Common use of Course and Scope Protection - Defense in Civil and Criminal Actions Clause in Contracts

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly he/she may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (c)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (A) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (B) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 6.

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly he/she may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) a. The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) b. Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) c. If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (c)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (A) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (B) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 6.

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly he/she they may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) a. The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) b. Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) c. If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the § 9.13 38 interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (cC)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (Aa) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (Bb) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 66.12. CCPOA shall provide the State with a list of witnesses and documents requiring a subpoena because they are not available voluntarily or through some other means of discovery. The adjudicator may issue a subpoena for said witnesses and documents unless a written objection is presented by a prosecuting authority in which case the subpoena shall not issue. CCPOA may then elect to proceed pursuant to Section 6.11 and 6.12 or proceed with other remedies. (iv) Any decision rendered pursuant to this section shall be in accordance with substantive law on the subject of the tender of defense by State employees, including but not limited to Government Code Section 995 et seq. and cases interpreting same. B. Criminal Actions 1. By written request to the Director, an employee may request legal representation from the Department in a criminal matter brought against the employee, as a result of an alleged act or omission arising out of the employees’ employment. This section covers all criminal charges filed against Unit 6 employees, on or after October 1, 2001, even if the events underlying the charges occurred prior to the ratification of the MOU. 2. If an employee requesting legal representation in a criminal matter brought on account of an alleged act or omission arising out of the employee’s employment for which the employee has been cleared by any departmental investigation or review, the Department will provide the employee with legal representation in the criminal action unless and until the Department obtains information which it contends supports one of the conditions of withdrawal of defense under Government Code Section 995.2. 39 § 9.15 3. The employee and their attorney will be provided with the detailed reasons for the Department’s denial or withdrawal of the request for representation. Neither the denial nor the withdrawal shall be subject to the grievance and arbitration procedure. However, in the event that the Department denies the employee representation in a criminal matter (whether the Department has cleared the employee or not) arising out of the course and scope of employment, and the employee is subsequently acquitted of all charges, or the charges are dropped or dismissed by a Court in their entirety without the employee suffering any sentence, penalty, fine, service or diversion, the Department shall reimburse the employee for all reasonable attorneys’ fees and costs incurred in defense of the criminal matter.

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly he/she they may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) a. The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) b. Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) c. If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (cC)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (A) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (B) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 6.

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly hes/she he may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) a. The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) b. Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) c. If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (c)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i1) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii2) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii3) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (Aa) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (Bb) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 6.

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly they he/she may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) a. The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) b. Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) c. If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (c)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (Aa) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (Bb) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 6.

Course and Scope Protection - Defense in Civil and Criminal Actions. A. Civil Actions 1. This section is not designed to change the substantive rights and responsibilities of either the State employer or an affected correctional employee. Rather, it is to provide an alternative quick and less expensive (as compared to going to court) process by which such rights and responsibilities are to be determined. 2. In any case where a bargaining unit member is sued civilly he/she they may tender a defense of the action to the State employer, using procedures agreed upon by CCPOA and CalHR applicable to all departmental employees within ninety (90) days of ratification. 3. This section will apply to all civil actions filed against Bargaining Unit 6 employees on or after the effective date of this MOU even if the events alleged occurred prior to this MOU section becoming effective. If the State employer refuses the tender of defense, then: a) a. The State employer shall give to the employee a written, detailed statement explaining the reasons for the decline of the tender; b) b. Said reasons shall comply with Government Code Section 995 et seq. with regard to the rights and responsibilities of both the State employer and the correctional employee (bargaining unit member); c) c. If CCPOA believes that the tender of defense violates the rights of the employee under Government Code Section 995 et seq. (and section 995.2 in particular), then CCPOA and CCPOA alone shall have the right to grieve the propriety of the refusal of the tender of defense. Moreover, because time is of the essence, the parties agree that any dispute concerning the interpretation or application of this section shall be resolved through Section 6.11 and Section 6.12 (e.g., 6.12 (cC)) provided the employee first executes a waiver of any and all rights to challenge the denial of representation in some other forum, including a court of competent jurisdiction. The grievant (CCPOA) and employer will have the right to present testimony, statements and documents in support of their respective positions in accordance with the following: (i) All parties shall have the right to subpoena witnesses and documents, and may assert any and all privileges. Additionally, the adjudicator shall refuse to issue or quash any subpoena upon a demonstration that the production of the witness or document creates an undue burden or significantly interferes with the ability to prepare for or defend against an underlying civil action. (ii) If the adjudicator refuses to issue or quashes a subpoena based on a demonstration as discussed in subparagraph a above, the employee shall be permitted to either proceed pursuant to Section 6.11 and 6.12 notwithstanding the adjudicator’s ruling, or elect to challenge the denial of representation by proceeding directly to court under Government Code Section 996 et seq. If the employee proceeds pursuant to Sections 6.11 and 6.12 despite the adjudicator’s ruling, the employee does not prevail, then nothing in this section shall be construed to prevent the employee from challenging the denial of representation just as if Sections 6.11 and 6.12 were never invoked. (iii) Where the events leading to the denial of representation give rise to both criminal and civil liability, and a prosecuting agency makes a written request to the State, the following shall occur: (A) The Section 6.11 and 6.12 provisions of this section shall be stayed; and, the employee and State shall jointly move the court in which the civil action is venued to stay its proceedings until the criminal matter is concluded. (B) In the unlikely event that the civil court does not stay proceedings pending completion of the criminal matter, then CCPOA shall have the option of proceeding pursuant to Section 6.11 and 6.