June 16, 2016 Board Meeting Minutes

The California Victim Compensation and Government Claims Board (Board) convened its meeting in open session at the call of Marybel Batjer, Secretary, California Government Operations Agency, at 400 R Street, Sacramento, California, on Thursday, June 16, 2016, at 10:10 a.m. Also present was Member Richard Chivaro, Deputy State Controller and Chief Counsel, acting for and in the absence of Betty T. Yee, Controller. Member Michael Ramos, San Bernardino County District Attorney, was absent.

Executive Officer Julie Nauman and Chief Counsel Wayne Strumpfer were in attendance. Tisha Heard, Board Liaison, recorded the meeting.

The Board meeting commenced with the Pledge of Allegiance.

Item 1. Approval of Minutes of the May 19, 2016, Board Meeting

The Board approved the minutes of the May 19, 2016, meeting.

Item 2. Public Comment

The Board opened the meeting for public comment. No public comment was provided.

Item 3. Executive Officer Statement

Mass Shooting in Orlando

With the recent tragedy in Orlando earlier in the week, Executive Officer Nauman reported she issued a statement expressing her deepest condolences to the victims, survivors, their families, and everyone impacted by the outrageous act of violence. Ms. Nauman remarked that CalVCP stood united with the City of Orlando and the LGBTQ community during this time of mourning.

Op/Ed for LGBTQ Community

In recognition of Gay Pride Month, Executive Officer Nauman reported CalVCP drafted an LGBTQ focused op/ed piece currently under consideration by the East Bay Times. Through CalVCP’s research, the LGBTQ community was identified as underserved crime victims. Ms. Nauman commented that the month of June was a great opportunity to spread the word out about the services CalVCP provides.

Farewell to the Government Claims Program

Executive Officer Nauman reported the Government Claims Program (GCP) would move to the Department of General Services (DGS) on July 1. In anticipation of the move, notifications have been posted on the VCGCB website informing other state departments and agencies of the change in jurisdiction. Ms. Nauman reported the Board’s logo would be refreshed to reflect the department’s new name, the California Victim Compensation Board.

Executive Officer Nauman thanked Nick Wagner, GCP manager, and his staff for their years of outstanding service. Ms. Nauman reported a celebration for GCP staff would be held before they begin their new journey with DGS.

Chairperson Batjer remarked that she was in solidarity with the City of Orlando and the LGBTQ community. Chairperson Batjer also thanked the GCP for their efforts over the years.

Item 4. Contract Report

The Board approved the contract with Cambria Solutions, Inc. in the amount of $185,400. Cambria Solutions, Inc. will provide consulting services focused on meeting state and federal web accessibility requirements for the VCGCB’s external and internal websites.

Item 5. Legislative Update

Wayne Strumpfer, Chief Counsel and Deputy Director, reported bills impacting the VCGCB.

AB 2160 (Bonta) ― Victim Compensation Program

The bill would modernize statutes governing the Victim Compensation Program by expanding benefits in order to meet the emerging needs of California’s victim community. Changes include authorizing the reimbursement of transportation and child care expenses and increasing the limits for reimbursement of relocation, residential security, and crime-scene cleanup expenses. Mr. Strumpfer reported the bill was held on the suspense file in the Assembly Appropriations Committee.

SB 1186 (Lara) ― Government Claims Bill

The VCGCB's first Government Claims Bill of 2016 appropriates $647,443.32 to pay 267 claims approved by the Board from May 2015 through December 2015. It also appropriates $3,728,840 to pay the erroneous conviction claims of Obie Steven Anthony III, John Smith, Michael Smith, Timothy Gantt, Marco Milla, and Larry Pohlschneider. Mr. Strumpfer reported the bill would be heard in the Assembly Appropriations Committee next week.

SB 893 (Nguyen) ― San Bernardino Victim Tuition Waiver

The bill would require specified California institutions of postsecondary education to waive tuition and fees for the dependents of victims killed in the terrorist attack in San Bernardino on December 2, 2015. It would require VCGCB to identify and notify the individuals eligible for these waivers. Mr. Strumpfer reported the bill was held on the suspense file in the Senate Appropriations Committee.

