Department Operations Manual

51130.15 Discipline Department employees administer inmate discipline in Conservation Camps. The disciplinary process is governed by the provision of the CCRs. 51130.15.1

52080.1 Policy The Department provides a graduated system of inmate discipline designed to be administered commensurate with the seriousness of the offense. Discipline shall be so administered as to maintain control, conserve human values and individual dignity and promote socially desirable changes in attitude and behavior. 52080.2

52080.3 Disciplinary Methods Inmate discipline shall be dispensed by one or more of the following methods in institutions and community based correctional facilities: • Verbal counseling. Misbehavior of a minor nature may be handled through verbal counseling and instruction. When, in the opinion of the staff member conducting the counseling/instruction, the problem has been corrected, a written report of the matter need not be submitted. • Counseling Only RVR. When counseling/instructions as described above are deemed unsuccessful in correcting the problem, a Counseling Only RVR shall be prepared. The Counseling Only RVR shall include complete circumstances regarding the misbehavior and a statement that repetition of the behavior may result in more serious disciplinary action. When minor contraband is involved, the Counseling Only RVR shall include disposition of the confiscated contraband. If a Counseling Only RVR is completed, one copy is given to the inmate and the original is placed in the inmate C-File. At this point, the disciplinary process ends. • Rules Violation Report (RVR). Inmate behavior which is a violation of law, CCR (15), and/or approved procedure and not of a minor nature, shall be reported on a Rules Violation Report. 52080.3.1

54055.7 Housing and Discipline Revised October 9, 2013 Inmates will be housed in the first available and appropriate bed, consistent with their assigned IHC. Staff shall not delay housing an inmate in the first available and appropriate bed for the sole purpose of accomplishing an integrated assignment between races/ethnicities. When housing inmates, staff shall be alert to security issues that may be present, including the inmate’s prior placement in an ASU or SHU or documented safety concerns. Integrated housing procedures do not supersede housing policies governing the placement of inmates into special programs including, but not limited to, those of the Mental Health Services Delivery System. Inmate movement will be initiated using existing departmental practices, inclusive of the SOMS internal movement\bed assignment processes, and housing and control room index cards. Any inmate that refuses to be appropriately housed consistent with his assigned IHC shall be subject to the disciplinary process applicable to the specific act. 54055.8

33030.31 EAPT Reporting On a quarterly basis and commencing March 1, 2006, the EAPT shall prepare and submit to the appointing power a report that includes the following information: • Number of adverse actions by type of discipline; • Number of direct (without an investigation) adverse action by type; • Number of adverse actions with an investigation by type; • Number of actions where the discipline was sustained by the Skelly Officer; • Number of actions where the Skelly Officer recommended modification of the discipline; o Number that the Hiring Authority accepted the recommendation. o Number that the Hiring Authority rejected the recommendation. • Number of settlements reached prior to the SPB decision; • SPB decisions; o Number of cases where SPB upheld the original discipline. o Number of cases where SPB modified the original discipline. • Number of cases where SPB revoked the discipline. 33030.32

33030.22 Adverse Action Documentation Adverse action documentation shall be completed, in all cases, prior to the statute of limitations expiration date. The Vertical Advocate shall monitor due dates and provide legal advice to the Hiring Authority and the ERO/Disciplinary Officer for all cases. The Vertical Advocate shall draft the Notice of Adverse Action for all designated cases and shall forward a draft Notice of Adverse Action to the SAIG for cases monitored by the BIR. For all other cases, the Vertical Advocate shall consult with the ERO/Disciplinary Officer upon request regarding other Notices of Adverse Action drafted by the ERO/Disciplinary Officer. When drafting a Notice of Adverse Action the ERO/Disciplinary Officer, in consultation with the Vertical Advocate, shall ensure the following: • Each cause(s) for discipline supported by the facts is included. • At least one Government Code section is cited as a cause for each act of misconduct. • All the facts in support of the causes for discipline are included. • All facts fall within the statute of limitations. • All facts are alleged with sufficient specificity to meet the requirements of SPB Precedential Decision No. 91-04, In re: Korman. • When required under the Bodiford Settlement, the employee was served with a Preliminary Notice of Adverse Action and all supporting documentation, at least 24- hours prior to service of the Notice of Adverse Action. • If the subject employee is a peace officer, he or she is being served with the Notice of Adverse Action within thirty (30) calendar days of the decision to take disciplinary action. • The employee’s rights and entitlements are included, as follows: o Skelly Rights: Notice of the proposed action. ▪ Notice of the reasons for the proposed action in writing at least five (5) working days before the adverse action becomes effective [twenty (20) calendar days for managers]. ▪ A copy of the charges on which the action is based in sufficient detail for the employee to prepare a defense. ▪ A copy of all materials upon which the action is based, including any documents, photographs, tape recordings, video tapes, complete investigative reports (e.g., reports and other materials that the Hiring Authority relied upon in forming the decision to take the action). ▪ The right to respond to a manager who was not involved in the investigation of the action currently being taken against the employee. ▪ The right to be represented when responding to the Hiring Authority imposing the discipline. ▪ Right to appeal to the SPB. • The notice includes other appropriate considerations, such as: o Training received; o Prior counseling received; o Prior discipline; o A statement that peace officers are held to a higher standard with regard to honesty and integrity and that his or her actions have not met this standard. 33030.23

