Frequently Asked Questions on Allegations of Staff Misconduct
The California Department of Corrections and Rehabilitation (CDCR) is committed to identifying and responding to any potential safety and security issues throughout the Department, including thoroughly reviewing all allegations of staff misconduct. CDCR has filed proposed regulations to improve the process for reviewing and responding to such allegations.
These draft regulations represent a complete restructuring of the process by transferring review of allegations made by incarcerated people and parolees from the institutions and parole offices where they originated to a Centralized Screening Team (CST) within the Office of Internal Affairs (OIA) at CDCR Headquarters. This removes any actual or perceived local bias by eliminating the ability of institutional authorities to remove grievances from the review process providing a more transparent and independent review of grievances, thus ensuring the system is fair and unbiased.
CDCR has also filed additional proposed regulations that make regulatory the CDCR Code of Conduct and Employee Disciplinary Matrix, which are used to address incidents of staff misconduct that are found to be warranted.
These draft regulations aim to completely restructure the process for reviewing allegations of staff misconduct involving an incarcerated person or parolee by transferring review of allegations made by incarcerated people and parolees from the institutions and parole offices where they originated to a Centralized Screening Team (CST) within the Office of Internal Affairs (OIA) at CDCR Headquarters. All grievances alleging staff misconduct involving an incarcerated person or person on parolee will be sent to the CST, which will determine whether the grievance contains an allegation of staff misconduct using the Allegation Decision Index (ADI), and then forward that allegation to the appropriate authority within the Department for follow-up.
Many stakeholders have provided input on the need to improve the misconduct allegation review process, including staff, the Legislature, Office of the Inspector General, and incarcerated people, people on parole, and their families. The new process replaces the screening of grievances by institutional authorities and centralizes that screening in one office for accuracy and consistency. CDCR strives to create an environment in which incarcerated people, parolees and staff are comfortable raising concerns without fear of retaliation. This requires a positive culture of mutual respect, accountability, and engagement, as well as a transparent process for submitting, researching, and addressing all allegations of staff misconduct.
This is such a major change for CDCR, the new process will be rolled out in several phases to provide enough time for staff training and hiring. Rollout will also include educating the incarcerated and parolee population, and interested stakeholders, of the new process. Processing of all allegations regarding use of force and/or the Prison Rape Elimination Act (PREA) and all Form 602-1s (incarcerated person or parolee grievance) will move from the initiating location to CST beginning in January 2022 using the existing Allegation Inquiry Management Section (AIMS) process. Phased implementation of CST processing all Form 602-1s using the new process will begin in May 2022, with more prisons being added through March 2023. Full implementation, including CST processing of grievances regarding health care and requests for reasonable accommodations, and those received from third parties, will be reached by June 2023.
While each complaint will be researched, they will only be forward to OIA when they involve staff misconduct identified on the Allegation Decision Index (ADI), including improper or illegal use of force, staff sexual misconduct, dishonesty, discrimination or harassment, retaliation, lack of integrity resulting harm to another, or other misconduct including driving violations, endangering others by violating regulations/policy, overfamiliarity, or introducing contraband into a secure area. The CST will use the ADI to determine when a complaint will be routed to the Office of Internal Affairs (OIA) for investigation.
If the allegation is not determined to be on the ADI, it will be referred to the local Hiring Authority for an Allegation Inquiry within three business days of the CST’s receipt. The allegation inquiry will be conducted by a Local Designated Investigator (LDI), who is based at the institution or parole office where the complaint originated and gathers evidence and facts in the form of a confidential Allegation Inquiry Report.
After the investigation is complete, to include gathering all relevant documentation and conducting interviews if necessary, discipline will be imposed consistent with CDCR’s policies.. The claimant will be notified of the determination within 30 days of the determination, but will not be notified of specific findings or any personnel actions.
The Employee Disciplinary Matrix identifies a base penalty within each penalty range for each misconduct allegation. The Matrix is based on the assumption that there is a single act of misconduct at issue and this is the employee’s first Adverse Action. The Hiring Authority may take into consideration aggravating factors that may increase the penalty up to and including dismissal, or mitigating or aggravating factors that may decrease or increase the penalty.
Mitigating factors that may decrease the penalty include whether the misconduct was unintentional, the employee had a secondary or minor role in the misconduct, or that, based on limited experience and/or lack of training, the employee did not fully understand the consequences of their actions. Aggravating factors that may increase the penalty include willful or premediated misconduct, the employee’s leadership role, history of employee discipline, and whether serious consequences occurred or could have resulted from the misconduct.
Managerial and supervisory employees, licensed professionals, and peace officers are held to a higher standard of conduct, and misconduct by these employees is considered an aggravating factor for the purposes of assessing disciplinary penalties.
Adverse actions against non-peace officer state employee must be served no later than three years after the action. Adverse actions against peace officers must be imposed no later than one year from the discovery of the misconduct. Some exceptions include if the case is also being criminally investigated or prosecuted, involves multiple subjects, is part of a multijurisdictional investigation, or involves worker’s compensation fraud.
All Department employees may request a Skelly Hearing prior to the effective date of an Adverse Action. A “Skelly” hearing, named after the 1975 case Skelly v. State Personnel Board, ensures the employee is informed of the allegations, has an opportunity to refute them and, if appropriate, has the opportunity to mitigate the allegations prior to the adverse action. If the discipline is sustained after the Skelly hearing, the employee may appeal the decision to the California State Personnel Board.
When an employee is under investigation, or subject to discipline, the Hiring Authority may place an employee on paid Administrative Time Off (ATO) or temporarily involuntary reassign them to a different position.
Claims that are denied or found to not be within CDCR’s jurisdiction may be appealed by the claimant. Claims referred for investigation, that are part of a pending legal matter, or for which the time to file a complaint have passed are considered to have exhausted all administrative remedies and the claimant may take the matter to court. Regardless of time constraints outlined in these draft regulations, all allegations of staff misconduct will be referred by the Centralized Screening Team.
An allegation of staff misconduct is a complaint against an employee of CDCR or California Correctional Health Care Services (CCHCS) that alleges a violation of law, policy, regulation or procedure, or conduct unethical or unprofessional. Anyone can submit a complaint alleging staff misconduct. Anybody can make an allegation of staff misconduct, including incarcerated people, people on parole supervision, staff, contractors, volunteers, and others such as family members, community-based organizations, and elected officials. Learn more at https://www.cdcr.ca.gov/oia/report-misconduct/.