Item 6. Consent Agenda (Nos. 1–761)

Nicholas Wagner, Government Claims Program Manager, reported item number 75 was removed to allow the claimant an opportunity to address the Board and item number 476 was continued to allow further review of the claim. Mr. Wagner requested the Board approve the consent agenda with the exceptions noted.

The Board approved consent agenda numbers 1–761 with the exception of item numbers 75 and 476.

Consent Agenda Item Number 75
Claim of Abel Emergency Support (629003)

Victor Hawkins, Cal Abel, and Alex Smith appeared on behalf of Abel Emergency Support. Brent Jo and Joe Roberson attended on behalf of the Department of Forestry and Fire Protection.

Nicholas Wagner, Government Claims Program Manager, explained that Abel Emergency Support (AES) requested compensation from the Department of Forestry and Fire Protection (CAL FIRE) in the amount of $30,536.00 for unpaid invoices. Mr. Wagner stated GCP staff recommended the Board reject the claim.

Mr. Hawkins requested compensation from CAL FIRE for travel time associated with the cleanup and removal of the portable facilities from the staging area on September 25–26, 2015.

Mr. Jo explained that AES was contracted to provide portable toilets and hand washing stations for firefighters responding to the Butte Fire that occurred in September 2015. During the course of AES providing those services, it was determined that their services were deficient. Consequently, at approximately 3:00 p.m. on September 24, 2015, CAL FIRE released AES. CAL FIRE requested AES leave the premises in order to have a replacement vendor take up the services they were supposed to provide. AES zip tied closed the portable toilets preventing CAL FIRE from using them. He explained that under the emergency equipment rental agreement, time under hire ended by notification to the vendor that the equipment is released back to its point of hire.

Mr. Jo stated AES sought compensation from September 25–26, 2015, the days AES was engaged in cleaning out the toilets and sinks and traveling back to the point of hire. He explained that no efforts were made after their release to return any of the equipment back to their point of hire on September 24. Because CAL FIRE was unable to use any of the equipment, in addition to the fact that AES had been released from service, Mr. Jo stated it did not seem reasonable that CAL FIRE should compensate AES for equipment they could not use. He commented that AES was seeking more than just their travel time.

Chairperson Batjer asked Mr. Jo to explain the deficiencies in the services AES provided and asked when the equipment was finally removed.

Mr. Jo explained that the deficiencies concerned issues with the water supplied in the hand washing stations, the blue liquid held in the portable toilets, and other sanitary issues such as lack of toilet paper. He stated the equipment was eventually removed on September 26. He remarked that a battalion chief in the field informed him that on September 26, Mr. Abel attempted to receive compensation for work performed on September 25. When CAL FIRE told Mr. Abel he would not be compensated, AES vacated the premises and had their equipment removed the early afternoon on September 26.

Mr. Hawkins stated there was no documentation of a performance deficiency until September 24, the day they were released. Prior to that day, the daily time sheets with the daily review and appraisal did not include any recommendation or any mark below standard; everything was marked standard or left blank. He commented that transporting and removing close to 200 toilets and sinks was not an easy task. He explained that the equipment was not in a line; instead, it was located at various points and had to be collected to be ready for transport. The equipment was locked in order to be prepared for transport; however, that did not occur on that day. He explained that AES was not stalling; it was a two-day process to move the equipment from Angels Camp to Camino. He stated AES had shift tickets for September 26, 2015, which was proof that they were still on the premises. He explained that AES did not obtain shift tickets for the two days in question because their supervisor left the fire to go on vacation leaving no one else onsite for two days.

Mr. Robinson explained that the policy stated the vendor must be paid from the point of hire through the entire duration of employment. He stated the vendor is also compensated for their return trip home. He explained that AES was released and CAL FIRE had no documentation to support the time AES vacated or for the actual time travelled. He explained that the base camp manager or facilities leader signed the shift tickets. It was the vendors responsibility to get their shift tickets signed. He commented that shift tickets are held in the State’s position; they are not a vendor item. September 24, 2015, was the end of AES’s employment. He explained that at the end of the employment, the vendor and time recorder meet to estimate the time the vendor will return home. That negotiated and agreed upon information is documented; however, it was not done in this case.

The Board adopted the staff recommendation and rejected the claim.