31020.4 General Responsibility of the Health and Safety Program (a) A successful Health and Safety Program can only be achieved and maintained when there is active interest, participation, and accountability at all levels within CDCR and CCHCS. CDCR and CCHCS executive leadership shall have the authority and responsibility to ensure that all Health and Safety Programs are implemented. (1) Compliance (A) The Worksite Administrator, managers, and supervisors have delegated responsibility for implementing and ensuring compliance with all departmental Health and Safety Programs in their work areas and for responding to employee and inmate worker questions about the program. Worksite Administrators, managers, and supervisors shall ensure compliance with the CDCR and CCHCS Health and Safety Programs by completing the following: 1. Communicate effectively and ensure all safety, health laws, rules, policies, and procedures are understood by all employees and inmate workers and enforce those laws, rules, policies, and procedures. 2. Investigate and document accidents, injuries, illnesses, and unsafe work conditions, and maintain records of inspections and findings to determine the cause and develop a mitigation strategy to identify, prioritize and implement actions to reduce the risk of reoccurrence. 3. Evaluate the safety performance of employees and inmate workers. 4. Recognize employees and inmate workers who perform safe work practices in an exceptional manner and encourage the reporting of accidents, injuries, or illnesses. 5. Inform employees and inmate workers of the CDCR and CCHCS Health and Safety Programs and ensure access to these programs. 6. Provide training and instructions to employees and inmate workers in compliance with CCR, Title 8, section 3203(a)(7). (2) Discipline for non-compliance (A) Worksite Administrators who fail or neglect to ensure that supervisors and managers are in compliance may result in disciplinary action in accordance with the provisions described in California Government Code section 19572, DOM section 33030.1, and CCR Title 15, section 3392, Employee Discipline. (B) Managers and supervisors shall ensure employees and inmate workers comply with the CDCR and CCHCS Health and Safety Programs and maintain a safe and secure work environment by adhering to CDCR and CCHCS policies, procedures, and safe work practices. (C) Managers and supervisors shall ensure disciplinary action is taken in accordance with California Government Code section 19572 for employees or inmate workers who fail or neglect to comply with the CDCR and CCHCS Health and Safety policies and procedures. (D) Employees and inmate workers who fail or neglect to ensure compliance with Health and Safety Programs may result in disciplinary action in accordance with the provisions described in California Government Code section 19572, DOM section 33030.1, and CCR Title 15, section 3392, Employee Discipline. 31020.5

