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Holwerda Petersilia Research Paper Re Ca Pra and the Ccpoa 2006

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Prison Reform and the
California Correctional Peace Officers Association

Danielle A. Holwerda
January 23, 2006
Crime and Punishment Policy
Fall 2005
Professor Joan Petersilia

California Sentencing & Corrections Policy Series Stanford Criminal Justice Center Working
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Electronic copy of this paper is available at: http://ssrn.com/abstract=977252

“This is an agency in which there has been too much political influence, too
much union control and too little management courage and accountability…
California was once the national leader, a pioneer, in corrections integrity,
innovation and efficiency. We can make it so once again.”1

Governor Schwarzenegger made this commitment to reform the California
Correctional System on January 1st 2005 in his State of the State Address. His explicit
reference to the overreaching influence of the California Correctional Peace Officers
Association (CCPOA), and his own refusal to accept campaign donations from the union,
may reflect a shift in California gubernatorial politics. Until now, the CCPOA has been
among the most powerful political forces in the state, contributing millions of dollars each
year to political campaigns. Despite Schwarzenegger’s public pronouncement, though,
reform may be difficult. The contract between the State of California and the CCPOA
gives union members broad powers, some beyond the traditional sphere of labor contracts.
The CCPOA contends that these rights promote a professionalized workforce, with better
employees, lower turnover, and fewer violent outbreaks than most states.2 Many believe
instead that the contract imposes unbearable budget costs, reduces managerial discretion,
threatens inmate safety, and may impinge upon the state’s ability to implement reform.
1. BACKGROUND
California’s penal system has grown dramatically in the last twenty five years.
With increasingly harsh sentencing policies, prison populations have swelled, and twentyone new prisons have been added, reflecting an unprecedented boom in prison

1

Governor Arnold Schwarzenegger, State of the State Address (Jan. 5, 2005).
Mark Martin, Prison guards lock arms: Formidable union is fighting to keep its July pay raise, San Francisco
Chronicle, June 14 2004, at A-1.

2

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construction. With this growth has come a burgeoning of the prison guard ranks. Between
1980 and 2002, membership in the CCPOA rose from 5,000 to 31,000,3 and with this
foundation, the union stepped up its political activities. As a result, the CCPOA is
currently the top-spending law enforcement lobby in the state.4 In 1994, the union made
history when it donated $425,000 to Pete Wilson’s gubernatorial campaign—the largest
single donation to a California candidate up to that time. Governor Grey Davis received
more than $3 million in campaign contributions from the CCPOA.5 Now, approximately
35 percent of the CCPOA’s nearly $8 million yearly budget is dedicated to political
activities.6
One of the trends of CCPOA lobbying has been to support legislation that
promotes harsher sentences for prisoners. More prisoners means more job security for
prison employees. In 1994, the CCPOA joined with the National Rifle Association to fund
the “Three Strikes” initiative, the harshest sentencing law in recent history. The initiative
passed with 72 percent of voter support. Throughout the late 1980’s and 1990’s, CCPOAsponsored legislation was successful more than 80 percent of the time.7 Overall, the
CCPOA’s increasing influence is reflected in the fact that the CDC budget grew from
$923 million in 1985 to $5.7 billion in 2004, and prison guard salaries swelled from
$14,440 in 1980 to $54,000 in 2002.8

3

The CCPOA was collecting over $22 million in yearly dues in 2004.
Out in the Cold on the Governor’s Hit List, Contra Costa Times, Jun. 22, 2004, at A01.
5
Mark Martin, Guards Union Corrupts Prisons, Report Finds, San Francisco Chronicle, Jun. 25, 2004, at A-1.
6
Daniel Macallair, Prisons: Power Nobody Dares Mess With, Sacramento Bee, Feb. 29, 2004.
7
Id.
8
University of California Berkeley, Institute of Governmental Studies Website, California Correctional Peace
Officers Association, at http://www.igs.berkeley.edu/library/htCaliforniaPrisonUnion.htm, (last modified July
2005).
4

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2. CCPOA LABOR AGREEMENT
The CCPOA labor agreement has received significant bad press for being a
budgetary gauging of California tax payers. The average California correctional officer
earns $59,000, which is 58% more than correctional officers nationally.9 Union members
also receive retirement benefits beginning at 50 years of age of up to 90% of their annual
salary for the rest of their lives.10 The primary contract provision that critics of the
contract point to, however, is a 37 percent cumulative salary increase that was adopted in
the 2001 agreement. This was adopted under Governor Grey Davis, and has been decried
by many as a symbol of special-interest excess and influence over the former governor. In
the current budget crisis, Governor Schwarzenegger has felt the impact of the scheduled
salary increase. In attempting to balance the budget in 2004, he was forced to ask the
union to return to the bargaining table before the contract was up, and before these
increases took effect, and request that they give up the scheduled pay raise. As we will see
below, this was a costly move. While the union acquiesced on the timing of their pay
increases, they expanded their power and job security in other ways.
There is, however, another side to the story. Notably, California’s prison guard
staffing ratio was 47th-worst in the nation in 2004,11 and the system has been plagued by
insufficient recruitment and retention of officers. There are 6.46 inmates per California
correctional officer, compared to a national average of 4.47. California correctional
officers are assigned twice as many inmates as those in New York.12 The president of a
Chino-area CCPOA chapter was quoted as saying that the overtime situation is so bad