Item 7. Claims of Laura Sweet, Kim Trefry, and Nancy Butler
Claim Numbers G624628, G625033, and G625147

Laura Freedman, Senior Attorney, appeared and addressed the Board on behalf of the Department of Consumer Affairs. Neither the claimants nor their representatives attended.

Nicholas Wagner, Government Claims Program Manager, explained that the matter was continued from the May 19, 2016, Board meeting. He stated Laura Sweet, Kim Trefry, and Nancy Butler requested relief from accounts receivables established by the California State Employees’ Retirement System for which they believed the California Department of Consumer Affairs was liable. Mr. Wagner informed the Board that shortly before the meeting began, Government Claims Program staff received additional information regarding the claims.

Chairperson Batjer stated the Board did not have an opportunity to review the documents submitted to staff before the meeting. Chairperson Batjer asked Mr. Wagner to provide the time the documents were received by the Government Claims Program.

Mr. Wagner stated Government Claims Program staff began receiving emails after 8:00 a.m. on the morning of the meeting and received the last email at 9:37 a.m.

Ms. Freedman stated the claimants submitted correspondence and all three claimants withdrew their claims. She explained that Ms. Butler withdrew her claim at 5:30 p.m. the day before the meeting. Ms. Sweet sent an email indicating she withdrew her claim the morning of the Board meeting, followed by an email from Ms. Trefry withdrawing her claim. Ms. Freedman recommended the Board take the matter off the agenda because the Board no longer had jurisdiction over the claims.

Chairperson Batjer stated she had questions regarding whether the Board had jurisdiction over the claims as well as the amounts recommended by the Department of Consumer Affairs. She remarked that the claimants were not in attendance and Ms. Freedman was not the claimant’s representative; therefore, she was not comfortable proceeding without the presence of the claimant’s, their attorneys, or their representative. Chairperson Batjer explained that staff needed time to research the jurisdictional questions and review the documents submitted. For those reasons, Chairperson Batjer recommended the Board continue the matter to the end of the month.

Ms. Freedman requested to obtain notice of the meeting day and time in addition to the Board item. She explained that she searched for the agenda item on the VCGCB website but could not locate it. She stated she then notified Mr. Wagner who did not respond to her email until two days before the meeting.

Chief Counsel Wayne Strumpfer reminded Ms. Freedman that the Board verbally continued the item last month. Mr. Strumpfer explained that because Ms. Freedman was in attendance at that meeting, she had notice of the meeting. Nevertheless, he stated he would notify Ms. Freedman of the date and time of the meeting and provide her with the Board item.

The Board continued the matter to the end of June 2016.

Item 8. Applications for Discharge From Accountability for Collection

Nicholas Wagner, Government Claims Program Manager, explained that there were 12 requests from state agencies requesting discharge from accountability for collection of debt totaling $60,998,530.52.

The Board approved the requests to discharge from accountability for collection debt totaling $60,998,530.52.

Item 9. Bid Protest of CCITE, Inc. — Information for Bid Number 15-2035729.1

Stephen and Cammy Ticknor appeared on behalf of CCITE, Inc. Sahana Ayer, Senior Counsel, attended on behalf of the California Department of Technology.

Wayne Strumpfer, VCGCB Chief Counsel, explained that the bid protest by CCITE, Inc. of Invitation for Bid Number 15-2035729.1 involved supplying cabling on an as-needed basis to support all layer one infrastructure aspects of data, voice, and video cabling for the California Department of Technology. Mr. Strumpfer stated the Hearing Officer examined and considered the written arguments on both sides and evidence presented by the parties and recommended the protest be denied.

Ms. Ticknor stated CCITE, Inc. did not agree with the proposed decision. She explained that Bidder Declaration form GSPD-05-105 provided that the contractor is a prime contractor. She explained that when CCITE, Inc. received the bid package, it did not state the prime contractor had to possess Corning and Panduit certifications. Based on the procurement process, Ms. Ticknor stated their proposal was responsive.

Ms. Ayers stated the Department of Technology agreed with the Proposed Decision. She explained that CCITE, Inc.’s response to the Information for Bid contained material deviations because CCITE failed to provide the mandatory certification from Corning and Panduit. The lack of certification was a material deviation because without the Corning and Panduit certifications, the contractor would not be able to provide warranty for the network cables being installed. She stated the lack of certification directly affected CCITE’s ability to provide their services under the contract; therefore, it was a material deviation.

