California Victim Compensation Board

Open Meeting Minutes

September 14, 2023, Board Meeting

The California Victim Compensation Board (Board) convened its meeting in open session upon the call of the Chair, Gabriel Ravel, General Counsel of the Government Operations Agency, acting for, and in the absence of Amy Tong, Secretary of the Government Operations Agency, at 400 R Street, Room 330, Sacramento, California, on Thursday, September 14, 2023, at 10:00 a.m. Also present was Member Evan Johnson, acting for, and in the absence of, Malia Cohen, Controller. Appearing via Zoom was Member Diana Becton, District Attorney.

Executive Officer Lynda Gledhill, and Chief Counsel Kim Gauthier attended in person at 400 R Street, Sacramento, California. Board Liaison, Andrea Burrell, was also present and recorded the meeting.

Item 1. Approval of the Minutes of the July 20, 2023, Board Meeting

Member Johnson moved approval of the Minutes for the July 20, 2023, Board Meeting. The motion was seconded by Member Becton. By a unanimous vote of the Board, the motion passed.

Item 2. Approval of the Minutes of the August 24, 2023, Board Meeting

Member Johnson moved approval of the Minutes for the August 24, 2023, Board Meeting. The motion was seconded by Member Becton. By a unanimous vote of the Board, the motion passed.

Item 3. Public Comment

The Board opened the meeting for public comment and Ms. Burrell reminded everyone that, consistent with the Bagley-Keene Open Meeting Act, items not on the agenda may not be discussed at this time but may be put on a future agenda. (Gov. Code, § 11125.7.) No one offered any public comment.

Item 4. Executive Officer Statement

Executive Officer Gledhill updated the Board on a few items:

To start, Ms. Gledhill informed the Board that the Legislature approved new trailer bill language related to the Forced or Involuntary Sterilization Compensation Program (FISCP). The new language was signed by Governor Newsom late yesterday and will take effect immediately. This will make a few significant changes to the Program, which is still set to expire at the end of the calendar year.

First, the new language clarifies that each qualified recipient will receive a second payment of $20,000. Previously, the law stated that the funds remaining would be equally distributed among the approved survivors. The legislature made this change because it has set aside up to $1 million of the initial FISCP funds to be available for future legislation that may be adopted in 2024. This legislation will be informed by a currently underway report that evaluates the extent to which forced or involuntary sterilizations occurred in the Los Angeles County General Hospital. Now that the final payment is set, CalVCB can start sending the second checks more quickly. At this time, CalVCB has about 100 approved applications.

The new language also clarifies that CalVCB will conclude the Program after all applicants have had the opportunity to appeal, but no later than September 30, 2024.

CalVCB will continue its outreach efforts to try to identify and reach as many potential applicants as possible before the end of the Program.

Ms. Gledhill continued with an update regarding staffing. She noted that CalVCB has 261 budgeted positions and 47 current vacancies. CalVCB’s Information Technology Division (IT) has 37 positions and 13 vacancies, which is roughly 35% of the division. CalVCB brought on retired annuitants to mitigate the risks as we actively recruit. These and other vacancies have impacted the ability to maintain daily operations as well as move forward at this time with some of the efforts we have been undertaking with the California Department of Technology. The teams have been directed to prioritize recruitment and hiring.

Next Ms. Gledhill discussed the Annual Report for Fiscal Year 2022-23, which highlights the increased benefit limits that went into effect July 1, 2022. CalVCB has provided $6 million more in compensation than the previous fiscal year even though application numbers remained the same. The Annual Report also shows CalVCB’s accomplishments related to trauma recovery centers, increasing mental health provider rates, simplifying the billing process, the compensation program for those that are erroneously convicted, and the FISCP.

Ms. Gledhill concluded this portion of her report by noting that the Annual Report also highlights CalVCB’s significant efforts to improve communication and outreach through improving the website, identifying opportunities to help underserved communities, and connecting more with the Program’s partners in-person.

