting the discretion of the Secretary of State to determine that a proposed name is the same as, deceptively similar to or substantially the same as an existing name, the following may be used for evaluating the similarity of proposed names and existing names:
(1) Arrangement of words. A proposed name may be acceptable if the proposed name contains a variation in the sequencing or arrangement of the same words as the existing name.
Example: Systems Analysis And Research Consultants and Systems Research And Analysis Consultants Inc. are not deceptively similar to each other and do not require consent.
(2) Initials and letters of the alphabet. When a proposed name and an existing name both consist only of initials or letters of the alphabet, the proposed name may be acceptable if the proposed name has removed or added an initial or letter of the alphabet or has added or deleted an “and” or ampersand (“&”).
Examples:
ABC, Inc., ABCD, Inc., BCD, Inc. and ABC Supply Corp. are not deceptively similar to each other and do not require consent.
AAA, Inc. and AAB, Inc. are not deceptively similar to each other and do not require consent.
A, Inc. and AB, Inc. are not deceptively similar to each other and do not require consent.
A&B, Inc. and AB, Inc. are not deceptively similar to each other and do not require consent.
(3) Surname. The use of a surname, or surnames, as part of a proposed name shall not, by itself, make a proposed name deceptively similar to, or substantially the same as, an existing name that uses the same surname or surnames. The names may be acceptable if there is some other sufficient basis under these regulations for differentiating the existing name and the proposed name.
Examples:
E.G. Williams Electric and Williams Electric Company are not deceptively similar to each other and do not require consent.
Jim Nomura, Inc. and Nomura Inc. are not deceptively similar to each other and do not require consent.
Ralph A. Johnson, Inc. and Ralph Johnson, Inc. are not deceptively similar to each other and do not require consent.
Martinez and Davis and Martinez and Davis Publication, Inc. are not deceptively similar to each other and do not require consent.
(4) Phonetic spelling. When a proposed name and an existing name sound the same but are spelled differently, the proposed name may be acceptable.
Examples:
The Flour Shop, Inc. and The Flower Shop, Inc. are not deceptively similar to each other and do not require consent.
Double A Trucking and AA Trucking are not deceptively similar to each other and do not require consent.
Cool Cuts and Kool Kuts are not deceptively similar to each other and do not require consent.
Great Picks and Great Pix are not deceptively similar to each other and do not require consent.
Capitol Corp. and Capital Inc. are not deceptively similar to each other and do not require consent.
Jones Tires and Joans Tires are not deceptively similar to each other and do not require consent.
(5) Prepositions. Prepositions (“in,” “on,” “of,” “by,” “about,” etc.) are considered in comparing names. When the only difference between a proposed name and an existing name is the addition or omission of a preposition the proposed name may be acceptable.
Examples:
Kids of Tomorrow, Inc. and Kids For Tomorrow, Inc. are not deceptively similar to each other and do not require consent.
Something About Mary, Inc. and Something by Mary Company are not deceptively similar to each other and do not require consent.
(6) Words not translated. Although business entity names may consist, in whole or in part, of words that have meaning in a foreign language, the foreign meaning will not be considered for purposes of determining if a proposed name is deceptively similar or substantially the same.
Examples:
Casa Blanca Enterprises, Inc. and White House Enterprises, Inc. are not deceptively similar to each other and do not require consent.
Las Brisas Corp. and Brisas, Inc. are not deceptively similar to each other and do not require consent.
La Boutique, Inc. and Le Boutique, Co. are not deceptively similar to each other and do not require consent.
(7) Acronyms. Acronyms are part of a business entity name. When an existing name or proposed name or portion of an existing name or proposed name consists of an acronym, the acronym may be treated as a word in the same manner as other words for application of this Section. It is acceptable to use an acronym and full name together.
Examples:
R.I.S.E. (Riding Instruction For Special Equestrians) and Rise, Inc. are not deceptively similar to each other and do not require consent.
WEAVE and Women Escaping A Violent Environment - WEAVE are not deceptively similar to each other and do not require consent.
(8) Abbreviations and words with similar meanings. Abbreviated words are not translated when comparing names. Words with similar meanings may be acceptable.
Examples:
St Management Corporation and Street Mgmt Corporation are not deceptively similar to each other and do not require consent.
Universal Movies Corp, Universal Productions, Inc. and Universal Films are not deceptively similar to each other and do not require consent.
(b) Court judgments. Without limiting the discretion of the Secretary of State to determine that a proposed name is the same as, deceptively similar to or substantially the same as an existing name, or is not distinguishable on the record, court judgments may be used for evaluating the similarity of proposed names and existing names. A proposed name is acceptable if the customer submits a certified copy of the final judgment of a court of competent jurisdiction establishing the customer's right to use the proposed name in California. All court judgments are subject to legal review and approval prior to filing by the Secretary of State.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 15901.08, 15909.05, 17052 and 17452, Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15612, 15613, 15693, 15901.08, 15901.09, 15909.05, 17052 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21008. Matters Not Considered When Comparing Business Entity Names.
Note • History
Without limiting the discretion of the Secretary of State to determine that a proposed name is the same as, deceptively similar to or substantially the same as an existing name, or is not distinguishable on the record, the following matters shall not be considered when comparing proposed names and existing names:
(a) Subject to the requirements found in California Corporations Code section 2106, the purpose of a business entity.
(b) Whether or not an existing business entity is actively engaged in business, or has a telephone listing, or a location or place of business.
(c) pWhere the proposed entity intends to do business in relation to an existing business entity.
(d) Whether or not an existing business entity is about to change its name, dissolve, surrender, convert or merge out of existence.
(e) Whether or not a letter of consent can be obtained from an existing business entity.
(f) Whether or not the applicant is more or less important, extensive, widely known, or influential than an existing business entity.
(g) Whether or not the applicant has ordered stationery, opened a bank account, signed a contract, or otherwise altered the position of the applicant in the expectation, hope or belief that the proposed name is available.tS
(h) Whether or not any person or business entity possess any rights, under the common law or statutory law of unfair competition, unfair trade practices, trademarks, trade names, service marks, service names, copyrights or any other similar laws.
(i) Whether or not the name has been approved for use by another agency.
NOTE
Authority cited: Sections 8, 110, 201, 2106, 5008, 5122, 7122, 9122, 12214, 12302, 13409, 15612, 15693, 15901.08, 15909.05, 17052 and 17452(b), Corporations Code. Reference: Sections 8, 110, 201, 2101, 2106, 5008, 5122, 6910, 7122, 8910, 9122, 12214, 12302, 13409, 15612, 15613, 15693, 15901.08, 15901.09, 15909.05, 17052, 17053 and 17452, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
§21009. Limited Partnerships Governed by the Uniform Limited Partnership Act of 2008.
Note • History
For limited partnerships and foreign limited partnerships formed or registered on or after January 1, 2008 and limited partnerships or foreign limited partnerships formed or registered before January 1, 2008 that are governed by the Uniform Limited Partnership Act of 2008, whether by election or operation of law, the following shall apply:
(a) For the purposes of this Section 21009 only, “Proposed name” means:
(1) The name of a limited partnership contained in a certificate of limited partnership or in an application for registering a foreign limited partnership submitted to the Secretary of State for filing;
(2) The name of a limited partnership contained in a certificate of amendment to the certificate of limited partnership, certificate of merger or an amendment to an application for registering a foreign limited partnership submitted to the Secretary of State for filing, if that name is different than the existing name of the limited partnership or foreign limited partnership; or
(3) The name of a limited partnership contained in an application for name reservation with the Secretary of State.
(b) Except as authorized by California Corporations Code sections 15901.08(e) and 15901.09, a proposed name must be distinguishable in the records of the Secretary of State from that of an existing name.
(c) A proposed name is distinguishable on the record from an existing name when it is not the same as an existing name and, except as provided in subsection (d), contains one or more different letters or numerals or has a different sequence of the same letters or numerals that is plainly recognizable by means of sight by the Secretary of State or a designee of the Secretary of State.
(d) A proposed name is not distinguishable on the records of the Secretary of State from an existing name if the names are the same or differ only in one or more of the following ways:
(1) If the difference between the proposed name and existing name is the existence or absence of any of the following entity endings:
(A) Limited Partnership
(B) LP
(C) L.P.
(D) Limited Liability Limited Partnership
(E) LLLP
(F) L.L.L.P.
(2) If the difference between the proposed name and existing name is the use of upper case letters or lower case letters or the use of superscript or subscript letters or numerals.
(3) If the difference between the proposed name and existing name is the addition or omission of distinctive lettering or typeface, punctuation as defined in Section 21002(b)(6)(A) or spaces.
Examples:
A B C LP, AB C LP, A.B.C. LLP and A-B-C LLLP would not be distinguishable.
Good Time Rest Home, LP and Goodtime Rest Home LP would not be distinguishable.
D.R.E.A.M. Limited Partnership and Dream LP would not be distinguishable.
(4) Notwithstanding Subsection(d)(3), a proposed name might be distinguishable from an existing name when the difference between the proposed name and existing name is the addition or omission of a space or spaces so that the proposed name creates a new word or words that have different meanings.
Example: Got Ham LP is acceptable against Gotham, LP.
NOTE
Authority cited: Sections 8, 15901.08 and 15909.05, Corporations Code. Reference: Sections 8, 15901.08, 15901.09 and 15909.05, Corporations Code.
HISTORY
1. New section filed 5-14-2009; operative 5-14-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 20).
Chapter 9. Business Programs
§21900. Fees for Filing Bonds.
Note • History
(a) The fee for filing a bond shall be $30.00.
NOTE
Authority cited: Sections 22391.1 and 22443.1, Business and Professions Code; and Sections 1789.26, 1812.69, 1812.129, 1812.503, 1812.510, 1812.515, 1812.525 and 1812.600, Civil Code. Reference: Sections 22391.1 and 22443.1, Business and Professions Code; and Sections 1789.26, 1812.69, 1812.129, 1812.503, 1812.510, 1812.515, 1812.525 and 1812.600, Civil Code.
HISTORY
1. Repealer and new chapter 9 heading and new section filed 10-31-97; operative 10-31-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 44). For prior history see Register 85, No. 26.
2. Repealer of subsection (b) filed 3-4-99; operative 4-3-99 (Register 99, No. 10).
§21902. Requirements for Bonds.
Note • History
The term for all bonds shall not be less than twenty-four (24) months.
NOTE
Authority cited: Sections 22391.1 and 22443.1, Business and Professions Code; and Sections 1789.26, 1812.69, 1812.129, 1812.503, 1812.510, 1812.515, 1812.525 and 1812.600, Civil Code. Reference: Sections 22391.1 and 22443.1, Business and Professions Code; and Sections 1789.26, 1812.69, 1812.129, 1812.503, 1812.510, 1812.515, 1812.525 and 1812.600, Civil Code.
HISTORY
1. New section filed 10-31-97; operative 10-31-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 44). For prior history see Register 85, No. 26.
2. Amendment of section heading, repealer of subsection (a) designator and amendment of resulting paragraph, and repealer of subsection (b) filed 3-4-99; operative 4-3-99 (Register 99, No. 10).
§21903. Special Handling Fees.
Note • History
(a) Special Handling Services: Any Customer may submit one or more service requests or documents for processing with special handling service. Unless otherwise specified in this Section, special handling services apply only to service requests or documents submitted in person at the Secretary of State's Sacramento public counter, provided however, at the discretion of the Secretary of State, some special handling services may be made available at Secretary of State regional office public counters.
(b) Special handling service includes, but is not limited to, the following activities:
(1) the review, filing and the preparation of certified copies of a document submitted for filing in priority to documents submitted by mail or without a special handling request;
(2) responses to requests for certificates, certified copies of documents filed, and uncertified copies of documents filed in priority to requests submitted by mail or without a special handling request;
(3) written or in-person requests concerning the status or name-availability of a corporation or other business entity;
(4) except when prohibited by statute, relay of status or name availability information through the Secretary of State's telephone service.
(c) The special handling fee shall be remitted at the time of submission. Fees for special handling services shall be in addition to any applicable filing fees, and shall be $15 per service request or document submitted for processing, unless denoted below:
(1) Merger filing - $15 per transaction, regardless of the number of constituent corporations or other business entities;
(2) Requests for certificates and for a certified or uncertified copy of a document for corporations or other business entities - $10 per entity;
(3) Name reservations - $10 per certificate;
(4) Notaries public certificates and certified and uncertified copy requests - $6 per document;
(5) UCC lien filings, certificates and copy requests - $6 per document;
(6) Trademark/service mark certified and uncertified copy requests - $6 per mark;
(7) Certificates of official character (authentication of a public official's signature) and certificates of incumbency - $6 per certificate;
(8) Facsimile transmission of information or copied documents - $5 per business entity which is transmitted domestically, and $10 per business entity transmitted internationally;
(9) Phone, mail or counter status requests concerning corporations and other business entities - $4 per request;
(10) Name availability requests over the phone - $4 per name.
(d) If a special handling fee is charged with respect to documents submitted for processing or the authentication of a public official's signature, a separate special handling fee shall not be charged for concurrent special handling for certificates, or requests for certified or uncertified copies as to the same debtor, corporation or other business entity, or for additional simultaneously submitted authentication requests for the same public official.
(e) There shall be no special handling fee for the submission for processing of statements of information by corporations or limited liability companies, or for any filing which is exempt pursuant to Government Code section 6103.
(f) “Customer” is a customer of the Secretary of State and includes, but is not limited to, a principal, agent, messenger or attorney.
(g) “Other business entity” includes, but is not limited to, general partnership, limited partnership, limited liability partnership, limited liability limited partnership (foreign only), limited liability company, business trust, real estate investment trust or an unincorporated association.
NOTE
Authority cited: Section 12182, Government Code. Reference: Section 12182, Government Code.
HISTORY
1. Renumbering of former section 21904 to new section 21903, including amendment of Note, filed 8-29-2000; operative 9-28-2000 (Register 2000, No. 35).
2. Amendment filed 8-8-2008; operative 9-7-2008 (Register 2008, No. 32).
3. Amendment of subsection (c), repealer of subsection (c)(11) and amendment of subsections (d)-(e) filed 7-11-2011; operative 8-10-2011 (Register 2011, No. 28).
Note • History
(a) Fees for copying records shall be $1.00 for the first page and $.50 for each page thereafter and shall be in addition to applicable special handling fees.
(b) Notwithstanding subdivision (a), there shall be no fee for an uncertified copy of a filed record provided by the Secretary of State at the time of filing the record through the Secretary of State's web-based filing service.
NOTE
Authority cited: Section 12182, Government Code. Reference: Section 12182, Government Code.
HISTORY
1. New section filed 7-11-2011; operative 8-10-2011 (Register 2011, No. 28).
§21904. Preclearance of Documents.
Note • History
(a) Definitions.
As used in this section, the following words shall have the following definitions.
(1) “Business day” is a day Monday through Friday from 8:00 a.m. to 5:00 p.m., excluding state holidays in which the Secretary of State is closed for business.
(2) “Customer” is a customer of the Secretary of State and includes, but is not limited to, a principal, agent, messenger or attorney.
(3) “Eligible document” is a document submitted to the Secretary of State pursuant to the California Corporations Code, the California Financial Code, or the California Insurance Code.
(4) “Filing response” is a written response prepared by the Secretary of State when documents submitted for filing are returned without filing due to the fact that the document is found not to conform to the law.
(5) “Preclearance” is a determination by the Secretary of State, made in writing, that an eligible document submitted for review prior to an intended filing date, conforms to law within the meaning of the applicable sections of the code under which it is intended to be filed, and will be filed when the eligible document is submitted for filing, if the requirements set forth in paragraph (2) of subdivision (d) are satisfied and the Secretary of State is able to make the determinations set forth in paragraph (3) of subdivision (d).
(6) “Precleared document” is a document that has received a preclearance from the Secretary of State pursuant to section 21904 of these regulations.
(7) “Preclearance response” is a written response prepared by the Secretary of State to a request for preclearance.
(8) “Preclearance version” is the form of an eligible document that is submitted to the Secretary of State for preclearance.
(b) The Secretary of State in providing preclearance services for a fee established pursuant to this section, if such services do not cause disruption or delay in the process of normal handling of documents, may suspend all or any portion of the preclearance services, as set forth in this section, when deemed necessary due to a high volume of workload, staff shortages or equipment malfunction. Notice of the suspension of all or any portion of the preclearance services shall be communicated to the public in a reasonable manner. Suspension of all or any portion of the preclearance services may be for a specified or indefinite period of time, as denoted in the notice.
(c) Documents submitted for preclearance shall occur as described in this subdivision.
(1) To submit an eligible document for preclearance a customer shall personally deliver to the Sacramento office of the Secretary of State the following:
(A) One copy of the eligible document in the form for which preclearance is sought;
(B) Requisite preclearance fee, as provided in paragraph (8) of subdivision (c);
(C) Statement as to the class of service requested, as provided in paragraph (7) of subdivision (c);
(D) Statement as to the preferred means of delivery of the preclearance response, as provided in paragraph (9) of subdivision (c); and
(E) Name and telephone number of the customer to whom questions, if any, regarding the document or service requested may be directed.
(2) An eligible document submitted to the Secretary of State for preclearance shall contain the name of the entity. An eligible document may be submitted to the Secretary of State for preclearance with designated blank spaces for information that does not affect the determination of the Secretary of State as to whether the eligible document will conform to law when it is properly completed, signed and, if required, acknowledged or verified. Such information may include, but is not limited to, names of executing officers, required signatures, and dollar amounts.
(3) After receipt of an eligible document for preclearance, the Secretary of State shall issue a preclearance response within the time period for the requested class of service, as provided in paragraph (7) of subdivision (c). The Secretary of State shall deliver the preclearance response by the requested means of delivery, as provided in paragraph (9) of subdivision (c). The Secretary of State shall not be responsible for ensuring that the preclearance response is delivered within the time period for the requested class of service, as delivery may take additional time to reach a customer due to the means of delivery or the fact that the customer is not available to receive it.
(4) When preclearance of an eligible document is denied, the Secretary of State shall state in the preclearance response the reason or reasons for the denial of preclearance.
(5) If it appears to the Secretary of State that a preclearance response cannot be issued within the time period for the requested class of service, the Secretary of State shall contact the customer concerning the appropriate action to be taken, and refund the preclearance fee, if the customer requests return of an eligible document without a preclearance response.
(6) A customer may resubmit a revised version of an eligible document that was previously submitted for preclearance, in accordance with the procedures set forth above, one or more times, provided that the applicable fee accompanies each submission. To assist the Secretary of State in reviewing the eligible document, a customer shall submit the preclearance response with the revised version of the eligible document.
(7) The classes of preclearance service for an eligible document submitted pursuant to subsection (C) of paragraph (1) of subdivision (c) are the following:
(A) Class I service: a preclearance response shall be issued within twenty-four (24) hours of receipt by the Secretary of State of an eligible document, excluding weekends and state holidays in which the Secretary of State is closed for business;
(B) Class II service: a preclearance response shall be issued within seventy-two (72) hours of receipt by the Secretary of State of an eligible document, excluding weekends and state holidays in which the Secretary of State is closed for business;
(C) Class III service: a preclearance response shall be issued within five (5) business days of receipt by the Secretary of State of an eligible document; and
(D) Class IV service: a preclearance response shall be issued within ten (10) business days of receipt by the Secretary of State of an eligible document.
(8) The preclearance fees shall be the following: (A) $500 for Class I service; (B) $400 for Class II service; (C) $300 for Class III service; and (D) $250 for Class IV service.
(9) Delivery of a preclearance response pursuant to subsection (D) of paragraph (1) of subdivision (c) shall be by one of the following means:
(A) The preclearance response shall be available at the Sacramento office of the Secretary of State for the customer to collect in person;
(B) The preclearance response shall be transmitted by telephone facsimile, if a telephone facsimile number provided by the customer accompanies the preclearance request;
(C) The preclearance response shall be transmitted by electronic mail, if an electronic mail address provided by the customer accompanies the preclearance request;
(D) The preclearance response shall be placed in the mail to be delivered by overnight courier, if a prepaid, pre-addressed overnight courier envelope provided by the customer accompanies the request for preclearance; or
(E) The preclearance response shall be placed in the mail to be delivered by the United States Postal Service first class mail.
(d) Precleared documents shall be filed as described in this subdivision.
(1) A precleared document may be submitted to the Secretary of State for filing through the normal filing process, special handling provisions provided for in section 21903 of these regulations or expedited filing provisions provided for in section 21905 of these regulations.
(2) To submit a precleared document for filing with the Secretary of State, a customer shall submit the following:
(A) Completed document, containing the required signatures;
(B) Two copies of the document;
(C) Copy of the preclearance response;
(D) Requisite filing fee; and
(E) Requisite special handling fee or expedited filing fee, if applicable.
(3) The review of a document that has received a preclearance shall generally be limited to the following determinations:
(A) Whether any changes have been made to the document since the preclearance was issued;
(B) Whether all designated blank spaces, if any, in the preclearance version have been completed and, if not, whether the failure to complete such information causes the document not to conform to law; and
(C) Whether the eligible document has been signed and, to the extent required by law, verified or acknowledged, in accordance with the applicable provisions related to its execution.
(4) If the Secretary of State determines that a precleared document submitted for filing does not conform to law, the filing response shall state the reason or reasons for the return of the document.
NOTE
Authority cited: Section 12182, Government Code; Budget Act, ch. 47, Stat. of 2006; and Section 17.1, Corporations Code. Reference: Section 12182, Government Code; and Section 17.1, Corporations Code.
HISTORY
1. Amendment of subsection (e) filed 12-23-80; effective thirtieth day thereafter (Register 80, No. 52).
2. Amendment filed 2-15-85; effective thirtieth day thereafter (Register 85, No. 7).
3. Amendment filed 9-14-89; operative 1-1-90 (Register 89, No. 37).
4. Adoption of subsections (b)(5)-(7) and amendment of subsections (c) and (d) filed 10-31-91 as emergency; operative 12-1-91 (Register 92, No. 7). A Certificate of Compliance must be transmitted to OAL 3-30-92 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 10-31-91 order including editorial correction of subsection (b)(7) transmitted to OAL 2-11-92 and filed 3-24-92 (Register 92, No. 15).
6. Repealer and new section filed 10-31-97; operative 10-31-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 44).
7. Renumbering of former section 21904 to section 21903 and new section 21904 filed 8-29-2000; operative 9-28-2000 (Register 2000, No. 35).
8. Amendment of subsections (a)(3), (a)(5)-(6), (c)(1)(A), (c)(2) and (d)(2)(A) and amendment of Note filed 9-7-2006; operative 9-7-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 36).
§21905. Expedited Filing of Documents.
Note • History
(a) The definitions provided in subdivision (a) of Section 21904 shall apply to this section.
(b) The Secretary of State in providing expedited filing services for a fee established pursuant to this section, if such services do not cause disruption or delay in the process of normal handling of documents, may suspend all or any portion of the expedited filing services, as set forth in this section, when deemed necessary due to a high volume of workload, staff shortages or equipment malfunction. Notice of the suspension of all or any portion of the expedited filing services shall be communicated to the public in a reasonable manner. Suspension of all or any portion of the expedited filing services may be for a specified or indefinite period of time, as denoted in the notice.
(c) The expedited filing of eligible documents shall occur as described in this subdivision:
(1) To submit an eligible document for expedited filing a customer shall personally deliver to the Sacramento office of the Secretary of State the following:
(A) Eligible document, including the required signatures;
(B) Two copies of the eligible document;
(C) Requisite filing fee;
(D) Written request for expedited filing;
(E) Statement as to the class of service requested, as provided in subdivision (e);
(F) Statement as to the means of delivery of the filing confirmation or the filing response, as provided in subdivision (i);
(G) Name and telephone number of the customer to whom questions, if any, regarding the document or service may be directed; and
(H) Requisite expedited filing fee, as provided in subsection (f).
(2) After receipt of an eligible document for expedited filing, as provided in paragraph (1) of subdivision (c), the Secretary of State shall provide one of the following responses within the time period for the requested class of service, as provided in subdivision (e) below.
(A) If the document is determined to conform to law, the Secretary of State shall file the document and deliver the filing confirmation by the requested means of delivery, as provided in subdivision (i) below. The Secretary of State shall not be responsible for ensuring that the confirmation of filing is received within the time period for the requested class of service, as receipt may take additional time to reach a customer due to the means of delivery or the fact that the customer is not available to receive it.
(B) If the Secretary of State determines that an eligible document does not conform to law, the Secretary of State shall return the document and state in a filing response the reason or reasons for returning the document. Such delivery may take additional time to the extent that the customer is not available to receive it.
(C) If it appears to the Secretary of State that an eligible document cannot be filed or a filing response cannot be issued within the time period for the requested class of service, the Secretary of State shall contact the customer concerning the appropriate action to be taken. The expedited filing fee shall be refunded if a customer requests the document to be returned without filing.
(d) If a request for expedited filing pursuant to this section is not made in writing or the applicable fee is not paid prior to or concurrently with the submission for filing, the Secretary of State shall handle the filing of the document under the normal processing procedures.
(e) The classes of expedited service for an eligible document submitted pursuant to paragraph (1) of subdivision (c) are the following:
(1) Class A service: an eligible document shall be filed or a filing response issued within four (4) hours of receipt by the Secretary of State, excluding weekends and state holidays in which the Secretary of State is closed for business, if the following conditions are satisfied: (A) the eligible document was precleared; and (B) the Secretary of State determines that the information completing the designated blank spaces in the preclearance version, if any, does not require additional time to review; or
(2) Class B service: an eligible document shall be filed or a filing response issued by 4:00 p.m. the same business day of receipt by the Secretary of State, if the eligible document was received by the Secretary of State by 9:30 a.m. that same business day; or
(3) Class C service: an eligible document shall be filed or a filing response issued within twenty-four (24) hours of receipt by the Secretary of State, excluding weekends and state holidays in which the Secretary of State is closed for business.
(f) The expedited filing fees shall be the following: (1) $500 for Class A service; (2) $750 for Class B service; and (3) $350 for Class C service.
(g) The expedited filing fees provided for in subdivision (f) above shall be in addition to the requisite fees for filing the document.
(h) If an eligible document is submitted for expedited filing pursuant to this section and the Secretary of State determines that the eligible document does not conform to law, the expedited filing fee shall not be refunded.
(i) Delivery of filing confirmation or filing response requested pursuant to subsection (F) of paragraph (1) of subdivision (c) shall be by one of the following means:
(A) The filing confirmation or filing response shall be available at the Sacramento office of the Secretary of State for the customer to collect in person;
(B) The filing confirmation or filing response shall be transmitted by telephone facsimile, if a telephone facsimile number provided by the customer accompanies the expedited filing request;
(C) The filing confirmation or filing response shall be transmitted by electronic mail, if an electronic mail address provided by the customer accompanies the expedited filing request;
(D) The filing confirmation or filing response shall be placed in the mail to be delivered by overnight courier, if a prepaid, pre-addressed overnight courier envelope provided by the customer accompanies the request for preclearance; or
(E) The filing confirmation or filing response shall be placed in the mail to be delivered by the United States Postal Service first class mail.
NOTE
Authority cited: Section 12182, Government Code; Budget Act, ch. 47, Stat. of 2006; and Section 17.1, Corporations Code. Reference: Section 12182, Government Code; and Section 17.1, Corporations Code.
HISTORY
1. New section filed 8-29-2000; operative 9-28-2000 (Register 2000, No. 35).
2. Amendment of subsection (c)(1)(A) and amendment of Note filed 9-7-2006; operative 9-7-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 36).
3. Amendment filed 8-8-2008; operative 9-7-2008 (Register 2008, No. 32).
§21905.5. Request for Specific Filing Date.
Note • History
(a) The definitions provided in Sections 21903 and 21904 shall apply to this section.
(b) If an eligible document is returned without being filed for reasons specified in a filing response, the eligible document may be resubmitted for filing and may receive a file date of the original submission date, provided all of the following conditions are met:
(1) the Customer specifically requested the original date of submission as a file date when initially submitting the document;
(2) the document is resubmitted for filing by the end of the third business day following the date of the first filing response;
(3) the document complies with law upon resubmission.
(c) If an eligible document is resubmitted more than once, the document will receive the earliest file date available under subdivision (b), treating each resubmission as an original submission.
(d) A requested file date cannot precede the date of execution of a document submitted for filing.
NOTE
Authority cited: Sections 110(a), 5008(a), 12214(a), 15628, 15902.06 and 17062, Corporations Code. Reference: Sections 110(a), 5008(a), 12214(a), 15620(a), 15628, 15902.06 and 17062, Corporations Code.
HISTORY
1. New section filed 8-8-2008; operative 9-7-2008 (Register 2008, No. 32).
§21906. Disclaimer of Proper Appointment As Agent, Officer or Director.
Note • History
(a) The disclaimer of proper appointment as agent for service of process, officer or director of a corporation provided for in Sections 1503(b), 6211(b), 8211(b), 9660 and 12571(b) of the Corporations Code shall be accomplished by filing a Secretary of State form entitled “Disclaimer.” The person completing the disclaimer form shall certify that he or she was never properly appointed as agent for service of process, officer or director of a certain, named corporation. The disclaimant shall also provide the typed or written name of the disclaimant, the California Secretary of State corporation number of the named corporation and the State or Country of incorporation. The form shall be signed and acknowledged by the disclaimant or, if the disclaimant is a corporation, by a representative of the disclaimant. A person shall be considered to have been “never properly appointed” only in situations where he or she never agreed to serve prior to his or her appointment, and never specifically accepted appointment or acted as if he or she had accepted appointment as agent for service of process, officer or director subsequent to such appointment. The form shall not be used in cases where a person who has served as agent for service of process, officer or director of a corporation has resigned or been removed from office for any reason.
(b) When a disclaimer form has been submitted in accordance with the provisions of these regulations, it shall be filed by the Secretary of State. The Secretary of State shall not be required to verify that the person making the disclaimer was ever actually named in an official filing as an agent for service of process, officer or director of the corporation specified. In cases where the person filing a disclaimer form is disclaiming proper appointment as agent for service of process and that person is shown on the Secretary of State's records as the current agent for service of process for the corporation specified on the disclaimer form, the filing of the disclaimer form shall effect a resignation of the person as such agent within the meaning of Sections 1503, 6211, 8211, 9660 and 12571 of the Corporations Code, and the Secretary of State shall give written notice of the resignation by mail to the corporation affected at its principal executive office.
(c) The fees for copies and certified copies of disclaimer forms which have been filed with the Secretary of State shall be those set forth in Government Code Sections 12183 and 12178.1, respectively.
Embedded Graphic 02.0052
NOTE
Authority cited: Sections 1503, 6211, 8211, 9660 and 12571, Corporations Code. Reference: Sections 1503, 6211, 8211, 9660 and 12571, Corporations Code; Sections 12183 and 12178.1, Government Code.
HISTORY
1. New section filed 2-23-89; operative 3-25-89 (Register 89, No. 9).
2. Change without regulatory effect amending section and Note filed 12-22-2006 pursuant to section 100, title 1, California Code of Regulations (Register 2006, No. 51).
§21908. Fee for Filing Notice of Joint Powers Agreement.
The fee of the Secretary of State for the filing of a notice of a joint powers agreement or amendment thereto pursuant to Sections 6503.5 and 6503.7 of the Government Code is fixed at $5.00.
§21910. Fee for Filing Merger of Limited Partnerships.
Note • History
The fee of the Secretary of State for the filing of a certificate of merger pursuant to Corporations Code section 15678.4 is $70.00 per certificate, regardless of the number of constituent limited partnerships.
NOTE
Authority cited: Section 12214, Government Code. Reference: Sections 15678.1 through 15678.9, Corporations Code.
HISTORY
1. New section filed 2-26-91; operative 3-24-91 (Register 91, No. 13).
§21912. Notary Public Commission and Application Fees. [Repealed]
Note • History
NOTE
Authority cited: Sections 8220 and 12197.1, Government Code. Reference: Sections 8201(c) and 12197.1, Government Code.
HISTORY
1. Amendment filed 1-22-91; operative 1-22-91 (Register 91, No. 10).
2. Repealer filed 9-25-2000; operative 9-25-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 39).
§21914. Notary Public Examination. [Repealed]
Note • History
NOTE
Authority cited: Section 8220, Government Code. Reference: Sections 8201 and 8211, Government Code.
HISTORY
1. Amendment filed 6-8-84, effective thirtieth day thereafter (Register 84, No. 23).
2. Repealer filed 9-25-2000; operative 9-25-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 39).
§21920. Filing Athlete Agent Disclosure Statement and Amendment to Disclosure Statement.
Note • History
(a) Athlete Agents shall file the Athlete Agent Disclosure Statement (3/98) and the Amendment to Disclosure Statement (3/98) with the Secretary of State.
(b) The fees for filing the Athlete Agent Disclosure Statement and the Amendment to Disclosure Statement are as follows:
(1) Athlete Agent Disclosure Statement - $30.00
(2) Amendment to Disclosure Statement - $20.00
NOTE
Authority cited: Section 18897.97, Business and Professions Code. Reference: Sections 18895.2, 18896, 18896.2, 18896.3 and 18896.8, Business and Professions Code.
HISTORY
1. New section filed 6-8-98; operative 6-8-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24). For prior history, see Register 91, No. 50.
§21922. Fees for Filing Domestic Partnership Declarations and Notices of Terminations.
Note • History
(a) The fees for filing a Declaration of Domestic Partnership or Notice of Termination of Domestic Partnership are as follows:
(1) Declaration of Domestic Partnership -- $10.00
(2) Notice of Termination of Domestic Partnership -- no fee
NOTE
Authority cited: Section 298, Family Code. Reference: Section 298, Family Code.
HISTORY
1. New section filed 1-24-2000; operative 1-24-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 4). For prior history, see Register 95, No. 7.
2. Change without regulatory effect amending section and Note filed 3-1-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 9).
§21924. Notice Form Statements. [Repealed]
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section filed 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order including amendment transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21926. Prospectus Statements Concerning the Corporation. [Repealed]
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order including amendment transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21928. Prospectus Statements Concerning Subsidiary Corporations. [Repealed]
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21930. Prospectus Statement Concerning Parent Corporation. [Repealed]
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21932. Prospectus Statement Concerning Commonly Owned Corporations.
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency: operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order including amendment transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21934. Modifications and Placement of Required Statements in the Prospectus.
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code; 17 C.F.R. 230.415; 17 C.F.R. 230, 428.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order including amendment transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21936. Corporations with Extensive Operations.
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order including amendment transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261 through 12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order including amendment transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
5. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
6. Editorial correction of Reference cite (Register 95, No. 7).
§21940. Transition Provisions.
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12184, 12207 and 12261 through 12269, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitteed to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Emergency language filed 8-27-90 repealed by operation of Government Code section 11346.1(g) (Register 91, No. 11).
5. Certificate of Compliance as to 8-27-90 order and renumbered prior section 21942 to 21940 transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
6. Change without regulatory effect repealing section filed 8-14-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 50).
§21942. Availability of Filed Information.
Note • History
NOTE
Authority cited: Section 12266, Government Code. Reference: Sections 12261-12266, Government Code.
HISTORY
1. New section filed 12-29-89 as an emergency; operative 1-1-90 (Register 90, No. 4). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-1-90.
2. New section refiled 4-20-90; operative 4-27-90 (Register 90, No. 21). A Certificate of Compliance must be transmitteed to OAL within 120 days or emergency language will be repealed by operation of law on 8-27-90.
3. New section refiled 8-27-90 as an emergency pursuant to Government Code section 11346.1(h); operative 8/27/90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 12-26-90 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 8-27-90 order and renumbering of section from 21942 to 21940 transmitted to OAL 12-21-90 and filed 1-18-91 (Register 91, No. 11).
Chapter 10. Digital Signatures
Note • History
(a) For purposes of this chapter, and unless the context expressly indicates otherwise:
(1) “Digitally-signed communication” is a message that has been processed by a computer in such a manner that ties the message to the individual that signed the message.
(2) “Message” means a digital representation of information intended to serve as a written communication with a public entity.
(3) “Person” means a human being or any organization capable of signing a document, either legally or as a matter of fact.
(4) “Public entity” means the public entity as defined by California Government Code Section 811.2.
(5) “Signer” means the person who signs a digitally signed communication with the use of an acceptable technology to uniquely link the message with the person sending it.
(6) “Technology” means the computer hardware and/or software-based method or process used to create digital signatures.
NOTE
Authority cited: Section 16.5, Government Code. Reference: Section 16.5, Government Code.
HISTORY
1. New chapter 10 (sections 22000-22005) and section filed 6-12-98; operative 6-12-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24).
§22001. Digital Signatures Must Be Created by an Acceptable Technology.
Note • History
(a) For a digital signature to be valid for use by a public entity, it must be created by a technology that is acceptable for use by the State of California.
NOTE
Authority cited: Section 16.5, Government Code. Reference: Section 16.5, Government Code.
HISTORY
1. New section filed 6-12-98; operative 6-12-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24).
§22002. Criteria for State to Determine if a Digital Signature Technology Is Acceptable for Use by Public Entities.
Note • History
(a) An acceptable technology must be capable of creating signatures that conform to requirements set forth in California Government Code Section 16.5, specifically,
(1) It is unique to the person using it;
(2) It is capable of verification;
(3) It is under the sole control of the person using it;
(4) It is linked to data in such a manner that if the data are changed, the digital signature is invalidated;
(5) It conforms to Title 2, Division 7, Chapter 10 of the California Code of Regulations.
NOTE
Authority cited: Section 16.5, Government Code. Reference: Section 16.5, Government Code.
HISTORY
1. New section filed 6-12-98; operative 6-12-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24).
§22003. List of Acceptable Technologies.
Note • History
(a) The technology known as Public Key Cryptography is an acceptable technology for use by public entities in California, provided that the digital signature is created consistent with the provisions in Section 22003(a)1-5.
(1) Definitions -- For purposes of Section 22003(a), and unless the context expressly indicates otherwise:
(A) “Acceptable Certification Authorities” means a certification authority that meets the requirements of either Section 22003(a)6(C) or Section 22003(a)6(D).
(B) “Approved List of Certification Authorities” means the list of Certification Authorities approved by the Secretary of State to issue certification for digital signature transactions involving public entities in California.
(C) “Asymmetric cryptosystem” means a computer algorithm or series of algorithms which utilize two different keys with the following characteristics:
(i) one key signs a given message;
(ii) one key verifies a given message; and,
(iii) the keys have the property that, knowing one key, it is computationally infeasible to discover the other key.
(D) “Certificate” means a computer-based record which:
(i) identifies the certification authority issuing it;
(ii) names or identifies its subscriber;
(iii) contains the subscriber's public key; and
(iv) is digitally signed by the certification authority issuing or amending it, and
(v) conforms to widely-used industry standards, including, but not limited to ISO x.509 and PGP certificate standards.
(E) “Certification Authority” means a person or entity that issues a certificate, or in the case of certain certification processes, certifies amendments to an existing certificate.
(F) “Key pair” means a private key and its corresponding public key in an asymmetric cryptosystem. The keys have the property that the public key can verify a digital signature that the private key creates.
(G) “Practice statement” means documentation of the practices, procedures and controls employed by a Certification Authority.
(H) “Private key” means the key of a key pair used to create a digital signature.
(I) “Proof of Identification” means the document or documents presented to a Certification Authority to establish the identity of a subscriber.
(J) “Public key” means the key of a key pair used to verify a digital signature.