The Board adopted the hearing officer’s recommendation and denied the bid protest of CCITE, Inc.

Victim Compensation Program

The Board commenced the Victim Compensation Program portion of the meeting at 10:45 a.m.

Proposal to Approve a Trauma Recovery Center Grant Award

Anne Miskey, Chief Executive Officer, Downtown Women’s Center, attended.

Robin Foemmel Bie, CalVCP Resource Branch Manager, explained that, based on the applicant’s response to the Notice of Funds Available, supplemental information, and a careful evaluation by staff, she requested the Board approve a grant award of $463,453.00 to the Downtown Women’s Center. The recommended award was 100 percent of the amount requested by the Downtown Women’s Center, of which $318,709 would be awarded through the Safe Neighborhoods and Schools Act (SNSA) appropriation for Fiscal Year 2016/17. The remaining $149,744 would be awarded through the SNSA appropriation for Fiscal Year 2017/18, subject to a sufficient appropriation of funds in the Governor’s budget. Ms. Foemmel Bie explained that the grant would be a continuation of funding for the Downtown Women’s Center.

The Board approved the Trauma Recovery Center Grant award of $463,453.00 to the Downtown Women’s Center.

Disqualification of Providers of Mental Health Services

The item was continued.

Discussion of Proposed Regulations Pertaining to Income Loss for Human Trafficking Victims

The Coalition to Abolish Slavery & Trafficking submitted proposed regulations describing their proposed regulatory changes to remedy the existing barriers to access.

Stephanie Richard (Coalition to Abolish Slavery & Trafficking); Cynthia Mullen (Gibson, Dunn & Crutcher, LLP); Monica Anderson (survivor/advocate); Annika Mack (survivor/advocate); Rafael Bautista (human trafficking survivor); Robert Sumner (Director of Legislative Affairs, Office of the Attorney General); and Benny Cheng (Regional Manager, Department of Industrial Relations, Division of Labor Standards Enforcement) were in attendance.

Wayne Strumpfer, Chief Counsel and Deputy Director, explained that at the April 21, 2016, Board meeting, Stephanie Richard and Cynthia Mullen gave a presentation requesting the Board consider their proposed regulations. He stated the Board recommended CAST work with CalVCP staff. He reported several meetings were held and many emails were exchanged in an effort to work through some of the regulations. CalVCP and CAST were close to an agreement; however, CalVCP staff still had some concerns regarding the actual valuation and how it could be done. Mr. Strumpfer explained that CAST would make a presentation to the Board and ask for approval of their regulations. After their presentation, he stated he would make his recommendation to the Board.

Ms. Mack explained that at the age of 18, she was trafficked for nearly five months. She was kept against her will by physical force and fear. She was forced to work every night and was sold to four to six dates every day. She explained that she was paid in cash by the men who bought her and all of the money was given to her trafficker. She explained that she escaped her trafficker when she was dropped off near a hospital. She spent a month recovering from the physical abuse of her trafficker. She explained that there were no records of the number of dates, days, or weeks she was trafficked; however, she was told she had to make a nightly quota. When she escaped, she had no income or close family. She had to change her social security number because her trafficker caused her tremendous debt. For 10 months, she relied on public services, homeless shelters, nonprofits, and federal organizations and programs. When she received her new social security number, she was able to get a job and restart the process of building her life. She stated that if she could have received compensation from the CalVCP, she would have been able to rebuild her life sooner. Lastly, Ms. Mack stated she supported changing the regulations so that victims could receive the compensation they deserve.

Mr. Bautista stated he was originally from Mexico City, Mexico and worked in restaurants washing dishes. When he was trafficked, he was hired and paid to perform office work. Initially he received compensation for two months then his trafficker stopped paying him. His trafficker then moved him into his house and forced him to clean his traffickers home, cook meals, and wash washes. His trafficker made threats of deporting him or having him killed and made it clear that if he refused to work, immigration would pick him up. He explained that he suffered abuse for over two years. He worked every day with no days off. He was forced to work a minimum of 18 hours a day, and sometimes more, and only slept three to four hours a day. He explained that when he escaped, he did not have any money, clothes, documents, records of how long he worked for his trafficker, or how much money he received. He explained that a social worker helped him understand that he was the victim of human trafficking. He later relied entirely on food stamps, counseling, and public housing because he did not have any money or any possessions. He stated that although some organizations provide basic needs for survivors, receiving lost wages from the CalVCP would help provide the basic needs to victims and help reintegrate them back into society.