Ms. Gledhill next shared that CalVCB has onboarded Civilian, which will help CalVCB execute the $3 million, three-year outreach campaign. This campaign will target underserved populations and connect victims with the services they need. To date, CalVCB has shared information with Civilian regarding goals, data that evaluate crime rates, compensation levels across California, and feedback from CalVCB’s stakeholders. Also shared was the Board’s feedback from the July Board meeting regarding developing measurements for success. Civilian is in the process of developing the initial strategy for review and approval.

The CalVCB has also partnered with other state agencies and members of the CalVCB Advisory Board to share information during Domestic Violence Awareness Month in October. The team has prepared a social media toolkit, which will be posted online soon. This toolkit can be used by other organizations for available resources and how to support victims of domestic violence.

Also, on October 24, the Northern California Regional Meeting will take place at McGeorge School of Law. This meeting will give CalVCB an opportunity to share in-person information with partners and stakeholders.

Chairperson Ravel thanked Ms. Gledhill for the updates. Chair Ravel stated he understands about the recruitment and retention issues and acknowledged departments are experiencing similar issues across the state.

Member Johnson stated there was an opportunity in the annual report to include the number of claims you see within the program over the course of time versus just an annual snapshot. He stated he would like to see moving forward how this year compares to last year and previous years both in terms of claims and other metrics.

Ms. Gledhill stated that there are supplemental statistics that are not included but she would be happy to share those with the Board. Also, previous annual reports are located on the CalVCB’s website; however, if there was anything specific Member Johnson would like to see, she would be able to provide him with that information.

Item 5. Legislative Update

The Legislative Update was presented by Deputy Executive Officer Katie Cardenas.

Ms. Cardenas noted that this week marks the end of the legislative session.

Ms. Cardenas updated the Board on the status of several bills of interest to CalVCB:

• AB 1186 by Assembly Member Bonta, which would have required CalVCB to distribute payment of juvenile restitution orders, was placed on the inactive file.

Additionally, three bills were enrolled and will go to the Governor:

• AB 56 by Assembly Member Lackey would expand eligibility for compensation by CalVCB to include solely emotional injuries from certain felony violations.
• AB 1187 by Assembly Member Quirk-Silva would authorize CalVCB to reimburse services provided by Child Life Specialists.
• SB 78 by Senator Glazer would specify when a court shall issue a finding that a claimant is entitled to approval of a claim for compensation under Penal Code section 4900.

Finally, SB 544 by Senator Laird, which would amend the Bagley-Keene Open Meeting Act to remove certain teleconference requirements, was also enrolled and will go to the Governor. The final version of the bill would require at least one member to be physically present at every Board meeting.

Chairperson Ravel thanked Ms. Cardenas for the updates. He also wanted to clarify that SB 78 was the bill to bring equivalency to the standards applied whether claimants went through the District Attorney’s office as opposed to the Attorney General’s office.

Ms. Gauthier stated that was correct. It takes SB 446 and makes it applicable in superior court so that those who are innocent can move for a finding in the superior court and if the District Attorney fails to object with clear and convincing evidence, then it would mean automatic compensation when they come to CalVCB.

Chairperson Ravel thanked Ms. Gauthier for the clarification.

Item 6. Contract Update

The Contract Update was presented by Deputy Executive Officer Shawn Ramirez.

Ms. Ramirez stated that the Contract Report was informational only and offered to answer any questions the Board had regarding the items listed in the report.

Chairperson Ravel thanked Ms. Ramirez.

Item 7. Request for Authority to Begin Rulemaking Process for Amendments to the California Code of Regulations (Title 2, §§ 640, et seq.)

The Request for Authority to Begin the Rulemaking Process for Amendments to the California Code of Regulations was presented by Senior Attorney Sara Harbarger.

