Cal. Code Regs. tit. 2 § 51.2

Current through Register 2024 Notice Reg. No. 45, November 8, 2024

Section 51.2 - Definitions

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

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

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

(c) "Affirmative defense" means an assertion by one party raising facts and arguments that, if true, will defeat the other party's claim, even if all allegations in the other party's complaint or Notice of Adverse Action are true.

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

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

(f) "Appeals division" means the Appeals Division of the State Personnel Board.

(g) "Appellant" means the person or organization filing any appeal with the SPB.

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

(i)

(1)

(A) "Back pay" means the compensation Appellant would have received from Respondent if Appellant had not been subject to an adverse action, a non-punitive demotion, transfer, or termination, a medical demotion, transfer, or termination, or had not been rejected during employment, less any compensation Appellant earned or might reasonably have earned in private or public employment during the period the action or rejection was improperly in effect.

(B) Back pay shall not include overtime compensation that the Appellant may have earned from Respondent during the time period that Appellant was not working for Respondent due to the adverse action.

(C) Back pay shall not be authorized or paid for any portion of time during which Appellant was not ready, able, and willing to perform the duties of his or her position, whether or not the action or rejection was properly in effect.

(2) For purposes of adverse action appeals, non-punitive demotions, transfers, and terminations, and medical demotions, transfers, and terminations, back pay includes salary adjustments, shift differentials, and other special salary compensation, if sufficiently predictable. Subject to the memorandum of understanding for Appellant's classification and the provisions of Government Code sections 19584, 19253.5, and 19585, back pay may include:

(A) Reimbursement for substitute medical and dental insurance and other out-of-pocket medical and dental expenses that an Appellant incurred during the period of time the action was improperly in effect, but would not have incurred if he or she had been working for Respondent;

(B) Retirement benefits that Appellant would have accrued if he or she had been working for Respondent for the period of time the action was improperly in effect;

(C) Seniority benefits that Appellant would have accrued if he or she had been working for Respondent for the period of time the action was improperly in effect;

(D) Merit salary adjustments that Appellant would have received if he or she had been working for Respondent for the period of time the action was improperly in effect;

(E) Bilingual pay that Appellant would have earned if he or she had been working for Respondent for the period of time the action was improperly in effect; and

(F) Physical fitness, or other incentive, pay Appellant would have earned if he or she had been working for Respondent for the period of time the action was improperly in effect.

(3) Any monthly health premium that would have been deducted from Appellant's pay at the time of the action shall be deducted from an Appellant's back pay for the period the Appellant was not working for Respondent.

(j) "Board" means the five-member State Personnel Board.

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

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

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

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

(o) "Days" means calendar days, unless otherwise indicated.

(p) "Digital signature" means an electronic identifier, created by a computer, that is intended by the party using it to have the same force and effect as the use of a manual signature. The use of a digital signature is:

(1) unique to the person using it;

(2) capable of verification; and

(3) under the sole control of the person using it, or the person's designee.

(q) "Electronic signature" means an electronic sound, symbol, or process attached to, or logically associated with, an electronic record and executed or adopted by a person with the intent to sign the electronic record.

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

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

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

(u) "Filed" means received by the State Personnel Board after the filing party has complied with applicable statutory and regulatory filing requirements.

(v) "Good cause" means a substantial and compelling reason allowing a party to be excused from Subchapter 1.2 of these regulations. Good cause shall be evaluated using the following factors and relevant issues and events beyond the party's control, considering the length of any delay, the diligence of the party making the request, and any potential prejudice to the other party:

(1) the unavailability of a party, a party's attorney, a party's representative, or an essential witness because of death, illness, or other excusable circumstances, in the discretion of the Chief ALJ or his or her designee;

(2) the discovery of new evidence previously unavailable, as long as the discovery is made within 10 days of the submission of the statement of good cause;

(3) a material change in the law, as long as that change occurred within 10 days of the submission of the statement of good cause;

(4) a party's inability to comply with a deadline despite the diligence of the party and his or her representative in complying with the board's regulations because of the development of matters which could not have been reasonably foreseen or anticipated;

(5) a substitution of counsel or representatives that is required in the interests of justice;

(6) the recent consolidation of the matter with another matter;

(7) a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; and

(8) a party's mistake of law constituting excusable neglect.