33030.4 Definitions Adverse Action - A documented action, which is punitive in nature and is intended to correct misconduct or poor performance or which terminates employment. Affected Employee - An individual who is the subject of adverse action. Appointing Power - The Secretary of the Department. Assistant General Counsel (AGC) - An individual responsible for managing the Employment Advocacy and Prosecution Team (EAPT) in the Department’s Office of Legal Affairs. Bureau of Independent Review (BIR) – A unit within the Office of the Inspector General responsible for contemporaneous public oversight of the Department’s investigative and disciplinary processes. Charging Package (Also known as the “ Skelly package”) – All documentation used to substantiate the charges in the action and which is presented to the employee with the Preliminary or Final Notice of Adverse Action. This material may include but is not limited to the following: the investigative report; applicable policies, procedures, and Government Code sections; records of training the employee has attended; job descriptions; and duty statements and/or post orders that are related to the charges. This package does not include the CDCR Form 402, Hiring Authority Review of Investigation, and CDCR Form 403, Justification of Penalty. Chief Assistant Inspector General (CAIG) – An individual responsible for the operation and functions of the BIR. Corrective Action - A documented non-adverse action (verbal counseling, in- service training, on-the-job training, written counseling, or a letter of instruction) taken by a supervisor to assist an employee in improving his/her work performance, behavior, or conduct. Designated Cases – Those cases assigned to the Vertical Advocates, including matters involving staff integrity and/or dishonesty, abuse of authority, sexual misconduct, use of force in which an inmate suffers death or serious injury, use of deadly force, serious allegations made against supervisors, and high profile or dismissal cases assigned to the Vertical Advocate by the AGC. Employee Counseling Record - A written record of counseling, documented on a CDC Form 1123, between a supervisor and subordinate which provides formal instruction about laws, rules, policies and employer expectations. Employee Relations Officer (ERO)/Disciplinary Officer – An employee designated by the Hiring Authority to coordinate adverse actions. Employment Advocacy and Prosecution Team (EAPT) – The team, formerly known as the Employment Law Unit, responsible for operation of the Vertical Advocacy Model in the Department’s Office of Legal Affairs. Executive Review – A secondary, management-level review conducted to resolve a significant disagreement(s) regarding an investigative finding, proposed disciplinary penalty, or settlement agreement. Hiring Authority – The Undersecretary or General Counsel or any Chief Deputy Secretary, Executive Officer, Chief Information Officer, Assistant Secretary, Director, Deputy Director, Associate Director, Warden, Superintendent, Health Care Manager, Regional Health Care Administrator, or Regional Parole Administrator authorized by the appointing power to hire, discipline, and dismiss staff under his/her signature authority. The Administrator at the Richard A. McGee Correctional Training Center shall serve as the Hiring Authority for Correctional Officer Cadets. The appointing power is a hiring Authority, for purposes of this Article. In-Service Training (IST) – Formal training conducted departmentally and/or at the direction of the Hiring Authority and usually conducted away from the employee’s work site. Letter of Instruction (LOI) – A written document, which outlines requirements for an employee to advance his/her job performance or conduct to an acceptable level. Notice of Adverse Action – Notification to the affected employee of the charges against him/her, the adverse action penalty, and the effective date. Office of Internal Affairs (OIA) – The entity within the Department with authority to investigate allegations of employee misconduct. On the Job Training (OJT) – Training conducted by a supervisor (or a designated employee with the required expertise under the direction of a supervisor) at the job site while the employee is working. Preliminary Notice of Adverse Action – Notification required of some Hiring Authorities in accordance with the Bodiford Settlement Agreement, to an affected employee regarding charges against him/her and the intent to impose adverse action. This notification summarizes the specific subsections of the Government Code that have been violated, as well as the actions that constituted the violation. For Hiring Authorities mandated to serve a Preliminary Notice of Adverse Action, the charging package shall also be served with this notice. Senior and Special Assistant Inspectors General (SAIG) – Attorneys employed by the BIR who report to the CAIG. Skelly Hearing – An informal proceeding in which the employee, together with his or her representative, is provided a predeprivation opportunity to respond to management regarding the charges in the Notice of Adverse Action. The employee may present any arguments for amending a pending adverse action before the action becomes effective. Skelly Hearings are required at the request of the affected employee for the following: adverse actions; rejections during probation; non-punitive actions resulting in the employee’s dismissal or demotion; and transfers for purposes of punishment and/or in conjunction with an adverse action. Skelly Letter – A document transmitted to an affected employee, following the Skelly Hearing, stating the Hiring Authority’s final decision regarding the imposition of a disciplinary penalty. Skelly Officer – A noninvolved manager, usually at the level of a Correctional Administrator, who will make a recommendation to the Hiring Authority after a Skelly Hearing to amend, modify, withdraw, or sustain the pending adverse action. The Skelly Officer must be a management employee above the organizational level of the disciplined employee’s supervisor unless that person is the employee’s appointing power in which case the appointing power may respond to the employee or designate another person to respond. Unless the affected employee waives his/her right to have a noninvolved manager serve as the Skelly Officer, the Skelly Officer shall not be the person who completed the CDC Form 989, Internal Affairs Investigation Request; who signed the employee’s Notice of Adverse Action; or who participated in the decision to take adverse action. Summary of Adverse Action – A summary compiled by the ERO/Disciplinary Officer of allegations of misconduct, from the evidence contained in an investigative report and other documents. Vertical Advocacy Model – A system that ensures legal representation for the Department during the entire investigative and employee disciplinary process in order to hold staff accountable for misconduct by way of thorough and complete internal investigations, principled decision-making and assessment of the investigations, and consistent and appropriate discipline. Vertical Advocate – An EAPT attorney assigned to one or more specific Hiring Authority locations to consult with the investigators and Hiring Authorities concerning investigative findings, disciplinary decisions, and to prosecute designated cases. 33030.5