Monica Anderson explained that in 2006 at the age of 15, she was kidnapped and forced into human trafficking. Over the course of two years, she was arrested and went to juvenile hall 16 times. She explained that her trafficker and his sister never left her side and made sure she was unable to leave. Her trafficker forced her into the commercial sex industry. She received daily beatings and was drugged by her trafficker. The trafficking ended in 2008 when she became pregnant; however, she miscarried due to physical abuse by her traffickers. A few days after the miscarriage, her trafficker made her return to work. She explained that she worked seven days a week, 13–14 hours a day, and had a daily quota. If she did not meet that quota, she was physically punished. When the men paid her after every unwanted sexual encounter, she had to give all of the money to her trafficker or his sister. She explained that she never kept a record or received any money for her forced sex work. There were no documents to prove the details of what occurred to her while she was trafficked, no recording of time worked, and no accounting of how much money her trafficker made from her. Although she has not been trafficked for eight years, she explained that she still struggled with physical pain because she did not have the finances to get the medical attention she needed. She explained that she received therapy free of charge until age 21. After she turned 21, she had no way to obtain additional therapy due to her limited resources. She stated income loss would help human trafficking survivors tremendously.

Ms. Richard stated she has been the Policy and Legal Services Director at CAST for over 10 years. CAST is the first service provider to offer comprehensive services. She explained that she has worked with hundreds of survivors. A majority of CAST clients are declined from prosecuting by law enforcement. Even though nearly 100 percent of their cases are reported, less than 5 percent see indictments because of lack of evidence. Survivors are told that they will not be believed even though their experiences are real, which impacts their recovery. Ms. Richard stated the Board had the power to compensate human trafficking survivors. She requested the Board listen to their proposal, which was a workable regulatory change that will better assist and better the lives of victims.

Ms. Mullen explained that at the April 21, 2016, Board meeting, the Board granted CAST an agenda item at an upcoming meeting so that CAST could request the initiation of a rulemaking process to remedy human trafficking victims’ barriers to accessing lost income compensation. She stated CAST requested the Board either initiate the rulemaking process and allow public comment so the proposed revised regulations could be developed further with CalVCP staff and members of the public or prioritize the issue for later discussion.

Ms. Mullen explained that human trafficking is a severe violent crime and it is also a labor crime. She stated the current regulations were prohibitive. Ms. Mullen highlighted the following proposed regulations by CAST:

Verification of Income Loss

Acceptable evidence of income loss shall be: (1) a sworn victim statement describing the details of employment and payment, and (2) evidence corroborating the details of employment in any of the following forms: (a) sworn human trafficking caseworker affidavit, (b) sworn mental health provider, physician, or attorney statement, (c) sworn witness statement, (d) certified government records, or (e) documentary evidence. As an exception to this dual evidence standard, a sworn victim statement alone can be sufficient evidence if deemed credible by the Board, but a lesser valuation methodology will apply. She explained that the Legislature already endorsed alternative verification methods for human trafficking victims especially on verification issues and has explicitly recognized a human trafficking case worker affidavit as reliable corroborating information.

Valuation of Income Loss

Ms. Mullen proposed the following four primary methodologies to base the valuation of a human trafficking victim’s labor on the greater of: (1) the value of similar services in the relevant labor market (by reference to California Employment Development Dept. data), (2) the minimum value of the labor under California law, (3) the income derived by the perpetrator from the labor, or (4) other appropriate means, such as compensation described in an employment agreement. She explained that as a default floor, if the Board cannot value the labor using these methodologies with the
available evidence, it will value the victims’ labor using the minimum wage at a maximum of 40 hours per week. These valuation options track the methodologies espoused by the Legislature in the California Penal Code’s restitution provision for human trafficking victims.