9

Petersilia paper, cite pending.
Id.
11
Don Thompson, Prison Guard Costs Skyrocketing, Long Beach Press-Telegram, Mar. 5, 2004, at A1.
12
Census of State and Federal Correctional Facilities, 2000, quoted in Petersilia paper, cite pending.
10

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“that frequently throughout the months of August and September we weren’t able to fill
all the positions on all the shifts, even by forcing every available officer to work a second
shift. We’re using fatigued staff in a high-stress environment to provide essential safety
and security.”13
California Government Code Section 19827.1 specifically acknowledges a historic
problem recruiting and retaining correctional officers, and creates a policy that salary for
these officers “must be improved and maintained” by taking into consideration “the salary
and benefits of other large employers of peace officers in California.”14 The CCPOA has
argued that their salaries should be commensurate with Highway Patrol officers, and that
the 37 percent pay hike does not yet achieve this goal. However, while it appears true that
their base salaries are lower than the CHP,15 other provisions in their contract make it
more difficult to definitively assess who takes home the better package.16 Most
significantly, corrections officers have access to significant overtime pay. For example, of
the one hundred California state employees receiving the most overtime pay in 2004,
thirty two were correctional staff.17 In contrast, California Highway Patrol officers only
13

Mason Stockstill, Riot at CIM Draws Eyes to Staffing Levels, Inland Valley Daily Bulletin, Sept. 23, 2005.
California Department of Corrections, California Bureau of State Audits, July 2002, available at
http://www.bsa.ca.gov/pdfs/reports/2002-101.pdf.
15
CHP officer base salary is approximately $50,952. Officers receive a five percent base salary increase each
year for five years until they reach top step salary of $61,944. California Highway Patrol Website, Salary,
Benefits and Retirement, available at http://www.chp.ca.gov/recruiting/html/osalary.html. Correctional officers
receive from $37,800 to $64,620. The rate paid beyond $37,800 is dependent upon time-in-grade, completion of
the apprenticeship program and job performance. California Statewide Correctional Officer Examination
Bulletin, Department of Corrections and Rehabilitation, available at http://www.corr.ca.gov/Selecti
onsStandards/PDFFiles/ COBulletin.pdf.
16
Senator Scott made this point clear when he cautioned, “If you’re able to cherry pick and say, We want the
retirement benefits involved with this group; we want the health benefits involved with this group… you can put
it all together and you can come up with a composite that shows you’re underfunding in all of these areas. But
we could put together a composite that points out, compared to other state employees, how much better your
contract is.” Ad Hoc Committee Informational Hearing: State Bargaining Unit 6 Memorandum of
Understanding Before California Senate Appropriations Committee, Jul. 26 2004, at 48.
17
This figure consists of eight correctional officers, twelve correctional lieutenants, and twelve correctional
sergeants. Plus, it does not include an additional twenty three medical employees of the CDC. Todd Wallack,
Overtime Pay Soars for Hard-To-Fill Jobs, San Francisco Chronicle, Jun. 21 2005 at A-8. For the list of the
14

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represented ten members of this list.18 Overtime has proven to be a critical budgetary
concern. Overtime costs were $929 million from 2000-2004, 72 percent, or $388 million
more than the state had planned.19 In 2003, officers earned $152 million in overtime,
compared to $21 million in Texas.20
More importantly than “how do we compare,” however, is the question of, “is it
working?” The union has a fairly strong argument that, at least in some ways, these
salaries yield positive results for the California prison system. “The union has worked
diligently to improve wages and working conditions of its members. It has also
established reasonable inmate to correctional officer ratios, improved CDC training, and
taken steps to protect the rights of victims of crime.”21 In 2004, 1000 of California’s
36,000 sworn peace officers left their jobs, a turnover rate for that year of only 3.6%.22
This is one of the lowest if not the lowest turnover rate of any state. Officer turnover
means significant administrative, training, and transactional costs. “Thus, California may
recoup some of the money spent on lucrative contracts for officers by avoiding these
wasted personnel expenses. Better staff retention and greater professionalization should
also affect the conditions within the prisons, such as escapes, suicide attempts, and
assaults.”23
In addition to the budget concerns surrounding the MOU, the contract has been
criticized for limiting managerial discretion and negatively impacting prisoner security

employees receiving the most overtime see http://www.sfgate.com/cgi-bin/news/casalary/employee
?Submit=Page&otmax=&o=50&term=&sort =overtime&ord=DESC.
18
Nine officers and one sergeant made the list. Id.
19
Prison-Guard Overtime Pay Bleeds Budget, Contra Costa Times, Feb. 27, 2004.
20
Id.
21
Special Master’s Final Report Re: Department of Corrections Post Powers Investigations and Employee
Discipline at 26, Madrid v. Woodford, (No. C90-3094-T.E.H.).
22
Petersilia, cite pending.
23
Id.