19572 CCR Title 8, section 342, CCR Tile 8, 5144, 5199 CCR 15, Section 3392, Employee Discipline DOM Chapter 3, Article 22, Employee Discipline, sections 33030.8, 33030.9, and 33030.15

31140.3 Definitions Allegation Inquiry – The collection of preliminary information concerning an allegation of employee misconduct necessary to evaluate whether a matter shall be referred to the Central Intake Unit. Appointing Power - The Secretary of the Department. Assistant General Counsel (AGC) – An individual responsible for managing the Employment Advocacy and Prosecution Team (EAPT) in the Department’s Office of Legal Affairs (OLA). Assistant Secretary, Office of Internal Affairs (OIA) - An individual responsible for the operation and functions of the OIA. Bureau of Independent Review (BIR) – A unit within the Office of the Inspector General (OIG) responsible for contemporaneous public oversight of the Department’s investigative and disciplinary processes. Case Management System (CMS) – An electronic system that allows real- time documentation on investigative case activity and allows various participants within the employee disciplinary process to monitor cases and record key decisions and due dates. The CMS tracks all investigative requests, case acceptance and rejections, and case activity on all Internal Affairs investigations, as well as direct adverse actions that impose penalties without an investigation. Central Intake Panel (CIP) – A collection of stakeholders led by the OIA that ensures all referred allegations of employee misconduct are evaluated consistently and assigned appropriately throughout the Department. Individuals who participate regularly in the CIP include, but are not limited to, the following: Assistant Secretary, OIA, or designee; Chief Assistant Inspector General (CAIG), BIR, or designee; AGC, EAPT, or designee; assigned Special Agents; and other pertinent Department representatives. The Assistant Secretary, OIA, has the authority to initiate Internal Affairs investigations and is ultimately responsible for the acceptance and rejection of all cases that come before the CIP. Central Intake Unit (CIU) – A team of Special Agents, supervisors, and support staff within the OIA responsible for receiving, screening, and analyzing allegation inquiries for presentation to the CIP. Chief Assistant Inspector General (CAIG) – An individual responsible for the operation and functions of the BIR, OIG. Deputy Inspector General – An investigator employed by the OIG. Designated Cases - Those cases assigned to the Vertical Advocates, including matters involving staff integrity and/or dishonesty, abuse of authority, sexual misconduct, use of force in which an inmate suffers death or serious injury, use of deadly force, serious allegations made against supervisors, and high profile or dismissal cases assigned to the Vertical Advocate by the AGC. Employee Relations Officer (ERO)/Disciplinary Officer – An employee designated by the Hiring Authority to coordinate adverse actions. Employment Advocacy and Prosecution Team (EAPT) - The team in the Department’s OIA responsible for operation of the Vertical Advocacy Program. Hiring Authority – The Undersecretary, General Counsel, Chief Information Officer, or any Assistant Secretary, Executive Officer, Chief Deputy Secretary, Director, Deputy Director, Associate Director, Warden, Parole Administrator, Superintendent, Superintendent of Education, Assistant Superintendent of Education, Health Care Manager, Regional Health Care Administrator, or any other person authorized by the appointing power to hire, discipline, and dismiss staff under his/her signature authority. The Administrator at the Richard A. McGee Correctional Training Center shall serve as the Hiring Authority for Correctional Officer Cadets. The appointing power includes a Hiring Authority for purposes of this Article. Investigation - The collection of evidence that supports or refutes an allegation of misconduct, including criminal investigations, administrative investigations, retaliation investigations, or allegation inquiries. Locally Designated Investigator(s) - A local investigator or a team of local investigators who meet the requirements to conduct Internal Affairs investigations and who perform allegation inquiries and conduct local Internal Affairs investigations as delegated and assigned by OIA regional offices. Office of Civil Rights (OCR) – The entity with authority to investigate complaints related to Equal Employment Opportunity (EEO) issues. Office of Internal Affairs - The entity with authority to investigate allegations of employee misconduct. Senior and Special Assistant Inspectors General (SAIG) – Attorneys employed by the BIR who report to the CAIG. Vertical Advocacy Model – A system that ensures legal representation for the Department during the investigative and employee disciplinary process in order to hold staff accountable for misconduct by way of thorough and complete internal investigations, principled decision-making, assessment of the investigations, and consistent and appropriate discipline. Vertical Advocate – An EAPT attorney assigned to one or more specific Hiring Authority locations to consult with investigators and Hiring Authorities concerning investigative findings, disciplinary decisions, and to prosecute designated cases. 31140.4