Ms. Harbarger stated on January 19, 2023, CalVCB received authorization to submit the rulemaking calendar to begin the process of revising these regulations. Ms. Harbarger noted that the need to modify the regulations is twofold; first is to comply with case law and statute and second is as CalVCB staff have processed victim claims, they have seen the need to clarify procedures for victims. The nine regulations that are in the process of being revised are:

• 649.4 – clarifies that a victim who is injured or killed while incarcerated is ineligible to receive compensation pursuant to Government Code section 13956, subdivision (c).
• 649.7 – gives CalVCB the ability to accept digital signatures and allows the Board to accept summary reports from law enforcement, which will improve claim eligibility processing.
• 649.15 – clarifies additional factors staff may consider when determining whether good cause exists to allow a victim to file an application outside of the statutory timeline.
• 649.16 – clarifies that a victim is only eligible as either a direct victim or derivative victim per crime not both, consistent with the statutory compensation limit in Government Code section 13957, subdivision (b), which is $70,000 per victim per crime at this time.
• 649.18 – clarifies the order in which funeral burial expenses will be paid by staff.
• 649.19 – clarifies the type of evidence that staff may consider when determining if residential security expenses are directly related to the qualifying crime.
• 649.24 and 649.28 – explain the steps that the Board may take if they determine that a provider should be held accountable due to fraud or audit discrepancies and provide clear due process protections for providers.
• 649.50 – modifies funeral and burial expenses to include all minors who are passengers in a DUI collision instead of just those who are under the age of 14.

Ms. Harbarger continued and explained that during staff discussions there have been other regulations identified that could benefit from clarity, such as CalVCB’s income loss regulation, section 649.32. Based on this noted need, CalVCB staff plan to propose additional regulation modifications in the next calendar year.

It was noted that the last time a large regulation packet was promulgated was in 2012 and CalVCB would like to have ongoing updates with shorter gaps in time frames between projects moving forward. The changes in these nine regulations will not only assist the public’s understanding of the requirements to obtain victim benefits, but the two regulations will also assist providers in understanding what may happen if there is fraud or audit discrepancies.

Ms. Harbarger concluded by noting the next steps in the rulemaking process:

• The regulation packet will be mailed to the Office of Administrative Law.
• On September 29, 2023, the regulation packet will be posted on the CalVCB website and mailed to interested stakeholders.
• The 45-day comment period will begin and CalVCB will receive comments from the public.
• The comment period will close on November 13, 2023.
• CalVCB staff will review and consider all comments and determine if additional modifications to the regulations will need to be made.
• CalVCB staff will then come back before the Board either to request additional modifications to the regulations or approval to pursue the next steps in the process.

Member Becton asked two questions. First, in addition to mailing the packet to interested stakeholders, is it going to be a notice that it will be on the website? Second, after receiving the public comment and staff has an opportunity to review those comments and bring them back to the Board members, is that process going to happen in a public meeting so that there’s additional opportunity for the public to comment on any proposed changes?

Ms. Harbarger responded that the entire regulation packet will be posted on the website on September 29, 2023. Posting will allow access to all members of the public to review the proposed changes and provide comments. The posting will remain on the website for the 45-day period. The Office of Administrative Law requires CalVCB staff to review all comments, summarize them, and respond to them. The comments, along with CalVCB responses on whether we agree with the modification or if we do not think it would be appropriate for that regulation, will be provided to the Board. The further modified regulations and summary of comments will be future Board items before the regulations are enacted.

Member Becton asked a third question regarding the response to the public comment and whether it is agreed upon or not and the reasoning, Specifically, she was asking if that would also be placed on the public website?

Ms. Harbarger stated CalVCB will publish on the website the entire packet that will be sent to the Office of Administrative Law because that is all part of the public record of this rulemaking process.

Member Becton thanked Ms. Harbarger for the clarification.

Member Johnson asked about the list of stakeholders and whether CalVCB planned to do any outreach and whether there is a point in this process that might trigger another public hearing for the regulations.

Ms. Harbarger stated CalVCB is currently working with its legislative team to discuss prior lists of stakeholders where we have sent regulation packets in 2012 and also last year. As far as another public hearing, there has not been any request from the public to have a hearing, but the public will have the opportunity to request a hearing during the public comment period.