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from uses of force by correctional officers. This paper attempts to assess what
implications, if any, the current CCPOA MOU, side agreements, and 2004 addendum have
in the areas of budget, managerial discretion, and inmate safety, and how these provisions
may affect attempted reform of the California penal system.

a. BUDGET
The following are several provisions of the contract that should be explored in any
attempt to reduce the cost of the CCPOA contract:
i. Sick Leave Policies
1. Extraordinary Use of Sick Leave (EUSL) Program.
The 2001 labor agreement eliminated the Extraordinary Use of Sick Leave (EUSL)
Program. This program was designed to monitor and discourage use of excessive sick
leave. The union’s concern with EUSL was that it punished members who were
legitimately sick based on pre-prescribed limits on leave.24 However, the elimination of
the program, in conjunction with an additional new provision prohibiting management
from challenging an employee’s use of sick leave based solely on the amount or frequency
of use,25 has allowed for a dramatic increase in correctional officers’ use of sick leave.
Whereas it is budgeted for officers to use 7.5 sick days per year, as of 2004 they were
taking 13 days per year.

26

Correctional officers used about 188,000 hours of sick leave in

March 2002, compared to 144,000 hours in March 2001, an increase of around 30

24

Specifically, it defined extraordinary use as calling in sick more than five times per year with nine or more
total absences, using sick leave in conjunction with a regular day off three or more times a year, having a bona
fide pattern of sick leave use during the year, or using sick leave on a day for which the department had already
denied the use of another type of leave.
25
Agreement between State of California and California Correctional Peace Officers Association, July 1, 2001
through July 2, 2006, at §10.02(D). Available at http://www.dpa.ca.gov/collbarg/contract/bumenu.shtm.
26
California Senate Appropriations Committee Hearing, supra note 16 at 4.

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percent.27 This increase took place despite the fact that the new agreement still permits
management to discipline abusers of sick leave.

2. Intermittent Guard Sick Policy
The policies concerning intermittent guards also have significant budgetary
implications. An intermittent guard is an employee who works periodically or for a
fluctuating portion of the full-time work schedule. Hours worked are based upon the
operational needs of each department. As such, intermittent guards function as a lowercost alternative to paying overtime to a full-time employee. However, the state may be
spending funds unnecessarily with respect to intermittent guards. This is because they are
now eligible under the 2001 contract to receive sick leave benefits. If management phones
an intermittent who uses sick leave to refuse the assignment,28 the intermittent is paid as if
he or she did work, up to three times per twelve month period.29 Plus, the department must
then pay the employee who actually works the shift. This clause should be revisited in the
next contract negotiation.
Excluding this provision, intermittent officers can potentially serve to lower costs.
Intermittent guards are available to fill posts that would otherwise be filled by prison
guards working overtime. They therefore serve as a lower-cost alternative to overtime
expenses. Prisons with low intermittent use could lower their costs by paying for more
intermittent officers’ time as opposed to the higher prison guard overtime rate. As an
example, in 2001, five of the department’s thirty three prisons had unused intermittent
time equivalent to the efforts of between 11 to 19 full-time officers. Had these prisons
27

CDC State Audit Report, supra note 14.
The new clause allows intermittent guards to refuse assignment due to illness and still be paid “sick time” pay.
29
CCPOA Agreement, supra note 25, at 26.01(C)(8) and 26.02(B). See also Jill Stewart, Why the Prison Guard
Union Instills Fear and Loathing in the Legislature, Long Beach Press-Telegram, Apr. 18, 2004, at A19.
28

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fully used their intermittent officers, they could have avoided more than $1.2 million in
overtime costs from July through December 2001.30

3. Counting sick leave as time worked when determining overtime.
According to the CCPOA MOU, officers’ use of sick time counts as time worked
when determining their overtime pay.31 This provision is not new to the 2001 CCPOA
contract, but the California Bureau of State Audits estimates that it could be adding as
much as $9.5 million to the department’s annual costs.32 It should be noted, however, that
this manner of computing time worked for purposes of overtime is consistent with the
CHP. Their contract states that “time when an employee is excused from work because of
holidays, sick leave, vacation, annual leave, personal leave, or compensating time off,
shall be considered as time worked by the employee.”33
ii. Awarding overtime on a seniority basis.
The CCPOA MOU provides that voluntary overtime will be assigned based on
seniority.34 The California Bureau of State Audits estimates that if overtime hours were
spread evenly among officers throughout the salary ranges, the department would save
about $4.8 million annually.35 For the six month period between July and December 2001,
of 2.3 million total overtime hours worked at the department’s 33 prisons, the highest-paid
staff worked 69 percent of the hours (1.6 million) yet were only 56 percent of the total
correctional officers working overtime. In contrast, the lowest-paid correctional officers

30

CDC State Audit Report, supra note 14.
CCPOA Agreement, supra note 25, at 11.08(B).
32
CDC State Audit Report, supra note 14.
33
Agreement between the State of California and California Association of Highway Patrolmen Covering
Bargaining Unit 5, Jul. 3, 2001 through Jul. 2, 2006, at 27. “Time worked” applies both to their benefits such as
retirement, and to their pay.
34
CCPOA Agreement, supra note 25, at 12.05(A).
35
CDC State Audit Report, supra note 14.
31