31140.16 Review, Evaluation, and Disposition The CIU shall review each CDC Form 989 and all supporting documentation and shall evaluate and make a determination regarding each matter within thirty (30) calendar days. Requests for investigation shall receive a case number and be evaluated using a priority approach. Outcomes of the evaluation are as follows: • Accepted for Investigation Allegations of misconduct accepted by the CIU for investigation shall be forwarded to one of the OIA regional offices for assignment. Once received, the OIA regional will assign the investigation as follows: • Assign the investigation to a Special Agent from the OIA regional office within ten (10) calendar days; • Assign the investigation to a locally designated investigator within ten (10) calendar days. The investigation shall be supervised and monitored by a Senior Special Agent from the respective OIA Regional Office. The SAC, CIU, shall provide written acceptance of the case by memorandum to the Hiring Authority. The memorandum shall include the OIA regional office with case responsibility and the CMS case number. This acceptance memorandum shall remain a permanent record in th e Internal Affairs investigator’ s case file. • Referred for Investigation These cases contain allegations that are more appropriately investigated by other entities (i.e., outside law enforcement, the OIG, or OCR). • Returned to the Hiring Authority Without Investigation Investigation requests may be returned to the Hiring Authority for failing to provide all necessary information, for failing to meet the criteria for an Internal Affairs investigation, or when the CIU determines no investigation is warranted. These requests are returned to the Hiring Authority with a recommendation for the following: • Direct Discipline/Supervisory Action: If misconduct is sufficiently well-documented, the case may be referred back to the Hiring Authority for direct adverse action with consultation from an assigned Vertical Advocate for designated cases or in consultation with the Vertical Advocate for all other cases. If the Vertical Advocate or ERO/Disciplinary Officer determines that a subject interview or other interview(s) is necessary, the Vertical Advocate or ERO/Disciplinary Officer shall notify the CIU and request an interview(s). Locally designated investigators are not authorized to initiate investigations or conduct interviews without approval of OIA. Some misconduct should be addressed by taking corrective action, such as training, policy or procedure change, or other progressive discipline measures. • Further Investigation or Inquiry Required: Some requests for investigation may require the Hiring Authority to provide additional information or investigation. When the CIU determines insufficient information or documentation was submitted with the CDC Form 989, CIU staff shall contact the Hiring Authority or designee and request additional information. The requested information and/or documentation shall be provided to the CIU within ten (10) calendar days, if the information is available. • No action: Some requests may not warrant any corrective or adverse action. For requests returned without investigation, a memorandum shall be completed by the SAC and forwarded to the Hiring Authority. The memorandum shall include a detailed explanation for the action taken and shall direct the Hiring Authority, as appropriate, to determine the appropriate disciplinary action while taking into account any prior misconduct by the employee or corrective action imposed. A copy of the memorandum shall be retained in the CIU file. In addition to responding in writing, the SAC shall be available to the Hiring Authority to discuss the decision for the return of the investigation. The Hiring Authority may appeal the decision in writing to the Chief, OIA, Headquarters Operations, promptly following issuance of a returned case memorandum. 31140.17

33030.5.4 ERO/Disciplinary Officer The ERO/Disciplinary Officer shall be responsible for the following: • Monitoring and coordinating the adverse action processes; • Drafting Notices of Adverse Action, in consultation with the Vertical Advocate for all non-designated cases; • Arranging for proper service and review of adverse action documentation; • Providing a copy of the declaration of service and serving all adverse actions to affected employees; • Assisting the Vertical Advocates in hearing preparation for designated cases, including service of subpoenas on witnesses; • Scheduling and attending Skelly Hearings and assisting the Skelly Officer with administrative duties as requested; • Representing the Hiring Authority in all non-designated cases and supporting the Vertical Advocate in all designated cases before the State Personnel Board (SPB); • Coordinating with the Hiring Authority, Vertical Advocate, SPB representatives, affected employees and employee representatives, and other individuals and entities as appropriate; • Maintaining an accurate log of all formal discipline served and providing copies of the log and all documents relevant to pending actions quarterly to the Office of Personnel Services Employee Discipline Unit; • Maintaining an accurate log of all contacts by employees at the worksites (for which the ERO/Disciplinary Officer is responsible) regarding contacts about potential testimony and subpoenas the employee has received; • Retaining adverse action documentation, including CDCR Form 403, in the Adverse Action File. 33030.5.5

