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September 2,
2008
TO: All Interested Parties
FR: Laura Preston, Legislative Advocate
RE: AB 2167 (De Leon)
On August 7, 2008, I sent an email to you informing you of
our success in having AB 2167 (De Leon) held in the Senate
Appropriations Committee Suspense File. AB 2167 was one of
the top bills for ACSA to oppose this year. AB 2167
prohibits the placement of false or unsubstantiated
statements or documents in the personnel files of classified
employees of school districts and community colleges. It
grants the right to classified employees to challenge and
have these statements or documents removed through the
school district's grievance process.
Unfortunately, our success was brief in what we thought was
the defeat of AB 2167. On August 31, the last day of
Session, the bill was pulled from the Senate Appropriations
Committee Suspense File without a hearing or a vote.
Senator Don Perata, President Pro Tem of the Senate,
presented the bill on the Senate Floor where it passed with
the minimum number of votes needed for passage, 21-16. It
then had to return to the Assembly for a vote on the
amendments taken to the bill in the Senate. It passed 47-30
off of the Assembly Floor and is now headed to the Governor
for either his signature or veto.
While I know you are busy with the beginning of the school
year, it is imperative that you take a moment to write the
Governor and request his veto of AB 2167. The more letters
he receives, the better. A sample letter is below. I have
highlighted areas where you will need to insert information
that pertains to you or your district. Please feel free to
write your own letter or delete and add information to this
one. You might have information on how the bill will impact
your grievance procedure or collective bargaining
agreements/procedures.
I have also asked that you cc: Paul Navarro, the Governor's
Deputy Legislative Secretary who will be working on this
bill. His address is the same as the Governor's at the top
of the letter.
I thank you in advance for your assistance. Please, don't
hesitate to contact me should you need additional
information or assistance. My email is
lpreston@acsa.org.
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September 2,
2008
The Honorable Arnold Schwarzenegger
Governor, State of California
State Capitol, First Floor
Sacramento, CA 95814
Veto Request: AB 2167 (De Leon)
Dear Governor Schwarzenegger:
On behalf of the (Your School District), I
am writing to request your veto of AB 2167 (De Leon) related
to school employee personnel files.
AB 2167 has been identified with $500,000 annual cost to the
state and local school districts. (Your School
District) has identified the costs as much higher,
over $5 million annually. As a result of these significant
costs, the bill, by unanimous vote, was held on the Senate
Appropriations Committee Suspense File. On Sunday, August
31 (the last day of Session), AB 2167 was removed from the
Senate Appropriations Suspense File without a hearing or
vote. It was heard on the Senate Floor and presented by
Senator Perata. The bill narrowly passed on a 21-16 vote
and quickly moved to the Assembly for a concurrence vote.
It passed the Assembly with a vote of 47-30, and has now
been sent to you.
Our understanding of the purpose of AB 2167 is to be narrow
in scope and give those very few employees that have
unknowingly had something negative placed into their
personnel file the ability to have that material removed.
Unfortunately, AB 2167 goes far beyond the purpose
identified by the author and sponsor by creating a new and
costly procedure that will ultimately undermine the ability
of school employers to evaluate and discipline classified
employees and protect the privacy rights of students,
employees and members of the public who file discrimination
or sexual harassment complaints.
(Your School District) is very concerned
that AB 2167 will lead to a system whereby any negative
evaluation or disciplinary letter can be challenged for
removal. While not necessarily the intent of this
legislation, AB 2167 opens the door for this to occur.
Evaluations are largely based on opinion and judgment.
Under AB 2167, anyone who doesn't like their evaluation or a
letter of discipline, could insist on it being removed.
This could lead to a very costly mandate on school districts
and the State. AB 2167 creates a state mandated process by
establishing a due process mechanism by which the parties
defend or challenge the contents of a document. To the
extent the provisions of AB 2167 are utilized, the state
would have to reimburse employer investigations, defense of
administrative procedures, the cost of the administrative
law judge or judicial procedures, the hours of preparation
and potential legal fees.
As a general rule, personnel professionals do not put
something into a personnel file that they believe is false.
There are already provisions in law that require the
employer to notify the employee before something derogatory
is placed in their file and provide the employee the
opportunity to respond and have that response attached to
the document.
Making personnel file content subject to the grievance
procedure is contrary to most grievance policies in
negotiated contracts. Typically, the definition of a
grievance procedure is when the employer violates any
portion of the employee contract. AB 2167 expands the
grievance procedure to include any entry into an employee's
file, whether or not it is related to provisions of the
contract. For this reason, AB 2167 will alter a local,
collectively bargained contract. There is nothing in law
that prohibits a local bargaining unit from negotiating a
definition of grievance that includes questioning personnel
file contents. (Your School District) questions
whether the state has the authority to unilaterally abrogate
a local, collective bargaining contract.
AB 2167 has been introduced as a result of just a very few
incidences of impropriety on the part of a supervisor.
Unfortunately, by introducing AB 2167, more problems will
have the potential for being created than fixed.
For these reasons, (Your School District) strongly
opposes AB 2167 and urges your veto of this measure. Thank
you for your consideration of our request.
Sincerely,
(Your Name)
(Your School
District)
cc: Paul Navarro, Deputy Legislative Secretary
Dave Long, Secretary of Education
Jeannie Oropeza, Department of Finance
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