Member Johnson then wanted clarification on proposed section 649.7, subd. (d) regarding the summary report and its impact on the change. Also, proposed section 649.19, subd. (c) on residential security, defining what evidence is needed. Are these new criteria, is it criteria that CalVCB has been using, or is it conforming with new legislation?

Ms. Harbarger responded that in some cases law enforcement has not completed the investigation, but the victims have already applied to the Board, so in order to expedite the eligibility process the officer can write a summary report to be used for the eligibility determination. With regard to residential security, Ms. Harbarger noted that currently in statute and regulation there are no specific criteria that explain what is needed to show that residential security is directly related to the crime. What is in the proposed regulation is criteria that is currently used by staff, but CalVCB wanted to make it fully transparent to the public that these are items that may be considered, but CalVCB is not necessarily limited to only these items.

Chairperson Ravel asked if there has been any stakeholder outreach on the front end, or talking with groups that might be interested in this, and if so, what is the plan?

Ms. Harbarger relayed that CalVCB has not done any pre-stakeholder outreach for these draft regulations in this case, and we are hoping the many stakeholders will utilize the 45-day comment period and reach out so that we can consider all their thoughts, ideas, and proposed modifications.

Chairperson Ravel thanked Ms. Harbarger.

Member Becton moved to authorize the Executive Officer to begin the rulemaking process for amending sections 649.4, 649.7, 649.15-649.19, 649.24, 649.28, and 649.50 of the California Code of Regulations and to execute and submit any required documents to the Office of Administrative Law. The motion was seconded by Member Johnson. By a unanimous vote of the Board, the motion passed.

Item 8. Jesse Wagner (Pen. Code, §§ 4900, et seq.)

The Penal Code section 4900 claim of Jesse Wagner was presented by Chief Counsel, Kim Gauthier.

On July 11, 2022, Jesse Wagner submitted an application as an erroneously convicted felon to the California Victim Compensation Board. The application is based on his three convictions in 2005 for robbery, false imprisonment, and impersonating a peace officer. The convictions were vacated and dismissed in 2017.

The Attorney General objected to this claim pursuant to Penal Code sections 4900(b) and 4902. The proposed decision recommends denial of this claim as the Attorney General has met its’ burden of proving by clear and convincing evidence that Mr. Wagner committed the crimes of robbery, false imprisonment, and impersonating a peace officer.

Mr. Wagner is represented in these proceedings by Stephen Allen, and the Office of the Attorney General is represented by Deputy Attorney General Britton Lacy.

Chair Ravel confirmed that Mr. Allen and Mr. Wagner did not appear at the Board meeting.

Chair Ravel then requested to hear from Ms. Lacy from the Attorney General’s Office.

Ms. Lacy stated that the Office of the Attorney General agrees with the proposed decision and requests that the Board deny Mr. Wagner’s claim.

Chair Ravel thanked Ms. Lacy for appearing before the Board.

Member Johnson moved to adopt the Hearing Officer’s Proposed Decision in the Penal Code section 4900 matter of Jesse Wagner. The motion was seconded by Member Becton. The motion was approved by a unanimous vote of the Board and the Proposed Decision was adopted.

Closed Session

The Board adjourned into Closed Session with the Chief Executive Officer and Chief Counsel at 10:35 a.m. pursuant to Government Code section 11126, subdivision (e) to discuss pending litigation and pursuant to Government Code Section 11126, subdivision (c)(3) to deliberate on proposed decision numbers 1 through 105 of the Victim Compensation Program.

Open Session

The Board reconvened in Open Session pursuant to Government Code section 11126, subdivision (c)(3) at 10:57 a.m.

Member Becton moved to approve items 1 through 105 of the Victim Compensation Program. Member Johnson seconded the motion. The motion was approved by a unanimous vote of the Board and the proposed decisions were adopted.

Adjournment

Member Johnson moved the adjournment of the July Board meeting. Member Becton seconded the motion. The motion was approved by a unanimous vote of the Board and the meeting was adjourned at 10:59 a.m.

Next Board Meeting

The next Board meeting is scheduled for Thursday, November 16, 2023.