33030.12.2 Non-Peace Officer Employees According to Government Code section 19635, the following applies: No adverse action shall be valid against any state employee for any cause for discipline based on any civil service law of this state, unless notice of the adverse action is served within three years after the cause for discipline, upon which the notice is based, first arose. Adverse action based on fraud, embezzlement, or the falsification of records shall be valid, if notice of the adverse action is served within three years after the discovery of the fraud, embezzlement, or falsification. 33030.13

33030.15.5 Dismissal from State Service Dismissal is appropriate for exceptionally serious misconduct, misconduct that is not correctible through discipline, or misconduct which immediately renders the individual unsuitable for continued employment. Dismissal may or may not be preceded by other forms of adverse action (i.e. progressive discipline). (See CCR, title 2, section 211 for additional information.) 33030.16

33030.26.1 Factors to Consider Prior to Agreeing to Settle When a Hiring Authority considers whether or not settlement is warranted, the following factors shall be considered: • The gravity of the conduct that brought about disciplinary action; • The risk of harm to the public service if such misconduct recurs; • Whether any court orders or corrective action plans have an impact on the decision to settle the disciplinary action; • Whether, in accordance with the principle of progressive discipline, the settlement continues to have the effect of preventing future misconduct; • Whether mitigating factors or other evidence, including evidence of remorse, were already considered at the Skelly Hearing, or as part of the underlying investigation; • The length of the State service of the employee; • Whether or not the employee has a record of prior discipline; • Whether conditions can be obtained through settlement (i.e., drug and alcohol testing and counseling, anger management counseling, etc.) that cannot be obtained solely through continued prosecution of the adverse action; • Flaws and risks in the case (including evidentiary problems, problems with witness availability, questions of law, etc.) not considered or known at the time of the preparation of the adverse action, or which have been exacerbated since the filing of the Notice of Adverse Action; • The finality that settlement brings to a case. 33030.26.2

33030.28 Vertical Advocate’s Preparation for the SPB Hearing Upon notification from the SPB that an appeal has been filed, the ERO/Disciplinary Officer and/or the Vertical Advocate shall notify the Hiring Authority and shall prepare for the SPB Hearing. The Vertical Advocate shall represent the Department at SPB Hearings for all designated cases. In all cases presented by the Vertical Advocate, the ERO/Disciplinary Officer shall provide administrative support to the Vertical Advocate including, but not limited to, service of witness subpoenas. The Vertical Advocate shall prepare for the SPB Hearing, including the following, as appropriate: 1. Prepare the defense by confirming: a. Due process compliance, including notice, documentation, Skelly Hearing (if requested) and proper service. b. Deadlines, statutes of limitations, and other critical time requirements. 2. Contact the appellant’s representative to discuss relevant issues, including defenses, potential for settlement, etc. 3. Make discovery requests. 4. Respond to discovery requests. 5. Draft pre-hearing motions (e.g., motion to dismiss for failure to file a timely appeal). 6. Respond to pre-hearing motions. 7. Identify witnesses, including experts, and assess what testimony they can provide. 8. Request that the witnesses review any transcripts of their interviews to ensure their accuracy. 9. Contact the ERO/Disciplinary Officer for the issuance of subpoenas to witnesses and experts. 10. Interview witnesses, as necessary (i.e., if the Vertical Advocate has not participated in the investigative interview). 11. Select witnesses to testify. 12. Prepare witnesses in person, including the assigned investigator, for testimony at the SPB Hearing. 13. Visit the location of the incident leading to the disciplinary action. 14. Identify exhibits to be introduced at the SPB Hearing and request reproduction of the exhibits by the ERO/Disciplinary Officer. 15. Assess the current strengths and weaknesses of the Department’s case, whether and how the weaknesses can be overcome, and develop a strategy for the case. 16. Assess the current strengths and weaknesses of the appellant’s case, including what his or her defenses are likely to be and how to counter them. For example, consider the following: a. What were the appellant’s defenses during the Skelly Hearing? b. Who did the appellant subpoena? c. To what can the appellant’s witnesses testify? d. Other possible defenses, including: 1. Statute of limitations violations. 2. No nexus between wrongful act and employment with the Department. 3. No progressive discipline. 4. The appellant is the subject of disparate treatment, retaliation, or discrimination. 5. The appellant previously has been disciplined for the same incident(s). 17. Prepare a hearing binder, including the following: a. Exhibit list and a copy of each exhibit. b. Witness list in the order in which they will testify. c. List of witness contact numbers. d. Opening Statement Outline. e. Direct and cross-examination questions and, when appropriate, the anticipated answers. f. Closing Argument Outline. g. Applicable precedential decisions, statutes, regulations, etc. 18. Research potential legal issues. 19. Draft briefs, when necessary, utilizing and augmenting where appropriate the EAPT brief bank. 20. Communicate with the SAIG, for cases the BIR is monitoring, including whether the SAIG will attend the SPB Hearing. 21. Consult with the assigned SAIG regarding SPB Hearing strategy. 33030.28.1