(K) “Subscriber” means a person who:
(i) is the subject listed in a certificate;
(ii) accepts the certificate; and
(iii) holds a private key which corresponds to a public key listed in that certificate.
(2) California Government Code §16.5 requires that a digital signature be `unique to the person using it'. A public key-based digital signature may be considered unique to the person using it, if:
(A) The private key used to create the signature on the document is known only to the signer, and
(B) the digital signature is created when a person runs a message through a one-way function, creating a message digest, then encrypting the resulting message digest using an asymmetrical cryptosystem and the signer's private key, and,
(C) although not all digitally signed communications will require the signer to obtain a certificate, the signer is capable of being issued a certificate to certify that he or she controls the key pair used to create the signature, and
(D) it is computationally infeasible to derive the private key from knowledge of the public key.
(3) California Government Code §16.5 requires that a digital signature be `capable of verification'. A public-key based digital signature is capable of verification if:
(A) the acceptor of the digitally signed document can verify the document was digitally signed by using the signer's public key to decrypt the message; and
(B) if a certificate is a required component of a transaction with a public agency, the issuing Certification Authority, either through a certification practice statement or through the content of the certificate itself, must identify which, if any, form(s) of identification it required of the signer prior to issuing the certificate.
(4) California Government Code §16.5 requires that the digital signature remain `under the sole control of the person using it'. Whether a signature is accompanied by a certificate or not, the person who holds the key pair, or the subscriber identified in the certificate, assumes a duty to exercise reasonable care to retain control of the private key and prevent its disclosure to any person not authorized to create the subscriber's digital signature pursuant to Evidence Code Section 669.
(5) The digital signature must be linked to the message of the document in such a way that if the data are changed, the digital signature is invalidated.
(6) Acceptable Certification Authorities
(A) The California Secretary of State shall maintain an “Approved List of Certificate Authorities” authorized to issue certificates for digitally signed communication with public entities in California.
(B) Public entities shall only accept certificates from Certification Authorities that appear on the “Approved List of Certification Authorities” authorized to issue certificates by the California Secretary of State.
(C) The Secretary of State shall place Certification Authorities on the “Approved List of Certification Authorities” after the Certification Authority provides the Secretary of State with a copy of an unqualified performance audit performed in accordance with standards set in the American Institute of Certified Public Accountants (AICPA) Statement on Auditing Standards No. 70 (S.A.S. 70) “Reports on the Processing of Service Transactions by Service Organizations” (1992) to ensure that the Certification Authorities' practices and policies are consistent with the Certifications Authority's stated control objectives. The AICPA Statement on Auditing Standards No. 70 (1992) is hereby incorporated by reference.
(i) Certification Authorities that have been in operation for one year or less shall undergo a SAS 70 Type One audit -- A Report of Policies and Procedures Placed in Operation, receiving an unqualified opinion.
(ii) Certification Authorities that have been in operation for longer than one year shall undergo a SAS 70 Type Two audit -- A Report Of Policies And Procedures Placed In Operation And Test Of Operating Effectiveness, receiving an unqualified opinion.
(iii) To remain on the “Approved List of Certification Authorities” a Certification Authority must provide proof of compliance with Section 20003(a)(6)(C)(ii) to the Secretary of State every two years after initially being placed on the list.
(D) In lieu of completing the auditing requirement in Section 22003(a)(6)(C), Certification Authorities may be placed on the “Approved List of Certification Authorities” upon providing the Secretary of State with proof of accreditation that has been conferred by a national or international accreditation body that the Secretary of State has determined utilizes accreditation criteria that are consistent with the requirements of Section 22003(a)(1)-(5).
(i) Certification Authorities shall be removed from the “Approved List of Acceptable Certifications Authorities” unless they provide current proof of accreditation to the Secretary of State at least once per year.
(ii) If the Secretary of State is informed that a Certification Authority has had its accreditation revoked, the Certification Authority shall be removed from the “Approved List of Certification Authorities” immediately.
(b) The technology known as “Signature Dynamics” is an acceptable technology for use by public entities in California, provided that the signature is created consistent with the provisions in Section 22003(b)(1)-(5).
(1) Definitions -- For the purposes of Section 22003(b), and unless the context expressly indicates otherwise:
(A) “Handwriting Measurements” means the metrics of the shapes, speeds and/or other distinguishing features of a signature as the person writes it by hand with a pen or stylus on a flat surface.
(B) “Signature Digest” is the resulting bit-string produced when a signature is tied to a document using Signature Dynamics.
(C) “Expert” means a person with demonstrable skill and knowledge based on training and experience who would qualify as an expert pursuant to California Evidence Code §720.
(D) “Signature Dynamics” means measuring the way a person writes his or her signature by hand on a flat surface and binding the measurements to a message through the use of cryptographic techniques.
(2) California Government Code §16.5 requires that a digital signatures be `unique to the person using it.' A signature digest produced by Signature Dynamics technology may be considered unique to the person using it, if:
(A) the signature digest records the handwriting measurements of the person signing the document using signature dynamics technology, and
(B) the signature digest is cryptographically bound to the handwriting measurements, and
(C) after the signature digest has been bound to the handwriting measurements, it is computationally infeasible to separate the handwriting measurements and bind them to a different signature digest.
(3) California Government Code §16.5 requires that a digital signature be capable of verification. A signature digest produced by signature dynamics technology is capable of verification if:
(A) the acceptor of the digitally signed message obtains the handwriting measurements for purposes of comparison, and
(B) if signature verification is a required component of a transaction with a public entity, the handwriting measurements can allow an expert handwriting and document examiner to assess the authenticity of a signature.
(4) California Government Code §16.5 requires that a digital signature remain `under the sole control of the person using it'. A signature digest is under the sole control of the person using it if:
(A) the signature digest captures the handwriting measurements and cryptographically binds them to the message directed by the signer and to no other message, and
(B) the signature digest makes it computationally infeasible for the handwriting measurements to be bound to any other message.
(5) The signature digest produced by signature dynamics technology must be linked to the message in such a way that if the data in the message are changed, the signature digest is invalidated.
NOTE
Authority cited: Section 16.5, Government Code. Reference: Section 16.5, Government Code.
HISTORY
1. New section filed 6-12-98; operative 6-12-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24).
§22004. Provisions for Adding New Technologies to the List of Acceptable Technologies.
Note • History
(a) Any individual or company can, by providing a written request that includes a full explanation of a proposed technology which meets the requirements of Section 22002, petition the California Secretary of State to review the technology. If the Secretary of State determines that the technology is acceptable for use with the state, the Secretary of State shall adopt regulation(s), pursuant to the Administrative Procedure Act, which would add the proposed technology to the list of acceptable technologies in Section 22003.
(b) The Secretary of State has 180 calendar days from the date the request is received to review the petition and inform the petitioner, in writing, whether the technology is accepted or rejected. If the petition is rejected, the Secretary of State shall provide the petitioner with the reasons for the rejection.
(1) If the proposed technology is rejected, the petitioner can appeal the decision through the Administrative Procedures Act (Government Code Section 11500 et seq).
NOTE
Authority cited: Section 16.5, Government Code. Reference: Section 16.5, Government Code.
HISTORY
1. New section filed 6-12-98; operative 6-12-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24).
§22005. Criteria for Public Entities To Use in Accepting Digital Signatures.
Note • History
(a) Prior to accepting a digital signature, public entities shall ensure that the level of security used to identify the signer of a document is sufficient for the transaction being conducted.
(b) Prior to accepting a digital signature, public entities shall ensure that the level of security used to transmit the signature is sufficient for the transaction being conducted.
(c) If a certificate is a required component of a digital signature transaction, public entities shall ensure that the certificate format used by the signer is sufficient for the security and interoperability needs of the public entity.
NOTE
Authority cited: Section 16.5, Government Code. Reference: Section 16.5, Government Code.
HISTORY
1. New section filed 6-12-98; operative 6-12-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 24).
Chapter 11. Safe at Home Confidential Address Program
Note • History
The confidential address program for reproductive health care services providers, employees, volunteers, and patients established in Chapter 3.2 (commencing with Section 6215) of Division 7 of Title 1 of the Government Code and operated by the Secretary of State shall be known as Safe at Home.
NOTE
Authority cited: Section 6215.9, Government Code. Reference: Sections 6215, 6215.1, 6215.2, 6215.3, 6215.4, 6215.5, 6215.6, 6215.7, 6215.8, 6215.9, 6216 and 6217, Government Code.
HISTORY
1. New chapter 11 (sections 22100-22130) filed 4-3-2003 as an emergency; operative 4-3-2003 (Register 2003, No. 14). A Certificate of Compliance must be transmitted to OAL by 8-1-2003 or emergency language will be repealed by operation of law on the following day.
2. New chapter 11 (sections 22100-22130) and section refiled 8-1-2003; operative 8-1-2003 (Register 2003, No. 31). A Certificate of Compliance must be transmitted to OAL by 12-1-2003 or emergency language will be repealed by operation of law on the following day.
3. New chapter 11 (sections 22100-22130) refiled 12-1-2003 as an emergency; operative 12-1-2003 (Register 2003, No. 49). A Certificate of Compliance must be transmitted to OAL by 3-30-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-1-2003 order, including amendment of section heading, section and Note and renumbering of former section 22100(b)-(e) to new section 22100.1(a)-(e), transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
§22100.1. Designated Community-Based Assistance Programs.
Note • History
(a) Designated community-based assistance programs referred to in this chapter and in Chapter 3.2 (commencing with Section 6215) of Division 7 of Title 1 of the Government Code shall be known as enrolling agencies. Community-based assistance programs that are eligible to be designated as enrolling agencies are nonprofit agencies that are independent abortion providers and Planned Parenthood clinics and state and local agencies.
(b) To apply to become a designated enrolling agency an eligible community-based assistance program as defined in subdivision (a) shall submit a completed Enrolling Agency Agreement, revised September 29, 2003, to the Secretary of State. There shall be no application fee for designation as an enrolling agency.
(c) The Enrolling Agency Agreement, revised September 29, 2003, requires all of the following:
(1) Name of agency or organization;
(2) Administrative address;
(3) Telephone and facsimile numbers;
(4) Printed name and signature of agency or clinic director and the date of signature; and
(5) Agree to: (A) attend a program orientation and training provided by the Secretary of State to assist program participant applicants with the enrollment and application process; (B) review the application checklist with applicants before forwarding the completed enrollment package and application fees to the Secretary of State within twenty-four (24) hours of receipt of a completed enrollment package; (C) maintain an adequate supply of original application materials provided by the Secretary of State and not make copies of any of the application materials; (D) fulfill the obligations and responsibilities under Chapter 3.2 (commencing with Section 6215) of the Government Code and this chapter.
(d) The Secretary of State shall review the Enrolling Agency Agreement to determine whether: (1) the community-based assistance organization is eligible under subdivision (a); and (2) all requested information on Enrolling Agency Agreement is complete. If the community-based assistance organization is eligible under subdivision (a) and the Enrolling Agency Agreement is complete, the Secretary of State shall designate the community-based assistance program as an enrolling agency. Within ten (10) business days of actual receipt of an Enrolling Agency Agreement the Secretary of State shall mail a notice to the community-based assistance organization stating whether or not it has been designated as an enrolling agency. Each enrolling agency shall attend a program orientation provided by the Secretary of State prior to counseling program participant applicants.
(e) An enrolling agency shall cease to be designated as such upon any of the following: (1) the Secretary of State receives written notification by an authorized representative of the enrolling agency that it is withdrawing from the program; (2) the enrolling agency does not satisfy the definition provided in subdivision (a); or (3) the Secretary of State finds that the enrolling agency is not fulfilling its obligations and responsibilities under this chapter and Chapter 3.2 (commencing with Section 6215) of Division 7 of Title 1 of the Government Code. Termination of designation as an enrolling agency shall be in accordance with Section 22100.4. Upon the effective date of the termination, the community-based assistance organization shall not represent itself as an enrolling agency and shall return any Safe at Home applications and materials to the Secretary of State within three (3) business days.
NOTE
Authority cited: Section 6215.9, Government Code. Reference: Sections 6215.2 and 6215.8, Government Code.
HISTORY
1. Certificate of Compliance as to 12-1-2003 order, including renumbering and amendment of former section 22100(b)-(e) to new section 22100.1, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
§22100.2. Program Participant Application and Fees.
Note • History
(a) To apply to become a program participant a reproductive health care services facility, provider, employee, volunteer, patient, or family member of a reproductive health care services provider, employee, volunteer, or patient who is a program participant shall submit a completed Safe at Home Application & Checklist Form, revised September 29, 2003, in accordance with Section 6215.2 of the Government Code. The application fee for a reproductive health care services facility, provider, employee, volunteer, or family member of a reproductive health care services provider, employee, or volunteer who is a program participant is thirty dollars ($30). The application fee is nonrefundable. Reproductive health care services patients and family members of reproductive health care services patients who are program participants shall not be charged an application fee.
(b) In addition to the requirements contained in Section 6215.2 of the Government Code, the Safe at Home Application & Checklist Form, revised September 29, 2003, shall include a notice that a person who willfully certifies as true any material matter pursuant to Section 6215.2 of the Government Code which he or she knows to be false is guilty of a misdemeanor and shall require all of the following:
(1) Applicant's first, middle, and last name, date of birth, age, marital status, and sex;
(2) Whether the program participant can sign for and accept legal documents at his or her residence or mailing address; and
(3) Agree to all of the following provisions.
(A) Safe at Home is a mail forwarding service only. A program participant's mail will first be received at the Secretary of State Safe at Home address in Sacramento before it is forwarded to a program participant's address. This will result in a two to three day delay in receiving mail.
(B) Magazines, packages, catalogs, junk mail or any mail that is not first-class, except mail from governmental agencies, will not be forwarded to a program participant's address.
(C) Mail may not be forwarded to a program participant if it is sent to a name other than the name listed on the application form.
(D) Completing an application form using a name other than the program participant's legal name could result in the denial of program privileges at certain agencies if a legal name is required to access their services.
(E) All state and local government agencies must accept a Safe at Home address. Private companies, such as insurance, telephone, and utility, are not obligated to use a program participant's Safe at Home address and may require an actual residential street address.
(F) If the program participant is a United States citizen, the program participant may become a Confidential Voter by filling out the Confidential Affidavit of Registration and Absentee Ballot Application provided with the program participant application. Once a program participant is registered, he or she shall receive an Absentee Ballot to vote by mail in future elections.
(G) If the program participant purchases property using his or her own name, the property address location will be listed on the legal description filed with the county assessor's office and available for public inspection upon request.
(H) If the program participant purposefully or accidentally gives his or her actual residence address to an agency, that agency is not required to keep that address confidential and is not responsible for its release.
(c) Within ten (10) business days of the Secretary of State actually receiving the Safe at Home Application & Checklist Form the Secretary of State shall mail a notice to the applicant stating whether or not he or she has been certified as a program participant.
(d) All information submitted by an applicant is confidential and shall be treated as such by enrolling agencies. Enrolling agencies shall forward all Safe at Home Applications & Checklist Forms and all attachments thereto to the Secretary of State within twenty-four (24) hours of receipt of a completed enrollment package. Enrolling agencies shall not copy, store, or maintain any of the information provided by an applicant as part of the Safe at Home Confidential Address Program, including, but not limited to, applications, attachments, supporting documentation, notes, letters, payment information, and information therein.
(e) Enrolling agencies shall not charge any individual for counseling, application and orientation material, assistance in completing the application, forwarding the application to the Secretary of State, or any other services relating to Safe at Home.
(f) The annual fee for reproductive health care services facilities, providers, employees, and volunteers who are health care professionals is seventy-five dollars ($75). The annual fee is nonrefundable. The annual fee must be received by the Secretary of State no later than five (5) business days after the anniversary date of becoming a program participant. If the annual fee is received by the Secretary of State later than five (5) business days after the anniversary date of becoming a program participant, certification as a program participant shall be terminated in accordance with Section 22100.4. Reproductive health care services patients and family members of reproductive health care services patients who are program participants shall not be charged an annual fee.
NOTE
Authority cited: Section 6215.9, Government Code. Reference: Section 2166.5, Elections Code; and Sections 6215.2, 6215.5, 6215.6 and 6215.8, Government Code.
HISTORY
1. Certificate of Compliance as to 12-1-2003 order, including renumbering of former section 22110 to new section 22100.2 and amendment of section heading, section and Note, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
Note • History
(a) Certification as a program participant shall be for a term of four (4) years, except for reproductive health care services facility volunteers. At least two (2) months prior to the four (4) year anniversary date of certification as a program participant, the Secretary of State shall mail a renewal application entitled Notice of Renewal, revised September 29, 2003 to each program participant. The renewal application and application fee in subdivision (a) of Section 22100.2 must be received by the Secretary of State no later than five (5) business days after the expiration of the four (4) year term. If the renewal application and application fee is received by the Secretary of State later than five (5) business days after the expiration of the four (4) year term, the certification as a program participant shall not be renewed.
(b) The Notice of Renewal, revised September 29, 2003, shall include a notice that a person who willfully certifies as true any material matter pursuant to Section 6215.2 of the Government Code which he or she knows to be false is guilty of a misdemeanor and shall require all of the following information:
(1) Name and program certification number of the primary program participant and minor children who are program participants;
(2) Address or addresses that the program participant request not be disclosed for the reason that disclosure will increase the risk of acts of violence toward the applicant;
(3) Mailing address where the program participant can be contacted by the Secretary of State, and the telephone number or numbers where the program participant can be called by the Secretary of State;
(4) Whether the primary program participant is a reproductive health care services provider, employee, or patient;
(5) Affirmation of the program participant that he or she continues to live in fear for his or her safety or that of his or her family or the safety of a minor or incapacitated program participant in the care of the person making the affirmation and that continued participation in Safe at Home is requested; and
(6) Signature of the program participant or legal guardian of the program participant and date of signature.
(c) Certification as a program participant for a reproductive health care services facility volunteer shall be for a term that will expire six (6) months after the last date he or she volunteers at the facility. A program participant who ceases to volunteer at a reproductive health care services facility shall immediately notify the Secretary of State in writing as to the last date he or she volunteered at a reproductive health care services facility. The Secretary of State shall send a letter by certified mail to the program participant confirming receipt of the notification and identifying the date the certification shall expire.
NOTE
Authority cited: Sections 6215.2(e) and 6215.9, Government Code. Reference: Section 6215.2, Government Code.
HISTORY
1. Certificate of Compliance as to 12-1-2003 order, including renumbering of former section 22120 to new section 22100.3 and amendment of section and Note, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
§22100.4. Termination and Appeal Procedures.
Note • History
(a) Notification of termination shall be sent to program participants and enrolling agencies by certified mail. The notification of termination shall include the grounds for termination, the date in which termination shall be effective, and the appeal procedures.
(b) A program participant or enrolling agency shall have five (5) business days from date of receipt of the notification of termination to provide the Secretary of State with a statement signed by the program participant or authorized representative of the enrolling agency appealing the termination. The statement shall include argument and facts as to why the Secretary of State should not terminate the certification or designation. Any evidence, including supporting declarations, shall be submitted with the signed statement. The Secretary of State shall have three (3) business days from the date of receipt to review the appeal, issue a decision, and send by certified mail the decision to the program participant or enrolling agency.
(c) If the appeal process for a program participant extends beyond the termination date identified in the notification of termination, the Secretary of State shall continue to act as though the certification is valid until the Secretary of State issues a decision. If the decision is to terminate the program participant's certification, the termination shall be effective three (3) business days after the decision is mailed by certified mail to the program participant. The decision shall also state the date in which the program participant's certification shall be terminated.
(d) If the appeal process for an enrolling agency extends beyond the termination date identified in the notification of termination, the community-based assistance organization shall not represent itself as an enrolling agency, unless and until such time as the Secretary of State reinstates the designation as an enrolling agency.
NOTE
Authority cited: Section 6215.9, Government Code. Reference: Sections 6215.3, 6215.4 and 6215.8, Government Code.
HISTORY
1. Certificate of Compliance as to 12-1-2003 order, including renumbering of former section 22130 to new section 22100.4 and amendment of Note, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
§22110. Application and Annual Fees.
Note • History
NOTE
Authority cited: Section 6215.9, Government Code. Reference: Section 6215.2(c), Government Code.
HISTORY
1. New section filed 4-3-2003 as an emergency; operative 4-3-2003 (Register 2003, No. 14). A Certificate of Compliance must be transmitted to OAL by 8-1-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-1-2003; operative 8-1-2003 (Register 2003, No. 31). A Certificate of Compliance must be transmitted to OAL by 12-1-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 12-1-2003 as an emergency; operative 12-1-2003 (Register 2003, No. 49). A Certificate of Compliance must be transmitted to OAL by 3-30-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-1-2003 order, including renumbering of former section 22110 to new section 22100.2, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
Note • History
NOTE
Authority cited: Sections 6215.2(e) and 6215.9, Government Code. Reference: Section 6215.2(e), Government Code.
HISTORY
1. New section filed 4-3-2003 as an emergency; operative 4-3-2003 (Register 2003, No. 14). A Certificate of Compliance must be transmitted to OAL by 8-1-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-1-2003; operative 8-1-2003 (Register 2003, No. 31). A Certificate of Compliance must be transmitted to OAL by 12-1-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 12-1-2003 as an emergency; operative 12-1-2003 (Register 2003, No. 49). A Certificate of Compliance must be transmitted to OAL by 3-30-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-1-2003 order, including renumbering of former section 22120 to new section 22100.3, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
§22130. Termination and Appeal Procedures.
Note • History
NOTE
Authority cited: Section 6215.9, Government Code. Reference: Section 6215.4(c), Government Code.
HISTORY
1. New section filed 4-3-2003 as an emergency; operative 4-3-2003 (Register 2003, No. 14). A Certificate of Compliance must be transmitted to OAL by 8-1-2003 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-1-2003; operative 8-1-2003 (Register 2003, No. 31). A Certificate of Compliance must be transmitted to OAL by 12-1-2003 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 12-1-2003 as an emergency; operative 12-1-2003 (Register 2003, No. 49). A Certificate of Compliance must be transmitted to OAL by 3-30-2004 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-1-2003 order, including renumbering of former section 22130 to new section 22100.4, transmitted to OAL 3-29-2004 and filed 5-11-2004 (Register 2004, No. 20).
Chapter 12. Victims of Corporate Fraud Compensation Fund
Note • History
As used in this Chapter:
(a) “Victims of Corporate Fraud Compensation Fund” means the separate account in the State Treasury established pursuant to Section 1502.5 of the Corporations Code for purposes of carrying out the provisions of that section.
(b) “Application” means a request for payment from the Victims of Corporate Fraud Compensation Fund submitted to the Secretary of State pursuant to this Chapter.
(c) “Party” means either the claimant, the judgment debtor, or the Secretary of State.
(d) “Person” means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, whether domestic or foreign.
(e) “Claimant” means an aggrieved person who submits an application pursuant to this Chapter.
(f) “Judgment debtor” means a corporation against which a judgment, arbitration award, or criminal restitution order has been entered for conduct constituting intentional fraud.
(g) “Final judgment” means a judgment, arbitration award, or criminal restitution order for which the period for appeal has expired, enforcement of which is not barred by the order of any court or by any statutory provision, and which has not been nullified or rendered void by any court order or statutory provision, and for which the claimant has not been otherwise reimbursed. Only final judgments dated January 1, 2003, or thereafter shall be considered for payment from the Victims of Corporate Fraud Compensation Fund pursuant to these regulations.
(h) “Court of competent jurisdiction” means a small claims, municipal, or superior court of the State of California, or a United States district court or United States bankruptcy court sitting to conduct its affairs within the boundaries of the State of California, but does not include state or federal courts located in another state.
(i) “County in which a judgment was rendered” means the county within California in which the court issuing the judgment or restitution order sits or, if the claim is based on an arbitration award, the county in which the arbitration was conducted, or in which the claimant resides.
(j) Where appropriate to the context the singular number includes the plural and the plural number includes the singular.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New chapter 12 (sections 22500-22519) and section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22501. Application for Payment from Victims of Corporate Fraud Compensation Fund.
Note • History
(a) When an aggrieved person obtains (1) a final judgment in a court of competent jurisdiction, including, but not limited to, a criminal restitution order issued pursuant to subdivision (f) of Section 1202.4 of the Penal Code or Section 3663 of Title 18 of the United States Code, or (2) an arbitration award that includes findings of fact and conclusions of law rendered in accordance with the rules established by the American Arbitration Association or another recognized arbitration body, and in accordance with Sections 1280 to 1294.2, inclusive, of the Code of Civil Procedure where applicable, and where the arbitration award has been confirmed and reduced to judgment pursuant to Section 1287.4 of the Code of Civil Procedure, against a defendant based upon the defendant's fraud, misrepresentation, or deceit, made with intent to defraud, the aggrieved person may, upon the judgment becoming final, and after the time for appeal has passed, submit an application to the Secretary of State for payment from the Victims of Corporate Fraud Compensation Fund, within the limitations specified in Section 22515, of the amount unpaid on the judgment that represents an actual and direct loss to the claimant in the transaction, excluding punitive damages, attorneys fees and costs.
(b) An application shall be made on a form prescribed by the Secretary of State and shall include the information specified in Section 22502. The application shall be verified by the claimant in the manner specified in Section 446 of the Code of Civil Procedure for the verification of a pleading. If executed outside of California, the information in the application and accompanying documents shall be verified before a person qualified to administer oaths within the jurisdiction where executed or certified under penalty of perjury in accordance with the provisions of subdivision (b) of Section 2015.5 of the Code of Civil Procedure.
(c) If any documents or other attachments are submitted with the application, the application shall contain a verification by the claimant that the documents are true and correct copies of the originals, and if such documents purport to be copies of documents filed in court, that they are true and correct copies of the originals filed with the court.
(d) The application shall be delivered in person or by certified mail to the Office of the Secretary of State, Business Programs Division, Victims of Corporate Fraud Compensation Fund, 1500 11th Street, Sacramento, California 95814 not later than eighteen months after the final judgment has become final.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
Note • History
(a) The verified application form shall include the following:
(1) The name and address of the claimant.
(2) If the claimant is represented by an attorney, the name, business address, and telephone number of the attorney. If the claimant is not being represented by an attorney in the filing of the application, a telephone number where the claimant can be reached during regular business hours must be included.
(3) The identification of the judgment and the date on which it became final.
(4) The amount of the claim, not to exceed the amount of the actual and direct loss that remains unreimbursed from any source and an explanation of its computation.
(5) A detailed narrative statement of the facts explaining the allegations of the complaint upon which the underlying judgment is based.
(6)(A) Except as provided in subparagph (B), a statement by the claimant that the complaint or arbitration award upon which the underlying judgment is based was prosecuted conscientiously and in good faith. As used in this section, “conscientiously and in good faith” means that no party potentially liable to the claimant in the underlying transaction was intentionally and without good cause omitted from the complaint or arbitration proceeding, that no party named in the complaint who otherwise reasonably appeared capable of responding in damages was dismissed from the complaint or arbitration proceeding or dismissed from the complaint or arbitration proceeding intentionally and without good cause, and that the claimant employed no other procedural means contrary to the diligent prosecution of the complaint or arbitration award for the purpose of seeking to qualify for the Victims of Corporate Fraud Compensation Fund.
(B) For the purpose of an application based on a criminal restitution order, all of the following statements by the claimant:
1. The claimant has not intentionally and without good cause failed to pursue any person potentially liable to the claimant in the underlying transaction other than a defendant who is the subject of a criminal restitution order.
2. The claimant has not intentionally and without good cause failed to pursue in a civil action for damages all persons potentially liable to the claimant in the underlying transaction who otherwise reasonably appeared capable of responding in damages other than a defendant who is the subject of a criminal restitution order.
3. The claimant employed no other procedural means contrary to the diligent prosecution of the complaint in order to seek to qualify for the Victims of Corporate Fraud Compensation Fund.
(7) The name and address of the judgment debtor or, if not known, the names and addresses of persons who may know the judgment debtor's present whereabouts.
(8) The following representations and information from the claimant:
(A) That the claimant is not a spouse or immediate member of the family of the judgment debtor nor a personal representative of the spouse or immediate member of the family of the judgment debtor. For the purposes of this section, judgment debtor shall include the officers and directors of the judgment debtor.
(B) That the claimant has complied with all of the requirements of this Chapter.
(C) That the judgment underlying the claim meets the requirements of subdivision (a) of Section 22501.
(D) A description of searches and inquiries conducted by or on behalf of the claimant with respect to the judgment debtor's assets available to be sold or applied to satisfy the judgment, an itemized valuation of the assets discovered, and the results of actions by the claimant to have the assets applied to satisfaction of the judgment.
(E) That he or she has diligently pursued collection efforts against all judgment debtors and all other persons liable to the claimant in the transaction that is the basis for the underlying judgment.
(F) That the underlying judgment and debt have not been discharged in bankruptcy, or, in the case of a bankruptcy proceeding that is open at or after the time of the filing of the application, that the judgment and debt have been declared to be nondischargeable.
(G) That the application was mailed or delivered to the Secretary of State no later than eighteen months after the underlying judgment became final.
(b) The application shall include all of the documents and information enumerated below:
(1) Proof that the judgment debtor was served with the Notice and Application.
(2) A copy of the judgment showing it to be a final judgment as defined in this article, and any findings of fact, conclusions of law, jury verdicts, jury special verdicts, statements of decision, memorandum decisions, or any other indication by the court or jury, as the case may be, of its decision and the reasons for the decision, and copies of any post trial orders or rulings. If the matter was submitted to arbitration, a copy of the arbitration decision and any other documentation supporting the arbitration award. If the original judgment was appealed, copies of the appellate decision and remittitur.
(3) Copies of the original complaint, answer, cross-complaints, answers to cross-complaints, and all amendments or other subsequent versions of any of those documents.
(4) Copies of any pre-trial or post-trial briefs, settlement conference statements, or briefs submitted in arbitration by any party.
(5) A listing of all depositions, interrogatories, requests for admission, and other discovery taken in the underlying action by any party, describing the party or parties taking the deposition(s), the party propounding the interrogatories, the party propounding the requests for admission, or the party propounding the other discovery requests, the deponent(s), the party responding to any discovery request, and a list of all persons present at each deposition.
(6) Copies of any demurrers or motions for summary judgment, supporting documents, and rulings and orders thereon.
(7) A description by the claimant of the basis for each element of damages awarded.
(8) If the only judgment debtor was an officer or director, a statement as to why the corporation was neither sued nor taken to judgment.
(9) If any codefendants were dismissed from the underlying lawsuit, or if any party was dismissed from arbitration of the claims that are the basis of the underlying lawsuit, a statement of the reason for dismissal as to each such codefendant or party to the arbitration.
(10) A list of the names of any witnesses who testified at the underlying trial, or arbitration of the claims that are the basis of the underlying lawsuit, and the present or last known addresses of the witnesses to the extent known by the claimant.
(11) If the claimant claimed any loss related to the transaction as a deduction on the claimant's tax return or returns, a description of the amount of the tax benefit derived therefrom.
(12) A statement whether the judgment debtor is known to have filed bankruptcy. If so, a statement whether the claimant was named as a creditor in the bankruptcy, filed a claim in the bankruptcy, and pursued an adversary complaint to have the debt determined to be nondischargeable. If the judgment debtor filed bankruptcy and the claimant failed to take any of the foregoing actions, a statement as to why the claimant failed to take such actions.
(13) Abstracts of judgment bearing evidence of having been recorded in the county or counties in which the judgment debtor may possibly have assets.
(14) If any of the above items are not included in the initial application, or are requested in a deficiency letter and not supplied, a statement under penalty of perjury that the claimant has made a diligent effort to locate and produce the items but has been unable to locate them or has found that they do not exist.
(15) All documents or copies of documents submitted to meet the requirements of this section must be clear and legible.
(c) The Secretary of State shall include with the application form detailed instructions with respect to the documentary evidence, pleadings, court rulings, products of discovery and other documentation from the underlying litigation to be appended to the application by the claimant and a notice to the claimant of the claimant's obligation to protect the underlying judgment from discharge of bankruptcy.
(d) An application that is based on a criminal restitution order shall comply with all the requirements of this Chapter. For the purpose of an application based on a criminal restitution order, the following terms have the following meanings:
(1) “Judgment” means the criminal restitution order.
(2) “Complaint” means the facts of the underlying transaction upon which the criminal restitution order is based.
(3) “Judgment debtor” means any defendant corporation that is the subject of the criminal restitution order.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
Note • History
(a) The claimant shall serve a copy of the notice prescribed in subdivision (e) together with a copy of the application upon the judgment debtor by personal service, by certified mail, or by publication, as set forth in subdivision (b).
(b) If the judgment debtor is a California corporation with a current statement of information on file with the Secretary of State pursuant to Section 1502 of the Corporations Code, or a foreign corporation with a current statement of information on file with the Secretary of State pursuant to Section 2117 of the Corporations Code, service of the notice and a copy of the application may be made by certified mail addressed to the agent for service of process designated on the corporation's statement of information. If the judgment debtor does not have a current statement of information on file with the Secretary of State pursuant to Section 1502 or Section 2117 of the Corporations Code, and personal service cannot be effected through the exercise of reasonable diligence, the claimant shall serve the judgment debtor by one publication of the notice in each of two successive weeks in a newspaper of general circulation published in the county of the judgment debtor's last known principal business office in the State of California.
(c) If the application is served upon the judgment debtor by certified mail, service is complete five days after mailing. Personal service is complete on the date of service. Service by publication is complete upon completion of the second week of publication.
(d) If a judgment debtor wishes to contest payment of an application by the Secretary of State, the judgment debtor shall mail or deliver a written response to the application addressed to the Secretary of State at the address specified in Section 22505 within 30 days after service of the notice and application, and shall mail or deliver a copy of the response to the claimant. If a judgment debtor fails to mail or deliver a timely response, the judgment debtor shall have waived the judgment debtor's right to present objections to payment of the application.
(e) The notice served upon the judgment debtor shall include the following statement:
NOTICE: Based upon a judgment entered against you in favor of __________ (name of claimant) , application for payment from the Victims of Corporate Fraud Compensation Fund is being made to the Secretary of State.
If payment is made from the Victims of Corporate Fraud Compensation Fund, your corporation will be automatically assessed the amount of the payment plus interest at the prevailing legal rate by the Secretary of State. If your corporation does not pay the assessed amount, your corporation will be suspended and cannot be reinstated until the Victims of Corporate Fraud Compensation Fund has been reimbursed for the amount paid plus interest at the prevailing legal rate.
If you wish to contest payment of the application by the Secretary of State, you must submit a written response to the application which must be addressed to the Secretary of State at the Office of the Secretary of State, Business Programs Division, Victims of Corporate Fraud Compensation Fund, 1500 11th Street, Sacramento, California 95814 within 30 days after mailing, delivery, or publication of this notice and mail or deliver a copy of that response to the claimant. If you fail to do so, you will have waived your right to present your objections to payment of the application.
(f) If a judgment debtor fails to mail or deliver a written response to the application with the Secretary of State within 30 days after personal service, service by mail, or final publication of the notice, the judgment debtor shall not thereafter be entitled to notice of any action taken or proposed to be taken by the Secretary of State with respect to the application.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22504. Response by Judgment Debtor.
Note • History
(a) The response by a judgment debtor must be verified and must contain a verified proof of service showing that a copy of the response was sent to the claimant, or if the claimant is represented by an attorney, to the claimant's attorney, at the address specified in the application for the claimant or the claimant's attorney.
(b) If the judgment debtor is not represented by an attorney in objecting to payment of the application, the response must contain the judgment debtor's name, the address at which the judgment debtor wishes to receive correspondence and notices relating to the application, and a telephone number where the judgment debtor can be reached during regular business hours. If the judgment debtor is represented by an attorney in objecting to the application, the response must contain the name, business address, and telephone number of the attorney.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22505. Subsequent Service of Correspondence and Notices.
Note • History
After initial submission of the application to the Secretary of State and service on the judgment debtor by the claimant as provided by Sections 22501 and 22503, and after service of a response by the judgment debtor as provided by Sections 22503 and 22504, if any, all parties shall be served with subsequent correspondence and notices by first class mail as follows:
(a) The Secretary of State shall be served at: Office of the Secretary of State, Business Programs Division, Victims of Corporate Fraud Compensation Fund, 1500 11th Street, Sacramento, California 95814.
(b) The claimant shall be served at the claimant's address as specified in the application, or if the claimant is represented by an attorney, at the address of the attorney as specified in the application.
(c) The judgment debtor shall be served at the judgment debtor's address as specified in the response, or if the judgment debtor is represented by an attorney, at the address of the attorney as specified in the response.
If the claimant or judgment debtor later wishes to be served at an address other than as specified above, such party shall notify all other parties by first class mail of the new address.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22506. Incomplete Application.
Note • History
(a) If the Secretary of State determines that the application as submitted by the claimant fails to comply with the requirements of Sections 22501 and 22502, the Secretary of State shall, within 21 calendar days after receipt of the application, mail an itemized description of deficiencies to the claimant.
(b) The time within which the Secretary of State is required to act pursuant to Section 22507 shall be measured from the date of receipt by the Secretary of State of an application that is deemed complete. In the event of an irreconcilable dispute between the claimant and the Secretary of State on the question of whether the application is complete, the claimant may immediately file the claim with the court pursuant to Section 22512.
(c) In the event that the Secretary of State has mailed one or more itemized lists of deficiencies to a claimant as provided by subdivision (a) of this section, and if after 30 calendar days the Secretary of State has received no response to the latest such list of deficiencies, the Secretary of State may notify the claimant that unless the application is complete within a specified period of time of not less than 10 days, the application will be denied.
(d) If no response has been received from the claimant after the passing of the deadline specified by the Secretary of State pursuant to subdivision (c) of this section, the Secretary of State may deny the application.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22507. Review by the Secretary of State.
History
(a) Applications received each year by the Secretary of State no later than March 31 shall be considered for payment during the fiscal year in which the application is received. Under no circumstances shall the Secretary of State approve the payment of claims that total more than the amount of funds available for the fiscal year in the Victims of Corporate Fraud Compensation Fund.
(b) Applications received each year by the Secretary of State after March 31 shall be considered for payment during the following fiscal year.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22508. Final Decision on Application.
Note • History
(a) The Secretary of State shall render a final written decision on the application no later than July 31 in the fiscal year following the fiscal year in which the application was submitted unless the claimant agrees in writing to extend the time within which the Secretary of State may render a decision. If the Secretary of State fails to render a written decision in response to the application by July 31 in the fiscal year following the fiscal year in which the application was submitted or within the extended period agreed to by the claimant, the application shall be deemed to have been denied by the Secretary of State on the final day for rendering the decision.
(b) The Secretary of State may deny or grant the application or may enter into a compromise with the claimant to pay less in settlement than the full amount of the application. If the claimant refuses to accept a settlement of the application offered by the Secretary of State, the written decision of the Secretary of State shall be to deny the application or it shall be deemed denied if a written decision is not rendered within the time specified in subdivision (a). Evidence of settlement offers and discussions between the Secretary of State and the claimant shall not be competent evidence in judicial proceedings undertaken by the claimant pursuant to Section 22512.
(c) In considering and investigating an application, the Secretary of State may use all appropriate means of investigation and discovery available under Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
Note • History
(a) The Secretary of State shall give written notice of a decision rendered with respect to the application to the claimant and to a judgment debtor who has submitted a timely response to the application in accordance with Section 22504.