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worked only 7 percent of the total hours (163,000) yet were 12 percent of those who
worked overtime.36
The CCPOA MOU states that officers “shall be assigned voluntary overtime by
seniority except where precluded by operational needs of the departments or in emergency
situations.”37 The CHP has a similar provision for voluntary overtime, but it allows for
flexibility in this process: “The employer shall make reasonable efforts to offer special
program overtime on an equitable basis taking into consideration employee skills, abilities
and past performance for the given assignment. Voluntary overtime shall be offered on a
continual rotational basis utilizing the most senior available employee.”38 In practice, each
CHP area office has the ability to establish their own policies for handling voluntary
overtime assignments, as long as it is fair and equitable.39
Moreover, the CHP may not be a very good comparison here. The nature of
overtime assignments in each agency represent a key difference between the prison guards
and the CHP. In the prisons, if an officer calls in sick, his or her position must be filled
through overtime. This means that every day, every shift, there is significant overtime
being paid to prison guards. The Highway Patrol, on the other hand, does not call in
overtime officers to fill sick positions. They staff with the people that are on duty, unless
extraordinary circumstances arise.40 Voluntary overtime is therefore limited to special
posts, such as movie details (regulating traffic for a movie shoot) or CalTrans construction
sites. These are discrete jobs that are planned in advance for which CHP officers can
36

Id.
CCPOA Agreement, supra note 25, at 12.05(A).
38
CHP Agreement, supra note 33, at 30.
39
Interview with Sergeant Andy Menard, CHP, Office of Employee Relations, Dec. 29 2005 (providing
examples of rotating through a seniority list or giving the assignment to the employee with less overtime hours in
a particular year).
40
Id. (Menard noted that “Sick leave is not a huge issue for us”)
37

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apply. The prevalence of overtime shifts is therefore much lower at the CHP.41 The
budgetary implications of seniority-based assignments are clearly more severe in the
prison system.
iii. Contribution of funds to a supplemental retirement account.
As of fifty years of age and thirty years of service, CCPOA members are eligible
for retirement benefits of up to 90% of their salary for the rest of their lives.42 State
legislators have claimed that this is a different type of retirement system than the rest of
state employees.43 However, employees of the California Highway Patrol receive the same
benefit.44 If we compare this retirement system to California teachers, on the other hand,
we discover a large disparity. Teachers receive only 2.5 percent at age sixty three.45 This
means that after thirty years on the job, a correctional officer receives 90% of his salary
for life, but a teacher receives only 75%, and these benefits begin twelve years later. The
following is a comparison of several state employee benefit systems:46

41

See List of state employees receiving the most overtime, discussed supra at 17. Note that CHP officers may
also receive pay for mandatory overtime. This is overtime generated during their shift that causes them to work
beyond the shift (i.e., DUI arrest, court time).
42
As of January 1st, 2006 members who work 30 years prior to retirement receive 90% of their salary. This is
calculated by multiplying 3.0 times the number of years worked. Therefore, retiring after twenty years on the job
yields sixty percent of salary during retirement (20 times 3.0). There is a 90% ceiling that makes working longer
than thirty years irrational.
43
California Senate Appropriations Committee Hearing, supra note 16 at 48.
44
Specifically, the contract provides that, “Sworn members will accrue retirement benefits under the State Patrol
Formula in CalPERS at a rate of 3% of final compensation per year of service at age 50 and above.” CHP
Agreement, supra note 33, at 33.
45
Agreement between the State of California and Bargaining Unit 3, Professional Educators and Librarians, Jan.
31 2002 – Jul. 2, 2003, at 101.
46
See Memorandum of Understanding for Bargaining Units 3, 5, 6, 8, 17, available at http://www.dpa.ca.gov/
collbarg/ contract/bumenu.shtm.

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Age at
retirement

Retirement Factor
Teachers

Registered
Nurses

Firefighters

CHP

CCPOA

50

1.10

1.10

2.40

3.00

3.00

51
52
53
54

1.28
1.46
1.64
1.82

1.28
1.46
1.64
1.82

2.52
2.64
2.76
2.88

3.00
3.00
3.00
3.00

3.00
3.00
3.00
3.00

55

2.00

2.00

3.00

3.00

3.00

56
57
58
59
60
61
62

2.06
2.13
2.19
2.25
2.31
2.38
2.44

2.06
2.13
2.19
2.25
2.31
2.38
2.44

3.00
3.00
3.00
3.00
3.00
3.00
3.00

3.00
3.00
3.00
3.00
3.00
3.00
3.00

3.00
3.00
3.00
3.00
3.00
3.00
3.00

63 and over
Maximum
percentage of
salary
received upon
retirement:

2.50

2.50

3.00

3.00

3.00

75%

75%

90%

90%

90%

iv. Bonus pay
CCPOA members receive bonuses for fulfilling certain “extra” conditions. For
example, correctional officers are entitled to additional income for physical fitness pay,
educational incentive pay, bilingual pay, and rural pay. Though these types of bonuses are
used in other California law enforcement agencies,47 several of them stand out in the
corrections system.
First, correctional officers get a bonus of $65 to $100 per pay period for simply
completing a physical fitness exam, regardless of their physical shape.48 The CHP, on the
other hand, requires that employees meet certain physical requirements for passage of

47
48

The California Highway Patrol offers Physical Performance Pay, Bilingual Pay, Educational Incentive Pay.
CCPOA Agreement, supra note 25, at 15.07(A).