Eliminate Disability and Workers’ Compensation Documentation Requirements

Ms. Mullen stated that human trafficking victims requesting lost income incurred during the commission of the qualifying crime would be excepted from the statement of disability and workers’ compensation documentation requirements. The current regulations do not contemplate the trafficking victims’ circumstance in which the loss of income occurs during the commission of the crime.

Ms. Mullen responded to comments made by CalVCP staff at prior meetings and highlighted the following:

Treating Human Trafficking Victims Differently When Verifying Employment

Compensation of Trafficked Minors

The official policy of the California Division of Labor Standards Enforcement is that minors must be compensated in accordance with applicable minimum wage and overtime rates for the given industry in the same manner as adult workers.

Robert Sumner, Director of Legislative Affairs, Attorney General’s Office, explained that the Department of Justice has been the leading research entity on the issue of human trafficking and the Department of Justice has issued two different reports. He stated human trafficking is a complex issue involving victims who are different from other victims. He added that prosecuting human trafficking crimes was exceedingly difficult because it is difficult to obtain documents. He remarked that San Bernardino County District Attorney and Board member Michael Ramos’ Office is committed to bringing charges against traffickers. Lastly, Mr. Sumner stated Attorney General Kamala Harris is in support of CAST’s efforts to remove certain barriers that victims of human trafficking currently face when it comes to obtaining lost income compensation.

Benny Cheng stated the Labor Commissioner supported making wage payments available through the CalVCP and supported the adoption of the proposed regulations. Mr. Cheng explained that the role of the Department of Industrial Relations (DIR) is to assist other law enforcement agencies and be the expert in determining wage theft. He stated that in California there is a presumption that anyone who performs services for another is an employee, even human trafficking victims. California law places the burden on employers to keep complete and accurate records. In the DIR’s experience, employers who use trafficked labor do not comply with the obligations. Human trafficking victims do not have access to documents to verify their employment. In the absence of those records, human trafficking victims can provide proof by providing credible testimony and estimating the time they were paid and relying on their best recollection of average daily and weekly schedules, even if they were paid in cash. Lastly, he stated the Commissioner believed verification for CalVCP claims should protect victims in the same way and not require burdensome verification, as it would be against general public policy.

Chairperson thanked everyone for appearing and telling their difficult and impactful stories.

Mr. Strumpfer thanked the survivors for testifying. He explained that CalVCP was interested in finding ways to better the lives of human trafficking victims and finding a fair approach to income loss for human trafficking victims. He explained that it was estimated that the cost for such a benefit would range from $1,000,000 to $5,000,000 annually from the Restitution Fund. The Department of Finance would not approve this additional spending in the Board’s budget at the current time. He stated the Department of Finance planned to review the Board’s budget and expenses paid out of the Restitution Fund in the coming months. Once the review is complete, the Board would have a better understanding of the type of proposed benefits the program could afford. For those reasons, although unfortunate, he recommended the Board vote not to begin the regulation process for the proposal by CAST, but instead encourage CAST to continue working with CalVCP staff in order to find agreement regarding the issue of verification and payment for such a benefit. After the Department of Finance completes their review of the Board’s budget and the Restitution Fund, the agenda item could be revisited. He recommended the Board continue the item to the fall when the VCGCB has a clearer picture of its budget and the expenditures from the Restitution Fund.

Chairperson Batjer stated the need to assist human trafficking victims was obvious; however, the funding issue had to be solved first. The Board could not go forward with the regulations if there was no money in the Restitution Fund once the regulations were promulgated. Chairperson Batjer stated as Chair of the VCGCB and Secretary of the Government Operations Agency, she pledged to work hard with the Department of Finance regarding the pressure on the Restitution Fund, which impacts new programs the Restitution Fund would fund.

Member Chivaro recommended the Board make the issue a priority.

The Board voted to continue the item to a near future meeting of the Board.

Closed Session

Pursuant to Government Code section 11126(c)(3), the Board adjourned into Closed Session with the Board’s Executive Officer and Chief Counsel at 11:22 a.m. to deliberate on proposed decision numbers 1–60.

Open Session

The Board reconvened into Open Session pursuant to Government Code section 11126 (c)(3) at 11:38 a.m. The Board adopted the hearing officer’s recommendations for proposed decision numbers 1–60.

Adjournment

The Board meeting adjourned at 11:39 a.m.