(b) If the application is denied, the notice to the claimant and judgment debtor shall include the following:
Claimant's application has been denied. If the claimant wishes to pursue the application in court, the claimant must file the application in a superior court of this state not later than six months after receipt of this notice, pursuant to Section 22512. If the underlying judgment is a California state court judgment, the application shall be filed in the court in which the underlying judgment was entered. If the underlying judgment is a federal court judgment, the application shall be filed in (1) the superior court of any county within California that would have been a proper venue if the underlying lawsuit had been filed in a California state court, or (2) the Superior Court of the County of Sacramento.
(c) If the decision of the Secretary of State is to make a payment to the claimant from the Victims of Corporate Fraud Compensation Fund, the following notice shall be given to the judgment debtor along with a copy of the decision of the Secretary of State:
The decision of the Secretary of State on the application of (name of claimant) is to pay $__________ (amount of payment) from the Victims of Corporate Fraud Compensation Fund. A copy of that decision is enclosed.
Pursuant to Section 22516, your corporation will be assessed the amount of the payment plus interest at the prevailing legal rate, payable on the date your next statement of information pursuant to Section 1502 or Section 2117 of the Corporations Code is required to be filed. If your corporation does not pay the assessed amount, your corporation will be suspended and will not be eligible for reinstatement until you have reimbursed the Victims of Corporate Fraud Compensation Fund for this payment plus interest at the prevailing legal rate.
If you desire a judicial review of the decision of the Secretary of State, you may petition the superior court for a writ of mandamus. If the underlying judgment is a California state court judgment, the petition shall be filed in the court in which the judgment was entered. If the underlying judgment is a federal court judgment, the petition shall be filed in the superior court of any county within California that would have been a proper venue if the underlying lawsuit had been filed in a California state court, or in the Superior Court of the County of Sacramento. To be timely, the petition must be filed with the court, and copies served on the Secretary of State and claimant, within 30 days of service of this notice.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22510. Procedure upon Filing of Writ of Mandamus by Judgment Debtor.
Note • History
(a) If the decision of the Secretary of State is to make a payment out of the Victims of Corporate Fraud Compensation Fund, and the judgment debtor files a writ of mandamus as provided in Section 22509, no payment shall be made of the pending application unless the writ of mandamus has been denied and such denial has become final.
(b) If such writ of mandamus is granted on the basis that the claimant has not met the requirements for payment from the Victims of Corporate Fraud Compensation Fund, the application shall be deemed denied on the date that the judgment becomes final.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22511. Proration Where Aggregate Valid Applications Exceed Liability Limits.
Note • History
If, at any time prior to the rendering of a decision on an application, the Secretary of State makes a preliminary determination that the aggregate valid applications of all aggrieved persons are likely to exceed the funds available for distribution from the Victims of Corporate Fraud Compensation Fund, the Secretary of State shall distribute the available funds among them in the ratio that their respective losses, as supported in their applications, bear to the aggregate of the valid applications. Distribution of any moneys shall be among the persons entitled to share therein, without regard to the order of priority in which their respective judgments may have been obtained or the date(s) the applications were submitted to the Secretary of State.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22512. Claimant Appeal Process.
Note • History
(a) A claimant against whom the Secretary of State has rendered a decision denying an application pursuant to Section 22509 may, within six months after the mailing of the notice of the denial, file a verified application in superior court for an Order Directing Payment Out of the Victims of Corporate Fraud Compensation Fund based upon the grounds set forth in the application to the Secretary of State. If the underlying judgment is a California state court judgment, the application shall be filed in the court in which the underlying judgment was entered. If the underlying judgment is a federal court judgment, the application shall be filed in (1) the superior court of any county within California that would have been a proper venue if the underlying lawsuit had been filed in a California state court, or (2) the Superior Court of the County of Sacramento.
(b) A copy of the verified application shall be served upon the Secretary of State and upon the judgment debtor. A certificate or affidavit of service shall be filed by the claimant with the court. Service on the Secretary of State may be made by certified mail addressed to the address set forth in subdivision (a) of Section 22505. Service upon a judgment debtor may be made in accordance with subdivision (c) of Section 22505. The notice served upon the judgment debtor shall read as follows:
NOTICE: An application has been filed with the court for a payment from the Victims of Corporate Fraud Compensation Fund that was previously denied by the Secretary of State. If, as a result of this judicial action, the Secretary of State makes a payment from the Victims of Corporate Fraud Compensation Fund pursuant to court order, your corporation will be automatically assessed the amount of the payment plus interest at the prevailing legal rate by the Secretary of State. If your corporation does not pay the assessed amount, your corporation will be suspended until the Victims of Corporate Fraud Compensation Fund has been reimbursed for the amount paid plus interest at the prevailing legal rate.
If you wish to defend in court against this application, you must file a written response with the court within 30 days after having been served with a copy of the application. If you do not file a written response, you will have waived your right to defend against the application.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22513. Prerequisite for Payment from Victims of Corporate Fraud Compensation Fund.
Note • History
Whenever the court proceeds upon an application under Section 22512, it shall order payment from the Victims of Corporate Fraud Compensation Fund only upon a determination that the aggrieved party has a valid cause of action under Section 22501, and has complied with Section 22502.
The Secretary of State may defend any such action on behalf of the Secretary of State and shall have recourse to all appropriate means of defense and review, including examination of witnesses and the right to relitigate any issues material and relevant in the proceeding against the Victims of Corporate Fraud Compensation Fund which were determined in the underlying action on which the judgment in favor of the applicant was based. If the judgment in favor of the applicant was by default, stipulation, consent, or pursuant to Section 594 of the Code of Civil Procedure, or whenever the action against the corporation was defended by a trustee in bankruptcy, the applicant shall have the burden of proving that the cause of action against the corporation was for fraud, misrepresentation, or deceit. Otherwise, the judgment shall create a rebuttable presumption of the fraud, misrepresentation, or deceit by the corporation, which presumption shall affect the burden of producing evidence.
The Secretary of State may move the court at any time to dismiss the application when it appears there are no triable issues and the petition is without merit. The motion may be supported by affidavit of any person or persons having knowledge of the facts, and may be made on the basis that the petition, and the judgment referred to therein, does not form the basis for a meritorious recovery claim within the purview of Section 22501; provided, however, the Secretary of State shall give written notice at least 10 days before the motion is scheduled to be heard.
The Secretary of State may, subject to court approval, compromise a claim based upon the application of an aggrieved party. The Secretary of State shall not be bound by any compromise or stipulation of the judgment debtor.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22514. Rights of Judgment Debtor.
Note • History
The judgment debtor may defend an action against the Victims of Corporate Fraud Compensation Fund on the judgment debtor's own behalf and shall have recourse to all appropriate means of defense and review, including examination of witnesses. All matters, including, but not limited to, the issues of fraud, misrepresentation, or deceit, finally adjudicated on the merits in the underlying action are conclusive as to the judgment debtor and the claimant in the proceeding against the Victims of Corporate Fraud Compensation Fund.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22515. Limitations on Payment from the Victims of Corporate Fraud Compensation Fund.
Note • History
(a) Notwithstanding any other provision of this chapter and regardless of the number of persons aggrieved in a transaction or the number of judgments against a judgment debtor, the payment from the Victims of Corporate Fraud Compensation Fund shall not exceed twenty thousand dollars ($20,000) for any one transaction.
(b) When multiple judgment debtors are involved in a transaction and the conduct of two or more of the judgment debtors results in a judgment meeting the requirements of Section 22501, the claimant may seek recovery from the Victims of Corporate Fraud Compensation Fund based on the judgment against any of the judgment debtors, subject to the limitations of this section.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22516. Recovery from Corporation upon Payment from Victims of Corporate Fraud Compensation Fund.
Note • History
If the Secretary of State pays from the Victims of Corporate Fraud Compensation Fund any amount in settlement of a claim or toward satisfaction of a judgment against a corporation, the corporation shall be required to pay to the Victims of Corporate Fraud Compensation Fund the amount of the claim, plus interest at the prevailing legal rate applicable to a judgment rendered in any court of this state, at the time the corporation files its next statement of information pursuant to Section 1502 or Section 2117 of the Corporations Code. This payment is in addition to any other fees or penalties the corporation is required to pay in conjunction with the filing of the statement of information. If the corporation fails to make the required payment to the Victims of Corporate Fraud Compensation Fund upon the filing of its statement of information, the corporation shall be suspended in the manner set forth in Section 2204, Section 2205, or Section 2206 of the Corporations Code, as applicable. A discharge in bankruptcy shall not relieve a corporation from the penalties and disabilities provided in this Chapter.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
§22517. Disposition of Funds Received by the Secretary of State.
Note • History
Any sums received by the Secretary of State pursuant to any provisions of this Chapter shall be deposited in the State Treasury and credited to the Victims of Corporate Fraud Compensation Fund.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
Note • History
When the Secretary of State has paid from the Victims of Corporate Fraud Compensation Fund any sum to the claimant, the Secretary of State shall be subrogated to all of the rights of the claimant and the claimant shall assign all of the claimant's rights, title, and interest in the judgment to the Secretary of State and any amount and interest so recovered by the Secretary of State on the judgment shall be deposited to the Victims of Corporate Fraud Compensation Fund.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
Note • History
The failure of an aggrieved person to comply with all of the provisions of this Chapter shall constitute a waiver of any rights hereunder.
NOTE
Authority cited: Section 1502.5, Corporations Code. Reference: Section 1502.5, Corporations Code.
HISTORY
1. New section filed 3-9-2004; operative 3-9-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 11).
Chapter 13. Uniform Commercial Code
Article 1. General Provisions
Note • History
(a) “Address” means a name or other identifying information, either a street address, route number (may include box) or PO Box number and city, state or country, and zip code, if applicable.
(b) “Amendment” means a UCC record that amends the information contained in a financing statement. Amendments include assignments, continuations and terminations.
(c) “Assignment” is an amendment that assigns all or a part of a secured party's power to authorize an amendment to a financing statement.
(d) “Business Programs Automation on-line system” means the web-based electronic filing service provided by the Secretary of State for the entry, transmission and retrieval of UCC records and requests for information.
(e) “Correction statement” means a UCC record that indicates that a financing statement is inaccurate or wrongfully filed.
(f) “Filing Officer statement” means a statement entered by the Secretary of State into the Business Programs Automation on-line system to correct an error made by the Secretary of State's office.
(g) “Individual” means a human being, or a decedent in the case of a debtor that is such decedent's estate.
(h) “Initial Financing Statement” means a UCC record containing the information required to be in an initial financing statement, and that causes the Secretary of State to establish the initial record of existence of a financing statement.
(i) “Remitter” means a person who tenders a UCC record to the Secretary of State for filing, whether the person is a filer or an agent of a filer responsible for tendering the record for filing. “Remitter” does not include a person responsible merely for the delivery of the record to the Secretary of State, such as the postal service or a courier service but does include a service provider who acts as a filer's representative in the filing process.
(j) “UCC” means the Uniform Commercial Code as adopted in this state.
(k) “UCC record” means an initial financing statement, an amendment, an assignment, a continuation, a termination or a correction statement and shall not be deemed to refer exclusively to paper or paper-based writings.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9526, Commercial Code.
HISTORY
1. New chapter 13 (articles 1-6, sections 22600-22601.8), article 1 (sections 22600-22600.2) and section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22600.1. UCC Record Delivery.
Note • History
UCC records may be tendered for filing at the Secretary of State's office as follows.
(a) Personal delivery at the Secretary of State's street address. The file time for a UCC record delivered by this method is when delivery of the UCC record is accepted by the Secretary of State (even though the UCC record may not yet have been accepted for filing and subsequently may be rejected).
(b) Courier delivery at the Secretary of State's street address. The file time for a UCC record delivered by this method is, notwithstanding the time of delivery, at the earlier of the time the UCC record is first examined by the Secretary of State's office for processing (even though the UCC record may not yet have been accepted for filing and may be subsequently rejected), or the next close of business following the time of delivery.
(c) Postal service delivery to the Secretary of State's mailing address. The file time for a UCC record delivered by this method is the next close of business following the time of delivery (even though the UCC record may not yet have been accepted for filing and may be subsequently rejected). A UCC record delivered after regular business hours or on a day the Secretary of State's office is not open for business will have a filing time of the close of business on the next day the Secretary of State's office is open for business.
(d) Telefacsimile delivery to the Secretary of State's fax filing telephone number. The file time for a UCC record delivered by this method is, notwithstanding the time of delivery, 5:00 P.M. on a day the Secretary of State's office is open to the public next following the time of delivery (even though the UCC record may not yet have been accepted for filing and may be subsequently rejected). A UCC record delivered after regular business hours or on a day the Secretary of State's office is not open for business, will have a filing time of the close of business on the next day the Secretary of State's office is open for business.
(e) Electronic filing. UCC records, excluding correction statements, may be transmitted electronically using the XML standard approved by the International Association of Commercial Administrators. UCC records may also be transmitted electronically through on-line entry. The file date and time for a UCC record delivered by this method are the date and time that the Business Programs Automation on-line system receives it.
The appropriate fee shall be paid at the time a UCC record is submitted to the Secretary of State for filing. The methods of payment are United States currency, check, money order, cashier's check, credit card, electronic funds transfer, and debit to a prepaid customer account established with the Secretary of State.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9516, Commercial Code: and Section 12194, Government Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22600.2. Search Request Delivery.
Note • History
UCC search requests may be delivered to the Secretary of State's office by any of the means by which UCC records may be delivered to the Secretary of State's office. A search request for a debtor named on an initial financing statement may be made on the initial financing statement form if the form is accepted and the relevant search fee is also tendered.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9523, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Article 2. Acceptance and Refusal of Records
§22600.3. Continuation Period for Financing Statements.
Note • History
(a) First day permitted. The first day on which a continuation may be filed is the date corresponding to the date upon which the financing statement would lapse, six months preceding the month in which the financing statement would lapse. If there is no such corresponding date, the first day on which a continuation may be filed is the last day of the sixth month preceding the month in which the financing statement would lapse.
(b) Last day permitted. The last day on which a continuation may be filed is the date upon which the financing statement lapses.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9515, Commercial Code.
HISTORY
1. New article 2 (sections 22600.3-22600.5) and section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22600.4. Procedure upon Refusal.
Note • History
If the Secretary of State's office finds grounds under Section 9516 of the UCC to refuse acceptance of a UCC record, the Secretary of State's office shall return the record. Unless otherwise requested, the Secretary of State's office may retain the fee pending resubmission of the record.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Sections 9516 and 9520, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Note • History
If a secured party or a remitter demonstrates to the satisfaction of the Secretary of State's office that a UCC record that was refused for filing should not have been refused, the Secretary of State's office will file the UCC record as provided in these rules with a filing date and time assigned when such filing occurs. The Secretary of State's office will also file a filing officer statement that states the effective date and time of filing which shall be the date and time the UCC record was originally tendered for filing.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Sections 9516, 9520 and 9526, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Article 3. Business Programs Automation On-Line System and Electronic Records
§22600.6. IACA Standard Adopted.
Note • History
The XML standard adopted by the International Association of Commercial Administrators is adopted in this state for electronic transmission of UCC records.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9516, Commercial Code.
HISTORY
1. New article 3 (sections 22600.6-22600.8) and section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22600.7. Record Filing Procedures.
Note • History
(a) UCC records may be submitted directly to the Secretary of State's office using the Business Programs Automation on-line system which can be accessed through the Secretary of State's website.
(b) Record Indexing. A submitter may index a record into the Business Programs Automation on-line system by following the indexing procedures in the manner set forth in Section 22601 of these rules.
(c) Filing Date. The filing date of a UCC record is the date the UCC record is received as described in subdivision (e) of Section 22600.1.
(d) Filing Time. The filing time of a UCC record is the time described in subdivision (e) of Section 22600.1.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9519, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22600.8. Search Request Procedures.
Note • History
Search requests may be submitted directly to the Secretary of State's office using the Business Programs Automation on-line system which can be accessed through the Secretary of State's website.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9523, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Article 4. Filing and Data Entry Procedures
§22600.9. Errors of the Secretary of State's Office as the Filing Officer.
Note • History
The Secretary of State's office may correct data entry errors of the Secretary of State's personnel in the Business Programs Automation on-line system at any time. If the correction is made after the Secretary of State has issued a certification date that includes the filing date of a corrected record, the Secretary of State's office shall proceed as follows. A filing officer statement record relating to the relevant initial financing statement will be placed in the Business Programs Automation on-line system on the date that the error was reported. The filing officer statement must provide the date of the correction and explain the nature of the corrective action taken. The record shall be preserved for so long as the record of the initial financing statement is preserved in the Business Programs Automation on-line system.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9526, Commercial Code.
HISTORY
1. New article 4 (sections 22600.9-22601.1) and section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22601. Data Entry of Names -- Designated Name Fields.
Note • History
(a) Organization Names. Organization names are entered into the Business Programs Automation on-line system as set forth in the UCC record, even if it appears that multiple names are set forth in the record or it appears that the name of an individual has been included in the field designated for an organization name.
(b) Individual Names. On a form that designates separate fields for first, middle, and last names and any suffix, the Secretary of State's office enters the names into the first, middle, and last name and suffix fields in the Business Programs Automation on-line system exactly as set forth on the form.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9519, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Note • History
(a) The Secretary of State's office may accept for filing a single UCC record for the purpose of amending or assigning more than one financing statement. Master amendments may accomplish one or both of the following purposes: amendment to change secured party name: amendment to change secured party address. Master assignments may accomplish a full assignment from a single assignor.
(b) A master filing shall consist of an electronic record describing the requested amendment or assignment submitted to the Secretary of State's office pursuant to Section 22600.7 and a machine readable file furnished by the remitter containing appropriate indexing information.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Sections 9519 and 9526, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Article 5. Information Request and Search Response
§22601.2. General Requirements.
Note • History
The Secretary of State's office maintains for public inspection a searchable index for all UCC records. The index shall provide for the retrieval of a record by the name of the debtor and by the file number of the initial financing statement, and each filed UCC record relating to the initial financing statement.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9523, Commercial Code.
HISTORY
1. New article 5 (sections 22601.2-22601.6) and section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Note • History
Search requests shall contain the following information.
(a) Name Searched. A search request shall set forth the name of a debtor to be searched and must specify whether the debtor is an individual or an organization. A search request will be processed using the name in the exact form it is submitted.
(b) Requesting Party. A search request shall include the name and address of the person to whom the search report is to be sent.
(c) Fee. The appropriate fee shall be paid at the time the request is submitted to the Secretary of State. The methods of payment are United States currency, check, money order, cashier's check, credit card, electronic funds transfer, and debit to a prepaid customer account established with the Secretary of State.
(d) Search Request with Filing. If a filer requests a search at the time a UCC record is filed, the name searched will be the debtor name as set forth on the form. The requesting party shall be the remitter of the UCC record, and the search request shall be deemed to request a search that would retrieve all financing statements filed on or prior to the date the UCC record is filed.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Sections 9523 and 9525, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22601.4. Rules Applied to Search Requests.
Note • History
Search results are produced by the application of standardized search logic to the name presented to the Secretary of State's office. Human judgment does not play a role in determining the results of the search. The following apply to searches:
(a) There is no limit to the number of matches that may be returned in response to the search criteria.
(b) No distinction is made between upper and lower case letters.
(c) Punctuation marks and accents are disregarded.
(d) Words and abbreviations at the end of a name that indicate the existence or nature of an organization are disregarded.
(e) The word “the” at the beginning of the search criteria is disregarded.
(f) All spaces are disregarded.
(g) For first and middle names of individuals, initials are treated as the logical equivalent of all names that begin with such initials, and first name and no middle name or initial is equated with all middle names and initials. For example, a search request for “John A. Smith” would cause the search to retrieve all filings against all individual debtors with “John” or the initial “J” as the first name, “Smith” as the last name, and with the initial “A” or any name beginning with “A” in the middle name field. If the search request were for “John Smith” (first and last names with no designation in the middle name field), the search would retrieve all filings against individual debtors with “John” or the initial J as the first name, “Smith” as the last name and with any name or initial or no name or initial in the middle name field.
(h) After using the preceding rules to modify the name to be searched, the search will reveal only names of debtors that are contained in unlapsed and lapsed financing statements and exactly match the names requested, as modified.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9523, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
§22601.5. Optional Information.
Note • History
A UCC search request may contain any of the following information.
(a) The request may limit the records searched by using the address of the debtor, the date of filing (or a range of filing dates) or the identity of the secured party(ies) of record on the financing statements. The reports created by the Secretary of State's office in response to a request shall contain the statement:
“The search results herein reflect only the specific information requested. The results of the debtor search will not reflect variances of this name. If the debtor is known under other personal names, trade names, business entities, or addresses, separate searches of these names will have to be requested and conducted. The Secretary of State, his officers and agents disclaim any and all liability for a claim resulting from other filings on which the name of the debtor can be found in any other form than that which was requested.”
(b) The request may ask for copies of UCC records identified on the search response.
(c) The request may include instructions on the mode of delivery desired, if other than by ordinary mail, which request will be honored if the requested mode is available to the Secretary of State's office.
(d) Copies of unrelated records may be requested by providing the specific file numbers. The Secretary of State's office may limit the number of records that may be accepted in a single search request.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Sections 9523 and 9526, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Note • History
Reports created in response to a search request shall include the following:
(a) Filing officer. Identification of the Secretary of State and the certification of the Secretary of State required by law.
(b) Report Date. The date the report was generated.
(c) Name Searched. Identification of the name searched.
(d) Certification Date. The certification date and time for which the search is effective.
(e) Identification of initial financing statements. Identification of each unlapsed and lapsed initial financing statement filed on or prior to the certification date and time corresponding to the search criteria, by name of debtor, by identification number, and by file date and file time.
(f) History of Financing Statement. For each initial financing statement on the report, a listing of all related UCC records filed by the Secretary of State's office on or prior to the certification date.
(g) Copies. Copies of all UCC records revealed by the search and requested by the searcher.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Sections 9523 and 9526, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Article 6. Other Notices of Liens
§22601.7.
Note • History
The liens identified in Section 22601.8 are also filed with the Secretary of State pursuant to statutes other than the UCC. The liens are treated by the Secretary of State's office substantially the same as financing statements and are included on search responses pursuant to Commercial Code Section 9528.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9528, Commercial Code.
HISTORY
1. New article 6 (sections 22601.7-22601.8) and section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Note • History
(a) Judgment Liens pursuant to the Code of Civil Procedure Sections 697.510-697.670.
(b) Attachment Liens pursuant to the Code of Civil Procedure Sections 488.300-488.485 and 488.500-488.510.
(c) Federal Tax Liens pursuant to the Code of Civil Procedure Sections 2100-2107.
(d) State Tax Liens pursuant to the Government Code Sections 7170-7174 and 7220-7229.
NOTE
Authority cited: Section 9526, Commercial Code. Reference: Section 9528, Commercial Code.
HISTORY
1. New section filed 6-21-2004; operative 6-21-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 26).
Chapter 14. Advance Health Care Directive Registry
Article 1. Advance Health Care Directive Registry
Note • History
(a) The following definitions shall apply for purposes of Probate Code sections 4800 and 4801:
(1) “Health care provider” means an individual licensed, certified, or otherwise authorized or permitted by the law of California or of any other jurisdiction to provide health care in the ordinary course of business or practice of a profession who is providing health care to the registrant.
(2) “The public guardian” means a public official of any jurisdiction who is serving in his or her official capacity as the guardian or conservator for the registrant.
(3) “The legal representative of the registrant” means an individual who is either:
(A) serving as the guardian or conservator for the registrant pursuant to an order of a court of any jurisdiction; or
(B) designated in a current written advance health care directive or similar written documents registered with the Secretary of State to make health care decisions for the registrant.
(b) The following definition shall apply for purposes of Probate Code section 4801:
(1) “Other authorized persons” means the legal representative of registrants as defined in Section 22610.1(a)(3) of Article 1, Chapter 14, Division 7, Title 2, California Code of Regulations.
NOTE
Authority cited: Sections 4800(a) and 4801, Probate Code. Reference: Sections 4800(a) and (e) and 4801, Probate Code.
HISTORY
1. New chapter 14 (article 1, sections 22610.1-22610.4), article 1 (sections 22610.1-22610.4) and section filed 5-17-2006; operative 7-1-2006 (Register 2006, No. 20).
Note • History
(a) Any registration of a written advance health care directive with the Secretary of State shall be made by using a form prescribed by the Secretary of State. The form shall be available for downloading on the Secretary of State's website at http://www.ss.ca.gov/. All or any part of the form may be completed by the registrant or by another adult in the registrant's presence and at the registrant's direction.
(b) A registrant shall provide the following information on the form:
(1) Whether the form submitted relates to a new registration, an amendment to a prior registration, a revocation of a prior registration or notification regarding an amendment to or revocation of a previously-filed written advance health care directive;
(2) Whether the written advance health care directive or amendment to a previously-filed written advance health care directive is attached to the form or, in the alternative, whether the form provides notification of the intended place of deposit or safekeeping of a written advance health care directive or amendment to a written advance health care directive;
(3) The registrant's name, address, date and place of birth, and the name and telephone number of the agent and any alternative agent;
(4) At least one of the following:
A. The registrant's social security number, or
B. The registrant's driver's license number, or
C. The registrant's individual identifying number established by law.
(5) Intended place of deposit or safekeeping of the written advance health care directive or amendment to the written advance health care directive to which the form relates, if applicable;
(6) The signature and printed name of the registrant;
(7) The date the form is signed by the registrant.
(c) The registrant shall submit the completed form to the address indicated on the form, along with the required fee, if any.
(d) The registration form or the material included with the registration card provided pursuant to Probate Code section 4800(d) shall contain the information required to be provided to registrants pursuant to Probate Code section 4802.
NOTE
Authority cited: Sections 4800(a) and 4802, Probate Code. Reference: Sections 4800(c)-(d) and 4802(a)-(c), Probate Code.
HISTORY
1. New section filed 5-17-2006; operative 7-1-2006 (Register 2006, No. 20).
Note • History
(a) The fee for registering a written advance health care directive with the Secretary of State is $10.00 for each registration.
(b) There shall be no fee charged for filing any form amending or revoking a registration or notification that a previously-filed written advance health care directive or similar document has been amended or revoked.
NOTE
Authority cited: Sections 4800(a) and (f), Probate Code. Reference: Sections 4800(d) and (f) and 4801, Probate Code.
HISTORY
1. New section filed 5-17-2006; operative 7-1-2006 (Register 2006, No. 20).
§22610.4. Requests for Information.
Note • History
(a) All request for information, including requests pursuant to Probate Code section 4717 by an emergency department of a general acute care hospital, shall be in writing and must include all of the following:
(1) The name, address and telephone number of the requestor;
(2) Credible evidence establishing the identity of the requestor. In determining whether the identity of the requestor is established by credible evidence, the Secretary of State may consider requestor's use of business letterhead in making the request, a copy of a driver's license or identification card issued by the California Department of Motor Vehicles, a copy of a United States passport, or copies of other credible identification documents;
(3) A statement by the requestor establishing his or her authority to receive the information requested;
(4) The identity of the individual for whom the information is requested. In establishing the identity of the individual for whom the information is requested, the Secretary of State may consider the presentation by the requestor of any information contained in or on the filed registration form, including a file number, date of birth, place of birth, social security number, driver's license number or other identifying number; and
(5) A statement setting forth the reason the information is needed.
NOTE
Authority cited: Sections 4800(a) and 4801, Probate Code. Reference: Sections 4800(a)-(c) and 4801, Probate Code.
HISTORY
1. New section filed 5-17-2006; operative 7-1-2006 (Register 2006, No. 20).
Chapter 15. Trustworthy Electronic Document or Record Preservation
Note • History
The purpose of this chapter is to identify the uniform statewide standards adopted by the Secretary of State, in consultation with the Department of General Services, for use in recording, storing, and reproducing permanent and nonpermanent documents or records in electronic media. These regulations list minimum standards recommended by the American National Standards Institute (ANSI) or the Association for Information and Image Management (AIIM), and provide specific conditions that would meet the definition of trusted system, as provided in Government Code section 12168.7. The uniform statewide standards in these regulations apply to state agencies, pursuant to subdivisions (b) and (d) of Government Code section 12168.7. The standards apply to local agencies only to the extent that existing law requires a local agency to apply the standards. For agencies not required by statute or local law, these regulations are recommendations and best practice guidelines, which state and local agencies are strongly encouraged to follow.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New chapter 15 (sections 22620.1-22620.8) and section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
§22620.2. Applicability of Electronic Document or Record Standards.
Note • History
(a) The provisions of this chapter shall apply to all electronic documents or records created or stored as the official record six months after the effective date of these regulations.
(b) The provisions of this chapter shall apply where the intent is to destroy the original hardcopy and to maintain an electronic version as the official record.
(c) The provisions of this chapter shall also apply to electronically originated documents or records that are maintained as official documents or records.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
Note • History
As used in this chapter, the following words have the following definitions:
(a) “AIIM” means the Association for Information and Image Management.
(b) “ANSI” means the American National Standards Institute.
(c) “Electronically originated documents or records” includes any document or record created without first having originated in hard copy format. It includes all documents or records generated through electronic submissions.
(d) “ISO” means the International Organization for Standardization.
(e) “PDF/A” means Portable Document Format/Archive, which is an electronic file format whereby documents are self-contained allowing them to be reproduced with all of the document coding embedded within the file.
(f) “CGATS” means Committee for Graphic Arts Technologies Standards administered by NPES, the Association for Suppliers of Printing, Publishing, and Converting Technologies.
(g) Trusted System is defined in section 5.3.3 Trusted system and legal considerations of “AIIM ARP1-2009 Analysis, Selection, and Implementation of Electronic Document Management Systems,” approved June 5, 2009, which is incorporated by reference in this section.
(h) “Official documents” or “official records” are those defined as such in applicable statutes and in business practices of the entity responsible for retaining said documents or records. In the absence of applicable statutes, official records or documents are those defined in the entity's business practices.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
§22620.4. Official Document or Record Storage Using Electronic Technologies.
Note • History
To ensure that all electronic versions of official documents or records (including documents or records converted from hard copy or electronically originated documents or records) are stored and managed in a trusted system as required in Government Code section 12168.7(c), electronic content management systems implemented six months after the adoption of these regulations shall be designed in accordance with section 6.2 Recommended Project Steps and Activities of “AIIM ARP1-2009 Analysis, Selection, and Implementation of Electronic Document Management Systems,” approved June 5, 2009, which is incorporated by reference in this section.
All existing electronic content management systems in place prior to six months after the adoption of these regulations should be evaluated to the greatest extent technologically and procedurally possible, and as soon as practicable secure all necessary local and/or state approvals to meet the intent of Government Code section 12168.7 that electronic documents or records be stored in a trusted system as defined in these regulations.
The published version of the AIIM recommended practice may be downloaded directly from AIIM at www.aiim.org/standards, or from the Secretary of State at www.sos.ca.gov/archives/local-gov-program.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
§22620.5. Business Practice Documentation.
Note • History
To ensure that appropriate policies and procedures associated with the creation, management, and storage of electronic documents or records are in writing, a document management policy shall be prepared prior to system implementation and updated at regular intervals in accordance with section 6.17 Business practices documentation of “AIIM ARP1-2009 Analysis, Selection, and Implementation of Electronic Document Management Systems,” approved June 5, 2009, which is incorporated by reference in this section.
The published version of the AIIM recommended practice may be downloaded directly from AIIM at www.aiim.org/standards, or from the Secretary of State at www.sos.ca.gov/archives/local-gov-program.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
§22620.6. Electronic File Compression.
Note • History
When it is determined that electronic documents or records are to be compressed and to ensure that electronic documents or records can be accessed after being converted from hard copy format, only those compression technologies identified in section 5.4.2.4. Document image compression of “AIIM ARP1-2009 Analysis, Selection, and Implementation of Electronic Document Management Systems,” approved June 5, 2009, which is incorporated by reference in this section, shall be used.
The published version of the AIIM recommended practice may be downloaded directly from AIIM at www.aiim.org/standards, or from the Secretary of State at www.sos.ca.gov/archives/local-gov-program.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
§22620.7. Trusted Storage of Official Electronic Documents or Records.
Note • History
To ensure that every official electronic document or record is considered to be a true and accurate copy of the original information received and before the original copy may be destroyed, at least two (2) separate copies of the official document or record must be created on electronic media meeting all the conditions of a trusted system as identified in section 5.3.3 Trusted system and legal considerations of “AIIM ARP1-2009 Analysis, Selection, and Implementation of Electronic Document Management Systems,” approved June 5, 2009, which is incorporated by reference in this section.
The published version of the AIIM recommended practice may be downloaded directly from AIIM at www.aiim.org/standards, or from the Secretary of State at www.sos.ca.gov/archives/local-gov-program.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
§22620.8. Electronic File Format for Preservation of Converted Official Documents or Records.
Note • History
To ensure long term accessibility of documents or records converted from hard copy format into electronic format, the storing and recording of permanent and nonpermanent documents or records shall be maintained in a trusted system as defined in section 22620.7, Trusted Storage of Official Electronic Documents or Records, using standards adopted or developed by ANSI or AIIM and as identified in section 5.4.1.4 Image formats of “AIIM ARP1-2009 Analysis, Selection, and Implementation of Electronic Document Management Systems,” approved June 5, 2009, which is incorporated by reference in this section. If PDF/A is chosen as the file format for long-term storage, the adopted standard that should be followed is “ANSI/AIIM/CGATS/ISO 19005-1:2005, Document Management -- Electronic Document File Format for Long-Term Preservation -- Part 1: Use of PDF 1.4 (PDF/A-1),” approved as ANSI Standards, June 15, 2008, which is incorporated by reference in this section.
The published version of the AIIM recommended practice may be downloaded directly from AIIM at www.aiim.org/standards or from the Secretary of State at www.sos.ca.gov/archives/local-gov-program. The published version of ANSI/AIIM/CGATS/ISO 19005-1:2005 may be purchased from AIIM at www.aiim.org/standards.
NOTE
Authority cited: Section 12168.7, Government Code. Reference: Sections 25105, 26205, 26205.1, 26205.5, 26907, 27001, 27322.2, 34090.5 and 60203, Government Code; Section 102235, Health and Safety Code; and Section 10851, Welfare and Institutions Code.
HISTORY
1. New section filed 7-9-2012; operative 8-8-2012 (Register 2012, No. 28).
Division 8. Miscellaneous Conflict of Interest Codes
Chapter 1. Office of the Lieutenant Governor—Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF THE LIEUTENANT GOVERNOR
STATE CAPITOL, ROOM 1028
SACRAMENTO, CALIFORNIA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CALIFORNIA 95814
SECRETARY OF STATE STATE
ARCHIVES
1020 “O” STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict of Interest Code is designated as Chapter 1, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 1. Office of the Lieutenant Governor--
Conflict of Interest Code
Section
22999. General Provisions
Appendix
HISTORY
1. New division 8, chapter 1 (sections 22100-22900, not consecutive) filed 4-1477; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-15-77 (Register 77, No. 16).
2. Repealer of chapter 1 (articles 1-8, sections 22100-22900, not consecutive) and new chapter 1 (section 22100 and Appendix) filed 3-18-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 12).
3. Amendment filed 7-23-92; operative 8-24-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 5-27-92 (Register 92, No. 30).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
5. Editorial correction renumbering former section 22100 to section 22999 (Register 2003, No. 47).
Chapter 2. Legislative Counsel Bureau--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
LEGISLATIVE COUNSEL BUREAU
925 L STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 2, Division 8 of Title 2 of the California Code of Regulations, and consists of Sections numbered and titled as follows:
Chapter 2. Legislative Counsel Bureau--
Conflict of Interest Code
Section
23000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code; Section 87300 et seq., Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 2 (Articles 1-7; Sections 23000-23060, not consecutive) filed 2-20-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-5-78 (Register 79, No. 7).
2. Repealer of Chapter 2 (Articles 1-7, Sections 23000-23060, not consecutive) and new Chapter 2 (Section 23000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 3. Traffic Adjudication Board--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
TRAFFIC ADJUDICATION BOARD
2716A “V” STREET
SACRAMENTO, CA 95818
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 3, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 3. Traffic Adjudication Board--
Conflict of Interest Code
Section
24000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 3 (Sections 24000-24008, Appendices A and B) filed 3-20-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-3-80 (Register 80, No. 12). For history of former Chapter 3, see Registers 78, No. 10, and 77, No. 35.
2. Repealer of Chapter 3 (Sections 24000-24008 and Appendices A and B) and new Chapter 3 (Section 24000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 4. State and Consumer Services Agency--Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE AND CONSUMER SERVICES AGENCY
1220 N STREET, ROOM 409
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict-of-Interest Code is designated as Chapter 4, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 4. State and Consumer Services Agency--
Conflict-of-Interest Code
Section
25001. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 4 (sections 25001-25015) filed 5-13-77; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-16-76 (Register 77, No. 20).
2. Repealer of chapter 4 (sections 25001-25015) and new chapter 4 (section 25001 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment filed 4-6-87; operative 5-6-87. Approved by Fair Political Practices Commission 3-9-87 (Register 87, No. 16).
4. Amendment of section 25001 filed 7-19-91; operative 7-19-91. (Register 91, No. 50).
5. Amendment of section 25001 and Appendix filed 1-15-93. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-23-92 (Register 93, No. 3).
6. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
7. Amendment of Appendix filed 2-20-2004; operative 3-21-2004. Approved by Fair Political Practices Commission 12-18-2003 (Register 2004, No. 8).
8. Amendment of section and Appendix filed 6-16-2005; operative 7-16-2005. Approved by Fair Political Practices Commission 5-5-2005 (Register 2005, No. 24).
9. Amendment of chapter heading, general provisions and appendix filed 10-17-2011; operative 11-16-2011. Approved by Fair Political Practices Commission 8-18-2011 (Register 2011, No. 42).
Chapter 4.1. Office of Information Security & Privacy Protection -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
OFFICE OF INFORMATION SECURITY & PRIVACY PROTECTION
1325 ``J'' STREET, SUITE 1650
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 4.1, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 4.1. Office of Information Security & Privacy Protection -- Conflict of Interest Code
Section
25100. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 4.1 (section 25100 and Appendix) filed 12-9-2008; operative 1-8-2009. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-10-2008 (Register 2008, No. 50).
Chapter 5. California State Council on Vocational Education--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA ADVISORY COUNCIL ON VOCATIONAL EDUCATION
708 10TH STREET, SUITE 260
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 5, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 5. California State Council on Vocational Education--
Conflict of Interest Code
Section
26000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 5 (Sections 26000-26006) filed 3-31-78; effective thirtieth day thereafter. Approved by the Fair Political Practices Commission 6-8-77 (Register 78, No. 13).
2. Repealer of Chapter 5 (Sections 26000-26006) and new Chapter 5 (Section 26000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment of Section 26000 and Appendix filed 9-30-88; operative 10-30-88. Approved by Fair Political Practices Commission 7-21-88 (Register 88, No. 41).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 5.1. California Postsecondary Education Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA POSTSECONDARY EDUCATION COMMISSION
1020 12TH STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 5.1, division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 5.1. California Postsecondary Education Commission--
Conflict of Interest Code
Section
26100. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New chapter 5 (sections 26100-26908, not consecutive) filed 4-11-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 11-1-77 (Register 78, No. 15).
2. Editorial redesignation to chapter 5.1 (sections 26100-26908, not consecutive) (Register 78, No. 15).
3. Repealer of chapter 5.1 (sections 26100-26908 and Exhibit A and B) and new chapter 5.1 (section 26100 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
4. Amendment of section filed 10-8-91; operative 11-7-91. Approved by Fair Political Practices Commission 9-4-91 (Register 92, No. 6).