33070.3 Definitions (a) Allegations Against Staff Tracking System (AASTS) – An electronic data system used to log and track allegations of staff misconduct involving department staff. (b) Allegation Decision Index (ADI) – The list of criteria used by CST to determine whether an allegation of staff misconduct should be referred to the AIU for investigation, or to the Hiring Authority for an allegation inquiry. (c) Allegation Inquiry – The gathering of relevant facts and evidence by a Locally Designated Investigator (LDI) for a complaint that contains an allegation of staff misconduct. (d) Allegation Inquiry Report – The confidential report prepared by an LDI following an allegation inquiry. (e) Allegation Investigation Unit (AIU) – The unit within the OIA that conducts investigations into complaints alleging misconduct toward inmates and parolees as set forth in Title 15, section 3486.2, and reviews Allegation Inquiry Reports completed by LDIs. (f) AIU Investigator – An investigator within AIU assigned to conduct a confidential investigation. (g) Appointing Power – The Secretary of the department. (h) Case Tracking System (CTS) – An electronic system that allows real time documentation of investigative case activity and allows various participants within the employee disciplinary process to access documents, monitor cases, and record key decisions and due dates. (i) Central Repository – A secure collection location for submission of staff misconduct allegations documented or received by department staff. A Central Repository may be a physical location at a work site, or via an email address provided for the purpose of submitting allegations of staff misconduct. (j) Centralized Screening Team (CST) – The entity within OIA that reviews complaints to determine if the documentation contains a routine issue, alleges staff misconduct toward an inmate or parolee, or alleges staff misconduct not toward an inmate or parolee. (k) Clarification Interview – An interview conducted by CST staff when clarification is required to make a screening decision. (l) Complaint – Any documentation or verbal statement received by the department, from any source, that contains a routine issue or alleges staff misconduct. (m) Complainant – A person making a complaint against departmental staff. (n) Deputy Director, Office of Internal Affairs (OIA) – An individual responsible for the operation and functions of the OIA. (o) Department Staff – California Department of Corrections and Rehabilitation (CDCR) employees, contractors, and volunteers. (p) Designated Case – A case assigned to an EAPT VA. (q) Employment Advocacy and Prosecution Team (EAPT) – The entity in the OLA responsible for providing legal counsel and representation to the department during the employee investigation, discipline, and appeal processes. (r) Hiring Authority – Has the same meaning in this Article as in Title 15, section 3392(a)(11). (s) Investigation – The gathering of facts and evidence by an OIA Investigator. (t ) Investigation Assignment Index (IAI) – The index used by an AIU manager to make a decision regarding the level of AIU investigator to be assigned to conduct an investigation. (u) Investigation Assignment Decision – The decision made by the AIU manager of the level of AIU investigator to be assigned to conduct an investigation. (v) Investigation Report – The confidential report prepared by an OIA investigator following an investigation. (w) Locally Designated Investigator – Department staff trained by OIA to collect evidence, conduct allegation inquiries, and draft Allegation Inquiry Reports. (x) Monitored Cases – A case monitored by the Office of the Inspector General (OIG). (y) Office of Grievances (OOG) – The entity within CDCR with the authority to log and track grievances filed by an inmate or parolee. The OOG shall ensure that all routine claims returned from the CST to the OOG are reviewed and answered. (z) Office of Internal Affairs (OIA) – The entity within CDCR with the authority to investigate allegations of staff misconduct. (aa) Routine Issue – Any complaint received by CST that is not identified as containing an allegation of staff misconduct. (bb) Screening Decision – The decision made by CST of whether a complaint contains routine issue(s), allegation(s) of staff misconduct toward an inmate or parolee, or allegation(s) of staff misconduct not related to an inmate or parolee. (cc) Staff Misconduct – Behavior engaged in by department staff that results in a violation of law, regulation, policy, or procedure, or actions contrary to an ethical or professional standard. (dd) Vertical Advocate (VA) – An EAPT attorney who provides legal advice to the department during investigations and the employee discipline process for designated cases, and represents the department at administrative hearings and during any subsequent writ or appellate proceedings. 33070.4