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work tasks.49 The result is that every one of the CCPOA’s 31,000 members are receiving
fitness pay,50 in essence making it part of their income, as opposed to a performancebased bonus.
Next, the CCPOA MOU has a provision entitled “recruitment incentive” that
provides for bonuses to employees in the San Quentin and Salinas facilities. In reality, this
is a housing stipend due to higher housing costs in these areas. Officers receive $175 per
month of additional income. According to Senator Speier, other state employees that work
in the San Francisco Bay Area receive no such subsidy.51
Finally, the Rural Health Program appropriates $1500 per year to employees living
in eligible rural areas, a program that also exists in other law enforcement agencies.52
These programs generally allocate a certain amount per month to each rural employee that
they are permitted to receive as a reimbursement for incurred health costs. The rationale is
that health care costs are higher in rural areas.53 The 2001 CCPOA MOU provided for a
typical

reimbursement

program

in

which

employees

were

required

to

claim

reimbursements and provide proof of their health care expenses. Money that was not
claimed was placed into a bank account available to rural employees with catastrophic
healthcare conditions. The addendum negotiated in July of 2004 changed this
reimbursement system to an out-of-pocket expenditure. Employees are now paid the rural
bonus without proving reimbursable costs. The union contends that healthcare costs are

49

CHP Agreement, supra note 33, at 25.
California Senate Appropriations Committee Hearing, supra note 16 at 4.
51
Id., 47
52
See, e.g. CHP Agreement, supra note 33, at 48.
53
This appears to be a valid concern. HMOs have been withdrawing operations from rural areas due to
unprofitability. Profit concerns stem from the fact that rural residents on average have demographic
characteristics that make them expensive to insure. Declining availability of healthcare increases its cost in these
areas. HMOs and Rural California, Legislative Analyst’s Office, August 8, 2002, available at
http://www.lao.ca.gov/2002/hmos_ rural_ca/8-02_hmos_rural_ca.pdf.
50

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simply so high in these areas that all employees would be reimbursed the full amount
anyway, making this a stipend that directly offsets higher healthcare costs. Senator Speier
has expressed concern that regardless “we are creating a different status for rural
employees who are CDC members than rural employees who are not CDC members.”54

b. MANAGERIAL DISCRETION
An equally significant concern that many express about the California Correctional
Peace Officers Association’s MOU with the State of California is that it covers topics
outside the scope of employment conditions and salary,55 imposing limitations on
managerial discretion. Judge Henderson has stated that the MOU “clearly has resulted in
an unfair and unworkable tilt toward union influence … The agreement contains
numerous provisions that seriously undermine the ability of management to direct and
control the activities of existing correctional departments and the new Department of
Correctional Services.”56 Jeanne Woodford, Undersecretary of the California Department
of Corrections and Rehabilitation, echoed this sentiment, stating that she “would like to be
able to take back some of [her] authority as a manager.”57 In reviewing the MOU, it
appears that two provisions have the most impact on management’s ability to run their
prison facilities: the post and bid system and performance reviews.

54

California Senate Appropriations Committee Hearing, supra note 16 at 44 (Statement of Senator Speier).
Id., at 67 (Statement of Senator Speier).
56
Letter to Governor Schwartzenneger from Judge Thelton Henderson, Jul. 21 2004, available at
http://www.pris ontalk.com/forums/archive/index.php/t-69764.html.
57
Jeanne Woodford, Talk at Stanford Law School (Nov. 9, 2005).
55

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i. Post and bid provisions limit managerial staffing discretion.
The CCPOA MOU stipulates that seventy percent of a prison’s posts are available
for correctional officers to fill on a seniority basis,58 leaving only thirty percent for
management to staff as they deem appropriate. The process for assignments begins with
an agreement between the local union chapter and prison management on the number and
makeup of posts. Next, correctional officers bid for seventy percent of the posts, and are
assigned to them based on seniority. Management makes assignments at its discretion for
the remaining thirty percent of the posted positions.
Although the post and bid provision has existed in previous agreements, the current
MOU increased the percentage from 60/40 to 70/30. It also augmented the overall number
of qualifying positions subject to the provision.59 In addition, the 2004 addendum
extended post and bid to more supervisory positions. It is unclear, though, whether this
change was actually implemented.60 None of the other five local law enforcement agencies
in California have post and bid provisions.61
The CCPOA contends that this system assures fairness in assignments and
safeguards officers from managers who would use the assignment process inappropriately,
such as for retribution or favoritism.62 However, management feels that the post and bid

58

CCPOA Agreement, supra note 25, at 12.07(A)(3)(d).
For example, medical technical assistants were added as qualifying posts.
60
CCPOA asserts that it was promised 70 percent post and bid for supervisors, and claims that the administration
reneged on the agreement. The state maintains it never went along with a specific percentage. The matter is now
the subject of a lawsuit filed by the CCPOA. Andy Furillo, Contract Pits Guards v. Governor, Sacramento Bee,
Jun. 12 2005. It should be noted here that in reviewing the addendum, I found no reference to including
additional post and bid positions.
61
California Senate Appropriations Committee Hearing, supra note 16 at 92. California Government Code
§19827 identifies the five law enforcement agencies used for salary comparison purposes as the Los Angeles
Police Department, the Los Angeles County Sheriff's Office, the San Diego Police Department, the Oakland
Police Department, and the San Francisco Police Department.
62
Id., at 91.
59

