Cal. Code Regs. Tit. 2, § 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.
Notes
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.
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
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