5. Amendment of section and Appendices filed 11-30-95; operative 12-30-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-25-95 (Register 95, No. 48).
6. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 6. California Arts Council--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA ARTS COUNCIL
2022 `J' STREET
SACRAMENTO, CA 95814
SECRETARY OF STATE
(ARCHIVES)
1020 `O' STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 6, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 6. California Arts Council--
Conflict of Interest Code
Section
27000. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. Redesignation and amendment of title 2, division 3, chapter 2, subchapter 1 (sections 3500-3517 and Exhibit A) to title 2, division 8, chapter 6 (sections 27000-27017, Exhibits A and B) filed 3-6-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-8-77 (Register 80, No. 10).
2. Repealer of chapter 6 (sections 27000-27017) and new chapter 6 (section 27000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment of Appendix filed 10-16-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 9-9-86 (Register 86, No. 42)
4. New Appendix B filed 3-21-94; operative 4-20-94. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 1-18-94 (Register 94, No. 12).
5. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
6. Amendment of general provisions and appendices A and B filed 8-29-2005; operative 9-28-2005. Approved by Fair Political Practices Commission 7-11-2005 (Register 2005, No. 35).
7. Amendment of Appendix A filed 1-14-2010; operative 2-13-2010. Approved by Fair Political Practices Commission 11-16-2009 (Register 2010, No. 3).
Chapter 7. Department of Technology Services--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
DEPARTMENT OF TECHNOLOGY SERVICES
P.O. BOX 1810
RANCHO CORDOVA, CA 95741-1810
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 7, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 7. Department of Technology Services--
Conflict of Interest Code
Section
28010. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 7 (Sections 28010-28120) filed 3-31-78; effective thirtieth day thereafter. Approved by the Fair Political Practices Commission 10-4-77 (Register 78, No. 13).
2. Amendment of Section 28120 filed 7-7-78 as procedural and organizational; effective upon filing (Register 78, No. 27).
3. Repealer of Chapter 7 (Sections 28010-28120) and new Chapter 7 (Section 28010 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
4. Amendment of Appendix filed 7-25-95; operative 8-24-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 5-31-95 (Register 95, No. 30).
5. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
6. Amendment of Appendix filed 2-27-2003; operative 3-29-2003. Approved by Fair Political Practices Commission 1-3-2003 (Register 2003, No. 9).
7. Repealer and new chapter heading and amendment of general provisions and appendix filed 4-4-2007; operative 5-4-2007. Approved by Fair Political Practices Commission 1-26-2007 (Register 2007, No. 14).
Chapter 8. State Board of Food and Agriculture--Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE BOARD OF FOOD AND AGRICULTURE
1220 N STREET, ROOM 100
SACRAMENTO, CALIFORNIA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CALIFORNIA 95814
SECRETARY OF STATE
STATE ARCHIVES
1020 “O” STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict-of-Interest Code is designated as Chapter 8, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 8. State Board of Food and Agriculture--
Conflict-of-Interest Code
Section
29000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, 87304 and 87306, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 8 (Sections 29000-29007, not consecutive) filed 7-19-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-7-78 (Register 78, No. 29).
2. Repealer of Chapter 8 (Sections 29000-29007) and new Chapter 8 (Section 29000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of section and appendix filed 11-19-97; operative 12-19-97. Approved by Fair Political Practices Commission 10-24-97 (Register 97, No. 47).
5. Amendment of chapter heading, general provisions and Note and redesignation and amendment of former Appendix as new Appendix A and Appendix B filed 9-6-2011; operative 10-6-2011. Approved by Fair Political Practices Commission 1-19-2011 (Register 2011, No. 36).
Chapter 9. California Council on Criminal Justice and the Office of Criminal Justice Planning--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF CRIMINAL JUSTICE PLANNING
1130 K STREET, SUITE 300
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 9, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 9. California Council on Criminal Justice and the
Office of Criminal Justice Planning--
Conflict of Interest Code
Section
30000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New chapter 9 (sections 30000-30010) filed 4-10-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 9-8-77 (Register 78, No. 15).
2. Repealer of chapter 9 (sections 30000-30010 and Appendices A-C) and new chapter 9 (section 30000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment of Appendix filed 5-28-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 4-8-86 (Register 86, No. 22).
4. Amendment filed 1-16-92; operative 2-17-92. Approved by Fair Political Practices Commission 11-12-91 and submitted for print only (Register 92, No. 12).
5. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
6. Amendment of agency address and amendment of General Provisions and Appendix filed 4-24-2001; operative 5-24-2001. Approved by Fair Political Practices Commission 2-28-2001 (Register 2001, No. 17).
Chapter 10. California Public Broadcasting Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA PUBLIC BROADCASTING COMMISSION
921 11TH STREET, SUITE 1200
SACRAMENTO, CALIFORNIA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CALIFORNIA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict of Interest Code is designated as Chapter 10, Division 8, of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 10. California Public Broadcasting Commission--
Conflict of Interest Code
Section
31000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 10 (Sections 31000-31008) filed 4-18-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 10-4-77 (Register 78, No. 15).
2. Repealer of Chapter 10 (Sections 31000-31008 and Exhibits A and B) and new Chapter 10 (Section 31000 and Appendix) filed 3-18-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 12).
3. Repealer of Appendix and new Appendix filed 7-22-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-6-83 (Register 83, No. 30).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 11. Milton Marks Commission on California State Government Organization and Economy--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
MILTON MARKS COMMISSION ON CALIFORNIA STATE
GOVERNMENT ORGANIZATION AND ECONOMY
11TH AND L BUILDING, SUITE 550
SACRAMENTO, CALIFORNIA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CALIFORNIA 95814
SECRETARY OF STATE
ARCHIVES
1020 “O” STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict of Interest Code is designated as Chapter 11, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 11. Milton Marks Commission on California State
Government
Organization and Economy--
Conflict of Interest Code
Section
32001. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 11 (Sections 32001-32009, Exhibit A) filed 7-20-78; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-7-78 (Register 78, No. 29).
2. Repealer of Chapter 11 (Sections 32001-32009 and Exhibit A) and new Chapter 11 (Section 32001 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment of chapter 11 heading, section and Appendix filed 6-26-95; operative 7-26-95. Submitted to OAL for printing only pursuant to Government Code section 11346.2. Approved by Fair Political Practices Commission 5-1-95 (Register 95, No. 26).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 12. Department of Economic and Business Development--Conflict of Interest Code
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New chapter 12 (sections 33000-33030, not consecutive; Appendices A and B) filed 3-8-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-3-79 (Register 79, No. 10).
2. Repealer of chapter 12 (sections 33000-33030, not consecutive and Appendices A and B) and new chapter 12 (section 33000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Repealer of section and Appendix filed 5-4-92; operative 6-3-92. Approved by Fair Political Practices Commission 3-9-92 (Register 92, No. 20).
Chapter 13. California Library Services Board--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA LIBRARY SERVICES BOARD OFFICE
CALIFORNIA STATE LIBRARY
9TH & CAPITOL MALL
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 13, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titles as follows:
Chapter 13. Conflict of Interest Code
Section
34000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New chapter 13 (sections 34000-34009) filed 5-15-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-30-80 (Register 80, No. 20).
2. Repealer of chapter 13 (sections 34000-34009) and new chapter 13 (section 34000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment of section 34000 filed 8-8-91; operative 9-9-91 (Register 91, No. 50).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 14. Office of Statewide Health Planning and Development Administration--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at the following locations:
OFFICE OF STATEWIDE HEALTH PLANNING AND DEVELOPMENT
714 P STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 14, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 14. Office of Statewide Health Planning and Development Administration--
Conflict of Interest Code
Section
35101. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New Chapter 12 (Article 2, Sections 99101-99116, not consecutive) filed 3-5-79; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-17-79 (Register 79, No. 10).
2. Editorial redesignation of Title 22, Division 7, Chapter 12 (Sections 99101-99116) to Title 2, Division 8, Chapter 14 (Sections 35101-35116) (Register 79, No. 46).
3. Repealer of Chapter 14 (Article 2, Sections 35101-35116 and Appendices A and B) and new Chapter 14 (Section 35101) and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
4. Amendment of Appendix filed 7-30-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-10-86 (Register 86, No. 31).
5. Amendment of Appendix filed 4-12-96; operative 5-12-96. Approved by Fair Political Practices Commission 2-28-96 (Register 96, No. 15).
6. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
7. Amendment of Appendix filed 9-23-98; operative 10-23-98. Approved by Fair Political Practices Commission 7-28-98. Submitted to OAL for printing only (Register 98, No. 39).
Chapter 15. Health and Welfare Agency Data Center--Conflict of Interest Code
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300, et seq., Government Code.
HISTORY
1. New chapter 15 (sections 36000-36010) filed 2-8-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-5-79 (Register 80, No. 6).
2. Repealer of chapter 15 (sections 36000-36010) and new chapter 15 (section 36000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendment filed 12-26-91; operative 1-27-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-14-91 (Register 92, No. 12).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
5. Amendment of general provisions and appendix filed 9-21-98; operative 10-21-98. Approved by Fair Political Practices Commission 7-28-98. Submitted to OAL for printing only (Register 98, No. 39).
6. Repealer filed 4-4-2007; operative 5-4-2007. Approved by Fair Political Practices Commission 1-26-2007 (Register 2007, No. 14).
Chapter 16. Department of Finance--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
DEPARTMENT OF FINANCE
1025 P STREET, ROOM 374
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95815
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 16, division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 16. Department of Finance--Conflict of Interest Code
Section
37000. General Provisions.
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300, 87302 and 87306, Government Code.
HISTORY
1. Editorial redesignation and amendment of title 2, division 2, chapter 2.5 (sections 1181-1191, Appendices A-D) to title 2, division 8, chapter 16, (sections 1180-1191, Appendices A and B) filed 4-24-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-7-80 (Register 80, No.17).
2. Repealer of chapter 16 (sections 1180-1191) and new chapter (section 37000 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-1-80 (Register 81, No. 9).
3. Amendments of Appendix filed 4-2-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-4-86 (Register 86, No. 14).
4. Amendment of Appendix filed 5-1-90; operative 6-2-90. Approved by Fair Political Practices Commission 4-10-90 (Register 90, No. 22).
5. Amendment filed 1-22-92; operative 2-21-92. Approved by Fair Political Practices Commission 12-17-91 and submitted for print only (Register 92, No. 12).
6. Amendment filed 2-16-95; operative 3-20-95. Approved by Fair Political Practices Commission 1-4-95 and submitted for print only (Register 95, No. 7).
7. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
8. Amendment of General Provisions and Appendix filed 7-14-99; operative 8-13-99. Approved by Fair Political Practices Commission 5-20-99 (Register 99, No. 29).
9. Amendment of Appendix filed 9-10-2001; operative 10-10-2001. Approved by Fair Political Practices Commission 7-17-2001 (Register 2001, No. 37).
10. Amendment of Appendix filed 9-12-2003; operative 10-12-2003. Approved by Fair Political Practices Commission 7-21-2003 (Register 2003, No. 37).
11. Amendment of section and Appendix filed 9-13-2005; operative 10-13-2005. Approved by Fair Political Practices Commission 7-5-2005 (Register 2005, No. 37).
12. Amendment of Appendix filed 2-23-2010; operative 3-25-2010. Approved by Fair Political Practices Commission 1-26-2010 (Register 2010, No. 9).
13. Editorial correction of History 12 (Register 2012, No. 4).
14. Amendment of Appendix filed 1-26-2012; operative 2-25-2012. Approved by Fair Political Practices Commission 11-29-2011 (Register 2012, No. 4).
Chapter 17. State Public Defender--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF THE STATE PUBLIC DEFENDER
455 CAPITOL MALL, SUITE 335
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
SECRETARY OF STATE
STATE ARCHIVES
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 17, Division 8, of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 17. State Public Defender--Conflict of Interest Code
Section
38000. Code Adoption
38000.5. Designated Employees
38000.10. Disclosure Categories
NOTE
Authority and reference cited: Section 87300, et seq., Government Code.
HISTORY
1. Repealer and new chapter 17 (sections 38000-38000.10) filed 12-1-94; operative 1-2-95 (Register 94, No. 48). Submitted to OAL for printing only. Approved by Fair Political Practices Commission 10-19-94. For prior history, see Register 81, No. 3.
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 18. California Transportation Commission
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA TRANSPORTATION COMMISSION
1120 N STREET, ROOM 1422
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
SECRETARY OF STATE
STATE ARCHIVES
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 18, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 18. California Transportation Commission--
Conflict of Interest Code
Section
39000. Code Adoption
39001. Designated Employees
39002. Designated Categories
NOTE
Authority cited: Section 87300, et seq., Sections 14500-14537, Part 5.3, Division 3 of Title 2, Government Code. Reference: Section 11409(a), Government Code.
HISTORY
1. New Chapter 18 (Sections 39000-39002) filed 6-18-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-12-80 (Register 80, No. 25).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 19. Seismic Safety Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at the following locations:
SEISMIC SAFETY COMMISSION
1900 K STREET, SUITE 100
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
SECRETARY OF STATE
STATE ARCHIVES
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 19, Division 8, of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 19. Seismic Safety Commission--Conflict of Interest Code
Section
40000. Adoption
40001. Designated Employees
40002. Disclosure Categories
NOTE
Authority and reference cited: Section 87300, et seq., Government Code.
HISTORY
1. New Chapter 19 (Sections 40000-40002) filed 1-7-81; effective thirtieth day thereafter. Approved by Fair Political Parties Commission 5-12-80 (Register 81, No. 2).
2. Amendment of sections 40000-40002 and Appendices A and B filed 12-29-94; operative 1-30-95. Approved by Fair Political Practices Commission 10-31-94 (Register 94, No. 52).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 20. State Council on Developmental Disabilities--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE COUNCIL OF DEVELOPMENTAL DISABILITIES
2000 O STREET, SUITE 100
SACRAMENTO, CALIFORNIA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CALIFORNIA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict of Interest Code is designated as chapter 20, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 20. Council on Developmental Disabilities--
Conflict of Interest Code
Section
41000. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 20 (sections 41000-41002) filed 9-2-80 as procedural and organizational; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-12-80 (Register 80, No. 35).
2. Change without regulatory effect amending section filed 10-28-91 pursuant to section 100, title 1, California Code of Regulations and submitted to OAL for printing only (Register 92, No. 6).
3. New sections filed 9-1-92; operative 10-1-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 36).
4. New sections 41001, 41002 and 41003 filed 9-10-92; operative 10-12-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 38).
5. New section 41011 filed 9-10-92; operative 10-12-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 38).
6. New section 41004 filed 9-15-92; operative 10-15-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 38).
7. New sections 41010 and 41013 filed 9-16-92; operative 10-16-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 38).
8. New section 41012 filed 9-17-92; operative 10-19-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 38).
9. Section 41009 filed 10-1-92; operative 11-2-92. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 40).
10. Amendment of general provisions and appendix for section 41000 filed 8-13-2003; operative 9-12-2003. Approved by Fair Political Practices Commission 6-13-2003 (Register 2003, No. 33).
11. Repealer of sections 41001-41013, inclusive and appendices filed 12-29-2003; operative 1-28-2004. Approved by Fair Political Practices Commission 11-13-2003 (Register 2004, No. 1).
Chapter 21. Commission on State Finance--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
COMMISSION ON STATE FINANCE
1400 KAY STREET, SUITE 205
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 21, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 21. Commission On State Finance--
Conflict of Interest Code
Section
42000. General Provisions
Appendix
NOTE
Authority and reference cited: Section 81000, Government Code.
HISTORY
1. New Chapter 21 (Section 42000 and Appendix) filed 9-17-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-30-80 (Register 80, No. 38).
2. Amendment of Appendix filed 8-29-85; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 7-12-85 (Register 85, No. 35).
3. Amendment of Appendix filed 7-16-91; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-20-91 (Register 91, No. 45).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 22. California Conservation Corps--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application,these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA CONSERVATION CORPS
1530 CAPITOL AVENUE
SACRAMENTO, CA 958L4
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 22, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 22. California Conservation Corps--Conflict
of Interest Code
Section
43000. Introduction
43001. Definition of Terms
43002. Designated Employees
43003. Disclosure Statements
43004. Place of Filing
43005. Time of Filing
43006. Contents of Statements
43007. Manner of Reporting
43008. Disqualification
43009. Manner of Disqualification
Appendix
NOTE
Authority and reference cited: Section 87311, Government Code.
HISTORY
1. New chapter 22 (sections 43000-43009) filed 8-28-80; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-12-80 (Register 80, No. 35).
2. Amendment of sections 43002 and 43003 filed 4-12-90; operative 5-12-90. Approved by Fair Political Practices Commission 2-15-90 (Register 90, No. 18).
3. Amendment filed 8-8-95; operative 9-7-95. Approved by Fair Political Practices Commission 6-9-95 (Register 95, No. 32).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
5. Amendment of sections 43002 and 43003 filed 10-8-99; operative 11-7-99. Approved by Fair Political Practices Commission 8-9-99 (Register 99, No. 41).
6. Amendment of general provisions and Appendix filed 5-6-2008; operative 6-5-2008. Approved by Fair Political Practices Commission 4-9-2008 (Register 2008, No. 19).
Chapter 23. Voting Modernization Board -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
VOTING MODERNIZATION BOARD
C/O ELECTIONS DIVISION, SECRETARY OF STATE'S OFFICE
1500 11TH STREET, 5TH FLOOR
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 23, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 23. Voting Modernization Board -- Conflict of Interest Code
Section
44000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 23 (section 44000 and Appendices A and B) filed 7-27-2005; operative 8-26-2005. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 5-2-2005 (Register 2005, No. 30).
Chapter 24. Secretary of State--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
SECRETARY OF STATE
1230 J STREET, SUITE 218
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 24, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 24. Secretary of State--
Conflict of Interest Code
Sections
45100.
45127. General Provisions
45128. Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302, and 87306 Government Code.
HISTORY
1. New chapter 2 (sections 20100-20128) filed 12-3-76; designated effective 1-1-77. Approved by Fair Political Practices Commission 10-19-76 (Register 76, No. 49).
2. Editorial renumbering of title 2, division 7, chapter 2 (sections 20100-20128) to title 2, division 8, chapter 24 (sections 45100-45128) (Register 80, No. 38).
3. Editorial correction of HISTORY 2. (Register 80, No. 41).
4. Repealer of chapter 24 (sections 45100-45128) and new chapter 24 (section 45100 and Appendix) filed 2-26-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 1-12-81 (Register 81, No. 9).
5. Amendment filed 12-19-91; operative 1-20-92. Approved by Fair Political Practices Commission 10-18-91 and submitted for print only (Register 92, No. 12).
6. Amendment filed 8-9-93; operative 8-9-93. Approved by Fair Political Practices Commission 6-18-93 (Register 93, No. 33).
7. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
8. Amendment of appendices A and B filed 2-23-99; operative 3-25-99. Approved by Fair Political Practices Commission 1-7-99 (Register 99, No. 9).
9. Amendment of appendices A and B filed 12-20-2001; operative 1-19-2002. Approved by Fair Political Practices Commission 10-15-2001 (Register 2001, No. 51).
10. Amendment of appendices A and B filed 2-26-2004; operative 3-27-2004. Approved by Fair Political Practices Commission 12-18-2003 (Register 2004, No. 9).
11. Amendment of general provisions and Appendices A and B filed 1-12-2009; operative 2-11-2009. Approved by Fair Political Practices Commission 12-9-2008 (Register 2009, No. 3).
Chapter 25. California Science Center--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA SCIENCE CENTER
700 STATE DRIVE
LOS ANGELES, CA 90037
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 25, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 25. California Science Center--
Conflict of Interest Code
Section
46000. Introduction
46001. Appendix
NOTE
Authority and reference cited: Section 87300, Government Code.
HISTORY
1. New chapter 25 (Sections 46000-46001) filed 12-12-80 as procedural and organizational; effective upon filing. Approved by Fair Political Practices Commission 5-12-80 (Register 80, No. 50).
2. Amendment of chapter 25 (sections 46000-46001) filed 9-8-95; operative 10-8-95. Approved by Fair Political Practices Commission 6-15-95 (Register 95, No. 36).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of chapter 25 (sections 46000-46001) filed 4-13-98; operative 5-13-98. Approved by Fair Political Practices Commission 2-19-98 (Register 98, No. 16).
Chapter 26. California Law Revision Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11409(a), that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA LAW REVISION COMMISSION
4000 MIDDLEFIELD ROAD, ROOM D-2
PALO ALTO, CALIFORNIA 94306
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 26, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 26. California Law Revision Commission--
Conflict of Interest Code
Section
47000. Introduction
47001. Appendix--Designated Employees
47002. Appendix--Disclosure Categories
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87312, Government Code.
HISTORY
1. New chapter 26 (sections 47000-47002) filed 1-27-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 11-3-80 (Register 81, No. 5).
2. Amendment of sections 47000 and 47001 filed 4-21-82; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 3-1-82 (Register 82, No. 17).
3. Amendment of sections 47000 and 47002 filed 3-22-94; operative 4-21-94. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 12-14-93 (Register 94, No. 12).
4. Editorial correction of section 47002 heading (Register 94, No. 12).
5. Amendment of Appendix filed 4-22-96; operative 5-22-96. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 2-20-96 (Register 96, No. 17).
6. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
7. Amendment of sections 47001 and 47002 filed 2-27-2001; operative 2-27-2001. Approved by Fair Political Practices Commission 2-13-2001 (Register 2001, No. 9).
8. Amendment of sections 47000-47002 filed 6-24-2010; operative 7-24-2010. Approved by Fair Political Practices Commission 5-19-2010 (Register 2010, No. 26).
Chapter 27. Native American Heritage Commission--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
NATIVE AMERICAN HERITAGE COMMISSION
1400 TENTH STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 27, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 27. Native American Heritage Commission--
Conflict of Interest Code
Section
48000. General Provisions
Appendix
NOTE
Authority and reference cited: Section 87300, Government Code.
HISTORY
1. New chapter 27 (section 48000 and Appendix) filed 10-21-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 8-31-81 (Register 81, No. 43).
2. Amendment filed 1-6-92; operative 2-5-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 1-6-91 (Register 92, No. 12).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of general provisions, section and Appendix filed 5-17-2004; operative 6-16-2004. Approved by Fair Political Practices Commission 3-10-2004 (Register 2004, No. 21).
Chapter 28. California Table Grape Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 28, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 28. California Table Grape Commission--
Conflict of Interest Code
Section
49000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference; Section 87300, et seq., Government Code.
HISTORY
1. New Chapter 28 (Sections 49000 and Appendix) filed 6-12-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-3-80 (Register 81, No. 24).
2. Amendment of Appendix filed 10-29-82; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 8-30-82 (Register 82, No. 44).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 29. California Exposition and State Fair--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA EXPOSITION AND STATE FAIR
1600 EXPOSITION BOULEVARD
SACRAMENTO, CA 95815
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 29, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 29. California Exposition And State Fair--
Conflict of Interest Code
Section
50000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New Chapter 29 (Section 50000 and Appendix) filed 11-12-81 as procedural and organizational; designated effective 1-2-82. Approved by Fair Political Practices Commission 10-5-81 (Register 81, No. 46).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of Appendix A and redesignation and amendment of disclosure categories as new Appendix B filed 11-30-2004; operative 12-30-2004. Approved by Fair Political Practices Commission 9-22-2004 (Register 2004, No. 49).
Chapter 30. Office of Administrative Law--Conflict-of-Interest Code
Note: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
OFFICE OF ADMINISTRATIVE LAW
300 CAPITOL MALL, SUITE 1250
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 30, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 30. Office of Administrative Law--
Conflict-of-Interest Code
Section
51000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87306, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 30 (section 51000 and Appendix) filed 8-21-81; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 6-1-81 (Register 81, No. 34).
2. Amendment of General Provisions, Appendix and Note filed 2-1-94; operative 3-2-94. Submitted for printing only. Approved by Fair Political Practices Commission 1-26-94 (Register 94, No. 5).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment filed 10-31-2002; operative 11-30-2002. Approved by Fair Political Practices Commission 10-11-2002 (Register 2002, No. 44).
5. Amendment of section and Appendix filed 8-15-2005; operative 9-14-2005. Approved by Fair Political Practices Commission 7-13-2005 (Register 2005, No. 33).
6. Amendment of section and Appendix filed 7-6-2010; operative 8-5-2010. Approved by Fair Political Practices Commission 5-19-2010 (Register 2010, No. 28).
Chapter 31. California Pistachio Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA PISTACHIO COMMISSION
5118 E. CLINTON, SUITE 109
FRESNO, CA 93727
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 31, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 31. California Pistachio Commission--
Conflict of Interest Code
Section
52000. General Provisions
Appendix
NOTE
Authority cited: Sections 87300-87313, Government Code. Reference: Sections 81000, et seq., Government Code.
HISTORY
1. New Chapter 31 (Section 52000 and Appendix) filed 5-25-82; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-4-82 (Register 82, No. 22).
2. Amendment filed 1-15-92; operative 2-14-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-14-91 (Register 92, No. 12).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 32. California Kiwi Fruit Commission
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. These regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA KIWI FRUIT COMMISSION
1540 RIVER PARK DRIVE, SUITE 120
SACRAMENTO, CA 95815
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 32, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 32. California Kiwi Fruit Commission--
Conflict of Interest Code
Section
52100. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 81000 et seq., Government Code.
HISTORY
1. New chapter 32 (section 52100 and Appendix) filed 4-8-82; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-1-82 (Register 82, No. 15).
2. Amendment filed 1-14-92; operative 2-13-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-14-91 (Register 92, No. 12).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 33. California Avocado Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA AVOCADO COMMISSION
17620 FITCH, 2ND FLOOR
IRVINE, CA 92714
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 33, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 33. California Avocado Commission--
Conflict of Interest Code
Section
52200. General Provisions
Appendix
NOTE
Authority cited: Sections 87300-87313, Government Code. Reference: Sections 81000, et seq., Government Code.
HISTORY
1. New chapter 33 (section 52200 and Appendix) filed 4-22-82; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-1-82 (Register 82, No. 17).
2. Amendment filed 1-16-92; operative 2-17-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-14-91 (Register 92, No. 12).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 34. California Iceberg Lettuce Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA ICEBERG LETTUCE COMMISSION
23845 W. R. HOLMAN HIGHWAY
MONTEREY, CA 93940
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 34, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 34. California Iceberg Lettuce Commission--
Conflict of Interest Code
Section
52300. General Provisions
Appendix
NOTE
Authority and reference cited: Section 81000, et seq., Government Code.
HISTORY
1. New chapter 34 (section 52300 and Appendix) filed 6-8-82; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 2-1-82 (Register 82, No. 24).
2. Amendment filed 11-1-91; operative 12-2-91. Submitted to OAL for printing only pursuant to Government Code section 11343.8 (Register 92, No. 8).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 35. State Compensation Insurance Fund--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
STATE COMPENSATION INSURANCE FUND
1275 MARKET STREET
SAN FRANCISCO, CA 94103
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 35, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 35. State Compensation Insurance Fund--
Conflict of Interest Code
Section
52400. General Provisions
Appendix A
Appendix B
NOTE
Authority and reference cited: Section 81000, et seq., Government Code.
HISTORY
1. New chapter 35 (section 52400 and appendix) filed 6-14-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-6-83 (Register 83, No. 25).
2. Change without regulatory effect amending section filed 6-11-91; operative 7-11-91. Approved by Fair Political Practices Commission on 4-30-91 (Register 91, No. 35).
3. Change without regulatory effect amending section filed 6-11-91 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 6).
4. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
5. Amendment filed 2-19-2010; operative 3-21-2010. Approved by Fair Political Practices Commission 12-24-2009 (Register 2010, No. 8).
6. Amendment of section and Appendices A and B filed 1-18-2012; operative 2-17-2012. Approved by Fair Political Practices Commission 12-14-2011 (Register 2012, No. 3).
Chapter 36. State Assistance Fund for Enterprise Business and Industrial Developmental Corporation--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
S.A.F.E.--B.I.D.C.O.
1626 FOURTH ST.
SANTA ROSA, CA 95404-4020
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 36, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 36. State Assistance Fund For Enterprise
Business and Industrial Development Corporation--
Conflict of Interest Code
Section
52500. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300, 87302 and 87306, Government Code.
HISTORY
1. New chapter 36 (section 52500 and Appendices) filed 1-21-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-21-82 (Register 83, No. 4).
2. Amendment of section and Appendices A and B filed 4-22-93; operative 5-24-93. Approved by Fair Political Practices Commission 2-17-93 (Register 93, No. 17).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of agency address, general provisions and appendices A and B filed 7-31-2001; operative 8-30-2001. Approved by Fair Political Practices Commission 6-15-2001 (Register 2001, No. 31).
5. Amendment of Appendix A filed 11-20-2003; operative 12-20-2003. Approved by Fair Political Practices Commission 4-28-2003 (Register 2003, No. 47).
Chapter 37. Department of Personnel Administration--Conflict of Interest Code
ED. NOTE: See Title 2, Division 1, Section 599.885 for Department of Personnel Administration--Conflict of Interest Code printed in full.
NOTE
Authority cited: Section 87300-87313, Government Code.
HISTORY
1. New Chapter 37 (Section 52600 and Appendix) filed 2-9-83; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 12-21-82 (Register 83, No. 7).
2. Editorial deletion of Chapter 37 (Section 52600 and Appendix) (Register 87, No. 10).
Chapter 38. State Job Training Coordinating Council-Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
STATE JOB TRAINING COORDINATING COUNCIL
800 CAPITOL MALL, 2ND FLOOR, SOLAR (WEST)
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 38, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 38. State Job Training Coordinating Council--
Conflict of Interest Code
Section
52700. General Provisions
Appendix
NOTE
Authority and reference cited: Section 81000, et seq., Government Code.
HISTORY
1. New Chapter 38 (Section 52700 and Appendices) filed 7-12-84; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 5-7-84 (Register 84, No. 28).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 39. California Wheat Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA WHEAT COMMISSION
433 2ND STREET, SUITE 107
P.O. BOX 402
WOODLAND, CA 95695
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 39, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 39. California Wheat Commission--
Conflict of Interest Code
Section
52800. General Provisions
Appendix
NOTE
Authority and reference cited: Section 81000, et seq., Government Code.
HISTORY
1. New chapter 39 (section 52800 and Appendix) filed 9-6-84; effective thirtieth day thereafter (Register 84, No. 36). Approved by Fair Political Practices Commission 6-5-84 (Register 84, No. 36).
2. Change without regulatory effect amending section filed 10-28-91 pursuant to section 100, title 1, California Code of Regulations and submitted to OAL for printing only (Register 92, No. 6).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 40. Employment Training Panel-Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
EMPLOYMENT TRAINING PANEL
800 CAPITOL MALL MIC 64
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 40, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 40. Employment Training Panel-
Conflict of Interest Code
Section
52900. General Provisions
Appendix A
Appendix B
NOTE
Authority and reference cited: Section 81000, et seq., Government Code.
HISTORY
1. New chapter 40 (section 52900 and Appendices A and B) filed 5-28-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 4-8-86 (Register 86, No. 22).
2. Change without regulatory effect of Appendix A filed 10-27-89; operative 11-26-89. Approved by Fair Political Practices Commission 8-7-89 (Register 89, No. 45).
3. Change without regulatory effect of section 52900 and Appendix A filed 6-21-90; operative 7-21-90. Approved by Fair Political Practices Commission 6-1-90, (Register 90, No. 34).
4. Amendment of section and Appendices A and B filed 2-10-93; operative 3-12-93. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-13-92 (Register 93, No. 7).
5. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
6. Amendment of Appendix A filed 11-6-98; operative 12-6-98. Approved by Fair Political Practices Commission 9-15-98 (Register 98, No. 45).
7. Amendment of Appendices A and B filed 5-17-2007; operative 6-16-2007. Approved by Fair Political Practices Commission 3-27-2007 (Register 2007, No. 20).
Chapter 41. California State Lottery Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA STATE LOTTERY COMMISSION
600 NORTH 10TH STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 41, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 41. California State Lottery Commission--
Conflict of Interest Code
Section
53000. General Provisions
Appendix
NOTE
Authority and reference cited: Section 81000, et seq., Government Code.
HISTORY
1. New Chapter 41 (Section 53000 and Appendix) filed 10-16-86; effective thirtieth day thereafter. Approved by Fair Political Practices Commission 9-9-86 (Register 86, No. 42).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 42. Robert Presley Institute for Corrections Research and Training--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
PRESLEY INSTITUTE
3593 CANYON CREST DRIVE
RIVERSIDE, CA 92507
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 42, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 42. Robert Presley Institute for Corrections Research and Training--Conflict of Interest Code
Section
53100. General Provisions
Appendix
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New Chapter 42 (Section 53100 and Appendix) filed 2-21-89; operative 3-23-89. Approved by Fair Political Practices Commission 1-5-89 (Register 89, No. 9).
Chapter 43. EIR Certification Panel for the Proposed Department of Corrections Reception Center in Los Angeles County--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
RESOURCES AGENCY
1416-9TH STREET, ROOM 1311
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 43, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 43. EIR Certification Panel for the Proposed Department of Corrections Reception Center in Los Angeles County--
Conflict of Interest Code
Section
53200. General Provisions
Appendix
NOTE
Authority cited: Section 87300, 87303 and 87311, Government Code. Reference: Section 87300, et. seq., Government Code.
HISTORY
1. New Chapter 43 (Section 53200 and Appendix) filed 8-15-88; operative 9-14-88. Approved by Fair Political Practices Commission 7-21-88 (Register 88, No. 34).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 45. California State World Trade Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA STATE WORLD TRADE COMMISSION
1121 L STREET, SUITE 310
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 45, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 45. California State World Trade Commission--
Conflict of Interest Code
Section
53400. General Provisions
Appendix
NOTE
Authority cited: Section 83100, et seq., Government Code. Reference: Section 83100, et seq., Government Code.
HISTORY
1. New Chapter 45 (Section 53400 and Appendix) filed 12-14-88; operative 1-13-89. Approved by Fair Political Practices Commission 11-17-88 (Register 88, No. 53).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 46. California Uniform Construction Cost Accounting Commission--Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
UNIFORM CONSTRUCTION COST ACCOUNTING
P.O. BOX 942850
SACRAMENTO, CA 94350-5876
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict-of-Interest Code is designated as chapter 46, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 46. California Uniform Construction Cost Accounting Commission--Conflict-of-Interest Code
Section
53500. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300, et. seq., Government Code.
HISTORY
1. New chapter 46 (section 53500 and appendix) filed 5-30-91; operative 6-29-91. Approved by Fair Political Practices Commission 4-19-91 (Register 91, No. 35).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of chapter heading and general provisions and redesignation and amendment of portions of Appendix as new appendices A and B filed 10-7-2010; operative 11-6-2010. Approved by Fair Political Practices Commission 8-11-2010 (Register 2010, No. 41).
Chapter 47. California State Summer School for the Arts--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations.
CALIFORNIA STATE SUMMER SCHOOL FOR THE ARTS
2012 H STREET, SUITE 201
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 47, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 47. California State Summer School for the Arts--
Conflict of Interest Code
Section
53600. General Provisions
Appendix
NOTE
Authority cited: Section 83100, et seq., Government Code. Reference: Section 83100, et seq., Government Code.
HISTORY
1. New Chapter 47 (Section 53600 and Appendix) filed 4-18-91; operative 4-18-91. Approved by Fair Political Practices Commission 2-20-91 (Register 91, No. 21).
Chapter 48. California Walnut Commission--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA WALNUT COMMISSION
1540 RIVER PARK DRIVE
SUITE 203
SACRAMENTO, CA 95815
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 48, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 48. California Walnut
Commission--Conflict of Interest Code
Section
53700. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New chapter 48 (section 53700 and appendices) filed 5-14-92; operative 6-15-92. Approved by Fair Political Practices Commission 3-13-92 (Register 92, No. 20).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Repealer and new section and appendices filed 5-8-2007; operative 6-7-2007. Approved by Fair Political Practices Commission 3-22-2007 (Register 2007, No. 19).
Chapter 49. California Asparagus Commission--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA ASPARAGUS COMMISSION
4565 QUAIL LAKES DRIVE
SUITE A-1
STOCKTON, CA 95207
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 49, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 49. California Asparagus Commission--
Conflict of Interest Code
Section
53800. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 49 (section 53800 and appendices) filed 6-29-92; operative 7-29-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-24-92 (Register 92, No. 27).
2. Editorial correction (Register 95, No. 16).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of section, Appendix A and Appendix B filed 1-5-2010; operative 2-4-2010. Approved by Fair Political Practices Commission 12-2-2009 (Register 2010, No. 2).
Chapter 50. California Citizens Compensation Commission-- Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA CITIZENS COMPENSATION COMMISSION
1515 S STREET, SUITE 400
NORTH BUILDING
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 50, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 50. California Citizens Compensation Commission--
Conflict of Interest Code
Section
53900. General Provisions
Appendix
NOTE
Authority cited: Section 87300, 87303 and 87311, Government Code. Reference: Section 87300, et. seq., Government Code.
HISTORY
1. New chapter 50 (section 53900 and appendix) filed 9-10-91; operative 10-10-91. Approved by Fair Political Practices Commission 8-5-91 (Register 92, No. 5).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 51. Lodi-Woodbridge Winegrape Commission-- Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
LODI-WOODBRIDGE WINEGRAPE COMMISSION
2401 WEST TURNER ROAD
SUITE 360/211
LODI, CA 95242
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 51, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 51. Lodi-Woodbridge Winegrape Commission--
Conflict of Interest Code
Section
54000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300 et seq., Government Code.
HISTORY
1. New chapter 51 (section 54000 and Appendices) filed 9-24-92; operative 10-26-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 8-20-92 (Register 92, No. 41).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 52. University of California Hastings College of the Law--Conflict of Interest Code
Note: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
HASTINGS COLLEGE OF THE LAW
200 MCALLISTER ST.
SAN FRANCISCO, CA 94102
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 52, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 52. University of California Hastings College of the Law--
Conflict of Interest Code
Section
54100. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300, 87302 and 87306, Government Code.
HISTORY
1. New chapter 52 (section 54100 and Appendix) filed 10-22-91; operative 11-21-91. Approved by Fair Political Practices Commission 9-18-91 and submitted to OAL for printing only (Register 92, No. 6).
2. Editorial correction (Register 95, No. 16).
3. Amendment of Appendix filed 5-3-95; operative 6-2-95. Approved by Fair Political Practices Commission 3-15-95 (Register 95, No. 18).
4. Amendment of Appendix A filed 6-3-97; operative 7-3-97. Approved by Fair Political Practices Commission 4-10-97 (Register 97, No. 23).
5. Amendment of Appendix A filed 11-12-99; operative 12-12-99. Approved by Fair Political Practices Commission 9-23-99 (Register 99, No. 46).
6. Amendment of Appendix A filed 8-21-2001; operative 9-20-2001. Approved by Fair Political Practices Commission 7-13-2001 (Register 2001, No. 34).
Chapter 53. State Race Track Leasing Commission--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE RACE TRACK LEASING COMMISSION
2260 JIMMY DURANTE BLVD.
DEL MAR, CA 92014
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 53, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 53. State Race Track Leasing Commission--
Conflict of Interest Code
Section
54200. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 53 (section 54200 and Appendix) filed 12-6-91; operative 1-6-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-6-91 (Register 92, No. 13).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of section and Appendix filed 3-11-2004; operative 4-10-2004. Approved by Fair Political Practices Commission 12-30-2003 (Register 2004, No. 11).