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system prevents them from selecting the most appropriate employees for sensitive or
critical posts and limits their ability to reward or discipline staff in seniority-bid posted
positions. For example, if management determines that an employee with high seniority is
not performing up to standards in a seniority-based post, they may remove that employee.
However, they must place the employee in one of their 30 percent posts, preventing them
from making merit-based assignments. Similarly, if an employee with low seniority is
performing above standards, management’s ability to reward that employee with a
desirable assignment is limited. Jeanne Woodford has stated that she does not care for the
post and bid system and that she would like the next contract negotiation to return some
positions to management. She explained that “some people don’t have the right kind of
personality for particular postings.”63
Management has some limited ability to exclude officers from assignments for
which they have bid. Inattentiveness on the job, insubordination, or excessive force are
permissible reasons, but sick leave abuse, off-duty conduct, or adverse personnel action
occurring more than twelve months prior to the requested assignment do not qualify as
allowable justifications.64 It should be noted, however, that there is a provision entitled the
“Ten Percent Rule” that is intended to alleviate the problem detailed above. It states that
“in those instances when it becomes apparent an employee does not possess the
knowledge, skills, aptitude, or ability to perform at an acceptable standard” in the post
position to which the employee has bid, he or she can be reassigned. This reassignment is
subject to some hefty procedural requirements, however. The employee’s immediate
supervisor must prepare a job change memorandum. The memo must then be approved by

63
64

Woodford Stanford Law School Talk, supra note 57.
CCPOA Agreement, supra note 25, at 12.07(3)(e)

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the employee’s second line supervisor and section manager prior to being forwarded to the
Personnel Assignment Office. The number of these reassignments must not exceed ten
percent of the total post seniority-based positions.
As an illustration, the following flow charts details how these rules work together
to limit management’s assignment discretion. Beginning with a hypothetical one hundred
post and bid eligible positions, management may only be able to assign twenty seven
posts:
100

30

27

Total
Positions

Eligible for
Management
Assignment

Final Assigned
by Management

70
Subject to
Post and Bid

3
“10 Percent
Rule”
Reassignments

ii. Performance reviews:
If an officer engages in inappropriate conduct, the MOU states that unless his or
her performance was of a continuing nature or the instance was “particularly egregious,” a
single event cannot be the basis of a substandard rating on an employee review. An
overall rating of satisfactory or higher is considered to constitute successful job
performance.65 This provision is important because performance reviews should be a
mechanism for managers to assess employee suitability for job posts. Preventing
supervisors’ reviews from accurately representing an officer’s performance means that

65

Id, at 9.01(A), 9.01(B), 9.01(D).

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assignments even to those thirty percent of posts without seniority limitations are made
without full information.
Successful job performance is also tied to officer salary. According to the contract,
all employees who are certified as successful job performers shall receive an annual Merit
Salary Adjustment (MSA).66 This means that even if an employee engages in conduct of
which management does not approve, but is not “particularly egregious” or continual, the
state is nonetheless required to pay a merit bonus.

c. SAFETY AND DISCIPLINE
While it is clearly appropriate for a labor contract to regulate employment
conditions, including the disciplinary process, these provisions in the CCPOA MOU may
adversely impact inmate safety and serve to intimidate potential whistleblowers in use of
force incidents. Judge Henderson’s Special Master has stated:
The CDC and Department of Personnel Administration, with the
approval of the California Legislature, have entered into a series of
MOU modifications whereby the delicate balance struck by
California statutes between holding a peace officer to the high
standards expected by the public and safeguarding that peace
officer’s due process rights, has been prejudiced to a degree where
timely, fair, and effective investigations of inmate abuse may well
be impossible.67
The union, on the other hand, defends the provisions as necessary to protect the
rights of officers accused of using excessive force.

66

Id, at 15.03(E). The clause additionally states: “Successful job performance shall be based on the latest
performance evaluation on file as of the date of the pay increase. If no performance report is on file, the
employee shall be deemed to have been performing successfully and shall receive his/her MSA.”
67
Special Master’s Final Report, supra note 21, at 104, Madrid (No. C90-3094-T.E.H.).

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i. Investigation of guard misconduct:
The contract requires investigators to turn over grievances that could result in
adverse action to the accused CCPOA officer before the officer is interviewed by internal
affairs.68 MOU Side Letter Number 12 requires the CDC to give written notice to any
employee ordered to attend an investigative interview, whether the employee is the subject
of the investigation or simply a witness. It also mandates that the CDC allow reasonable
time for a CCPOA representative to travel to and attend the interview.69 These provisions
taken together may deter reporting, compromise investigations, lead to reprisals, and
perpetuate the code of silence.
First, an inmate who wants to report an abuse of force may reconsider this decision
since he knows that the officer who abused him will immediately receive a copy of the
complaint. In addition, there are no rules preventing this officer from telling others at the
prison about the allegations, making the complainant potentially vulnerable to retaliation.
Next, in the event of an internal affairs investigation, the investigation may be
compromised because the subject officer and his CCPOA representative already have the
details of the claims against him. The same CCPOA representative is allowed to attend
each witness interview and subsequently attend the subject officer’s interview. Thus, by
the time the subject is interviewed, he has both the original complaint by the inmate and is
aware of what each of the witnesses have said. The officer and his coworkers can easily
develop consistent alibis to frustrate the investigation.70 Finally, Judge Henderson’s
Special Master expressed concern that Side Letter 12 ensures a strict code of silence

68

CCPOA Agreement, supra note 25, at 9.09(C).
Special Master’s Final Report, supra note 21, at 113, Madrid (No. C90-3094-T.E.H.).
70
Id.
69