33070.11.6.3 Allegation Investigation Unit Review of Allegation Inquiry Report (a) After reviewing the Allegation Inquiry Report, if the Hiring Authority requests an AIU investigation or approval of direct adverse action, the Hiring Authority shall refer the case to AIU. (b) An AIU manager, shall review the Allegation Inquiry Report, and in consultation with EAPT, and OIG staff for monitored cases, make one of the following decisions: (1) An AIU investigation is necessary for the evidence to be sufficient for the Hiring Authority to make findings and impose discipline if warranted; or (2) Further investigation is not likely to obtain additional evidence to support the imposition of discipline; or (3) A preponderance of evidence exists for approval of direct adverse action. (c) If the Hiring Authority disagrees with an AIU manager’s decision, the disagreement may be elevated to the AIU Chief for a final decision. 33070.12

47050.3 Usage Acceptable Use Departmental radio communications shall: • Be conducted using CDCR-owned, leased, and managed radios and peripheral radio equipment. Exceptions may be made during emergencies, when conducting tactical operations, or when a law enforcement agency agrees to provide radio equipment that conforms to FCC Rules and Regulations. • Operate on radio frequencies licensed for departmental use. The use of radios and frequencies provided by another public safety entity for events including but not limited to tactical exercises, mutual aid, or dispatch services shall be pre-approved by the Radio Communications Unit (RCU). The locally approved temporary use of another public safety agency’s FCC approved radio frequencies is authorized when necessary during an emergency or to protect public safety. • Be used in conformance with the FCC Rules and Regulations . • Be used for the express purpose of communicating Department information to authorized personnel. Unacceptable Use • The use of non-approved two-way radio equipment is prohibited and shall be considered contraband. • The use of, or possession on institutional grounds of non-approved two-way radio equipment by an employee of the Department shall be subject to progressive discipline up to and including possible adverse action consistent with Department Operations Manual (DOM) Chapter 3, Article 22, Employee Discipline. • The use of non-standard equipment, such as Family Radio Service (FRS) and radio scanners, is prohibited. Possession of such devices on institutional grounds is strictly forbidden. • Inmates, wards, and parolees shall not be allowed to use CDCR radio equipment described in this Article or have access to the radio communications equipment for personal monitoring, except as authorized below: • Inmates assigned to fire camps may be authorized to use a departmental radio as long as it is restricted to accessing mutual aid or fire channels; no access shall be permitted to the trunked radio communications system at any institution, with the exception of the Fire Talk Group. Inmates who are assigned to the institutional fire departments have access to the Fire Talk Group on the trunked radio system, which resides on the Control Station (staff/inmate dispatch console at the fire department) and in the fire vehicles. Inmates shall not have access to the fire department ’ s hand held portable radios which are programmed with other institutional operational talk groups. • In the event an employee is incapacitated, an inmate or a parolee may use the radio to call for emergency assistance. 47050.4

12010.4.4 Regulatory Tests (a) The regulatory tests were established by the Office of Legal Affairs (OLA) as a result of the court ruling noted in Section 12010.4.3 above. (b) A rule, order, or standard of general application of the Department is considered a regulation if it meets one or more of the following tests: (1) Implements, interprets, or makes specific the provisions of statutes, case laws, or the regulations of other agencies. (2) Is a mandate that applies equally to all staff, volunteers, inmates, parolees, or members of the public in similar situations, e.g., classification rules, visiting rules, and conditions of parole. (3) Imposes a standard of required behavior with stated or implied consequences for noncompliance, e.g., inmate discipline and staff conduct. (4) Imposes requirements which must be met in order for staff, volunteers, inmates, parolees, or members of the public to qualify for any general entitlement or privilege available to them, e.g., family (overnight) visiting and canteen privileges. (5) Imposes criteria which govern staff decisions that affect an inmate’s conditions or length of confinement or a parolee’s terms or conditions of parole, e.g., security housing and credit earning and forfeiture. (6) Requires fair and timely staff response (due process), e.g., classification committees and review of inmate appeals. (7) Establishes entitlements (rights), e.g., inmates’ access to the courts and to religious programs. 12010.5