4. Repealer and new section, Appendix A and Appendix B filed 9-1-2011; operative 10-1-2011. Approved by Fair Political Practices Commission 6-21-2011 (Register 2011, No. 35).
Chapter 54. Bureau of State Audits--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
OFFICE OF THE AUDITOR GENERAL
660 “J” STREET SUITE 300
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as chapter 54, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 54. Bureau of State Audits--Conflict of Interest Code
Section
54300. General Provisions
Appendix A
Appendix B.
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 54 (section 54300 and appendix) filed 3-19-92; operative 4-20-92. Approved by Fair Political Practices Commission 2-3-92 (Register 92, No. 15).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of chapter 54 heading, general provisions and Appendices A and B filed 8-23-99; operative 9-22-99. Approved by Fair Political Practices Commission 7-17-99 (Register 99, No. 35).
4. Amendment of general provisions and appendices A and B filed 9-10-2004; operative 10-10-2004. Approved by Fair Political Practices Commission 6-23-2004 (Register 2004, No. 37).
5. Amendment of Appendix A filed 12-26-2007; operative 1-25-2008. Approved by Fair Political Practices Commission 11-6-2007 (Register 2007, No. 52).
Chapter 55. California Managed Risk Medical Insurance Board--Conflict of Interest Code.
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA MANAGED RISK MEDICAL INSURANCE BOARD
818 “K” STREET
SUITE 200
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 55, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 55. California Managed Risk Medical Insurance Board--
Conflict of Interest Code
Section
54400. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 55 (section 54400 and appendices) filed 3-30-92; operative 4-29-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 2-18-92 (Register 92, No. 16).
2. Change without regulatory effect amending chapter heading, addresses, section and appendices filed 1-25-96; operative 2-24-96. Approved by Fair Political Practices Commission 12-4-95 (Register 96, No. 4).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of Appendix A filed 7-14-2003; operative 8-13-2003. Approved by Fair Political Practices Commission 5-12-2003 (Register 2003, No. 29).
Chapter 56. California Council for Private Postsecondary and Vocational Education--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application and not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA COUNCIL FOR PRIVATE POSTSECONDARY
AND VOCATIONAL EDUCATION
1027 10TH STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 56, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 56. California Council for Private Postsecondary and Vocational Education - Conflict of Interest Code
Section
54500. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New chapter 56 (section 54500 and appendices) filed 6-9-92; operative 6-9-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-24-92 (Register 92, No. 24).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 57. Del Mar Race Track Authority--Conflict-of-Interest Code.
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
DEL MAR RACE TRACK AUTHORITY
2260 JIMMY DURANTE BLVD.
DEL MAR, CA 92014
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict-of-interest code is designated as chapter 57, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 57. Del Mar Race Track Authority -- Conflict-of-Interest Code.
Section
54600. General Provisions
Appendix A
Appendix B
HISTORY
1. New chapter 57 (section 54600 and appendix) filed 7-7-92; operative 8-6-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-24-92 (Register 92, No. 28).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Repealer of former section and Appendix and new section, Appendix A and Appendix B filed 9-1-2011; operative 10-1-2011. Approved by Fair Political Practices Commission 6-21-2011 (Register 2011, No. 35).
Chapter 58. Office of Environmental Health Hazard Assessment--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT
601 NORTH 7TH STREET
P. O. BOX 942732
SACRAMENTO, CA 94234-7320
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 58, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 58. Office of Environmental Health Hazard Assessment--Conflict of Interest Code
Section
54700. General Provisions
Appendix
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300 et seq., Government Code.
HISTORY
1. New chapter 58 (section 54700 and Appendix) filed 7-16-92; operative 8-17-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-1-92 (Register 92, No. 29).
2. Amendment of Appendix filed 10-4-93; operative 11-3-93. Submitted for printing only. Approved by Fair Political Practices Commission 8-13-93 (Register 93, No. 41).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of section and Appendix filed 2-16-2006; operative 3-18-2006. Approved by Fair Political Practices Commission 1-23-2006 (Register 2006, No. 7).
5. Amendment of Appendix filed 9-4-2007; operative 10-4-2007. Approved by Fair Political Practices Commission 6-26-2007 (Register 2007, No. 36).
Chapter 59. Department of Toxic Substances Control-- Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
DEPARTMENT OF TOXIC SUBSTANCES CONTROL
400 P STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 59, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 59. Department of Toxic Substances Control--Conflict of Interest Code
Section
54800. General Provisions
Appendix
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300 et seq., Government Code.
HISTORY
1. New chapter 59 (section 54800 and Appendix) filed 9-16-93. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 8-12-93 (Register 93, No. 38).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 60. Lake County District Two--Local Winegrape Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application and not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
LAKE COUNTY WINEGRAPE COMMISSION
P.O. BOX 90
COBB, CA 95426
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 60, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 60. Lake County District Two--
Local Winegrape Commission--
Conflict of Interest Code
Section
54900. General Provisions
Appendix A
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New chapter 51 (section 54000 and appendix) filed 9-14-92; operative 10-14-92. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 7-31-92 (Register 92, No. 38).
2. Amendment changing chapter and section number from chapter 51, section 54000 to chapter 60, section 54900 filed 10-15-92; operative 11-16-92 (Register 92, No. 42).
Chapter 61. California Pepper Commission--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA PEPPER COMMISSION
531 NORTH ALTA AVENUE, SUITE D
DINUBA, CA 93618
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 61, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 61. California Pepper Commission--
Conflict of Interest Code
Section
55000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, 87303 and 87311, Government Code. Reference: Section 87300, et seq., Government Code.
HISTORY
1. New chapter 61 (section 55000 and Appendices A and B) filed 12-16-92; operative 1-15-93. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-24-92 (Register 92, No. 51).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 62. California Mental Health Planning Council--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA MENTAL HEALTH PLANNING COUNCIL
1600 NINTH STREET ROOM 100
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 62, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 62. California Mental Health Planning Council--
Conflict of Interest Code
Section
55100. General Provisions
Appendix A
Appendix B
HISTORY
1. Change without regulatory effect relocating section from division 6, section 18730, to division 8, chapter 62, section 55100, and amending format filed 1-4-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No.1).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of Appendix A filed 11-3-97; operative 12-3-97. Approved by Fair Political Practices Commission 9-10-97 (Register 97, No. 45).
4. Amendment of Appendix A filed 7-29-99; operative 8-28-99. Approved by Fair Political Practices Commission 6-11-99 (Register 99, No. 31).
Chapter 63. Delta Protection Commission--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of the regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
DELTA PROTECTION COMMISSION
14219 RIVER ROAD
BOX 530
WALNUT GROVE, CA 95690
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 63, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 63. Delta Protection Commission--
Conflict of Interest Code
Section
55200. General Provisions
Appendix A
Appendix B
HISTORY
1. New section filed 3-1-94; operative 3-31-94. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 1-18-94 (Register 94, No. 9).
2. Editorial correction (Register 95, No. 16).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 64. California State Library--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA STATE LIBRARY
P.O. BOX 942837
SACRAMENTO, CA 94237-0001
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 64, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 64. California State Library--
Conflict of Interest Code
Section
55300. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 64 (section 55300 and Appendices A and B) filed 3-14-94; operative 4-13-94. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 1-19-94 (Register 94, No. 11).
2. Amendment of Appendix A filed 12-19-95; operative 1-18-96. Submitted to OAL for printing only pursuant to Government Code section 87303. Approved by Fair Political Practices Commission 10-16-95 (Register 95, No. 51).
3. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
4. Amendment of section and Appendix B filed 1-30-2002; operative 3-1-2002. Approved by Fair Political Practices Commission 11-26-2001 (Register 2002, No. 5).
5. Amendment of section and Appendices A and B filed 1-17-2006; operative 2-16-2006. Approved by Fair Political Practices Commission 11-16-2005 (Register 2006, No. 3).
6. Amendment of Appendix A filed 3-19-2008; operative 4-18-2008. Approved by Fair Political Practices Commission 2-26-2008 (Register 2008, No. 12).
7. Amendment of general provisions, Appendix A and Appendix B filed 6-9-2010; operative 7-9-2010. Approved by Fair Political Practices Commission 5-3-2010 (Register 2010, No. 24).
Chapter 65. San Joaquin River Conservancy--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
SAN JOAQUIN RIVER CONSERVANCY
701 UNIVERSITY AVE., SUITE 205
SACRAMENTO, CA 95825
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 65, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 65. San Joaquin River Conservancy--
Conflict of Interest Code
Section
55400. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 65 (section 55400 and Appendix A and B) filed 4-20-95; operative 5-22-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 2-9-95 (Register 95, No. 16).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of appendices A and B filed 7-18-2005; operative 8-17-2005. Approved by Fair Political Practices Commission 5-16-2005 (Register 2005, No. 29).
4. Amendment of Appendix A filed 5-25-2010; operative 6-24-2010. Approved by Fair Political Practices Commission 4-7-2010 (Register 2010, No. 22).
Chapter 67. California Housing Partnership Corporation--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA HOUSING PARTNERSHIP CORPORATION
2201 BROADWAY, SUITE 823
OAKLAND, CA 94612
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 67, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 67. California Housing Partnership Corporation--
Conflict of Interest Code
Section
55600. General Provisions
Appendix A
HISTORY
1. New chapter 67 (section 55600 and Appendix A) filed 5-1-95; operative 5-31-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-31-95 (Register 95, No. 18).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 68. Southwestern Low-Level Radioactive Waste Commission--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
SOUTHWESTERN LOW-LEVEL RADIOACTIVE WASTE COMMISSION
601 NORTH SEVENTH STREET
MS 396
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 68, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 68. Southwestern Low-Level Radioactive Waste
Commission--Conflict of Interest Code
Section
55700. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 68 (section 55700 and Appendix A) filed 8-23-95; operative 9-22-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-5-95 (Register 95, No. 34).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 69. California Constitution Revision Commission--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA CONSTITUTION REVISION COMMISSION
1201 “K” STREET
SUITE 1740
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 69, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 69. California Constitution Revision Commission--
Conflict of Interest Code
Section
55800. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 69 (section 55800 and Appendix) filed 8-3-95; operative 9-2-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-28-95 (Register 95, No. 31).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 70. County Medical Services Program--Conflict of Interest Code
Note: It having been found, pursuant to Government Code Section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
COUNTY MEDICAL SERVICES PROGRAM
1800 3RD STREET, ROOM 100
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 70, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 70. County Medical Services Program
Conflict of Interest Code
Section
55900. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 70 (Section 55900 and Appendix) filed 9-18-95; operative 10-18-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 7-26-95 (Register 95, No. 38).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
Chapter 71. California Service Corps--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA SERVICE CORPS
1121 “L” STREET, SUITE 600
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 71, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 71. California Service Corps--Conflict of Interest Code
Section
56000. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 71 (section 56000 and Appendix) filed 11-14-95; operative 12-14-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-25-95 (Register 95, No. 46).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of chapter heading and amendment of general provisions and appendix filed 8-28-2003; operative 9-27-2003. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 7-10-2003 (Register 2003, No. 35).
4. Amendment of chapter heading, general provisions and appendix filed 9-15-2005; operative 10-15-2005. Approved by Fair Political Practices Commission 7-11-2005 (Register 2005, No. 37).
Chapter 72. California Strawberry Commission--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA STRAWBERRY COMMISSION
P.O. BOX 269
WATSONVILLE, CA 95077-0269
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 72, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 72. California Strawberry Commission--Conflict of Interest Code
Section
56100. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 72 (section 56100 and Appendices A and B) filed 11-30-95; operative 12-30-95. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-28-95 (Register 95, No. 48).
2. Editorial correction of address for the Fair Political Practices Commission (Register 96, No. 30).
3. Amendment of Appendices A and B filed 2-14-2001; operative 3-16-2001. Approved by Fair Political Practices Commission 12-8-2000 (Register 2001, No. 7).
Chapter 73. State Allocation Board--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE ALLOCATION BOARD
1130 “K” STREET, SUITE 400
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 73, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 73. State Allocation Board--Conflict of Interest Code
Section
56200. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 73 (section 56200 and Appendix) filed 4-15-96; operative 5-15-96. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-29-95 (Register 96, No. 16).
2. Editorial correction of Archives address (Register 96, No. 40).
3. Amendment of address for the State Allocation Board and amendment of Appendix filed 4-4-2001; operative 5-4-2001. Approved by Fair Political Practices Commission 2-15-2001 (Register 2001, No. 14).
4. Amendment of section and Appendix filed 3-14-2007; operative 4-13-2007. Approved by Fair Political Practices Commission 1-4-2007 (Register 2007, No. 11).
Chapter 74. Department of Information Technology--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
DEPARTMENT OF INFORMATION TECHNOLOGY
915 CAPITOL MALL, SUITE 312
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 J STREET, SUITE 800
SACRAMENTO, CA 95804-0807
ARCHIVES
SECRETARY OF STATE
1020 O STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 74, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 74. Department of Information Technology--Conflict of Interest Code
Section
56300. General Provisions
Appendix
HISTORY
1. New chapter 74 (section 56300 and Appendix) filed 10-1-96; operative 10-31-96. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 7-15-96 (Register 96, No. 40).
Chapter 75. Child Development Advisory Programs Committee--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
CHILD DEVELOPMENT ADVISORY PROGRAMS COMMITTEE
915 CAPITOL MALL, ROOM 336
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 75, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 75. Child Development Advisory Programs Committee--Conflict of Interest Code
Section
56400. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-8732 and 87306, Government Code.
HISTORY
1. New chapter 75 (section 56400 and Appendix A) filed 1-24-97; operative 2-23-97. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-19-96 (Register 97, No. 4).
Chapter 76. Commission for the Establishment of Academic Content and Performance Standards--Conflict of Interest Code
It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The Regulations are available to the public for review or purchase at cost at the following locations:
COMMISSION FOR THE ESTABLISHMENT OF ACADEMIC CONTENT
AND PERFORMANCE STANDARDS
801 “K” STREET, SUITE 912
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 76, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 76. Commission For The Establishment Of Academic Content and Performance Standards--Conflict of Interest Code
Section
56500. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-8732 and 87306, Government Code.
HISTORY
1. New chapter 76 (section 56500 and Appendix) filed 9-4-97; operative 10-4-97. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-12-97 (Register 97, No. 36).
Chapter 77. California Tomato Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA TOMATO COMMISSION
1625 E. SHAW AVENUE, SUITE 122
FRESNO, CA 93710
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CALIFORNIA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CALIFORNIA 95814
The Conflict of Interest Code is designated as Chapter 77, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 77. California Tomato Commission--
Conflict of Interest Code
Section
56600. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-8732 and 87306, Government Code.
HISTORY
1. New Chapter 77 (section 56600 and Appendix A and B) filed 11-19-97;operative 12-19-97. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-15-97 (Register 97, No. 47).
Chapter 78. California Cut Flower Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA CUT FLOWER COMMISSION
11344 COLOMA ROAD, SUITE 450
GOLD RIVER, CA 95670
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 78, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 78. California Cut Flower Commission--
Conflict of Interest Code
Section
56700. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 78 (section 56700 and Appendix A and B) filed 6-1-98;operative 6-1-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-24-98 (Register 98, No. 23).
Chapter 79. California Earthquake Authority--Conflict-of-Interest Code
Note: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA EARTHQUAKE AUTHORITY
300 CAPITOL MALL, SUITE 1230
SACRAMENTO, CA 94814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict-of-Interest Code is designated as Chapter 79, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 79. California Earthquake Authority--
Conflict-of-Interest Code
Section
56800. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 79 (section 56800 and Appendix A and B) filed 2-3-98;operative 3-5-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 12-22-97 (Register 98, No. 6).
2. Editorial correction of addresses and Note (Register 98, No. 10).
3. Editorial change amending chapter number and History 1 (Register 98, No. 23).
4. Amendment filed 3-13-2002; operative 4-12-2002. Approved by Fair Political Practices Commission 1-8-2002 (Register 2002, No. 11).
5. Amendment filed 7-14-2003; operative 8-13-2003. Approved by Fair Political Practices Commission 5-21-2003 (Register 2003, No. 29).
6. Amendment of chapter heading, general provisions, and appendices A and B filed 10-5-2010; operative 11-4-2010. Approved by Fair Political Practices Commission 9-1-2010 (Register 2010, No. 41).
7. Amendment of Appendix A filed 6-19-2012; operative 7-19-2012. Approved by Fair Political Practices Commission 4-16-2012 (Register 2012, No. 25).
Chapter 80. California Grape Rootstock Improvement Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA GRAPE ROOTSTOCK IMPROVEMENT COMMISSION
1112 “I” STREET, SUITE 200
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 80, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 80. California Grape Rootstock Commission--
Conflict of Interest Code
Section
56900. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 80 (section 56900 and Appendix A and B) filed 8-17-98;operative 9-16-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 7-6-98 (Register 98, No. 34).
Chapter 81. California Apple Commission--Conflict of Interest Code
Note: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA APPLE COMMISSION
1112 “I” STREET, SUITE 200
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 81, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 81. California Apple Commission--
Conflict of Interest Code
Section
57000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 81 (section 57000 and Appendix A and B) filed 8-10-98;operative 9-9-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-8-98 (Register 98, No. 33).
Chapter 82. California Forest Products Commission--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA FOREST PRODUCTS COMMISSION
853 LINCOLN WAY, SUITE 208
AUBURN, CA 95603-4815
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 82, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 82. California Forest Products Commission--
Conflict of Interest Code
Section
57100. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 82 (section 57100 and Appendix A and B) filed 7-20-98;operative 8-19-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-8-98 (Register 98, No. 30).
Chapter 83. California State University Risk Management Authority--Conflict of Interest Code
Note: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA STATE UNIVERSITY RISK MANAGEMENT
AUTHORITY PROGRAM ADMINISTRATORS
P.O. BOX 7601
SAN FRANCISCO, CA 94120
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 83, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 83. California State University Risk Management
Authority--Conflict of Interest Code
Section
57200. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 83 (section 57200 and Appendix) filed 3-6-98;operative 4-5-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 12-2-97 (Register 98, No. 10).
Chapter 84. California Gold Discovery to Sesquicentennial Commission--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA GOLD DISCOVERY TO SESQUICENTENNIAL COMMISSION
1020 “O” STREET, SUITE 301
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 84, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 84. California Gold Discovery to Sesquicentennial
Commission--Conflict of Interest Code
Section
57300. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 84 (section 57300 and Appendix A) filed 12-21-98; operative 1-20-99. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-5-98 (Register 98, No. 52).
Chapter 85. California High Speed Rail Authority--Conflict of Interest Code
Note: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA HIGH SPEED RAIL AUTHORITY
925 “L” STREET, SUITE 1425
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 85, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 85. California High Speed Rail Authority--Conflict of
Interest Code
Section
57400. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300, 87302 and 87306, Government Code.
HISTORY
1. New chapter 85 (section 57400 and Appendices A and B) filed 10-27-98; operative 11-26-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-4-98 (Register 98, No. 44).
2. Amendment of general provisions and appendices filed 8-20-2001; operative 9-19-2001. Approved by Fair Political Practices Commission 6-27-2001 (Register 2001, No. 34).
Chapter 86. State Independent Living Council--Conflict of Interest Code
Note: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA INDEPENDENT LIVING COUNCIL
1600 “K” STREET, SUITE 100
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 86, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 86. State Independent Living Council--Conflict of
Interest Code
Section
57500. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 86 (section 57500 and Appendix) filed 10-19-98; operative 11-18-98. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 8-19-98 (Register 98, No. 43).
Chapter 88. California State University, Channel Islands Site Authority--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA STATE UNIVERSITY
CHANNEL ISLANDS SITE AUTHORITY
401 GOLDDEN SHORE, 4TH FLOOR
LONG BEACH, CA 90802-4210
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 88, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 88. California State University, Channel Islands Site
Authority--Conflict of Interest Code
Section
57700. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 88, section and Appendix A filed 3-9-2000; operative 4-8-2000. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 12-22-1999 (Register 2000, No. 10).
Chapter 89. California Date Commission--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA DATE COMMISSION
1112 “I” STREET, SUITE 200
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 89, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 89. California Date Commission--Conflict of Interest Code
Section
57800. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 89, section and Appendices A and B filed 5-30-2000; operative 6-29-2000. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 4-3-2000 (Register 2000, No. 22).
Chapter 90. California Rice Commission -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA RICE COMMISSION
701 UNIVERSITY AVE., SUITE 205
SACRAMENTO, CA 95825
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 90, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 90. California Rice Commission -- Conflict of Interest Code
Section
57900. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 90 (section 57900 and Appendices A and B) filed 9-21-2000; operative 10-21-2000. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 7-25-2000 (Register 2000, No. 38).
Chapter 91. California Children and Families Commission--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
CALIFORNIA CHILDREN AND FAMILIES COMMISSION
501 “J” STREET, SUITE 530
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 91, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 91. California Children and Families Commission--
Conflict of Interest Code
Section
58000. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 91 (section 58000), section and Appendix filed 4-12-2000; operative 5-12-2000. Approved by Fair Political Practices Commission 3-17-2000 (Register 2000, No. 15).
Chapter 92. California Travel and Tourism Commission -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA TRAVEL AND TOURISM COMMISSION
1011 TENTH ST.
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 92, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 92. California Travel and Tourism Commission -- Conflict of Interest Code
Section
58100. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 92 (section 58100), section and Appendix A filed 9-14-2001; operative 10-14-2001. Approved by Fair Political Practices Commission 7-9-2001 (Register 2001, No. 37).
2. Amendment of general provisions, Appendix A and Appendix B filed 1-25-2010; operative 2-24-2010. Approved by Fair Political Practices Commission 11-18-2009 (Register 2010, No. 5).
Chapter 93. Office of Traffic Safety--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF TRAFFIC SAFETY
7000 FRANKLIN BOULEVARD, SUITE 440
SACRAMENTO, CA 95823
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 93, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 93. Office of Traffic Safety--Conflict of
Interest Code
Section
58200. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. Change without regulatory effect renumbering former title 13, section 1801 to title 2, division 8, chapter 93, section 58200 (conflict of interest code and appendix incorporated by reference) filed 11-15-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 47).
Chapter 94. Office of the State Governor--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF THE STATE GOVERNOR
STATE CAPITOL
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 94, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 94. Office of the State Governor--Conflict of Interest Code
Section
58300. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 94 (section 58300 and Appendix) filed 3-13-2000; operative 4-12-2000. Approved by Fair Political Practices Commission 2-3-2000 (Register 2000, No. 11).
Chapter 95. California Gambling Control Commission -- Conflict of Interest Code
Note: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA GAMBLING CONTROL COMMISSION
300 CAPITOL MALL, SUITE 300
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 95, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 95. California Gambling Control Commission -- Conflict of Interest Code
Section
58400 General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300 and 87302, Government Code.
HISTORY
1. New chapter 95 (section 58400 and Appendix A) filed 7-19-2001; operative 8-18-2001. Approved by Fair Political Practices Commission 6-21-2001 (Register 2001, No. 29).
Chapter 96. California Sheep Commission--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA SHEEP COMMISSION
1112 “I” STREET, SUITE 200
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 96, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 96. California Sheep Commission--
Conflict of Interest Code
Section
58500. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300 and 87302, Government Code.
HISTORY
1. New chapter 96 (section 58500 and Appendices A and B) filed 1-24-2002; operative 2-23-2002. Approved by Fair Political Practices Commission 11-21-2001 (Register 2002, No. 4).
Chapter 97. California Workforce Investment Board -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA WORKFORCE INVESTMENT BOARD
777 TWELFTH STREET, SUITE 200
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 97, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 97. California Workforce Investment Board -- Conflict of Interest Code
Section
58600. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New Chapter 97 (Section 58600 and Appendix) filed 2-20-2004; operative 3-21-2004. Approved by Fair Political Practices Commission 12-9-2003 (Register 2004, No. 8).
Chapter 98. California Electricity Oversight Board -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA ELECTRICITY OVERSIGHT BOARD
770 “L” STREET, SUITE 1250
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 98, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 98. California Electricity Oversight Board -- Conflict of Interest Code
Section
58700. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 98 (section 58700 and Appendix A) filed 12-10-2002; operative 1-9-2002. Approved by Fair Political Practices Commission 10-7-2002 (Register 2002, No. 50).
2. Amendment of general provisions and appendix filed 11-22-2004; operative 11-22-2004. Approved by Fair Political Practices Commission 9-27-2004 (Register 2004, No. 47).
3. Amendment filed 12-17-2007; operative 1-16-2008. Approved by Fair Political Practices Commission 10-31-2007 (Register 2007, No. 51).
Chapter 99. California Labor and Workforce Development Agency -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA LABOR AND WORKFORCE DEVELOPMENT AGENCY
801 “K” STREET, SUITE 2101
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 99, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 99. California Labor and Workforce Development Agency -- Conflict of Interest Code
Section
58800. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 99 (section 58800 and Appendix) filed 6-15-2004; operative 7-15-2004. Approved by Fair Political Practices Commission 4-16-2004 (Register 2004, No. 25).
2. Amendment of appendix filed 9-7-2005; operative 10-7-2005. Approved by Fair Political Practices Commission 7-6-2005 (Register 2005, No. 36).
3. Amendment of appendix filed 8-3-2007; operative 9-2-2007. Approved by Fair Political Practices Commission 6-6-2007 (Register 2007, No. 31).
Chapter 101. Baldwin Hills Conservancy -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
BALDWIN HILLS CONSERVANCY
6133 BRISTOL PARKWAY, SUITE 300
CULVER CITY, CA 90230
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 101, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 101. Baldwin Hills Conservancy -- Conflict of Interest Code
Section
59000. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 101 (section 59000 and Appendices A and B) filed 8-7-2002; operative 9-6-2002. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 5-24-2002 (Register 2002, No. 32).
Chapter 102. Office of the Inspector General--Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
OFFICE OF THE INSPECTOR GENERAL
P. O. BOX 348780
SACRAMENTO, CA 95834-8780
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 102, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 102. Office of the Inspector General--
Conflict of Interest Code
Section
59100. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Section 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 102 (section 59100 and Appendix) filed 3-27-2002; operative 4-26-2002. Approved by Fair Political Practices Commission 2-25-2002 (Register 2002, No. 13).
2. Amendment of Appendix filed 3-15-2007; operative 4-14-2007. Approved by Fair Political Practices Commission 1-8-2007 (Register 2007, No. 11).
3. Amendment of Appendix A and Appendix B filed 1-19-2010; operative 2-18-2010. Approved by Fair Political Practices Commission 12-21-2009 (Register 2010, No. 4).
Chapter 103. California Climate Action Registry -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA CLIMATE ACTION REGISTRY
515 SOUTH FLOWER STREET, SUITE 1305
LOS ANGELES, CA 90071
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 103, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 103. California Climate Action Registry --
Conflict of Interest Code
Section
59150. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 103 (section 59150 and Appendix) filed 2-23-2004; operative 3-24-2004. Approved by Fair Political Practices Commission 12-8-2003 (Register 2004, No. 9).
2. Amendment of section and Appendix filed 1-30-2006; operative 3-1-2006. Approved by Fair Political Practices Commission 12-7-2005 (Register 2006, No. 5).
Chapter 105. California Bay Delta Authority -- Conflict of Interest Code [Repealed]
NOTE
Authority cited: Sections 87300 and 87306, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New section and Appendix filed 5-25-2004; operative 6-24-2004. Approved by Fair Political Practices Commission 3-30-2004 (Register 2004, No. 22).
2. Repealer of section and Appendix filed 6-21-2011; operative 6-21-2011. Approved by Fair Political Practices Commission 4-26-2011 (Register 2011, No. 25).
Chapter 106. California Consumer Power and Conservation Financing Authority -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA CONSUMER POWER AND CONSERVATION
FINANCING AUTHORITY
901 “P” STREET, SUITE 142A
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 106, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 106. California Consumer Power and Conservation Financing Authority -- Conflict of Interest Code
Section
59500. General Provisions
Appendix
NOTE
Authority cited: Sections 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 106 (section 59500 and Appendix) filed 12-1-2003; operative 12-31-2003. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 10-6-2003 (Register 2003, No. 49).
Chapter 107. California Commission for Economic Development -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA COMMISSION FOR ECONOMIC DEVELOPMENT
300 SOUTH SPRING STREET, SUITE 12702
LOS ANGELES, CA 90013
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 107, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 107. California Commission for Economic Development -- Conflict of Interest Code
Section
59520. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 107 (section 59520 and Appendix) filed 8-9-2005; operative 9-8-2005. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-9-2005 (Register 2005, No. 32).
Chapter 108. Santa Monica Bay Restoration Commission -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
SANTA MONICA BAY RESTORATION COMMISSION
300 W. FOURTH STREET, 2ND FLOOR
LOS ANGELES, CA 90013
FAIR POLITICAL PRACTICES COMMISSION
428 “J” STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 “O” STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 108, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 108. Santa Monica Bay Restoration Commission -- Conflict of Interest Code
Section
59530. General Provisions
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 108 (section 59530) filed 1-3-2005; operative 2-2-2005. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 11-4-2004 (Register 2005, No. 1).
Chapter 111. California Cultural and Historical Endowment -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA CULTURAL AND HISTORICAL ENDOWMENT
P.O. BOX 942837
SACRAMENTO, CA 94237-0001
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 111, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 111. California Cultural and Historical Endowment --
Conflict of Interest Code
Section
59560. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300 and 87306, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 111 (section 59560 and Appendices A and B) filed 5-24-2006; operative 6-23-2006. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-27-2006 (Register 2006, No. 21).
2. Amendment of Appendix filed 6-15-2007; operative 7-15-2007. Approved by Fair Political Practices Commission 4-30-2007 (Register 2007, No. 24).
3. Amendment of section and Appendix A filed 4-28-2009; operative 5-28-2009. Approved by Fair Political Practices Commission 4-3-2009 (Register 2009, No. 18).
Chapter 112. Sonoma County Winegrape Commission -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
SONOMA COUNTY WINEGRAPE COMMISSION
420 AVIATION BLVD., SUITE 106
SANTA ROSA, CA 95403
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 112, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 112. Sonoma County Winegrape Commission -- Conflict of Interest Code
Section
59570. General Provisions
Appendix
NOTE
Authority cited: Sections 87300, Government Code. Reference: Section 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 112 (section 59570 and Appendix) filed 6-17-2008; operative 7-17-2008. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 5-16-2008 (Register 2008, No. 25).
Chapter 113. Mendocino Winegrape and Wine Commission -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
MENDOCINO WINEGRAPE AND WINE COMMISSION
P.O. BOX 191167
SACRAMENTO, CA 95819
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 113, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 113. Mendocino Winegrape and Wine Commission --
Conflict of Interest Code
Section
59580. General Provisions
Appendix
NOTE
Authority cited: Sections 87300, Government Code. Reference: Section 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 113 (section 59580 and Appendix) filed 5-21-2008; operative 6-20-2008. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-18-2008 (Register 2008, No. 21).
Chapter 114. Ocean Protection Council -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
OCEAN PROTECTION COUNCIL
1330 BROADWAY, SUITE 1300
OAKLAND, CA 94612
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 114, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 114. Ocean Protection Council -- Conflict of Interest Code
Section
59590 General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New section and Appendix filed 3-27-2007; operative 4-26-2007. Approved by Fair Political Practices Commission 12-29-2006 (Register 2007, No. 13).
2. Amendment of general provisions, repealer of Appendix and new Appendix A and Appendix B filed 12-28-2010; operative 1-27-2011. Approved by Fair Political Practices Commission 11-30-2010 (Register 2010, No. 53).
Chapter 115. California Sea Urchin Commission -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA SEA URCHIN COMMISSION
16218 13TH STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 115, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 115. California Sea Urchin Commission --
Conflict of Interest Code
Section
59600. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 115 (section 56900 and Appendix) filed 10-22-2008; operative 11-21-2008. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 9-8-2008 (Register 2008, No. 43).
Chapter 117. California African American Museum -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA AFRICAN AMERICAN MUSEUM
600 STATE DRIVE, EXPOSITION PARK
LOS ANGELES, CA 90037
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 117, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 117. California African American Museum --
Conflict of Interest Code
Section
59620. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 117 (section 59620 and Appendices A and B) filed 5-13-2008; operative 6-12-2008. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-18-2008 (Register 2008, No. 20).
Chapter 118. Citizens Financial Accountability Oversight Committee -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CITIZENS FINANCIAL ACCOUNTABILITY OVERSIGHT COMMITTEE
P.O. BOX 942850
SACRAMENTO, CA 94250-5872
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 118, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 118. Citizens Financial Accountability Oversight
Committee -- Conflict of Interest Code
Section
59630. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 118 (section 59630 and Appendices A and B) filed 3-28-2008; operative 4-27-2008. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 2-26-2008 (Register 2008, No. 13).
Chapter 119. Office of the State Chief Information Officer -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
OFFICE OF THE STATE CHIEF INFORMATION OFFICER
P.O. BOX 1810
RANCHO CORDOVA, CA 95741-1810
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 119, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 119. Office of the State Chief Information Officer --
Conflict of Interest Code
Section
59640. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 119 (section 59640 and Appendices A and B) filed 1-13-2010; operative 1-13-2010. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 6-26-2009 (Register 2010, No. 3).
Chapter 121. California Commission on Aging -- Conflict of Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict of interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA COMMISSION ON AGING
1300 NATIONAL DRIVE, SUITE 173
SACRAMENTO, CA 95834
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict of interest code is designated as chapter 121, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 121. California Commission on Aging --
Conflict of Interest Code
Section
59660. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 121 (section 59660 and Appendices A and B) filed 2-9-2010; operative 3-11-2010. Approved by Fair Political Practices Commission 12-24-2009 (Register 2010, No. 7).
Chapter 122. Strategic Growth Council--Conflict of Interest Code
NOTE: It having been found, pursuant to Government Code section 11344, that the printing of regulations constituting the Conflict of Interest Code is impractical and these regulations being of limited and particular application, these regulations are not published in full in the California Code of Regulations. The regulations are available to the public for review or purchase at cost at the following locations:
OFFICE OF PLANNING AND RESEARCH
1400 TENTH STREET
SACRAMENTO, CA 95814
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The Conflict of Interest Code is designated as Chapter 122, Division 8 of Title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 122. Strategic Growth Council--
Conflict of Interest Code
Section
59670. General Provisions
Appendix
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 122 (section 59670) and Appendix filed 3-19-2010; operative 4-18-2010. Approved by Fair Political Practices Commission 1-28-2010 (Register 2010, No. 12).
Chapter 124. California Blueberry Commission--Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA BLUEBERRY COMMISSION
770 E. SHAW AVENUE, SUITE 310
FRESNO, CA 93710
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict-of-interest code is designated as chapter 124, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 124. California Blueberry Commission -- Conflict-of-Interest Code
Section
59690. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Section 87300, Government Code. Reference: Sections 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 124 (section 59690 and Appendices A and B) filed 10-12-2011; operative 11-11-2011. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 8-18-2011 (Register 2011, No. 41).
Chapter 125. California Ocean Science Trust -- Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
CALIFORNIA OCEAN SCIENCE TRUST
1330 BROADWAY, SUITE 1135
OAKLAND, CA 94612-2525
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict-of-interest code is designated as chapter 125, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 125. California Ocean Science Trust -- Conflict-of-Interest Code
Section
59700. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300 and 87304, Government Code. Reference: Sections 87300 et seq., Government Code.
HISTORY
1. New chapter 125 (section 59700) and section filed 8-8-2011; operative 9-7-2011. Approved by Fair Political Practices Commission 7-12-2011 (Register 2011, No. 32).
Chapter 126. Fiscal Crisis and Management Assistance Team -- Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
FISCAL CRISIS AND MANAGEMENT ASSISTANCE TEAM
1300 17TH STREET
BAKERSFIELD, CA 93301
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95814
The conflict-of-interest code is designated as chapter 126, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 126. Fiscal Crisis and Management Assistance Team -- Conflict-of-Interest Code
Section
59710. General Provisions
Appendix A
Appendix B
NOTE
Authority cited: Sections 87300, Government Code. Reference: Section 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 126 (section 59710 and Appendices A and B) filed 4-9-2012; operative 5-9-2012. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 3-1-2012 (Register 2012, No. 15).
Chapter 127. State Fair Leasing Authority -- Conflict-of-Interest Code
NOTE: Pursuant to a regulation of the Fair Political Practices Commission (Title 2, CCR, section 18750(k)(2)), an agency adopting a conflict-of-interest code has the options of requesting that the code either be (1) printed in the CCR in its entirety or (2) incorporated by reference into the CCR. Here, the adopting agency has requested incorporation by reference. However, the full text of the regulations is available to the public for review or purchase at cost at the following locations:
STATE FAIR LEASING AUTHORITY/
CALIFORNIA EXPOSITION AND STATE FAIR
1600 EXPOSITION BOULEVARD
SACRAMENTO, CA 95815
FAIR POLITICAL PRACTICES COMMISSION
428 ``J'' STREET, SUITE 800
SACRAMENTO, CA 95814
ARCHIVES
SECRETARY OF STATE
1020 ``O'' STREET
SACRAMENTO, CA 95815
The conflict-of-interest code is designated as chapter 127, division 8 of title 2 of the California Code of Regulations, and consists of sections numbered and titled as follows:
Chapter 127. State Fair Leasing Authority -- Conflict-of-Interest Code
Section
59720. General Provisions
Appendix A
NOTE
Authority cited: Section 87300, Government Code. Reference: Section 87300-87302 and 87306, Government Code.
HISTORY
1. New chapter 127 (section 59720 and Appendix A) filed 8-13-2012; operative 9-12-2012. Submitted to OAL for printing only. Approved by Fair Political Practices Commission 5-7-2012 (Register 2012, No. 33).
Division 9. Joint Regulations for Pupils with Disabilities
Chapter 1. Interagency Responsibilities for Providing Services to Pupils with Disabilities
Article 1. General Provisions
Note • History
The provisions of this chapter shall implement Chapter 26.5, commencing with Section 7570, of Division 7 of Title 1 of the Government Code relating to interagency responsibilities for providing services to pupils with disabilities. This chapter applies to the State Departments of Mental Health, Health Services, Social Services, and their designated local agencies, and the California Department of Education, school districts, county offices, and special education local plan areas.
The intent of this chapter is to assure conformity with the federal Individuals with Disabilities Education Act or IDEA, Sections 1400 et seq. of Title 20 of the United States Code, and its implementing regulations, including Sections 76.1 et seq. and 300.1 et seq. of Title 34 of the Code of Federal Regulations. Thus, provisions of this chapter shall be construed as supplemental to, and in the context of, federal and state laws and regulations relating to interagency responsibilities for providing services to pupils with disabilities.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7570, Government Code.
HISTORY
1. New Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) filed 12-31-85 as an emergency; designated effective 1-1-86 (Register 86, No. 1). A Certificate of Compliance must be transmitted to OAL within 180 days or emergency language will be repealed on 6-30-86.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) refiled 6-30-86 as an emergency; designated effective 1-1-86 (Register 86, No. 28). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 10-28-86.
3. Editorial correction of History Note No. 1 (Register 86, No. 28).
4. Effective period of emergency language which was refiled 6-30-86 extended to 5-1-87 pursuant to Chapter 1133, Statutes of 1986 (Register 87, No. 30).
5. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
6. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
7. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
8. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
9. New Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
10. Editorial correction restoring prior Histories 1-6, adding new Histories 7-8, and renumbering and amending existing History 1 to new History 9 (Register 98, No. 44).
11. New Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
12. New Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
13. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60010. Education Definitions.
Note • History
(a) Words shall have their usual meaning unless the context or a definition of a word or phrase indicates a different meaning. Words used in their present tense shall include the future tense; words in the singular form shall include the plural form; and use of the masculine gender shall include the feminine gender.
(b) “Administrative designee” means the individual who fulfills the role as described in paragraph (1) of subsection (b) of Section 56341 of the Education Code and paragraph (1) of subsection (a) of Section 300.344 of Title 34 of the Code of Federal Regulations.
(c) “Assessment” means an individual evaluation of a pupil in all areas of suspected disability in accordance with Sections 56320 through 56329 of the Education Code and Sections 300.530 through 300.534 of Title 34 of the Code of Federal Regulations.
(d) “Assessment plan” means a written statement that delineates how a pupil will be evaluated and meets the requirements of Section 56321 of the Education Code.
(e) “Confidentiality” means the restriction of access to verbal and written communications, including clinical, medical and educational records, to appropriate parties under Section 99.3 of Title 45 of the Code of Federal Regulations, Section 300.560 et seq. of Title 34 of the Code of Federal Regulations, Sections 827, 4514, 5328, and 10850 of the Welfare and Institutions Code, Section 2890 of Title 17 of the California Code of Regulations, and Sections 49060 through 49079 of the Education Code.
(f) “County superintendent of schools” means either an appointed or elected official who performs the duties specified in Chapter 2 (commencing with Section 1240) of Part 2 of Title 1 of the Education Code.
(g) “Day” means a calendar day pursuant to Section 56023 of the Education Code.
(h) “Designated instruction and services” means specially designed instruction and related services described in subsection (b) of Section 56361 and subsection (b) of Section 56363 of the Education Code, and Section 3051 of Title 5 of the California Code of Regulations, as may be required to assist a pupil with a disability to benefit educationally.
(i) “Individualized education program,” hereinafter “IEP,” means a written statement developed in accordance with Section 7575 of the Government Code, Sections 56341 and 56342 of the Education Code and Sections 300.340 through 300.350 of Title 34 of the Code of Federal Regulations, which contains the elements specified in Section 56345 of the Education Code and Section 300.347 of Title 34 of the Code of Federal Regulations.
(j) “Individualized education program team,” hereinafter “IEP team,” means a group which is constituted in accordance with Section 56341 of the Education Code and Title 20, United States Code Section 1414(d)(1)(B).
(k) “Local education agency,” hereinafter “LEA,” means a school district or county office of education which provides special education and related services.
(l) “Local interagency agreement” means a written document negotiated between two or more public agencies which defines each agency's role and responsibilities for providing services to pupils with disabilities and for facilitating the coordination of these services in accordance with the provisions of Section 56220 of the Education Code.
(m) “Necessary to benefit from special education” means a service that assists the pupil with a disability in progressing toward the goals and objectives listed in the IEP in accordance with subsection (d) of Section 7572 and paragraph (2) of subsection (a) of Section 7575 of the Government Code.
(n) “Nonpublic, nonsectarian agency” means a private, nonsectarian establishment or individual that is certified by the California Department of Education and that provides related services and/or designated instruction and services necessary for a pupil with a disability to benefit educationally from the pupil's IEP. It does not include an organization or agency that operates as a public agency or offers public service, including but not limited to, a state or local agency, or an affiliate of a state or local agency, including a private, nonprofit corporation established or operated by a state or local agency, a public university or college, or a public hospital.
(o) “Nonpublic, nonsectarian school” means a private, nonsectarian school that enrolls individuals with exceptional needs pursuant to an IEP, employs at least one full-time teacher who holds an appropriate credential authorizing special education services, and is certified by the California Department of Education. It does not include an organization or agency that operates as a public agency or offers public services, including but not limited to, a state or local agency, or an affiliate of a state or local agency, including a private, nonprofit corporation established or operated by a state or local agency or a public university or college.
(p) “Parent” includes any person having legal custody of a child. “Parent,” in addition, includes any adult pupil for whom no guardian or conservator has been appointed and the person having custody of a minor if neither the parent nor legal guardian can be notified of the educational action under consideration. “Parent” also includes a parent surrogate who has been appointed in accordance with Section 7579.5 of the Government Code and Section 56050 of the Education Code. The term “Parent” does not include the state or any political subdivision of government.
(q) “Pupil” or “Pupil with a disability” means those students, birth through 21 years of age, as defined in Section 300.7 of Title 34 of the Code of Federal Regulations, including those with mental retardation or autism, who meet the requirements of Section 56026 of the Education Code and Sections 3030 and 3031 of Title 5 of the California Code of Regulations and who, because of their impairments, need special education and related services as defined in subsections (22) and (25) of Section 1401 of Title 20 of the United States Code. This term includes handicapped children, children with disabilities and individuals with exceptional needs as defined in Section 56026 of the Education Code. The determination that an individual is a pupil with a disability is made only by an IEP team pursuant to Section 56342 of the Education Code.
(r) “Qualified” means that a person has met federal and state certification, licensing, registration, or other comparable requirements which apply to the area in which he or she is providing special education or related services, or, in the absence of such requirements, meets the state-education-agency-approved or recognized requirements and adheres to the standards of professional practice established in federal and state law or regulation, including the standards contained in the California Business and Professions Code.
(s) “Related services” means those services that are necessary for a pupil with a disability to benefit from his or her special education program in accordance with paragraph Title 20, United States Code Section 1401(22).
(t) “Special education” means specially designed instruction and related services to meet the unique needs of a pupil with a disability, as described in Section 56031 of the Education Code and Section 300.26 of Title 34 of the Code of Federal Regulations.
(u) “Special education local plan” means a plan developed in accordance with Sections 56200 through 56218 of the Education Code which identifies each participating LEA's roles and responsibilities for the provision of special education and related services within the service area.
(v) “Special education local plan area,” hereinafter “SELPA,” means the service area covered by a special education local plan, and is the governance structure created under any of the planning options of Section 56200 of the Education Code.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7570 and 7579.5, Government Code; Section 5328, Welfare and Institutions Code; Sections 1240, 49060-49079, 56023, 56026, 56028, 56031, 56034, 56035, 56050, 56200-56220, 56320-56329, 56341 and 56325, Education Code; Clovis Unified School District (1990, Ninth Circuit) 903 F.2d 635; Section 1401, Title 20, United States Code; and Sections 300.7, 300.326, 300.330, 300.340-300.350, 300.530-300.534 and 300.560, Title 34, Code of Federal Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (d), (j) and (q)-(v) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60020. Mental Health Definitions.
Note • History
(a) “Community mental health service” means a mental health program established by a county in accordance with the Bronzan-McCorquodale Act, Part 2 (commencing with Section 5600) of Division 5 of the Welfare and Institutions Code.
(b) “County of origin” for mental health services is the county in which the parent of a pupil with a disability resides. If the pupil is a ward or dependent of the court, an adoptee receiving adoption assistance, or a conservatee, the county of origin is the county where this status currently exists. For the purposes of this program the county of origin shall not change for pupils who are between the ages of 18 and 22.
(c) “Expanded IEP team” means an IEP team constituted in accordance with Section 7572.5 of the Government Code. This team shall include a representative of the community mental health service authorized to make placement decisions.
(d) “Host county” means the county where the pupil with a disability is living when the pupil is not living in the county of origin.
(e) “Local mental health director” means the officer appointed by the governing body of a county to manage a community mental health service.
(f) “Medication monitoring” includes all medication support services with the exception of the medications or biologicals themselves and laboratory work. Medication support services include prescribing, administering, dispensing and monitoring of psychiatric medications or biologicals necessary to alleviate the symptoms of mental illness.
(g) “Mental health assessment” is a service designed to provide formal, documented evaluation or analysis of the nature of the pupil's emotional or behavioral disorder. It is conducted in accordance with California Code of Regulations, Title 9, Section 543(b), and Sections 56320 through 56329 of the Education Code by qualified mental health professionals employed by or under contract with the community mental health service.
(h) “Mental health assessment plan” means a written statement developed for the individual evaluation of a pupil with a disability who has been referred to a community mental health service to determine the need for mental health services in accordance with Section 56321 of the Education Code.
(i) “Mental health services” means mental health assessments and the following services when delineated on an IEP in accordance with Section 7572(d) of the Government Code: psychotherapy as defined in Section 2903 of the Business and Professions Code provided to the pupil individually or in a group, collateral services, medication monitoring, intensive day treatment, day rehabilitation, and case management. These services shall be provided directly or by contract at the discretion of the community mental health service of the county of origin.
(j) “Qualified mental health professional” includes the following licensed practitioners of the healing arts: a psychiatrist; psychologist; clinical social worker; marriage, family and child counselor; registered nurse, mental health rehabilitation specialist, and others who have been waivered under Section 5751.2 of the Welfare and Institutions Code. Such individuals may provide mental health services, consistent with their scope of practice.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 56320, Education Code; and Sections 542 and 543, Title 9, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (b), (c) and (j), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60025. Social Services Definitions.
Note • History
(a) “Care and supervision” as defined in Welfare and Institutions Code Section 11460, includes food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation.
(b) “Certified family home” as defined in Welfare and Institutions Code Section 11400(c), means a family residence certified by a foster family agency licensed by the California Department of Social Services and issued a certificate of approval by that agency as meeting licensing standards, and is used only by that foster family agency for placements.
(c) “Certified, license-pending home” as described in Welfare and Institutions Code Sections 361.2(h), 727(b), and 16507.5(b), is a home that is pending application for licensure as a foster family home, has been certified by the county as meeting the minimum standards for foster family homes, and is lacking any deficiencies which would threaten the physical health, mental health, safety or welfare of the pupil.
(d) “Community care facility” is a facility licensed by the California Department of Social Services as defined in Health and Safety Code Section 1502(a). For the purposes of this chapter, a community care facility means those facilities listed and defined in this article that provide 24-hour residential care to children.
(e) “Community treatment facility” as defined in Health and Safety Code Section 1502(a)(8), means any residential facility that provides mental health treatment services to children in a group setting which has the capacity to provide secure containment. The facility's program components shall be subject to program standards developed and enforced by the State Department of Mental Health pursuant to Section 4094 of the Welfare and Institutions Code.
(f) “Foster family agency” as defined in Welfare and Institutions Code Section 11400(g) and Health and Safety Code Section 1502(a)(4), means any individual or organization engaged in the recruiting, certifying, and training of, and providing professional support to, foster parents, or in finding homes or other places for placement of children for temporary or permanent care who require that level of care as an alternative to a group home. Private agencies shall be organized and operated on a nonprofit basis.
(g) “Foster family home” as defined in Health and Safety Code Section 1502(a)(5) means any residential facility providing 24-hour care for six or fewer foster children that is owned, leased, or rented and is the residence of the foster parent or parents, including their family, in whose care the foster children have been placed. It also means a foster family home described in Health and Safety Code Section 1505.2. For the purpose of this Chapter a foster family home includes a small family home pursuant to Education Code Section 56155.5(b), or the approved home of a relative.
(h) “Group home” as defined in title 22 of the California Code of Regulations, Section 80001(g)(1) means any facility of any capacity, that provides 24-hour care and supervision to children in a structured environment with such services provided at least in part by staff employed by the licensee. The care and supervision provided by a group home shall be nonmedical except as permitted by Welfare and Institutions Code, Section 17736(b). For the purposes of this Chapter, a group home is a nondetention facility that is organized and operated on a nonprofit basis in accordance with Welfare and Institutions Section 11400(h).
(i) “Licensed children's institution” as defined in Education Code Section 56155.5(a), for the purposes of this Chapter, means the following community care facilities licensed by the California Department of Social Services: a group home, foster family agency, and community treatment facility.
(j) “Small family home” as defined in Health and Safety Code Section 1502(a)(6), means any residential facility, in the licensee's family residence, that provides 24-hour care for six or fewer foster children who have mental disorders or developmental or physical disabilities and who require special care and supervision as a result of their disabilities. A small family home may accept children with special health care needs, pursuant to subdivision (a) of Section 17710 of the Welfare and Institutions Code.
NOTE
Authority cited: Section 7587, Government Code; and Sections 10553, 10554, 11462(i) and (j) and 11466.1, Welfare and Institutions Code. Reference: Sections 361.2(h), 727(b), 4094, 11400(c), 11400(g), 11400(h), 11402(a), 16507.5(b), 17710, 17736(b) and 18350, Welfare and Institutions Code; Section 1502(a), Health and Safety Code; Section 56155.5, Education Code; and Section 80001(g)(1), Title 22, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 2. Mental Health Related Services
§60030. Local Mental Health and Education Interagency Agreement.
Note • History
(a) Each community mental health service and each SELPA within that county shall develop a written local interagency agreement in order to facilitate the provision of mental health services.
(b) The local mental health director, the county superintendent of schools and/or the local SELPA director, or their designees, shall review the local interagency agreement(s) according to a schedule developed at the local level between the agencies but no less frequently than every three years and ensure that the agreement or agreements are revised as appropriate, to assure compliance with this chapter. This provision does not preclude revision of the local interagency agreement at any time that they determine a revision is necessary. The content of the agreement will remain in effect until the agencies mutually agree upon any revisions.
(c) The local interagency agreement shall identify a contact person for each agency and include, but not be limited to, a delineation of the procedures for:
(1) Monitoring compliance with the time lines specified in paragraph (a) of Section 56321 and Section 56344 of the Education Code. This system shall designate each participating agency's responsibilities and identify who will be responsible for monitoring the system;
(2) Resolving interagency disputes at the local level, including procedures for the continued provision of appropriate services during the resolution of any interagency dispute, pursuant to Government Code Section 7585(f). For purposes of this subdivision only, the term “appropriate” means any service identified in a pupil's IEP, or any service the pupil actually was receiving at the time of the interagency dispute;
(3) Delivery of a completed referral package to the community mental health service pursuant to subsection (d) of Section 60040 as well as any other relevant pupil information in accordance with procedures ensuring confidentiality within five (5) business days;
(4) A host county to notify the community mental health service of the county of origin within two (2) working days when a pupil with a disability is placed within the host county by courts, regional centers or other agencies for other than educational reasons;
(5) Development of a mental health assessment plan and its implementation;
(6) The participation of qualified mental health professionals at the IEP team meetings pursuant to subsections (d) and (e) of Section 7572 and Section 7572.5 of the Government Code;
(7) At least ten (10) working days prior notice to the community mental health service of all IEP team meetings, including annual IEP reviews, when the participation of its staff is required;
(8) The development, review or amendment of the portions of the IEP relating to mental health services, including the goals and objectives of mental health services in accordance with Title 20, United States Code Section 1414(d)(1)(A)(vi);
(9) The provision of mental health services as soon as possible following the development of the IEP pursuant to Section 300.342 of Title 34 of the Code of Federal Regulations;
(10) Description of the length and duration of mental health services and transportation beyond the traditional school year including the extended year program;
(11) The transportation of pupils with disabilities when necessary for the provision of mental health services pursuant to the IEP and Section 60200(d)(1)(2);
(12) The provision of space, support staff and services at the school site, as appropriate, for the delivery of mental health services;
(13) The identification of a continuum of placement options. These options may include day, public, and state certified nonpublic, nonsectarian school programs, and residential facilities as listed in Section 60025. The community mental health service and the SELPA shall identify a list of mental health, education, and community services that may serve as alternatives to a residential placement for a pupil with a disability who is seriously emotionally disturbed;
(14) The provision of a system for monitoring contracts with nonpublic, nonsectarian schools to ensure that services on the IEP are provided;
(15) The development of a resource list composed of qualified mental health professionals who conduct mental health assessments and provide mental health services. The community mental health service shall provide the LEA with a copy of this list and monitor these contracts to assure that services as specified on the IEP are provided;
(16) The residential placement of a pupil pursuant to Section 60100;
(17) Mutual staff development for education and mental health staff pursuant to Section 7586.6(a) of the Government Code.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 5608, Welfare and Institutions Code; Sections 56140, 56321 and 56344, Education Code; and Section 1414(d), Title 20, United States Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 2 (sections 60030-60055) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 2 (sections 60030-60055) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 2 (sections 60030-60055) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (b), (c)(2)-(4), (c)(6)-(8), (c)(10) and (c)(17) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60040. Referral to Community Mental Health Services for Related Services.
Note • History
(a) A LEA, IEP team, or parent may initiate a referral for assessment of a pupil's social and emotional status pursuant to Section 56320 of the Education Code. Based on the results of assessments completed pursuant to Section 56320, an IEP team may refer a pupil who has been determined to be an individual with exceptional needs or is suspected of being an individual with exceptional needs as defined in Section 56026 of the Education Code and who is suspected of needing mental health services to a community mental health service when a pupil meets all of the criteria in paragraphs (1) through (5) below. Referral packages shall include all documentation required in subsection (b) and shall be provided within five (5) working days of the LEA's receipt of parental consent for the referral of the pupil to the community mental health service.
(1) The pupil has been assessed by school personnel in accordance with Article 2, commencing with Section 56320, of Chapter 4 of Part 30 of the Education Code.
(2) The LEA has obtained written parental consent for the referral of the pupil to the community mental health service, for the release and exchange of all relevant information between the LEA and the community mental health service, and for the observation of the pupil by qualified mental health professionals in an educational setting.
(3) The pupil has emotional or behavioral characteristics that:
(A) Are observed by qualified educational staff as defined in subsection (z) of Section 3001 of Title 5 of the California Code of Regulations in educational and other settings, as appropriate.
(B) Impede the pupil from benefiting from educational services.
(C) Are significant, as indicated by their rate of occurrence and intensity.
(D) Are associated with a condition that cannot be described solely as a social maladjustment as demonstrated by deliberate noncompliance with accepted social rules, a demonstrated ability to control unacceptable behavior and the absence of a treatable mental disorder.
(E) Are associated with a condition that cannot be described solely as a temporary adjustment problem that can be resolved with less than three months of school counseling.
(4) As determined using educational assessments, the pupil's functioning, including cognitive functioning, is at a level sufficient to enable the pupil to benefit from mental health services.
(5) The LEA has provided counseling, psychological, or guidance services to the pupil pursuant to Section 56363 of the Education Code, and the IEP team has determined that the services do not meet the pupil's educational needs; or, in cases where these services are clearly inappropriate, the IEP team has documented which of these services were considered and why they were determined to be inappropriate.
(b) When referring a pupil to a community health service in accordance with subsection (a), the LEA or the IEP team shall provide the following documentation:
(1) Copies of the current IEP, all current assessment reports completed by school personnel in all areas of suspected disabilities pursuant to Article 2, commencing with Section 56320, of Chapter 4 of Part 30 of the Education Code, and other relevant information, including reports completed by other agencies.
(2) A copy of the parent's consent obtained as provided in subsection (a)(2).
(3) A summary of the emotional or behavioral characteristics of the pupil, including documentation that the pupil meets the criteria in paragraphs (3) and (4) of subsection (a).
(4) A description of the school counseling, psychological, and guidance services, and other interventions that have been provided to the pupil, including the initiation, duration and frequency of the services, or an explanation of why a service was considered for the pupil and determined to be inappropriate.
(c) Based on preliminary results of assessments performed pursuant to Section 56320 of the Education Code, a LEA may refer a pupil who has been determined to be or is suspected of being an individual with exceptional needs, and is suspected of needing mental health services, to a community mental health service when a pupil meets the criteria in paragraphs (1) and (2) below. Referral packages shall include all documentation required in subsection (d) and shall be provided within one (1) working day to the community mental health service.
(1) The pupil meets the criteria in paragraphs (2) through (4) of subsection (a).
(2) School counseling, psychological and guidance services are clearly inappropriate in meeting the pupil's needs.
(d) When referring a pupil to a community mental health service in accordance with subsection (c), the LEA shall provide the following documentation:
(1) Results of preliminary assessments, including those conducted by school personnel in accordance with Article 2, commencing with Section 56320, of Chapter 4 of Part 30 of the Education Code, to the extent they are available, and other relevant information, including reports completed by other agencies.
(2) A copy of the parent's consent obtained as provided in paragraph (2) of subsection (a).
(3) A summary of the emotional or behavioral characteristics of the pupil, including documentation that the pupil meets the criteria in paragraphs (3) and (4) of subsection (b).
(4) An explanation as to why school counseling, psychological and guidance services are clearly inappropriate in meeting the pupil's needs.
(e) The procedures set forth in this chapter are not designed for use in responding to psychiatric emergencies or other situations requiring immediate response. In these situations, a parent may seek services from other public programs or private providers, as appropriate. Nothing in this subsection changes the identification and referral responsibilities imposed on local education agencies under Article 1, commencing with Section 56300, of Chapter 4 of Part 30 of the Education Code.
(f) The community mental health service shall accept all referrals for mental health assessments made pursuant to subsections (a) and (c).
(g) If the community mental health service receives a referral for a pupil with a different county of origin, the community mental health service receiving the referral shall forward the referral within one (1) working day to the county of origin, which shall have programmatic and fiscal responsibility for providing or arranging for provision of necessary services. The procedures described in this subsection shall not delay or impede the referral and assessment process.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 56026, 56300 et seq., 56320 et seq. and 56363, Education Code; and Section 3001, Title 5, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (a), (a)(3)(D), (a)(3)(E), (c) and (g) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
10. Change without regulatory effect amending subsection (a)(3)(A) filed 5-3-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 19).
§60045. Assessment to Determine the Need for Mental Health Services.
Note • History
(a) Within five (5) days of receipt of a referral, pursuant to subsections (a), (c) or (g) of Section 60040, the community mental health service shall review the recommendation for a mental health assessment and determine if such an assessment is necessary.
(1) If no mental health assessment is determined to be necessary, or the referral is inappropriate, the reasons shall be documented by the community mental health service. The community mental health service shall notify the parent and the LEA of this determination within one (1) working day.
(2) If the referral is determined to be incomplete, the reasons shall be documented by the community mental health service. The community mental health service shall notify the LEA within one (1) working day and return the referral.
(b) If a mental health assessment is determined to be necessary, the community mental health service shall notify the LEA, develop a mental health assessment plan, and provide the plan and a consent form to the parent, within 15 days of receiving the referral from the LEA, pursuant to Section 56321 of the Education Code. The assessment plan shall include, but is not limited to, the review of the pupil's school records and assessment reports and observation of the pupil in the educational setting, when appropriate.
(c) The community mental health service shall report back to the referring LEA or IEP team within 30 days from the date of the receipt of the referral by the community mental health service if no parental consent for a mental health assessment has been obtained.
(d) Upon receipt of the parent's written consent for a mental health assessment, the community mental health service shall contact the LEA within one (1) working day to establish the date of the IEP meeting. The LEA shall schedule the IEP meeting to be held within fifty (50) days from the receipt of the written consent pursuant to Section 56344 of the Education Code.
(e) The mental health assessment shall be completed in sufficient time to ensure that an IEP meeting is held within sixty (60) days from the receipt of the written parental consent for the assessment. This time line may only be extended upon the written request of the parent.
(f) The community mental health service assessor shall review and discuss the mental health service recommendation with the parent and appropriate members of the IEP team. The assessor shall also make a copy of the mental health service assessment report available to the parent at least two days prior to the IEP team meeting.
(1) If the parent disagrees with the assessor's mental health service recommendation, the community mental health service shall provide the parent with written notification that they may require the assessor to attend the IEP team meeting to discuss the recommendation. The assessor shall attend the meeting if requested to do so by the parent.
(2) Following the discussion and review of the community mental health service assessor's recommendation, it shall be the recommendation of the IEP team members attending on behalf of the LEA.
(g) The community mental health service shall provide to the IEP team a written assessment report in accordance with Education Code Section 56327.
(h) For pupils with disabilities receiving services under this Chapter, the community mental health service of the county of origin shall be responsible for preparing statutorily required IEP reassessments in compliance with the requirements of this Section.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 56043(c), 56321, 56327 and 56344, Education Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (a)-(b) and (d), repealer and new subsection (e) and amendment of subsections (f) and (h), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
10. Change without regulatory effect amending subsection (e) and Note filed 5-3-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 19).
§60050. Individualized Education Program for Mental Health Services.
Note • History
(a) When it is determined, in accordance with Section 7572 of the Government Code, that a mental health service is necessary for a pupil with a disability to benefit from special education, the following documentation shall be included in the mental health portion of the IEP:
(1) A description of the present levels of social and emotional performance;
(2) The goals and objectives of the mental health services with objective criteria and evaluation procedures to determine whether they are being achieved;
(3) A description of the types of the mental health services to be provided; and
(4) The initiation, duration and frequency of the mental health services.
(5) Parental approval for the provision of mental health services. This signed consent for treatment is in addition to the signed IEP.
(b) When completion or termination of IEP specified health services is mutually agreed upon by the parent and the community mental health service, or when the pupil is no longer participating in treatment, the community mental health service shall notify the parent and the LEA which shall schedule an IEP team meeting to discuss and document this proposed change if it is acceptable to the IEP team.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 300.347, Title 34, Code of Federal Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsection (b) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60055. Transfers and Interim Placements.
Note • History
(a) Whenever a pupil who has been receiving mental health services, pursuant to an IEP, transfers into a school district from a school district in another county, the responsible LEA administrator or IEP team shall refer the pupil to the local community mental health service to determine appropriate mental health services.
(b) The local mental health director or designee shall ensure that the pupil is provided interim mental health services, as specified in the existing IEP, pursuant to Section 56325 of the Education Code, for a period not to exceed thirty (30) days, unless the parent agrees otherwise.
(c) An IEP team, which shall include an authorized representative of the responsible community mental health service, shall be convened by the LEA to review the interim services and make a determination of services within thirty (30) days of the pupil's transfer.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 56325, Education Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 3. Residential Placement
§60100. LEA Identification and Placement of a Seriously Emotionally Disturbed Pupil.
Note • History
(a) This article shall apply only to a pupil with a disability who is seriously emotionally disturbed pursuant to paragraph (i) of Section 3030 of Title 5 of the California Code of Regulations.
(b) When an IEP team member recommends a residential placement for a pupil who meets the educational eligibility criteria specified in paragraph (4) of subsection (c) of Section 300.7 of Title 34 of the Code of Federal Regulations, the IEP shall proceed in the following manner:
(1) An expanded IEP team shall be convened within thirty (30) days with an authorized representative of the community mental health service.
(2) If any authorized representative is not present, the IEP team meeting shall be adjourned and be reconvened within fifteen (15) calendar days as an expanded IEP team with an authorized representative from the community mental health service participating as a member of the IEP team pursuant to Section 7572.5 of the Government Code.
(3) If the community mental health service or the LEA determines that additional mental health assessments are needed, the LEA and the community mental health service shall proceed in accordance with Sections 60040 and 60045.
(c) Prior to the determination that a residential placement is necessary for the pupil to receive special education and mental health services, the expanded IEP team shall consider less restrictive alternatives, such as providing a behavioral specialist and full-time behavioral aide in the classroom, home and other community environments, and/or parent training in the home and community environments. The IEP team shall document the alternatives to residential placement that were considered and the reasons why they were rejected. Such alternatives may include any combination of cooperatively developed educational and mental health services.
(d) When the expanded IEP team recommends a residential placement, it shall document the pupil's educational and mental health treatment needs that support the recommendation for residential placement. This documentation shall identify the special education and related mental health services to be provided by a residential facility listed in Section 60025 that cannot be provided in a less restrictive environment pursuant to Title 20, United States Code Section 1412(a)(5).
(e) The community mental health service case manager, in consultation with the IEP team's administrative designee, shall identify a mutually satisfactory placement that is acceptable to the parent and addresses the pupil's educational and mental health needs in a manner that is cost-effective for both public agencies, subject to the requirements of state and federal special education law, including the requirement that the placement be appropriate and in the least restrictive environment.
(f) The residential placement shall be in a facility listed in Section 60025 that is located within, or in the county adjacent to, the county of residence of the parents of the pupil with a disability, pursuant to paragraph (3) of subsection (a) of Section 300.552 of Title 34 of the Code of Federal Regulations. When no nearby placement alternative which is able to implement the IEP can be identified, this determination shall be documented, and the community mental health service case manager shall seek an appropriate placement which is as close to the parents' home as possible.
(g) Rates for care and supervision shall be established for a facility listed in Section 60025 in accordance with Section 18350 of the Welfare and Institutions Code.
(h) Residential placements for a pupil with a disability who is seriously emotionally disturbed may be made out of California only when no in-state facility can meet the pupil's needs and only when the requirements of subsections (d) and (e) have been met. Out-of-state placements shall be made only in residential programs that meet the requirements of Welfare and Institutions Code Sections 11460(c)(2) through (c)(3). For educational purposes, the pupil shall receive services from a privately operated non-medical, non-detention school certified by the California Department of Education.
(i) When the expanded IEP team determines that it is necessary to place a pupil with a disability who is seriously emotionally disturbed in residential care, the community mental health service shall ensure that:
(1) The mental health services are specified in the IEP in accordance with Title 20, United States Code Section 1414(d)(1)(A)(vi).
(2) Mental health services are provided by qualified mental health professionals.
(j) When the expanded IEP team determines that it is necessary to place a pupil with a disability who is seriously emotionally disturbed in a facility listed in Section 60025, the expanded IEP team shall ensure that placement is in accordance with admission criteria of the facility.
NOTE
Authority cited: Section 7587, Government Code. Sections 10553, 10554, 11462(i) and (j) and 11466.1, Welfare and Institutions Code. Reference: Sections 7576(a) and 7579, Government Code; Sections 11460(c)(2)-(c)(3), 18350 and 18356, Welfare and Institutions Code; Sections 1412 and 1414, Title 20, United States Code; and Sections 300.7 and 300.552, Title 34, Code of Federal Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 3 (sections 60100-60110) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 3 (sections 60100-60110) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 3 (sections 60100-60110) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of section heading, amendment of subsections (b)-(b)(2), (d) and (i)(1) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60110. Case Management for a Pupil with a Disability Who Is Seriously Emotionally Disturbed and Is in a Residential Placement.
Note • History
(a) Upon notification of the expanded IEP team's decision to place a pupil with a disability who is seriously emotionally disturbed into residential care, the local mental health director or designee shall immediately designate a case manager who will perform case management services as described in subsections (b) and (c).
(b) The case manager shall coordinate the residential placement plan of a pupil with a disability who is seriously emotionally disturbed as soon as possible after the decision has been made to place the pupil in a residential placement, pursuant to Section 300.342 of Title 34 of the Code of Federal Regulations.
(1) The residential placement plan shall include provisions, as determined in the pupil's IEP, for the care, supervision, mental health treatment, psychotropic medication monitoring, if required, and education of a pupil with a disability who is seriously emotionally disturbed.
(2) The LEA shall be responsible for providing or arranging for the special education and non- mental health related services needed by the pupil.
(3) When the expanded IEP team determines that it is necessary to place a pupil with a disability who is seriously emotionally disturbed in a community treatment facility, the casemanager shall ensure that placement is in accordance with admission and, continuing stay, and discharge criteria of the community treatment facility.
(c) Case management shall include, but not be limited to, the following responsibilities:
(1) To convene a meeting with the parents and representatives of public and private agencies, including educational staff, and to identify an appropriate residential placement from those defined in Section 60025 and excluding local inpatient, private psychiatric, and state hospital facilities.
(2) To identify, in consultation with the IEP team's administrative designee, a mutually satisfactory placement that is acceptable to the parent and addresses the pupil's educational and mental health needs in a manner that is cost-effective for both public agencies, subject to the requirements of state and federal special education law, including the requirement that the placement be appropriate and in the least restrictive environment.
(3) To complete the payment authorization in order to initiate payments for residential placement in accordance with Section 18351 of the Welfare and Institutions Code.
(4) To assure the completion of the community mental health service and LEA financial paperwork or contracts for the residential placement of a pupil with a disability who is seriously emotionally disturbed.
(5) To develop the plan and assist the family with the pupil's social and emotional transition from home to the residential placement and the subsequent return to the home.
(6) To facilitate the enrollment in the residential placement of a pupil with a disability who is seriously emotionally disturbed.
(7) To notify the LEA that the placement has been arranged and to coordinate the transportation of the pupil to the facility if needed.
(8) To conduct quarterly face-to-face contacts at the residential facility with a pupil with a disability who is seriously emotionally disturbed to monitor the level of care and supervision and the provision of the mental health services as required by the IEP. In addition, for children placed in a community treatment facility, an evaluation shall be made within every 90 days of the residential placement of the pupil to determine if the pupil meets the continuing stay criteria as defined in Welfare and Institutions Code Section 4094 and implementing mental health regulations.
(9) To notify the parent and the LEA or designee if there is a discrepancy between the level of care, supervision, or provision of mental health services and the requirements of the IEP.
(10) To schedule and attend the next expanded IEP team meeting with the expanded IEP team's administrative designee within six months of the residential placement of a pupil with a disability who is seriously emotionally disturbed and every six months thereafter as long as the pupil remains in residential placement.
(11) To facilitate placement authorization from the county's interagency placement committee pursuant to Section 4094.5(e)(1) of the Welfare and Institutions Code, by presenting the case of a pupil with a disability who is seriously emotionally disturbed prior to placement in a community treatment facility.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 4094, Welfare and Institutions Code; Section 300.342, Title 34, Code of Federal Regulations; and Section 3061, Title 5, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (b)(1), (c)(3) and (c)(10) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 4. Financial Provision for Mental Health Services, Special Education and Residential Placement
§60200. Financial Responsibilities.
Note • History
(a) The purpose of this article is to establish conditions and limitations for reimbursement for the provision of special education instruction, designated instruction and services, related services, and residential placement described in Articles 2 and 3 of this chapter.
(b) Special education instruction, designated instruction and services, related services, and residential placements are to be provided at no cost to the parent.
(c) The community mental health service of the county of origin shall be responsible for the provision of assessments and mental health services included in an IEP in accordance with Sections 60045, 60050, and 60100. Mental health services shall be provided either directly by the community mental health service or by contractors. All services shall be delivered in accordance with Section 523 of Title 9 of the California Code of Regulations.
(1) The host county shall be responsible for making its provider network available and shall provide the county of origin a list of appropriate providers used by the host county's managed care plan who are currently available to take new referrals. Counties of origin shall negotiate with host counties to obtain access to limited resources, such as intensive day treatment and day rehabilitation.
(2) The county of origin may also contract directly with providers at a negotiated rate.
(d) The LEA shall be financially responsible for:
(1) The transportation of a pupil with a disability to and from the mental health services specified on the pupil's IEP and in accordance with subsection (a) of Section 300.13 of Title 34 of the Code of Federal Regulations;
(2) The transportation of a pupil to and from the residential placement as specified on the IEP and in accordance with Section 56221 of the Education Code; and
(3) The special education instruction, non-mental health related services, and designated instruction and services agreed upon in the nonpublic, nonsectarian school services contract or a public program arranged with another SELPA or LEA.
(e) The community mental health service shall be responsible for authorizing payment to the facilities listed in Section 60025 based upon rates established by the Department of Social Services in accordance with Sections 18350 through 18356 of the Welfare and Institutions Code.
(f) Upon receipt of the authorization from the community mental health service, pursuant to subsection (e), including documentation that the pupil is eligible for residential placement as a seriously emotionally disturbed pupil, the county welfare department shall issue payments in accordance with Section 18351 of the Welfare and Institutions Code to providers of residential placement.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 18350-18356, Welfare and Institutions Code; and Section 300.13, Title 34, Code of Federal Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 4 (section 60200) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 4 (section 60200) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 4 (section 60200) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (d)(1) and amendment of Note, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 5. Occupational Therapy and Physical Therapy
§60300. California Children's Services (CCS) Medical Therapy Program Definitions.
Note • History
(a) “Assessment for medically necessary occupational therapy and physical therapy” means the comprehensive evaluation of the physical and functional status of a pupil who has a medical therapy program eligible condition.
(b) “Asessment plan” for the CCS Medical Therapy Program for pupils with a disability who have an IEP means a written statement describing proposed:
(1) Procedures necessary for determination of medical eligibility for the CCS medical therapy program; or
(2) Procedures necessary for the redetermination of need for medically necessary physical therapy or occupational therapy for a pupil known to be eligible for the CCS medical therapy program.
(c) “Assessment report for therapy” means a written document of the results of a pupil's assessment for medically necessary occupational therapy or physical therapy.
(d) “CCS Panel” means that group of physicians and other medical providers of services who have applied to and been approved by CCS.
(e) “Dependent county agency” means the CCS administrative organization in a county that administers the CCS program jointly with the State pursuant to Sections 123850 and 123905 of the Health and Safety Code.
(f) “Documented physical deficit” refers to a pupil's motor dysfunction recorded on the referral for special education and related services by the Local Education Agency and documented in the pupil's CCS medical record.
(g) “Independent county agency” means the CCS administrative organization in a county that administers the CCS program independently pursuant to Section 123850 of the Health and Safety Code.
(h) “Medical therapy conference” means a team meeting held in the medical therapy unit where medical case management for the pupil's medical therapy program eligible condition is provided by the medical therapy conference team as described in (i).
(i) “Medical therapy conference team” means a team composed of the pupil, parent, physician and occupational therapist and/or physical therapist, or both. The team may include, with the consent of the pupil's parent(s), an education representative who is present for the purpose of coordination with medical services.
(j) “Medical therapy program eligible condition” are those diagnoses that make a pupil eligible for medical therapy services and include the following diagnosed neuromuscular, musculoskeletal, or muscular diseases:
(1) Cerebral palsy, a nonprogressive motor disorder with onset in early childhood resulting from a lesion in the brain and manifested by the presence of one or more of the following findings:
(A) Rigidity or spasticity;
(B) Hypotonia, with normal or increased deep tendon reflexes and exaggeration or persistence of primitive reflexes beyond the normal age;
(C) Involuntary movements, athetoid, choreoid, or dystonic; or
(D) Ataxia, incoordination of voluntary movement, dysdiadochokinesia, intention tremor, reeling or shaking of trunk and head, staggering or stumbling, and broad-based gait.
(2) Other neuromuscular diseases that produce muscle weakness and atrophy, such as poliomyelitis, myasthenias, muscular dystrophies;
(3) Chronic musculoskeletal diseases, deformities or injuries, such as osteogenesis imperfecta, arthrogryposis, rheumatoid arthritis, amputation, and contractures resulting from burns.
(k) “Medical therapy services” are occupational therapy or physical therapy services that require a medical prescription and are determined to be medically necessary by CCS. Medical therapy services include:
(1) “Treatment”, an intervention to individuals or groups of pupils in which there are occupational therapy or physical therapy services as per California Business and Professions Code, Chapter 5.7, Article 2, Section 2620.
(2) “Consultation”, an occupational therapy or physical therapy activity that provides information and instruction to parents, care givers or LEA staff, and other medical services providers;
(3) “Monitoring”, a regularly scheduled therapy activity in which the therapist reevaluates the pupil's physical status, reviews those activities in the therapy plan which are provided by parents, care givers or LEA staff, and updates the therapy plan as necessary; and
(4) Medical therapy conference as defined in (h).
(l) “Medical therapy unit” means a CCS and LEA approved public school location where medical therapy services, including comprehensive evaluations and medical therapy conferences, are provided by CCS.