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concerning inmate abuse cases. “Correctional officers who meet with investigators do so
under the watchful eye of their CCPOA representatives. Correctional Officers who meet
with an investigator without their CCPOA representation are readily identified by the
CCPOA, and can be subjected to shunning and other misconduct by the correctional
officers under investigation.” Moreover, neither the CDC nor the CCPOA has issued
policies that govern the behavior of CCPOA representatives who serve as representatives
to witness and subject officer interviews.71
The union offered the Special Master several justifications for these provisions,
none of which satisfied him as convincing “given the section’s application in day-to-day
life in the prisons.”72 First, the CCPOA explained that correctional officers should receive
complainant information because they need to be informed of inmate threats. While the
Special Master was in agreement with this concept, his review of grievances indicated that
prisoners do not use the grievance process to communicate threats. Second, the CCPOA
contends the provisions are needed to “enhance correctional officer memories.” Again, the
Special Master disagreed with this argument because current policy dictates that the
correctional officers prepare a report about any incident that an inmate would report as
forceful. Third, the CCPOA cites section 909(e) which allows the CDC to decline to
provide a report to the alleged perpetrator in the event of a surveillance, undercover
operation, or sting. According to them, this means that legitimate investigations may
proceed without turning over sensitive information to the accused officer. However, as the
Special Master pointed out, correctional officers know when they are being investigated.
Thus, if someone is under surveillance, when he requests a copy of the grievance and is

71
72

Id., at 114.
Id.

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told that 909(e) prevents him from viewing it, he will know immediately that an
undercover action is underway, compromising the surveillance and the investigation.73
A final concern with the mechanism for addressing use of force incidents is the
Executive Review Committee (ERC). Currently, CCPOA representatives are invited to
observe the weekly meeting of the ERC, which is a forum for candid discussions of
reports of force. These same CCPOA representatives may later represent officers whose
cases were discussed at the ERC meeting. The Special Master believes that this system is
inappropriate and unnecessary to protect the rights of officers given the existence of wellestablished polices and procedures to assure their fair treatment, such as Skelly hearings.74

ii. One year limit on bad conduct affecting officer assignments.
Bad employee conduct ceases to affect an officer’s assignment one year after the
incident occurs. An employee may not be precluded from participating in the post and bid
program based upon an adverse personnel action if this action occurred more than twelve
months prior to the bid process. Prison managers can therefore not deny an officer’s
requested job assignment based on earlier bad conduct if they are entitled according to
seniority.75 This could jeopardize inmate safety because managers are precluded from
following their own instincts that an officer with previous disciplinary problems may not
be ready or have the right personality for a particular posting.

73

Id, at 113.
Id., at 33. Public employees are entitled to a pre-disciplinary Skelly hearing. This includes written notice of the
proposed disciplinary action, including: (1) a statement of the nature of the proposed discipline, (2) the effective
date of the proposed discipline, (3) the reasons for the discipline, (4) the specific policy or rule violated, (5) a
statement advising the employee of the right to respond orally or in writing. The Skelly rule allows employees an
opportunity to respond to the charges and to request a reduction or elimination of the discipline.
75
CCPOA Agreement, supra note 25, at 12.07(B)(1)(e)
74

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iii. Purging of files:
Most files relating to disciplinary or work quality problems are regularly purged
from employees’ files. Specifically, the MOU requires that Letters of Instruction and
Work Improvement Discussion records be removed from employee files one year after the
date which management should have reasonably known of the incident.76 Notices of
adverse action are purged after three years;77 citizens’ complaints after five years.78 On the
one hand, this impinges upon management’s ability to fully assess correctional officers’
suitability for different posts. On the other hand, it enables employees who improve their
conduct to move past previous bad acts and become successful employees. In determining
which of these arguments weighs heavier in the context of the California correctional
system, it is helpful to look to the Highway Patrol as a comparison. Though no similar
provision exists in the Highway Patrol contract, departmental policy dictates the same
result—that citizen complaints be purged after five years and negative documentation
after three.79 The CCPOA provision is therefore consistent with other public safety agency
contracts.

3. 2004 CHANGES TO THE CCPOA CONTRACT
On July 1 2004, the Schwarzenegger administration reached a deal with the
CCPOA to delay the scheduled union pay raise with the purpose of saving the state $108
million in fiscal year ‘04-05. Judge Henderson harshly condemned the agreement as
giving up “numerous and important management prerogatives to the CCPOA.”80 In

76

CCPOA Agreement, supra note 25, at 9.05(A).
Id, at 9.06(A).
78
Id, at 9.06(B).
79
Andy Menard Interview, supra note 39.
80
Henderson letter, supra note 56.
77

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Henderson’s view, “many of these modifications subtly — and some not so subtly —
undermine the ability of the Court to achieve compliance with its remedial orders.” Jeanne
Woodford has taken a more pragmatic view of this most recent negotiation. “The
Governor needed money. The only way you can get money back from the unions is to give
something. That’s what it was.”81
The agreement provided for a 5 percent raise on July 1st 2004, 5 percent on January
1, 2005, and 0.9 percent on July 1, 2005.82 This was instead of the original 10.9 percent
raise that had been scheduled for July 2004.83 This scheduling change created about $20
million in savings out of salary. To achieve the full $108 million savings, the state
deferred payments into the correctional retirement fund, the POFF II.84 In exchange for
this agreement, the CCPOA achieved the following significant gains:
¾ Guaranteed no layoffs through 2006 unless the inmate population dropped by more
than six percent. This essentially ensures no layoffs because the average yearly