(w) "Hearing officer" means a State Personnel Board employee designated by the Board, the Executive Officer, or other appropriate authority, to conduct a hearing concerning appeals from pre-employment medical or psychological disqualification, appeals from a failure of a pre-employment drug test, and other appeals as deemed appropriate, in accordance with sections 54.1 and 55.2.

(x) "Informal Hearing" means a hearing conducted pursuant to Government Code sections 11445.10 through 11445.60.

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

(z) "Investigative Review" means an investigation conducted by an investigative officer during which the investigative officer shall have the authority to conduct the investigation in accordance with the provisions of section 55.1.

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

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

(cc) "Medical condition" has the same meaning as the definition in Government Code section 19296.

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

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

(ff) "Office of the Chief Counsel" means the Office of the Chief Counsel for the board.

(gg) "Peremptory strike" means the disqualification without cause of an ALJ assigned to a hearing.

(hh) "Presiding officer" means an individual who presides over a hearing in a contested case.

(ii) "Rebuttal" is the opportunity for the presentation of additional evidence by either party after the conclusion of their cases-in-chief.

(jj) "Rebuttal evidence" means evidence intended to respond to new points or new evidence first introduced by the opposing party.

(kk) "Rejection during probationary period" or "rejection" means an action to remove an employee from a probationary appointment.

(ll) "Respondent" means the person or state agency from whose action or decision the appellant is seeking relief.

(mm) "Surrebuttal" means the presentation of evidence in refutation of new evidence presented during rebuttal.

Cal. Code Regs. Tit. 2, § 51.2

1. Renumbering and amendment of former sections 52, 53 and 56 to section 51.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Registers 87, No. 48; and 86, No. 1.
2. Change without regulatory effect amending opening sentence and subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Renumbering of former section 51.2 to section 52.4 and renumbering and amendment of former section 51.1 to new section 51.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Change without regulatory effect amending subsection (u) filed 10-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 41).
5. New subsections (c), (i)(1)(A)-(i)(3), (p)-(q), (u)-(v)(8) and (gg), subsection relettering, amendment of newly designated subsections (e), (w)-(z), (bb) and (ee) and amendment of NOTE filed 4-12-2013; operative 4-12-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 15).
6. Amendment of first paragraph and subsections (e) and (v)(2)-(3), new subsections (cc), (ii), (jj) and (mm), subsection relettering and amendment of NOTE filed 11-30-2017; operative 1-1-2018 (Register 2017, No. 48).

Note: Authority cited: Section 18701, Government Code. Reference: Sections 12926, 18675, 19180 and 19584, Government Code; Swepston v. State Personnel Board (1987) 195 Cal.App.3d 92.

1. Renumbering and amendment of former sections 52, 53 and 56 to section 51.1 filed 4-26-90; operative 5-26-90 (Register 90, No. 22). For prior history, see Registers 87, No. 48; and 86, No. 1.
2. Change without regulatory effect amending opening sentence and subsection (c) filed 9-16-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 39).
3. Renumbering of former section 51.2 to section 52.4 and renumbering and amendment of former section 51.1 to new section 51.2 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
4. Change without regulatory effect amending subsection (u) filed 10-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 41).
5. New subsections (c), (i)(1)(A)-(i)(3), (p)-(q), (u)-(v)(8) and (gg), subsection relettering, amendment of newly designated subsections (e), (w)-(z), (bb) and (ee) and amendment of Note filed 4-12-2013; operative 4-12-2013 pursuant to Government Code section 11343.4(b)(3)(Register 2013, No. 15).
6. Amendment of first paragraph and subsections (e) and (v)(2)-(3), new subsections (cc), (ii), (jj) and (mm), subsection relettering and amendment of Note filed 11-30-2017; operative 1/1/2018 (Register 2017, No. 48).