(m) “Medical therapy unit satellite” means a CCS and LEA approved extension of an established medical therapy unit where medical therapy services may be provided by CCS. Comprehensive evaluations and medical therapy conferences are not a part of medical therapy unit satellite services.
(n) “Medically necessary occupational therapy or physical therapy services” are those services directed at achieving or preventing further loss of functional skills, or reducing the incidence and severity of physical disability.
(o) “Necessary equipment” means that equipment, provided by the LEA, which is required by the medical therapy unit staff to provide medically necessary occupational therapy and/or physical therapy services to a pupil with a medical therapy program eligible condition.
(p) “Necessary space” means the facilities, which are provided by the LEA for a medical therapy unit or a medical therapy unit satellite, and enable the medical therapy unit staff to provide medically necessary therapy services to a pupil with a medical therapy program eligible condition.
(q) “Occupational therapy and physical therapy” mean services provided by or under the supervision of occupational therapists and physical therapists pursuant to California Code of Regulations, Title 5, Section 3051.6(b).
(r) “Therapy plan” means the written recommendations for medically necessary occupational therapy or physical therapy services based on the results of the therapy assessment and evaluation and is to be included in the individualized education program or individualized family service plan.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7575, Government Code; Sections 123825, 123850, 123875 and 123905, Health and Safety Code; Sections 3001(x) and 3051.6(b) of Title 5, California Code of Regulations; and Section 2620 of Chapter 5.7, Article 2, California Business and Professions Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 5 (sections 60300-60330) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 5 (sections 60300-60330) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 5 (sections 60300-60330) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsection (f), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60310. Local Interagency Agreements Between CCS and Education Agencies.
Note • History
(a) In order to facilitate the provision of services described in subdivisions (a), (b), (d), and (e) of Section 7572 of the Government Code and subdivisions (a), (b), and (d) of Section 7575 of the Government Code, each independent county agency and each authorized dependent county agency of CCS shall appoint a liaison for the county agency of CCS. The county Superintendent of Schools or SELPA director shall ensure the designation of a liaison for each SELPA in each local plan.
(b) In the event of multi-SELPA counties or multi-county SELPAs, the liaisons representing education and CCS shall develop a process for interagency decision making that results in a local interagency agreement.
(c) Each independent county agency and each dependent county agency of CCS and the county Superintendent of Schools or SELPA director shall ensure the development and implementation of a local interagency agreement in order to facilitate the provision of medically necessary occupational therapy and physical therapy which shall include at a minium a delineation of the process for:
(1) Identifying a contact person within each LEA in the SELPA and within each CCS county agency;
(2) Referring pupils, birth to twenty-one years of age, who may have or are suspected of having a neuromuscular, musculoskeletal, or other physical impairment who may require medically- necessary occupational therapy or physical therapy.
(3) Exchanging between the agencies the educational and medical information concerning the pupil with a disability upon receiving the parent's written, informed consent obtained in accordance with Section 300.500 of Title 34 of the Code of Federal Regulations.
(4) Giving 10 days notice to the county CCS agency of all IEP team meetings for pupils served by CCS medical therapy program;
(5) Giving 10 days notice to the LEA and the parent of an impending change in the CCS medical therapy program services which may necessitate a change in the IEP;
(6) Describing the methods of participation of CCS in the IEP team meetings pursuant to Government Code Section 7572(e);
(7) Developing or amending the therapy services indicated in the pupil's IEP in accordance with Section 56341 of the Education Code;
(8) Transporting pupils with disabilities to receive medically-necessary occupational therapy or physical therapy services at the medical therapy unit or medical therapy unit satellite;
(9) Determining the need for and location of medical therapy units or medical therapy unit satellites, or other off-site facilities authorized by state CCS and the California Department of Education;
(10) Approving the utilization of designated therapy space when not in use by CCS staff.
(11) Planning for joint staff development activities;
(12) Resolving conflicts between the county CCS agency and the LEA; and
(13) Annually reviewing the local interagency agreement and modifying it as necessary.
(d) The local interagency agreement shall also include:
(1) The name of the LEA responsible for the provision, maintenance, and operation of the facilities housing the medical therapy unit or medical therapy unit satellite during the CCS work day on a twelve-month basis;
(2) The name of the LEA having the fiscal/administrative responsibility for the provision and maintenance of necessary space, equipment, and supplies; and
(3) The process for change in fiscal/administrative responsibility for the provision and maintenance of necessary space, equipment, and supplies.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7572 and 7575, Government Code; Section 123875, Health and Safety Code; Section 300.500 of Title 34, Code of Federal Regulations; and Section 56341, Education Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60320. Referral and Assessment.
Note • History
(a) Pupils referred to the LEA for assessment of fine and gross motor or physical skills shall be considered for assessment either by the LEA or by CCS depending on the information contained in the referral and the pupil's documented physical deficit pursuant to Section 7572 of the Government Code.
(b) If the LEA determines that a referral to CCS is not appropriate, the LEA shall propose an assessment plan to the parents.
(c) If the pupil is referred to CCS by the LEA, the referral must be accompanied by:
(1) The pupil's medical diagnosis;
(2) Current medical records;
(3) Parental permission for exchange of information between agencies; and
(4) Application for the CCS program if the pupil is unknown to CCS.
(d) If medical eligibility cannot be determined by medical records submitted, CCS shall:
(1) Notify the parent and LEA within 15 days of the receipt of the referral;
(2) Seek additional medical information; and
(3) If the additional medical information sought in subdivision (2) does not establish medical eligibility, and if the pupil's diagnosis is cerebral palsy, then refer the pupil to a CCS panel physician for a neurological examination.
(e) If CCS determines that the pupil is ineligible because the pupil's medical condition is not a medical therapy program eligible condition, CCS shall notify the parent and LEA within five days of the determination of eligibility status for the medical therapy program.
(f) If CCS determines the pupil has a medical therapy program eligible condition, CCS shall propose a therapy assessment to the parents and obtain written consent for the assessment of the need for medically-necessary occupational therapy or physical therapy. This assessment for therapy shall be implemented not more than 15 days following the determination of whether the pupil has a medical therapy program eligible condition.
(g) Upon receipt of the parent's written consent for an assessment, the CCS agency shall send a copy of the parent's consent to the LEA which shall establish the date of the IEP team meeting. The LEA shall schedule an IEP team meeting to be held within 50 days from the date parental consent is received by CCS.
(h) When CCS determines a pupil needs medically necessary occupational therapy or physical therapy, CCS shall provide the LEA and the parent a copy of the completed assessment report for therapy or a proposed therapy plan prior to the scheduled IEP meeting.
(i) When CCS determines a pupil does not need medically-necessary physical therapy or occupational therapy, the LEA and the parent shall be provided with the completed assessment report for therapy and a statement which delineates the basis for the determination.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7572 and 7575(a), Government Code; Sections 123830, 123860 and 123875, Health and Safety Code; Section 300.532 of Title 34, Code of Federal Regulations; Sections 56320, 56321, 56329 and 56344, Education Code; and Section 3051.6 of Title 5, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsections (d)(1), (e) and (i), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60323. Medical Therapy Program Responsibilities.
Note • History
(a) The Medical Therapy Conference shall assess the pupil's need for occupational therapy and physical therapy. The determination of medical necessity shall be based on the pupil's physical and functional status.
(b) The Medical Therapy Conference shall review the therapy plan to ensure the inclusion of measurable functional goals and objectives for services to be performed by occupational therapists and physical therapists, as well as activities that support the goals and objectives to be performed by parents or LEA staff to maintain or prevent loss of function.
(c) The Medical Therapy Conference team shall be responsible for approval of therapy plans and either the Medical Therapy Conference physician shall write the prescription for those services provided to pupils under his supervision or review those prescriptions submitted by the pupil's private physician for compliance with (a) and (b) of this section.
(d) Medically necessary therapy services are provided at a level dependent on the pupil's physical and functional status as determined and prescribed by the CCS paneled physician of the specialty appropriate for treating the pupil's Medical Therapy Program eligible condition and who has been authorized by the program to supervise the pupil's Medical Therapy Program eligible condition.
(e) The medical necessity of occupational therapy or physical therapy services delivered to pupils not participating in a Medical Therapy Conference because there is not a Medical Therapy Conference in their geographical area shall be determined by the state program medical consultant or CCS designee.
(f) Medical therapy services must be provided by or under the supervision of a registered occupational therapist or licensed physical therapist in accordance with CCS regulations and requirements. This therapy does not include fine and gross motor activities which can be provided by qualified personnel, pursuant to California Code of Regulations, Title 5, Section 2620.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7575, Government Code; Sections 123825, 123850 and 123905, Health and Safety Code; and Section 3001(x) of Title 5, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsection (b), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60325. Individualized Education Program for Therapy Services.
Note • History
(a) CCS shall provide a copy of the assessment and evaluation report and the proposed therapy plan to the IEP team which shall include:
(1) A statement of the pupil's present level of functional performance;
(2) The proposed functional goals to achieve a measurable change in function or recommendations for services to prevent loss of present function and documentation of progress to date;
(3) The specific related services required by the pupil, including the type of physical therapy or occupational therapy intervention, treatment, consultation, or monitoring;
(4) The proposed initiation, frequency, and duration of the services to be provided by the medical therapy program; and
(5) The proposed date of medical evaluation.
(b) CCS shall participate in the IEP team as set forth in Government Code Section 7572(e).
(c) CCS shall notify the IEP team and parent in writing within 5 days of a decision to increase, decrease, change the type of intervention, or discontinue services for a pupil receiving medical therapy services. If the parent is present at time the decision is made, he or she will also be verbally informed of the decision.
(d) The IEP team shall be convened by the LEA pursuant to subsection (c) of this section or when there is an annual or triennial review or a review requested by the parent or other authorized persons.
(e) The LEA shall convene the IEP team to review all assessments, request additional assessments if needed, determine whether fine or gross motor or physical needs exist, and consider designated instruction and services or related services that are necessary to enable the pupil to benefit from the special education program.
(f) When the IEP team determines that occupational therapy or physical therapy services are necessary for the pupil to benefit from the special education program, goals and objectives relating to the activities identified in the assessment reports shall be written into the IEP and provided by personnel qualified pursuant to the California Code of Regulations, Title 5, Section 3051.6.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7572(e) and 7575, Government Code; Section 56345, Education Code; and Section 3051.6 of Title 5, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsection (a)(4), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60330. Space and Equipment for Occupational Therapy and Physical Therapy.
Note • History
(a) The medical therapy unit shall have necessary space and equipment to accommodate the following functions: administration, medical therapy conference, comprehensive evaluation, private treatment, activities of daily living, storage, and modification of equipment. The specific space and equipment requirements are dependent upon local needs as determined by joint agreement of state CCS, county CCS, and LEAs, and approved by both the California Department of Education and the State Department of Health Services.
(b) The space and equipment of the medical therapy unit and medical therapy unit satellites shall be for the exclusive use of the CCS' staff when they are on site. The special education administration of the LEA in which the units are located shall coordinate with the CCS' staff for other use of the space and equipment when the CCS' staff is not present.
(c) All new construction, relocation, remodeling or modification of medical therapy units and medical therapy unit satellites shall be mutually planned and approved by the California Department of Education and the State Department of Health Services.
NOTE
Authority Cited: Section 7587, Government Code. Reference: Section 7575(d), Government Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 6. Home Health Aide
§60400. Specialized Home Health Aide.
Note • History
(a) The Department of Health Services shall be responsible for providing the services of a home health aide when the local education agency (LEA) considers a less restrictive placement from home to school for a pupil for whom both of the following conditions exist:
(1) The California Medical Assistance Program (Medi-Cal) provides life-supporting medical services via a home health agency during the time the pupil would be in school or traveling between school and home.
(2) The medical services provided require that the pupil receive the personal assistance or attention of a nurse, home health aide, parent or guardian, or some other specially trained adult in order to be effectively delivered.
(b) For purposes of this section, “life supporting medical services” means services to a pupil with a disability that is dependent on a medical technology or device that compensates for loss of the normal use of vital bodily function and who requires daily skilled nursing care to divert further disability or death.
(c) The department shall determine the appropriate level of care-giver, based on medical necessity, to provide the services.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7575(e), Government Code; and Section 51337 of Title 22, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 6 (section 60400) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 6 (section 60400) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 6 (section 60400) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 7. Exchange of Information Between Education and Social Services
§60505. Community Care Facilities.
Note • History
(a) The Department of Social Services shall biannually provide the Superintendent of Public Instruction a current rates list of group homes and foster family agencies.
(b) The Superintendent of Public Instruction shall biannually provide each county office of education a current list of licensed children's institutions pursuant to Section 56156 of the Education Code.
(c) The county superintendent of schools, in accordance with Section 56156(d) of the Education Code, shall biannually provide the SELPA director a current list of the licensed children's institutions within the county.
(d) The county office of education shall notify the director of each licensed children's institution of the appropriate person to contact regarding pupils with disabilities.
(e) The SELPA director and the administrator of the LEA in which a group home or small family home is located shall provide the facility licensee the following information:
(1) The types and locations of public and state certified nonpublic, nonsectarian special education programs available within the SELPA; and
(2) The ability of the LEAs within the SELPA to absorb, expand, or to open new programs to meet the needs of the pupil population given the limitations of instructional personnel service units, available school facilities, funds, and staff.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7580, Government Code; and Section 56156, Education Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 7 (sections 60505-60510) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 7 (sections 60505-60510) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 7 (sections 60505-60510) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Note • History
(a) The court, regional center for the developmentally disabled, or public agency other than an educational agency shall notify the SELPA director, in writing or by telephone, prior to placing a pupil with a disability in a facility listed in Section 60025, and provide the following relevant information within ten days:
(1) The name of the last school attended, the contact person at that school, and the available educational records, including the current IEP.
(2) A copy or summary of the most recent psychological and medical records relevant to educational planning which are maintained by the agency.
(3) The name, address and telephone number of the parent who has the responsibility to represent the pupil in educational matters and to sign the IEP for special education, designated instruction and services and related services.
(4) The name, address and telephone number of the individual with designated responsibility to sign for consent for non-emergency medical services.
(5) The name of the administrator/designee, address, telephone number, and licensing status of a home under consideration for the pupil.
(6) A description of any special considerations related to transporting the pupil.
(7) Signed consents by the parent to exchange information relevant to IEP planning and individual program planning.
(8) When an agency makes an emergency placement to protect the physical, mental health or safety of a pupil, the agency shall furnish the SELPA director the required information within three days after the placement.
(b) The SELPA director shall provide the placing agency with information about the availability of an appropriate special education program in the SELPA in which the home is located. This should occur within seven days of receipt of the notice of placement.
(1) If no appropriate special education placements exist within the SELPA, and the placement options are home instruction or in a public or nonpublic facility located in another SELPA, the placing agency should make every effort to place the pupil in another SELPA that has appropriate available residential and educational programs.
(2) When the agency places a pupil in a licensed children's institution, as defined in this Chapter which has an on-grounds, certified, nonpublic, nonsectarian school, the pupil may attend the education program only if the SELPA's IEP team has determined that there is no appropriate public education program in the community and that the on-grounds program is appropriate and can implement the pupil's IEP.
(3) When the IEP team makes the determination that the on-grounds program is appropriate, the LEA may then contract for educational services with the nonpublic school.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7579 and 7580, Government Code; and Section 56156, Education Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 8. Procedural Safeguards
Note • History
(a) Due process hearing procedures apply to the resolution of disagreements between a parent and a public agency regarding the proposal or refusal of a public agency to initiate or change the identification, assessment, educational placement, or the provision of special education and related services to the pupil.
(b) Upon receiving a request for a due process hearing regarding the services provided or refused by another agency, the Superintendent of Public Instruction or designee shall send the state and local agency involved a copy of the hearing request, the name of the assigned mediator, and the date of the mediation meeting in accordance with Section 56503 of the Education Code. Nothing in this section shall preclude any party from waiving mediation.
(c) If the mediator cannot resolve the issues, a state level hearing shall be conducted by a hearing officer in accordance with Section 56505 of the Education Code.
(d) Each agency which is identified by the State Superintendent of Public Instruction or designee as a potentially responsible party and which has been involved in a proposal or refusal to provide a service is responsible for preparing documentation and providing testimony for the hearing officer.
(e) The hearing officer shall be knowledgeable in the laws governing administrative hearings. In addition, the hearing officer shall be knowledgeable about the provisions of Chapter 26.5 of the Government Code and applicable laws relevant to special education, community mental health and the California Children's Services Program. For hearings related to the provision of occupational and/or physical therapy, the hearing officer shall rule according to Government Code Section 7575(a) which specifies:
(1) “Notwithstanding any other provision of law, the State Department of Health Services, or any designated local agency administering the California Children Services, shall be responsible for the provision of medically necessary occupational therapy and physical therapy, as specified by Article 2, commencing with Section 123825 et. seq. of the Health and Safety Code, by reason of medical diagnosis and when contained in the pupil's IEP.
(2) Related services or designated instruction and services not deemed to be medically necessary by the State Department of Health Services, which the IEP team determines are necessary in order to assist a pupil to benefit from special education, shall be provided by the LEA by qualified personnel whose employment standards are covered by the Education Code and implementing regulations.”
(f) The hearing decision shall be the final administrative determination regarding the provision of educational and related services, and is binding on all parties.
(g) Nothing in this article shall preclude the Department of Social Services from instituting, maintaining and concluding an administrative action to revoke or temporarily suspend a license pursuant to the Community Care Facilities Act, Health and Safety Code Section 1500 et. Seq.
(h) Nothing in this article shall interfere with the discharge of a pupil placed in a community treatment facility who does not meet admission or continuing stay criteria and/or does meet discharge criteria as defined in Welfare and Institutions Code Section 4094 and implementing CCL regulations.
(i) The California Department of Education is fiscally responsible for services provided by the mediator and the hearing officer in response to a parent's request for a due process hearing.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7586, Government Code; Sections 56501-56507, Education Code; Section 3082 of Title 5, California Code of Regulations; Section 4094, Welfare and Institutions Code; Corbett v. Regional Center of the East Bay Inc. and Linda McMahon, Director of the Department of Social Services, (1988) 9th Cir. 699 F. Supp. 230; In re Roger S. (1977) 19 Cal.3d. 921; and In re Michael E. (1975) 15 Cal.3d. 183.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 8 (sections 60550-60560) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 8 (sections 60550-60560) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 8 (sections 60550-60560) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsection (e), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
§60560. Compliance Complaints.
Note • History
Allegations of failure by an LEA, Community Mental Health Services or CCS to comply with these regulations, shall be resolved pursuant to Chapter 5.1, commencing with Section 4600, of Division 1 of Title 5 of the California Code of Regulations.
NOTE
Authority cited: Section 7587, Government Code. Reference: Section 7585, Government Code; and Section 4650, Title 5, California Code of Regulations.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including repealer of subsection (a) designator and amendment of section, transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Article 9. Interagency Dispute Resolution
§60600. Application of Procedures.
Note • History
(a) The procedures of this article apply as specified in Government Code 7585, when there is a dispute between or among the California Department of Education or a LEA or both and any agency included in Sections 7575 and 7576 of the Government Code over the provision of related services, when such services are contained in the IEP of a pupil with a disability. This article also applies when the responsibility for providing services, ordered by a hearing officer or agreed to through mediation pursuant to Sections 56503 and 56505 of the Education Code, is in dispute among or between the public agencies.
(b) A dispute over the provision of services means a dispute over which agency is to deliver or to pay for the services when the service is contained in the IEP, mediation agreement, or due process hearing decision. The IEP of a pupil with a disability, and, when appropriate, a copy of the mediation agreement negotiated through the mediator or decision of the hearing officer shall accompany the request for a state interagency dispute resolution.
(c) As specified in Section 7585 of the Government Code, when a service has been included in an IEP by an IEP team without the recommendation of the qualified professional in accordance with Section 7572 of the Government Code, the LEA shall be solely responsible for the provision of the service. In such circumstances, the dispute, if any, is between the parent and the LEA and shall be resolved pursuant to Title 5 of the California Code of Regulations.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7572 and 7585, Government Code; and Sections 56503 and 56505, Education Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New article 9 (sections 60600-60610) and section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance mustbe transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New article 9 (sections 60600-60610) and section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New article 9 (sections 60600-60610) and section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order, including amendment of subsection (b), transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Note • History
(a) Whenever notification is filed pursuant to subsection (a) of Section 7585 of the Government Code, the dispute procedures shall not interfere with a pupil with a disability's right to receive a free, appropriate public education.
(1) If one of the departments or local agencies specified in Sections 7575, 7576, 7577, and 7578 of the Government Code has been providing the service prior to notification of the failure to provide a related service or designated instruction and service, that department or local agency shall pay for, or provide, at it's discretion, the service until the dispute resolution proceedings are completed.
(2) If no department or local agency specified in this section has provided the service prior to the notification of the dispute, the State Superintendent of Public Instruction shall ensure that the LEA provides the service in accordance with the IEP, until the dispute resolution proceedings are completed.
(3) Arrangements, other than those specified in paragraphs (1) and (2) of subsection (a), may be made by written agreement between the involved public agencies, provided the pupil with disabilities' IEP is not altered, except as to which agency delivers or pays for the service if such specification is included in the IEP.
(b) In resolving the dispute, the State Superintendent of Public Instruction and Secretary of the Health and Welfare Agency or their designees shall meet to resolve the issue within 15 days of receipt of the notice.
(c) Once the dispute resolution procedures have been completed, the department or local agency determined responsible for the service shall pay for, or provide the service, and shall reimburse the other agency which provided the service pursuant to subsection (a) of this section, if applicable.
(d) A written copy of the resolution shall be mailed to affected parties pursuant to Section 7585 of the Government Code.
(e) The resolution of the dispute shall be communicated to the originating party within 60 days from the receipt of the complaint by either agency.
NOTE
Authority cited: Section 7587, Government Code. Reference: Sections 7575, 7576, 7577, 7578 and 7585, Government Code.
HISTORY
1. New section refiled 5-1-87 as an emergency; designated effective 5-1-87 (Register 87, No. 30). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-31-87.
2. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1988 pursuant to Item 4440-131-001(b)(2), Chapter 135, Statutes of 1987 (Register 87, No. 46).
3. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) shall not be subject to automatic repeal until the final regulations take effect on or before June 30, 1997, pursuant to Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
4. Division 9 (Chapter 1, Articles 1-9, Sections 60000-60610, not consecutive) repealed June 30, 1997, by operation of Government Code section 7587, as amended by Stats. 1996, c. 654 (A.B. 2726, §4.) (Register 98, No. 26).
5. New section filed 6-26-98 as an emergency; operative 7-1-98 (Register 98, No. 26). A Certificate of Compliance must be transmitted to OAL by 10-29-98 or emergency language will be repealed by operation of law on the following day.
6. Editorial correction restoring prior Histories 1-2, adding new Histories 3-4, and renumbering and amending existing History 1 to new History 5 (Register 98, No. 44).
7. New section refiled 10-26-98 as an emergency; operative 10-29-98 (Register 98, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-26-99 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 2-25-99 as an emergency; operative 2-26-99 (Register 99, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-28-99 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 2-25-99 order transmitted to OAL 6-25-99 and filed 8-9-99 (Register 99, No. 33).
Division 10. Bureau of State Audits
Chapter 1. Redistricting
Subchapter 1. Definitions
§60800. Ability to Be Impartial.
Note • History
(a) “Ability to be impartial” means that although an applicant may have strong views, and may have participated in social or political causes, the applicant has the capacity and willingness, while serving as a member of the commission, to set aside his or her personal views and all of the following considerations in order to evaluate information with an open mind and make decisions that are fair to everyone affected, including, but not limited to, the establishment of legislative and State Board of Equalization districts that are in compliance with the United States Constitution, the Voting Rights Act of 1965 (commencing with section 1971 of title 42 of the United States Code), and the criteria set forth in subdivision (d) of section 2 of Article XXI of the California Constitution:
(1) Personal interests including, but not limited to, personal financial interests.
(2) Biases for or against any individuals, groups, or geographical areas.
(3) Support for or opposition to any candidates, political parties, or social or political causes.
(b) An applicant may demonstrate an ability to be impartial through a description of that ability and both of the following:
(1) Having no personal, family, financial relationships, commitments, or aspirations that a reasonable person would consider likely to improperly influence someone making a redistricting decision.
(2) Occupational, academic, volunteer, or other life experiences that show an ability to set aside his or her personal interests, political opinions, and group allegiances to achieve a broad objective.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New division 1 (chapter 1, subchapters 1-3, sections 60800-60855), chapter 1, subchapter 1 (sections 60800-60829) and section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Applicant” means a person who has submitted an application to serve on the commission.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60802. Application Materials.
Note • History
“Application materials” means the electronic and other documents collected by the bureau and the panel from applicants and from members of the public commenting on applicants during the application process. Application materials shall include, but need not be limited to, the following:
(a) Applications and supplemental applications.
(b) Supporting materials for an application or a supplemental application, including, but not limited to, letters of recommendation.
(c) Written public comments and responses to such comments submitted in accordance with section 60846.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Application year” means the calendar year 2010 or any year ending in “0” thereafter.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60804. Appointed to Federal or State Office.
Note • History
“Appointed to” a federal or state office means a person has been appointed to a federal or state office by the Governor, any member of the Legislature, or any member of the State Board of Equalization, or has served in an appointed position at the pleasure of the Governor, a member of the Legislature, or a member of the State Board of Equalization. A person has been appointed to an office regardless of whether the appointment was subsequently confirmed by the Legislature.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60804.1. Appointive Federal, State, or Local Public Office.
Note • History
“Appointive federal, state, or local public office” means the following:
(a) Appointive federal or state public office means a federal or state office that may be filled by appointment by the Governor, any member or members of the Legislature, any member or members of the State Board of Equalization, or any Senator or Representative in the Congress of the United States elected from California.
(b) Appointive local public office means a public office at the county or city level in California, as defined in California Code of Regulations, title 2, section 60815.1, that satisfies all of the following requirements:
(1) Is filled by appointment by a person or persons holding elective public office at the county or city level in California.
(2) Is an office in which the officeholder serves either for a fixed term or at the pleasure of the appointing authority.
(3) Entitles the officeholder to do either or both of the following:
(A) Make governmental decisions affecting persons throughout the jurisdiction of the county, city, special district, school district, joint powers authority, or other political subdivision of the state to which the office belongs and not just affecting persons in a particular geographic area or a particular industry, trade, or profession located within the jurisdiction.
(B) Receive compensation in an amount greater than $5,000 per year, or receive per diem payments at a rate greater than $100 per day.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60805. Appreciation for California's Diverse Demographics and Geography.
Note • History
(a) “Appreciation for California's diverse demographics and geography” means all of the following:
(1) An understanding that California's population consists of individuals sharing certain demographic characteristics that may reflect their preferences concerning political representation, including, but not limited to, race, ethnicity, gender, sexual orientation, and economic status.
(2) An understanding that the people of California reside in many different localities with distinct geographic characteristics that may reflect the preferences of the residents concerning their political representation, including, but not limited to, urban, suburban, rural, industrial, agricultural, coastal, inland, arid, and temperate.
(3) A recognition that California benefits by having effective participation in the electoral process by persons of all demographic characteristics and residing in all geographic locations, including, but not limited to, participation by those persons who in the past, as a consequence of sharing certain demographic characteristics, such as race and ethnicity, have had less opportunity than other members of the electorate to participate in the electoral process.
(b) An applicant may demonstrate an appreciation for California's diverse demographics and geography through a description of that appreciation and through occupational, academic, volunteer, or other life experiences that show this appreciation, such as:
(1) Working on one or more projects that involve or affect Californians having different backgrounds or residing in different areas, and therefore having differing interests, yet achieving results that are acceptable to these different Californians.
(2) Studying the voting behavior of Californians in various areas of the state for the purpose of improving the effectiveness of the electoral process.
(3) Traveling throughout California and meeting with people having different backgrounds, in order to recruit them for employment or some other endeavor, or to build consensus on some issue or idea.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60806. Bona Fide Relationship.
Note • History
“Bona fide relationship established through blood or legal relation” means an existing bona fide relationship between a person and his or her spouse, registered domestic partner, parent, child, sibling, or in-law. A relationship is existing if it has not been terminated by death or dissolution. A relationship is bona fide if it is so substantial in nature that it includes any of the following within the preceding 12 months: cohabitation for a period or periods cumulating 30 days or more; shared ownership of any real or personal property having a cumulative value of $1,000 or more, or either party to the relationship providing a financial benefit to the other having a cumulative value of $1,000 or more. A “financial benefit” includes anything of value, whether tangible or intangible, and includes any payment, gift, discount, or rendering of services.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
History
“Bureau” means the Bureau of State Audits.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Bureau's website” means the official state government website for the Bureau of State Audits or any other website that the State Auditor designates for use during the application process for selecting members of the commission.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Campaign committee of a candidate for elective federal or state office” means the following:
(a) As applied to a candidate for elective federal office, any “authorized committee” of that candidate as defined in section 431(5) of title 2 of the United States Code.
(b) As applied to a candidate for elective state office, any “controlled committee” of the candidate as defined in section 82016 of the Government Code, including, but not limited to, any controlled ballot measure committee.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Candidate” for federal or state office means a candidate for federal or state elective office.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Commissioner” means a member of the Citizens Redistricting Commission.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Conflict of interest” means having engaged in any of the activities or having had any of the relationships specified in subdivision (a)(2) of section 8252 of the Government Code that require disqualification from serving as either a member of the commission or a member of the panel.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Consultant,” means any person who has entered into an agreement to provide consulting services to a political party, campaign committee, the Governor, a member of the Legislature, a member of Congress elected from California, or a member of the State Board of Equalization, either directly or through a business entity in which the person holds at least a ten percent ownership interest. “Consulting services” means expert advice or personal services related to conducting campaign activities or to holding congressional or state office.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60814. Contributed $2,000 or More to Any Congressional, State, or Local Candidate for Elective Public Office in Any Year.
Note • History
“Contributed $2,000 or more to any congressional, state, or local candidate for elective public office in any year” means the following:
(a) “Contributed $2,000 or more” means having made contributions defined as follows:
(1) With respect to contributions to a congressional candidate, contributions as defined in section 431(5) of title 2 of the United States Code.
(2) With respect to contributions to a state or local candidate, contributions as defined in section 82015 of the Government Code.
(3) Notwithstanding paragraph (2), contributions shall not include payments made by a candidate for a local elective public office to support his or her own candidacy for that office.
(4) Except as provided in paragraph (3), a contribution shall be attributed to a contributor in the manner provided by the federal or California laws that govern the contribution.
(b) A congressional candidate for elective public office means any candidate for the office of Senator or Representative in the Congress of the United States elected from California.
(c) A state candidate for elective public office means any candidate for “elective state office” in California, as defined in section 82024 of the Government Code.
(d) A local candidate for elective public office means any candidate for a regional, county, municipal, district, or judicial office in California that is filled by an election.
(e) “In any year” means the period January 1 through December 31 within a single calendar year.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Diversity” means the variety in the racial, ethnic, geographic, economic, and gender characteristics of the population of California.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60815.1. Elective Public Office at Federal, State, County, or City Level in this State.
Note • History
“Elective public office at the federal, state, county, or city level in this State” means the following:
(a) Elective public office at the federal level means an office of Senator or Representative in the Congress of the United States that may be filled by an election in California.
(b) Elective public office at the state level means an “elective state office” in California, as defined in section 82024 of the Government Code.
(c) Elective public office at the county or city level in this state means a public office at the county or city level in California that may be filled by an election.
(d) Public office at the county level means an office of county government or an office of a special district, school district, joint powers authority, or other political subdivision of the state whose boundaries coincide with the boundaries of a county or whose boundaries include at least one entire county. A public office at the county level does not mean a position within a non-profit organization, quasi-governmental entity, or neighborhood council.
(e) Public office at the city level means an office of city government or an office of a special district, school district, joint powers authority, or other political subdivision of the state whose boundaries coincide with the boundaries of a city or whose boundaries include at least one entire city but do not coincide with the boundaries of a county or include an entire county. A public office at the city level does not mean a position within a non-profit organization, quasi-governmental entity, or neighborhood council.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
Note • History
“Federal office” means the office of Senator or Representative in the Congress of the United States elected from California.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“In-law” means any of the following:
(a) The father, mother, or sibling of a person's spouse or registered domestic partner.
(b) The spouse or registered domestic partner of a person's child.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Legislative leader” means the President Pro Tempore of the Senate, the Minority Floor Leader of the Senate, the Speaker of the Assembly, or the Minority Floor Leader of the Assembly.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60819. Most Qualified Applicants.
Note • History
“Most qualified applicants” means those applicants who satisfy all of the following requirements:
(a) Are lawfully registered voters in the State of California who, by the date the first eight members of the Commission are selected by the State Auditor, will have been continuously registered in California with the same political party or continuously registered in California as unaffiliated with a political party for at least the five preceding years.
(b) Have voted in at least two of the last three statewide general elections held immediately prior to the date of application.
(c) Do not have a conflict of interest.
(d) In the judgment of the panel are more suited to serving on the commission than other applicants based on their relevant analytical skills, ability to be impartial, and appreciation for California's diverse demographics and geography.
NOTE
Authority cited: Section 2, Article XXI, California Constitution; and Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60820. Paid Congressional, Legislative, or Board of Equalization Staff.
Note • History
“Paid congressional, legislative, or Board of Equalization staff” means any person who is either of the following:
(a) Employed by and receiving compensation from the Congress of the United States to provide services to a member of Congress elected from California.
(b) Employed by and receiving compensation from the Legislature or the State Board of Equalization.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60820.1. Paid Staff for Legislature or Any Individual Legislator.
Note • History
“Paid staff for the Legislature or any individual legislator” means the following:
(a) Paid staff for the Legislature means being a person employed by and receiving compensation from the Legislature.
(b) Paid staff for any individual legislator means being a person employed by and receiving compensation from a member of the Legislature, or a business entity in which a member of the Legislature holds a controlling interest, without regard for whether the duties of employment are related to seeking or holding legislative office.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
Note • History
“Paid consultant” means a person who, pursuant to a contract, provides expert advice or personal services related to conducting campaign activities or holding office, and who receives compensation for providing such advice or services.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Political party” means a political party that is operating in California by making expenditures to support candidates for elective public office in the state or is recognized by the Secretary of State as a qualified political party as defined in section 5100 of the Elections Code.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60823. Political Party Central Committee.
Note • History
“Political party central committee” means the designated body within a political party operating in California that directs the activities of the party throughout the state or within a particular county, such as a state central committee or a county central committee.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60824. Qualified Independent Auditor.
Note • History
(a) “Qualified independent auditor” means an independent auditor currently employed by the State who satisfies all of the following requirements:
(1) Currently holds an active license issued by the California Board of Accountancy.
(2) By the time of selection to serve on the panel will have acquired at least ten years of experience practicing the skills of an independent auditor.
(3) Does not have a conflict of interest as defined in subdivision (a) of section 8252 of the Government Code.
(b) As used in this section:
(1) “Independent auditor currently employed by the State” means an auditor who is currently employed as a permanent employee of the Bureau of State Audits, which, as provided in section 8543 of the Government Code, is independent of the executive branch and legislative control.
(2) “Experience practicing the skills of an independent auditor” means experience acquired while working as an auditor or investigative auditor for the Bureau of State Audits, for its predecessor, the California Auditor General, or for some other agency of state government, provided that such other agency conducted audits of private entities, local governmental entities, or state departments that were external to itself although under its oversight or investigative authority.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Randomly draw” means to select by the following process for random drawing.
(a) At least ten days prior to any random drawing, the bureau shall provide notice to the public regarding the time and place of the drawing by posting a notice on the bureau's website and by any other means deemed appropriate by the State Auditor.
(b) Prior to the drawing, the members of the pool from which the drawing will be made shall be divided into three subpools according to the party affiliation of the members of the pool. One subpool shall consist of members registered with the largest political party in California based on registration, another subpool shall consist of members registered with the second largest political party in California based on registration, and a third subpool shall consist of members not registered with either of the two largest political parties in California based on registration. The names of the members of each subpool shall be recorded on a list, with the names sequentially numbered so that each member is assigned a unique identifying number that is also recorded on the list.
(c) On the day of the drawing, the following procedures shall be followed:
(1) The drawing shall be open to the public.
(2) The drawing shall begin with the preparation of the balls that will be used for the drawing. The balls used for the drawing shall consist of 75 newly purchased prenumbered bingo balls of uniform composition, weight, size, shape, and texture that are delivered to the location of the drawing in the manufacturer's original packaging. Each of the sets shall be designated for use in selecting members from a corresponding subpool. The balls shall be prepared by extracting from each set of balls those balls that bear the number assigned to a member of the corresponding subpool, with all remaining balls set aside. The balls for each subpool shall be kept together and segregated for use in three separate subpool drawings.
(3) The balls for each subpool drawing shall be placed in a bingo cage. The cage shall be rotated vigorously to ensure that the balls are thoroughly mixed. The cage will drop a number of balls equal to the number of persons who must be drawn from the subpool, including any persons who are to serve as alternates. The number and name of the persons drawn during each subpool drawing shall be announced and duly recorded.
(4) After each subpool drawing, the bingo cage shall be emptied to allow the bingo cage to be used for the next subpool drawing until all of the subpool drawings are completed.
(d) At the conclusion of the drawing, the names of all those selected during each subpool drawing shall be posted on the bureau's website and otherwise announced to the public as deemed appropriate by the State Auditor.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60826. Registered Federal, State or Local Lobbyist.
Note • History
“Registered federal, state, or local lobbyist” means a person registered as a lobbyist with the United States Senate, the United States House of Representatives, the California Secretary of State, or any political subdivision of the State of California.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60827. Relevant Analytical Skills.
History
(a) “Relevant analytical skills” means the learned abilities that a commissioner may need to successfully complete the work of the commission.
(b) Abilities related to performing the following tasks shall be considered relevant analytical skills: gathering and comprehending information that bears upon redistricting; evaluating the validity and significance of the information gathered by the commission in order to make sound decisions about the proper placement of communities in districts; applying the appropriate legal standards, including, but not limited to, the United States Constitution and the Voting Rights Act of 1965 (commencing with section 1971 of title 42 of the United States Code), to drawing district boundaries; and working effectively as a member of a group to promote redistricting decisions that are factually and legally defensible and that the commission can agree upon.
(c) The following are examples of relevant analytical skills grouped according to the tasks listed in subdivision (b):
(1) Gathering and comprehending information that bears upon redistricting:
(A) An ability to read and understand dense and technical written materials, including, but not limited to, maps and statistical information.
(B) An ability to participate effectively in public hearings regarding redistricting by listening carefully and critically to the testimony of witnesses and formulating concise questions that will elicit relevant information.
(2) Evaluating the validity and significance of the information gathered by the commission in order to make sound decisions about the proper placement of communities in districts:
(A) Basic mathematical skills.
(B) Familiarity with using computers and working with software programs such as spreadsheet programs, mapping websites or programs, or word processing programs.
(C) An ability to assess the credibility of information provided by staff, consultants, and members of the public, distinguish facts from opinions, distinguish relevant facts from irrelevant facts, and assess the relative strength of competing arguments.
(D) An ability to resolve complex problems, particularly those involving factual ambiguities as may arise when all of the relevant facts are not apparent or when there are conflicting claims about the facts.
(3) Applying the appropriate legal standards to drawing district boundaries:
(A) An ability to understand the legal principles that govern redistricting as communicated through written materials and advice provided by the commission's legal counsel.
(B) An appreciation for the importance of applying proper legal standards to redistricting decisions.