81

Woodford Stanford Law School Talk, supra note 57.
Note that the CHP received the following pay increases: 7.7% on July 1, 2003; 6.8% on July 1, 2004; and
5.6% on July 1, 2005. Andy Menard Interview, supra note 39.
83
Agreement Between the California Correctional Peace Officer Association and the State of California
Regarding the Amendment of the Bargaining Units 6 Memorandum of Understanding, Jul. 1 2001 through Jul. 2
2006.
84
The POFF II is a program whereby the state contributes percentage of employees’ salaries into a defined
contribution plan for their eventual retirement.
82

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change in the California prison population since 1997 is 1.0%.85 It appears that this
provision was well-timed from the union’s perspective because three CYA
facilities were scheduled for closure, and this clause, along with a new transfer
provision, ensured absorption of employees of those facilities into the greater
correctional system, as opposed to lay offs.86 While this clearly affects the state
budget, given that the Department of Corrections and Rehabilitation (“CDCR”) has
difficulty recruiting correctional officers, it also seems to yield a benefit to the
state of increasing correctional officer ranks. It should be noted, though, that tying
job security to the prison population could potentially impact parole revocations.
Though union representatives deny the charge, policy makers express concern that
parole officers may violate parolees intentionally to keep prison populations high.
If this is true, provisions that link jobs to prison population would enhance these
perverse incentives.
¾ The Department of Corrections and Rehabilitation agreed to hand over prison
videotape of riots or other incidents to the CCPOA no later than twelve months
85

California Prisoners and Parolees, Summary and Statistics, 2005, at 6, available at http://www.corr.ca.gov/
Offender InfoServices/Reports/Annual/CalPris/CALPRISd2004.pdf. The following chart provides more detail of
prison population growth:

86

Year

CA Prison
Population

%
change

1997
1998
1999
2000
2001
2002
2003
2004

152,506
158,207
162,064
162,000
161,497
157,979
160,931
163,500
Average

3.7%
2.4%
0.0%
-0.3%
-2.2%
1.9%
1.6%
1.0%

California Senate Appropriations Committee Hearing, supra note 16 at 50.

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after the occurrence. The union exacted this provision in order to resolve their
concerns about Department reluctance to turn over the footage. The union has
traditionally used these tapes in their lobbying and public relations efforts to
publicize and provide support for their claim that correctional officers “walk the
toughest beat.”
¾ Employees working in rural areas were given an extra $125 per month for health
care costs. This provision changed the program from a health care reimbursement
system to a flat income increase. See discussion supra at page 10.
¾ The post and bid system was extended to include prison supervisors.87 Again, it is
unclear where this is written or how many supervisors were actually given this
benefit in practice. See supra note 60. In one sense, this further reduces the ability
of wardens and top managers to staff the prison as they deem appropriate. From an
operational perspective, however, this encourages union officers to work diligently
in the hope of securing a promotion. Currently, prisons suffer from the
phenomenon that officers do not want to promote because officer benefits are
better than supervisor benefits. Including supervisors in the post and bid system is
one way to address this problem.
¾ The addendum provides that funding be distributed as a continuous appropriation.
In most MOUs passed by the legislature, even with the contract in force, if the
legislature elects not to appropriate funds in a fiscal year, the parties must return to

87

Furillo, supra at note 60.

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the bargaining table to renegotiate. Continuous appropriation removes legislative
authority to withhold appropriation of funds in this way.88
¾ The CCPOA is to have a say in a two-year study to determine whether a college
program at San Quentin State Prison reduces recidivism.89 It is unclear why the
CCPOA wanted this provision.

4. RECOMMENDATIONS
Despite significant bad press directed at the CCPOA and their contract with the
state, this paper has attempted to present an even-handed analysis of the agreement in
order to identify which provisions, if any, should be revisited in the next negotiation.
Surprisingly, the salary increases, though they present tremendous budgetary problems for
California, are perhaps not as worthy of renegotiation as portrayed by the press. California
prison guards are highly paid compared to other states, but they are still not commensurate
with the CHP. Moreover, recruitment remains difficult despite their relatively high salary,
and the low turnover in prison guard ranks once they are hired may provide some cost
savings to the state.
There are, however, several areas of the contract that demand attention. Most
notably, the post and bid program and the system for investigating guard misconduct are
problematic and should be given priority. From a budgetary perspective, several
provisions in the contract appear to be imposing unintended costs. The Extraordinary Use
of Sick Leave program should be revisited and potentially reinstated in some capacity.

88
89

MOU Amendment, supra note 83.
Mark Martin, Judge Condemns Deal with Prison Guards, San Francisco Chronicle, Jul. 21, 2004, at A1.

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Higher standards should be imposed for physical fitness pay such that the bonus actually
rewards physical health. Finally, sick leave for intermittent guards should be reassessed.
This year, the CCPOA and the State of California will undertake negotiations for
the next agreement. In this process, it will be critical for the State to focus on the clauses
prioritized above. If successful, this represents a tremendous opportunity for Governor
Schwarzenegger to work with the union to advance his effort to reform the California
correctional system.

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