(4) Working effectively as a member of a group to promote redistricting decisions that are factually and legally defensible and that the commission can agree upon:
(A) Effective communication skills, including, but not limited to, basic writing skills.
(B) An ability to interact effectively with other commissioners to build consensus on proposed decisions through reasoned discussion and negotiation.
(d) An applicant may demonstrate his or her possession of relevant analytical skills through a description of those skills and through occupational, academic, volunteer, or life experiences such as:
(1) Compiling information from a variety of sources, including, but not limited to, statistical reports, expert opinions, and members of the public to develop an understanding of an issue or problem.
(2) Assessing the value of information received from various sources to determine how much weight should be given to certain information versus other information when making a decision concerning an issue.
(3) Receiving expert advice, particularly of a legal nature, and applying that advice to decisions.
(4) Participating in group decision-making as a member of a commission, board, grand jury, task force, or other collection of individuals whose mission was to produce a report, plan, or other work product addressing some issue or problem.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“Staff” as used in subdivision (a)(2)(B) of section 8252 of the Government Code means any person directly employed, with or without compensation, by the Governor, a member of the Legislature, a member of the Congress of the United States elected from California, or a member of the State Board of Equalization.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
“State office” means every office, agency, department, division, bureau, board, and commission within the government of the State of California.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Subchapter 2. Applicant Review Panel
§60830. Selection of Panel Members and Alternate Panel Members.
Note • History
(a) The State Auditor shall randomly draw the members of the panel from a pool consisting of all qualified independent auditors as defined in section 60824.
(b) The random drawing shall be conducted in the manner prescribed by section 60825.
(c) Immediately after drawing a member of the panel from any of the subpools that have been established based on party affiliation, the State Auditor may randomly draw an alternate panel member from the same subpool to serve in the event that the panel member's position on the panel becomes vacant.
(d) If any position on the panel becomes vacant, and the alternate panel member randomly drawn from the same subpool is not available to fill the position, the State Auditor shall conduct another random drawing as necessary to fill the position.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New subchapter 2 (sections 60830-60837) and section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60831. Information About Prospective and Selected Panel Members.
Note • History
The bureau shall post on the bureau's website the following information about prospective and selected members of the panel:
(a) At least 10 days prior to any random drawing of members of the panel, the bureau shall post the names, party affiliations, and relevant qualifications of the qualified independent auditors who will constitute the pool from which the members will be drawn. This information shall remain posted until the random drawing is concluded.
(b) As soon as practicable following any random drawing of members of the panel, the bureau shall post the names, party affiliations, and relevant qualifications of the qualified independent auditors who were selected to serve as members and alternate members of the panel. This information shall remain posted until the first eight members of the commission have been randomly drawn by the State Auditor.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60832. Training of Panel Members.
History
Prior to any member of the panel performing the duties of a panel member, the bureau shall provide the panel member with training in preparation for the performance of those duties. The training shall include, but not necessarily be limited to, all of the following subjects:
(a) The requirements for conducting a public meeting, including, but not limited to, the requirements imposed by the Bagley-Keene Opening Meeting Act (commencing with section 11120 of the Government Code).
(b) The duties of the panel as described in the Voters FIRST Act and the regulations implementing its provisions.
(c) California's diverse demographics and geography.
(d) The responsibilities of the Commission as set forth in the Voters FIRST Act, the United States Constitution and the Voting Rights Act of 1965 (commencing with section 1971 of title 42 of the United States Code).
(e) The process for performing redistricting, including, but not limited to, the use of computer software to draw district lines.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60833. Duties of Panel Members.
Note • History
While serving on the panel, the members of the panel, in addition to complying with section 8252, subdivision (d) of the Government Code, shall comply with all of the following requirements:
(a) Perform the work of the panel in a manner that is consistent with the statutes and regulations governing the panel's work.
(b) Refrain from engaging in any conduct described in section 19572 of the Government Code that would be cause for employee discipline.
(c) Refrain from communicating with any applicant for the Commission except as authorized by the application process set forth in sections 60841 through 60851.
(d) Limit any discussion of specific applicants or application materials to discussions with other panel members during public meetings and to discussions with bureau staff assigned to assist the panel.
(e) Conduct the work of the panel in a manner that is impartial and that reinforces public confidence in the integrity of the panel's work.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60834. Removal of Panel Members.
Note • History
(a) The State Auditor shall have the authority to remove from the panel any member that the State Auditor determines cannot serve as a member of the panel due to any of the following:
(1) Resignation from the panel.
(2) Failure or inability to satisfy any of the requirements for being a Qualified Independent Auditor as described in section 60824.
(3) Failure or inability to perform the duties of a panel member as described in section 60833.
(b) Upon the removal of any member of the panel, the State Auditor shall replace the panel member with an alternate panel member drawn from the same subpool. If the alternate panel member randomly drawn from the same subpool is not available to fill the position, the State Auditor shall conduct another random drawing as necessary to fill the position.
(c) The replacement of a panel member with an alternate panel member shall not affect the validity of any decision previously made by the panel.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
(a) The bureau shall provide the panel with administrative, technical, and clerical support as needed by the panel to carry out its responsibilities under the Act. This support shall include, but not be limited to, the provision of office equipment, facilities, and staff sufficient to perform the following tasks:
(1) Process applications.
(2) Collect information concerning applicants.
(3) Schedule meetings.
(4) Maintain files.
(5) Make travel arrangements.
(6) Communicate with the public regarding panel decisions.
(b) The bureau shall provide the panel with legal counsel. To the extent permitted by law, all work performed by the bureau's legal counsel and all communications between the bureau's legal counsel and the panel shall be confidential and protected from disclosure by any applicable privileges.
(c) The bureau shall retain the records concerning the application process, including, but not limited to, correspondence, applicant lists, applications and supporting materials, public comments and responses, and video recordings for a period of at least 12 years.
(d) If a position on the panel becomes vacant, the bureau shall provide the person filling the vacancy with all of the documents that were provided to the outgoing panel member.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
(a) The panel shall meet in Sacramento.
(b) The panel shall elect a panel chair during its first meeting. The chair shall preside over all panel meetings. A majority of the panel members may replace the chair or appoint an acting chair to serve in the chair's absence.
(c) Two members of the panel constitute a quorum.
(d) The panel is subject to the provisions of the Bagley-Keene Opening Meeting Act (commencing with section 11120 of the Government Code). Consistent with that act, panel members may independently review applications prior to any public meeting.
(e) All deliberations by members of the panel regarding applicants shall take place in open session.
(f) Except in instances where it conflicts with state law, the panel shall conduct the meetings of the panel in accordance with the most recent edition of Robert's Rules of Order.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
Panel decisions relating to the removal of an applicant from an applicant pool, or the reconsideration of a decision to remove an applicant from an applicant pool, shall be by a unanimous vote of all three panel members. All other panel decisions may be made by majority vote.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Subchapter 3. Citizens Redistricting Commission
Article 1. Application Process
Note • History
(a) In conjunction with initiating an application process for selecting the members of the commission, the bureau shall conduct an outreach program to alert the public to the application process and to encourage the submission of applications by a diverse pool of qualified applicants. The bureau's outreach program shall, at a minimum, include all of the following:
(1) Posting a calendar on the bureau's website indicating the key dates and deadlines for the application process, including, but not limited to, when established, the period during which the bureau will accept applications.
(2) Producing outreach materials regarding the role of the commission, the eligibility and qualifications requirements for serving as a commissioner, and the process for selecting commissioners.
(3) Identifying community partners and requesting that they assist in recruiting qualified applicants.
(4) Creating and distributing public service announcements and print advertisements regarding the application process for placement in local, regional, and ethnic media.
(5) Upon posting an electronic application form on the bureau's website, widely publicizing both the availability of the application and the deadline for its submission.
(b) The breadth and scope of the bureau's outreach program is dependent on the funding that is available for the program.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New subchapter 3 (sections 60840-60855) and section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60841. Overview of the Application Process.
Note • History
The application process shall consist of six phases.
(a) During Phase I, applicants shall be required to complete and submit an initial application form, as described in California Code of Regulations, title 2, section 60843, to determine their eligibility to become members of the initial applicant pool.
(b) During Phase II, applicants shall be required to complete and submit a supplemental application form and supporting materials, as described in California Code of Regulations, title 2, section 60847, for an evaluation of their relative qualifications. From this pool of applicants, the panel shall reduce the applicant pool to a pool of not more than 120 applicants, who shall proceed to Phase III of the application process.
(c) During Phase III, the panel shall interview the applicants remaining in the applicant pool, as described in California Code of Regulations, title 2, section 60849, and reduce the applicant pool to 60 of the most qualified applicants, who shall proceed to Phase IV of the application process.
(d) During Phase IV, the panel shall submit a list of the names of the 60 applicants remaining in the applicant pool to the Legislature, where, as described in California Code of Regulations, title 2, section 60852, not more than 24 names shall be removed from the list by the legislative leaders.
(e) During Phase V, the State Auditor shall randomly draw the names of eight applicants from those remaining after the legislative leaders have exercised their right to remove applicants. The eight applicants whose names are drawn by the State Auditor shall become the first eight members of the commission.
(f) During Phase VI, the first eight members of the commission shall select the final six members of the commission.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
2. Amendment filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60842. General Requirements Applicable to Every Phase of the Application Process.
Note • History
All of the following requirements apply to each phase of the application process:
(a) Except for individuals qualifying for a reasonable accommodation under the Americans with Disabilities Act of 1990 (commencing with section 12101 of title 42 of the United States Code), applicants shall fill out and submit all applications electronically using the bureau's website. The bureau shall neither make available nor accept paper applications, and all application materials, except letters of recommendation, shall be submitted to the bureau electronically.
(b) All deadlines established by the bureau and the panel, including, but not limited to, deadlines for the submission of application materials are final. Application materials not timely received or deemed incomplete by the bureau or the panel shall not be considered.
(c) The bureau or the panel may inquire about or seek additional information from an applicant during any phase of the application process.
(d) The bureau or the panel may exclude or remove from an applicant pool any applicant who does any of the following:
(1) Submits more than one Phase I or Phase II application.
(2) Submits an incomplete application.
(3) Fails to timely submit supporting materials, including, but not limited to, letters of recommendation.
(4) Fails to comply with deadlines established by the bureau or the panel.
(5) Fails to timely respond to inquiries, or to provide additional information as requested by the bureau or the panel.
(e) All applications shall include a certification by the applicant that he or she has provided true and correct information.
(f) All application materials collected and maintained by the bureau are public records and therefore subject to disclosure as provided by the California Public Records Act (commencing with section 6250 of the Government Code), unless exempted from disclosure by a specific provision of the California Public Records Act or disclosure is prohibited by some other state or federal law.
(g) To enhance the transparency of the application process, the bureau shall, as soon as practicable, post application materials on the bureau's website, except that it may decline to post any material, or specific information in any material, that bureau staff determines to be either of the following:
(1) Personal in nature, such as residence addresses, telephone numbers, or so private that it would be inappropriate for public disclosure.
(2) Offensive or harassing in nature due to sexual, profane, racist, or otherwise bigoted content.
(3) Exempt from disclosure under the California Public Records Act or disclosure is prohibited by some other state or federal law.
(h) In a manner consistent with state and federal law, as well as bureau policy, the bureau shall protect and keep confidential any materials or information that is prohibited from public release.
(i) All information provided by or about an applicant through an application, public comment, or by any other means may be subject to investigation and verification by the bureau or the panel.
(j) Except as provided in section 60851, an applicant may not seek reconsideration of any decision by the bureau or the panel.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60843. Phase I Initial Application.
Note • History
(a) On or before January 1 of the application year, the bureau shall initiate Phase I of the application process by posting an initial application form on the bureau's website. Except for individuals qualifying for a reasonable accommodation under the Americans with Disabilities Act of 1990 (commencing with section 12101 of the United States Code), applicants shall complete the application electronically and submit it using the bureau's website.
(b) The Phase I initial application period shall extend a minimum of 60 days.
(c) The initial application form shall solicit information from the applicant to determine his or her eligibility to become a member of the initial applicant pool. The information the bureau shall seek via the initial application includes all of the following:
(1) The full name and contact information for the applicant, including, electronic mail address, physical residential address, mailing address, and telephone numbers.
(2) The applicant's race, ethnicity, gender, age, date of birth, and household income.
(3) The applicant's voter registration status and party affiliation.
(4) Whether the applicant will be able to satisfy the eligibility requirements for commission membership set forth in subdivision (c)(3) of section 2 of Article XXI of the California Constitution.
(5) Whether the applicant has a conflict of interest.
(d) The applicant shall certify that the information he or she provides on the initial application is true and correct.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60844. Phase I Initial Application Review.
Note • History
(a) The bureau shall review each application that is submitted during the Phase I application period and exclude from the initial applicant pool any applicant who has not complied with the application process or is not eligible to serve on the commission due to any of the following:
(1) Submitting more than one application.
(2) Submitting an incomplete or untimely application.
(3) Not satisfying the eligibility requirements of subdivision (c)(3) of section 2 of Article XXI of the California Constitution.
(4) Having a conflict of interest.
(b) Applicants not excluded as provided in subdivision (a) shall be placed in the initial applicant pool and invited by the bureau to participate in Phase II of the application process.
(c) Applicants excluded from the initial applicant pool shall be notified by the bureau and advised of the grounds.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60845. Publication of Names of Applicants in Initial Applicant Pool.
Note • History
Having excluded from the initial applicant pool those applicants who, based on their initial application, were not eligible to serve as members of the commission because of an inability to satisfy the requirements of subdivision (c)(3) of section 2 of Article XXI of the California Constitution, or due to a conflict of interest, the bureau shall post on the bureau's website a list of the names of the applicants who have been placed in the initial applicant pool.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60846. Written Public Comments and Responses.
Note • History
(a) Beginning on the date that the names of the successful Phase I applicants are posted on the bureau's website, and continuing throughout the remainder of the application process until the 14 members of the commission are selected, the bureau shall provide opportunities for the public to submit written comments regarding the applicants being considered. The bureau shall post a form for submitting written comments on the bureau's website. The public may submit comments electronically or by facsimile, United States mail, or other common carrier.
(b) The panel may only consider written comments that it receives regarding applicants who have been placed in a pool of applicants for the panel's evaluation and have not been removed. To be considered by the panel, a written comment must satisfy all of the following requirements:
(1) The bureau received the written comment prior to the deadline established by the bureau for receiving written comments concerning the applicants being considered during the current phase of the application process.
(2) The comment contains specific facts related to an applicant's eligibility and qualifications to serve as a member of the commission or is related to the accuracy of any statement made by the applicant as part of the application process.
(3) The information that is contained in the comment appears sufficiently credible to warrant consideration.
(4) The name and contact information for the person providing the comment is included in the comment.
(5) The comment contains a certification by the person providing the comment that the information included in the comment is true and correct and based on the author's personal knowledge.
(c) Subject to the provisions of California Code of Regulations, title 2, section 60842, subdivision (f), the bureau shall, as soon as practicable, post on the bureau's website all written comments that may be considered by the panel pursuant to subdivision (b), including, the name of the person providing the comment.
(d) The bureau shall send a copy of any written comments received about an applicant to the applicant, with a notice stating how the applicant may submit a written response and the deadline for submitting the response.
(e) Written comments and responses about an applicant submitted during any phase of the application process shall be included in the applicant's application materials and may be considered in the evaluation of the applicant during all subsequent phases of the application process during which the applicant remains in a pool of applicants being evaluated for selection to the commission. Comments and responses received after the deadline for receiving comments during a particular phase of the application process may be considered in the evaluation of the applicant during a subsequent phase provided the applicant remains in a pool of applicants being considered for selection to the commission.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
2. Amendment of subsections (a), (c) and (e) filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60847. Phase II Supplemental Application.
Note • History
(a) In Phase II of the application process, the bureau shall direct the members of the initial applicant pool to submit a supplemental application with supporting materials. The bureau shall post supplemental application forms on the bureau's website for use by the members of the applicant pool. Except for individuals qualifying for a reasonable accommodation under the Americans with Disabilities Act of 1990 (commencing with section 12101 of title 42 of the United States Code), applicants shall complete the supplemental application forms and supporting materials electronically and submit them using the bureau's website. Notwithstanding this requirement, applicants may submit letters of recommendation by facsimile, United States mail, or other common carrier as an alternative to submitting the letters through the bureau's website.
(b) The Phase II supplemental application period shall extend a minimum of 30 days.
(c) The supplemental application, with supporting materials, shall consist of all of the following:
(1) Questions designed to elicit information from the applicant describing his or her qualifications to serve on the commission, including essay questions to be answered in 3200 characters (approximately 500 words) or less.
(2) Questions designed to elicit information about the applicant, including, but not limited to:
(i) Former names, former residences, and felony convictions, if any.
(ii) Educational and employment history.
(iii) Involvements with, and financial contributions to, professional, social, political, volunteer, and community organizations and causes.
(3) Questions about an applicant's immediate family members.
(4) A requirement that the applicant submit three letters of recommendation from individuals or organizations.
(5) Notice that the applicant will be required to submit a Statement of Economic Interests (FPPC Form 700) if the applicant is later identified by the panel as an applicant that may be directed to participate in an interview by the panel.
(d) The bureau shall remove from the initial applicant pool any applicants who fail to submit a completed supplemental application with supporting materials by the deadline established by the bureau.
(e) The bureau shall transmit a copy of every complete and timely received supplemental application with supporting materials to the panel. Subject to the provisions o section 60842, subdivision (f), the bureau shall also post the supplemental application with supporting materials on the bureau's website.
(f) After posting the supplemental applications with supporting materials on its website, the bureau shall establish a deadline for the receipt of written public comments during Phase II of the application process.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60848. Phase II Supplemental Application Review.
Note • History
(a) During Phase II, each member of the panel shall review the application materials submitted regarding each applicant remaining in the applicant pool, for the purpose of determining which applicants shall be removed from the pool to leave no more than 120 of the most qualified applicants who will be invited to participate in Phase III of the application process.
(b) The maximum of 120 most qualified applicants who will be invited to participate in Phase III of the application process shall consist of the following three subpools:
(1) 40 applicants who are registered with the largest political party in California.
(2) 40 applicants who are registered with the second largest political party in California.
(3) 40 applicants who are not registered with either of the two largest political parties in California.
(c) At the panel's request, the State Auditor may assign staff to assist the members of the panel with their review of the application materials. This assistance may include, but need not be limited to, preparing summaries of applicants' qualifications and making recommendations to the panel members regarding the relative qualifications of the applicants.
(d) The panel shall remove from the applicant pool any applicant who the panel determines has a conflict of interest or does not meet the requirements of subdivision (c)(3) of section 2 of Article XXI of the California Constitution.
(e) In reducing the applicant pool to not more than 120 of the most qualified applicants, the panel shall evaluate the applicants based on their relevant analytical skills, ability to be impartial, and appreciation for California's diverse demographics and geography.
(f) As the application process is designed to produce a commission that is reasonably representative of the State's diversity, as specified in subdivision (c)(1) of section 2 of Article XXI of the California Constitution, the panel shall also consider whether the composition of the pool of applicants to participate in Phase III of the application process is reflective of the State's diversity. The panel shall not use formulas or specific ratios in identifying which applicants will participate in Phase III of the application process.
(g) During the panel's review of the application materials and reduction of the applicant pool, the panel shall identify those applicants it considers likely to be among the 120 of the most qualified applicants, and direct those applicants to submit a Statement of Economic Interests (Form 700) within a period of 30 days, so that the panel may consider the applicants' statements prior to identifying the pool of 120 most qualified applicants.
(h) The bureau shall post on the bureau's website a list of the applicants remaining in the applicant pool who will therefore be invited to participate in Phase III of the application process. The bureau shall also notify the applicants removed from the applicant pool that they have been removed from the pool.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
(a) In Phase III of the application process, the panel shall direct the applicants remaining in the applicant pool to participate in public interviews conducted by the panel in Sacramento.
(b) The bureau shall schedule the interviews at the convenience of the panel, providing at least 7 calendar days notice to the applicants of the date, time, and location of the interviews.
(c) The bureau shall pay the reasonable and actual expenses for an applicant to attend an interview as described in this subdivision. The bureau shall also reimburse applicants for the reasonable and necessary travel expenses that they incur to attend an interview, including, the following:
(1) If the bureau determines that an applicant requires air travel to attend an interview, the bureau shall directly purchase airline tickets for that applicant.
(2) Non-air transportation expenses shall be reimbursed and computed in accordance with the applicable regulations of the Department of Personnel Administration in effect on the date that the expenses are incurred. Reimbursement shall not exceed the maximum reimbursement rates established for nonrepresented state employees.
(3) Living expenses shall be reimbursed in an amount not to exceed the maximum reimbursement rates for nonrepresented state employees claimed and computed in accordance with the Department of Personnel Administration regulations in effect on the date the expenses are incurred. This includes overnight accommodations if the bureau determines such accommodations are necessary.
(4) An applicant may request a reasonable advance from the bureau if incurring the expenses described in paragraph (2) would create an undue financial hardship. All requests are subject to approval by the State Auditor or the State Auditor's designee.
(d) During the interviews, questions may only be posed by members of the panel, panel staff, and legal counsel for the panel. The questioning may concern anything that is relevant to an applicant's eligibility and qualifications to serve on the commission.
(e) The panel shall record all of the interviews that it conducts and post the recordings on the bureau's website as soon as practicable after each interview is completed.
(f) The bureau shall establish a deadline for the receipt of written public comments during Phase III of the application process. The deadline shall be set for a date following the conclusion of all of the interviews.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60850. Phase III Applicant Review.
Note • History
(a) During Phase III, the panel shall review the applicants who participated in interviews by the panel, along with all of the application materials submitted regarding those applicants, for the purpose of determining which applicants shall be removed from the applicant pool to leave 60 of the most qualified applicants who will participate in Phase IV of the application process.
(b) The 60 applicants who will participate in Phase IV of the application process shall consist of the following three subpools:
(1) 20 applicants who are registered with the largest political party in California.
(2) 20 applicants who are registered with the second largest political party in California.
(3) 20 applicants who are not registered with either of the two largest political parties in California.
(c) The panel shall remove from the applicant pool any applicant who the panel determines has a conflict of interest or does not meet the requirements of subdivision (c)(3) of section 2 of Article XXI of the California Constitution.
(d) In reducing the applicant pool to 60 of the most qualified applicants, the panel shall evaluate the applicants based on their relevant analytical skills, ability to be impartial, and appreciation for California's diverse demographics and geography.
(e) As the application process is designed to produce a commission that is reasonably representative of the State's diversity, as specified in subdivision (c)(1) of section 2 of Article XXI of the California Constitution, the panel shall also consider whether the composition of the pool of applicants to participate in Phase IV of the application process is reflective of the State's diversity. The panel shall not use formulas or specific ratios in identifying which applicants will participate in Phase IV of the application process.
(f) The bureau shall post on the bureau's website a list of the applicants remaining in the applicant pool who will therefore be invited to participate in Phase IV of the application process. The bureau shall also notify the applicants removed from the applicant pool that they have been removed from the pool.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
Note • History
(a) An applicant who is excluded or removed from an applicant pool, by either the bureau or the panel, based on any of the following grounds, may seek timely reconsideration of the decision by the entity making the decision:
(1) Conflict of interest.
(2) Failing to satisfy the eligibility requirements for serving as a member of the commission, as set forth in subdivision (a)(3) of section 2 of Article XXI of the California Constitution.
(3) Failing to comply with a procedural requirement of the application process.
(b) All other decisions by the bureau and the panel, including, but not limited to, decisions to exclude or remove applicants from an applicant pool, except for the decisions described in subdivision (a), are final at the time the decisions are made, and an applicant has no right to seek reconsideration of those decisions by either the bureau or the panel.
(c) An applicant seeking reconsideration of a decision described in subdivision (a) shall submit to the bureau a written request for reconsideration that complies with all of the following requirements:
(1) Is received by the bureau within 10 days after the date that the bureau issued a notice to the applicant that he or she was being excluded or removed from an applicant pool for any of the reasons stated in subdivision (a).
(2) Includes a statement of facts, with supporting evidence, establishing by a preponderance of evidence that the applicant was excluded or removed from an applicant pool erroneously.
(3) Contains a certification that the facts alleged in the request for reconsideration are true and correct.
(d) All requests for reconsideration that do not satisfy the requirements of subdivision (c) shall be summarily denied by the bureau or the panel. Upon the bureau or the panel denying a request for reconsideration of a decision described in subdivision (a), or upon the period for filing such a request expiring without a request being received, whichever occurs first, the decision shall become final and the applicant will have no further right to seek reconsideration of the decision.
(e) If the bureau or the panel determines that an applicant has, in a written request for reconsideration, established by a preponderance of evidence that he or she was erroneously excluded or removed from an applicant pool for one of the reasons stated in subdivision (a), the bureau or the panel shall place the applicant in that applicant pool and the applicant shall participate in the application process in the same manner as if the applicant had not been excluded or removed.
(f) Notwithstanding subdivisions (b) and (d), at any time during the application process, the panel may, solely at its own discretion, reconsider and correct a past decision of the panel or the bureau during the application process due to gross error or other compelling circumstances.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60852. Phase IV: Applicant Name Striking Process.
Note • History
(a) During Phase IV of the application process, the panel shall present to the Legislature a list containing the names of 60 of the most qualified applicants identified by the panel during Phase III of the application process for legislative leaders to exercise their right to strike up to 24 names from the list.
(b) On or before October 1 of the application year, the panel shall present to the Secretary of the Senate and the Chief Clerk of the Assembly, by hand-carried letter, the list containing the names of 60 of the most qualified applicants divided into three subpools of twenty each, based on their party affiliation and nonaffiliation. The bureau shall also make available to the legislative leaders the application materials and recorded interviews of each of the applicants on the list, and any factual materials gathered by the bureau or the panel concerning those applicants.
(c) On or before November 15 of the application year, the State Auditor shall accept from the Secretary of the Senate and the Chief Clerk of the Assembly a joint presentation of the list of names described in subdivision (a) with no more than a total of eight names stricken by the legislative leaders from each of the subpools. Time permitting prior to the expiration of the November 15 deadline, if the Secretary of the Senate and the Chief Clerk of the Assembly jointly present a list of names to the State Auditor that does not retain at least twelve names in each subpool, the State Auditor shall return the list to the Secretary of the Senate and the Chief Clerk of the Assembly for correction.
(d) An applicant whose name has been stricken from a subpool by a legislative leader shall be removed from the selection process and may not serve as a member of the commission. An applicant removed from the selection process because his or her name was stricken from a subpool by a legislative leader may not appeal or seek reconsideration of the removal from the bureau or the panel.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60853. Phase V: Random Drawing of First Eight Members of Commission.
Note • History
(a) During Phase V of the application process, the State Auditor, as provided in section 8252, subdivision (f) of the Government Code, shall randomly draw the names of eight applicants from those remaining after the legislative leaders have exercised their right to strike the names of up to 24 applicants from the pool of 60 of the most qualified applicants identified by the panel. The State Auditor shall conduct the random drawing on or before November 20 of the application year in the manner prescribed by California Code of Regulations, title 2, section 60825.
(b) Notwithstanding subdivision (a), the State Auditor shall randomly draw the names of 8 applicants from the names of all the applicants in the pool of 60 most qualified applicants identified by the panel, rather than from a reduced collection of names, if the Secretary of the Senate and the Chief Clerk of the Assembly do not jointly present, by November 15 of the application year, a list containing the names of no fewer than 12 applicants in each of the three subpools that comprise the list.
(c) The eight applicants whose names are drawn by the State Auditor shall become members of the commission.
(d) As soon as practicable following the random drawing of the first eight members of the commission, the bureau shall notify the applicants of their selection and post on its website the names, party affiliations, and relevant qualifications of those first eight members.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
2. Amendment of section heading and subsection (a) and new subsection (d) filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60854. Transmission of Remaining Application Materials to Commission.
Note • History
After the State Auditor randomly draws the names of the first eight commissioners, the bureau shall provide the eight commissioners with the application materials and recorded interviews of each of the applicants remaining in the applicant pool.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8252, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
§60855. Training of First Eight Members of Commission.
Note • History
Prior to any of the first eight members of the commission performing the duties necessary to select the final six members of the commission, the bureau shall provide the first eight members of the commission with training in preparation for the performance of those duties. The training shall include the following subjects:
(a) The requirements for conducting a public meeting, including the requirements imposed by the Bagley-Keene Open Meeting Act (commencing with section 11120 of the Government Code).
(b) The duties of the first eight members of the commission in selecting the final six members of the commission as described in the Voters FIRST Act and the regulations implementing its provisions.
(c) California's diverse demographics and geography.
(d) The responsibilities of the Commission as set forth in the Voters FIRST Act, the United States Constitution, and the Voting Rights Act of 1965 (commencing with section 1971 of title 42 of the United States Code).
(e) The process for performing redistricting, including the use of computer software to draw district lines.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Sections 8252 and 8253, Government Code.
HISTORY
1. New section filed 11-5-2009; operative 11-6-2009 pursuant to Government Code section 11343.4 (Register 2009, No. 45).
2. Repealer and new section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60856. Administrative Support for First Eight Members of Commission.
Note • History
(a) The bureau shall provide administrative, technical, and clerical support to the first eight members of the commission as necessary for them to carry out their responsibility under the Voters FIRST Act to select the final six members of the commission. This support shall include the provision of office equipment, facilities, and staff sufficient to perform the following tasks:
(1) Collect and manage the application materials and recorded interviews provided to the first eight members of the commission pursuant to California Code of Regulations, title 2, section 60854.
(2) Gather additional information as provided in California Code of Regulations, title 2, section 60860, subdivision (a).
(3) Schedule public meetings, prepare meeting agendas, and post on the bureau's website the notices and agendas for meetings.
(4) Make travel arrangements.
(5) Process claims for reimbursement and compensation.
(6) Provide technical and administrative support for public meetings.
(7) Communicate with the public regarding decisions made by the first eight members of the commission.
(b) The bureau shall provide the first eight members of the commission with legal counsel. To the extent permitted by law, all work performed by legal counsel and all communications between legal counsel and the first eight members of the commission shall be confidential and protected from disclosure by any applicable privileges.
(c) The bureau shall retain the records concerning the work of the first eight members of the commission in selecting the final six members of the commission for a period of at least 12 years.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Sections 8252, 8253, 8253.5 and 8253.6, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60857. Payments to First Eight Members of Commission.
Note • History
For the purposes of section 8253.5 of the Government Code, which entitles members of the commission to receive compensation and reimbursement for expenses, “commission business” and “duties performed pursuant to this act” shall include the activities of the first eight members of the commission in training for the selection and selecting the final six members of the commission.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 8253.5, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60858. Phase VI Meetings of First Eight Members of Commission.
Note • History
(a) The authority of the first eight members of the commission is limited to selecting the final six members of the commission. The first eight members of the commission therefore may only take those actions that are necessary for the selection of the final six members of the commission, and all other actions must be deferred until the full 14-member commission is established.
(b) The first eight members of the commission shall meet in Sacramento for the purpose of selecting the final six members of the commission. The first eight members shall schedule and hold one or more meetings for the purpose of selecting the final six members of the commission by no later than December 31, 2010.
(c) Five of the first eight members of the commission shall constitute a quorum for a meeting of the first eight members of the commission.
(d) The first eight members of the commission are subject to the provisions of the Bagley-Keene Open Meeting Act (commencing with section 11120 of the Government Code). Consistent with that act, the first eight members of the commission:
(1) May, prior to any meeting, independently review the application materials relating to the remaining applicants.
(2) Shall comply with the notice requirements for meetings that are contained in the Bagley-Keene Open Meeting Act, but are not subject to the notice requirements specified in subdivision (a)(1) of section 8253 of the Government Code, as those requirements only apply to the full 14-member commission.
(3) Shall conduct all deliberations in public and not meet in closed session except as permitted by the Bagley-Keene Open Meeting Act.
(e) During their first meeting, the first eight members of the commission shall, in open session, elect one of the members to serve as a temporary chair and another member to serve as a temporary vice chair. The temporary chair shall preside over the meetings held by the first eight members of the commission for the purpose of selecting the final six members. The temporary vice chair shall preside over meetings in the temporary chair's absence. The temporary chair and the temporary vice chair shall not be registered with the same political party. The temporary chair and temporary vice chair shall be elected by the affirmative vote of at least five of the first eight members, including no less than two affirmative votes from the members who are registered with the political party having the greatest number of registered voters, two affirmative votes from the members who are registered with the political party having the second greatest number of registered voters, and no less than one affirmative vote from a member who is not registered with either of those two parties. The first eight members of the commission may replace the temporary chair or the temporary vice chair through the same voting process. In the absence of both the temporary chair and the temporary vice chair, an acting chair may be elected to preside over a meeting on the affirmative vote of a majority of the members present and voting.
(f) Except in instances where it conflicts with state law, the first eight members of the commission shall conduct their meetings in accordance with the most recent edition of Robert's Rules of Order.
(g) The bureau shall record, through the use of audio and visual equipment, the meetings of the first eight members of the commission in which they deliberate about or select the final six members of the commission. Such meetings will be made available for viewing on the bureau's website either live or as soon as practicable after completion.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Sections 8252 and 8253, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60859. Communications Between First Eight Members of Commission and Members of State Board of Equalization, Legislature, and Congress.
Note • History
Beginning from the date of their selection to serve on the commission, and continuing throughout Phase VI of the application process, the first eight members of the commission shall not communicate outside of a public meeting with any member of the State Board of Equalization, member of the Legislature, or member of Congress elected from California, or their representatives regarding the selection of the final six members of the commission or their role as members of the commission. If a member of the State Board of Equalization, member of the Legislature, or member of Congress elected from California wishes to present testimony or public comment regarding an applicant during the time that the first eight members are selecting the final six members, such testimony or public comment shall only be accepted if it is presented orally at a public meeting or presented in writing and disclosed to the public either before or during a public meeting.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60860. Phase VI Selection of Final Six Members of Commission.
Note • History
(a) Prior to the first meeting at which the first eight members of the commission begin deliberating about the selection of the final six members of the commission, the members shall review the application materials provided by the bureau for each of the applicants remaining in the applicant pool. Any of the first eight members of the commission, at any time during the selection process, also may ask the bureau to seek additional information from or about the applicants remaining in the applicant pool. This may include asking an applicant to submit written responses to questions or to participate in an interview conducted by the first eight members of the commission at a public meeting. However, the bureau shall retain discretion to decline any request that the State Auditor finds to be unduly burdensome for the bureau, unduly burdensome for the applicant(s) subject to the request, or otherwise would be detrimental to the timely completion of the application process. The bureau shall pay the reasonable and actual expenses for an applicant to attend any interview, as provided in California Code of Regulations, title 2, section 60849, subdivision (c).
(b) As the final six members of the commission shall be chosen to ensure the commission reflects California's diversity, as well as on the basis of relevant analytical skills and ability to be impartial, the first eight members of the commission shall vote to select the final six members of the commission as a slate of six applicants.
(c) Any of the first eight members of the commission may propose a slate of six applicants for selection to the commission. While a member may propose more than one slate of six applicants during the course of the selection process, no member may have more than one slate of six applicants up for consideration by the other members at a particular time.
(d) Each slate of six applicants shall consist of two applicants registered with the political party having the greatest number of registered voters, two applicants registered with the political party having the second greatest number of registered voters, and two applicants not registered with either of those two parties. Each slate shall also be designed to ensure that the commission reflects California's diversity while being composed of persons having the relevant analytical skills and ability to be impartial needed by the commission. However, in designing a slate, neither formulas nor specific ratios may be applied to ensure the diversity of the commission.
(e) A slate may be modified by the member proposing it at any time prior to the slate being voted upon by the eight members. However, whenever a slate is modified, neither formulas nor specific ratios may be applied to ensure the diversity of the commission.
(f) The first eight members of the commission shall vote to approve a slate based on whether they believe it will ensure that the commission reflects California's diversity while being composed of persons having the relevant analytical skills and ability to be impartial needed by the commission.
(g) The applicants listed on the first slate of six applicants that is approved by at least five affirmative votes as provided in subdivision (g) of section 8252 of the Government Code, shall become the final six members of the commission.
(h) As soon as practicable following the selection of the final six members of the commission, the bureau shall notify the applicants of their selection and post on its website the names, party affiliations, and relevant qualifications of those commissioners.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution; and Section 8252, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60861. Assisting Commission to Become Functional.
Note • History
After the 14 members of the commission have been selected, the bureau will cooperate with the commission and with the Secretary of State in order to facilitate the commission becoming fully functional.
NOTE
Authority cited: Section 8546, Government Code. Reference: Sections 8252 and 8253.6, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
§60862. Restrictions on Applicants Selected to Serve on Commission.
Note • History
For the purposes of subdivision (c)(6) of section 2 of Article XXI of the California Constitution, the 10 and 5-year restriction on members of the commission holding elective and appointive public office shall not extend beyond the appointment of the first member of the succeeding commission as referenced in subdivision (c)(4) of section 2 of Article XXI of the California Constitution.
NOTE
Authority cited: Section 8546, Government Code. Reference: Section 2, Article XXI, California Constitution.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).
Note • History
(a) If a vacancy occurs on the commission before it completes its redistricting function, and the commission is unable to fill the vacancy with an applicant from the same subpool of applicants that the vacating commissioner was drawn or selected from, as it existed on November 20 of the application year, the commission shall provide written notification to the State Auditor. Upon receiving the written notice, the State Auditor shall, as soon as practicable, reconvene a panel to create a new subpool consisting of twenty of the most qualified applicants having the same party affiliation or nonaffiliation as the vacating commissioner. In creating the new subpool, the panel shall attempt to fill the subpool with applicants who participated in the most recent application process, according to the following order:
(1) Applicants who participated in interviews during Phase III of the application process.
(2) Applicants who submitted supplemental applications with supporting materials during Phase II of the application process.
(b) If a vacancy occurs on the commission after it completes its redistricting function, and the commission determines that it needs to fill the vacancy but is unable to fill it with an applicant from the same subpool of applicants that the vacating commissioner was drawn or selected from, as it existed on November 20 of the application year, the commission shall provide written notification to the State Auditor. Upon receiving the written notice, the State Auditor shall, as soon as practicable, reconvene a panel to create a new subpool consisting of twenty of the most qualified applicants having the same party affiliation or nonaffiliation as the vacating commissioner. In creating the new subpool, the panel shall attempt to fill the subpool with applicants who participated in the most recent application process in the manner specified by paragraphs (1) and (2) of subdivision (a).
(c) “Completes its redistricting function,” for the purposes of this section, means approving three final maps that separately set forth the district boundary lines for the Senate, Assembly, and State Board of Equalization districts and certifying the three final maps to the Secretary of State.
(d) In creating a new subpool of applicants, the panel shall comply with the requirements of subdivisions (d) and (e) of section 8252 of the Government Code, with the bureau establishing a date for receiving from the Secretary of the Senate and the Chief Clerk of the Assembly a joint list of the applicants remaining after the Legislative Leaders have exercised their right to exercise strikes. Upon creating a new subpool, the panel shall submit the names of the applicants in the subpool to the commission and the Secretary of State with the application materials and recorded interviews of each of the applicants.
NOTE
Authority cited: Section 8546, Government Code. Reference: Sections 8252 and 8252.5, Government Code.
HISTORY
1. New section filed 9-2-2010; operative 9-3-2010 pursuant to Government Code section 11343.4. Submitted to OAL for printing only (Register 2010, No. 36).