Bill Text: CA AB344 | 2011-2012 | Regular Session | Amended

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Bill Title: Vehicular air pollution: exemption: low-use vehicles:

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2012-08-28 - Joint Rule 61(b)(15) suspended. (Page 4911.) Joint Rule 62(a), file notice suspended. (Page 4911.) Re-referred to Com. on T. & H. [AB344 Detail]

Download: California-2011-AB344-Amended.html

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BILL NUMBER: AB 344	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 24, 2012
	AMENDED IN ASSEMBLY  APRIL 25, 2011
	AMENDED IN ASSEMBLY  FEBRUARY 28, 2011

INTRODUCED BY   Assembly Member  Furutani  
Mendoza 

                        FEBRUARY 10, 2011

   An act to  amend Sections 20636, 20636.1, and 21221 of the
Government Code, relating to public employees' retirement 
 add Section 43018.3 to the Health and Safety Code, relating to
vehicular air pollution, and declaring the urgency thereof, to take
effect immediately  .



	LEGISLATIVE COUNSEL'S DIGEST


   AB 344, as amended,  Furutani   Mendoza 
.  Public employees' retirement.  Vehicular air
pollution: exemption: low-use vehicles: nonprofit organizations.
 
   Existing law imposes various limitations on emissions of air
contaminants for the control of air pollution from vehicular and
nonvehicular sources. Existing law generally designates the State Air
Resources Board as the state agency with the primary responsibility
for the control of vehicular air pollution. Existing law requires the
state board to adopt and implement motor vehicle emission standards,
in-use performance standards, and motor vehicle fuel specifications
for the control of air contaminants, including standards for off-road
and nonvehicle engine categories.  
   This bill would require the state board, for purposes of specified
provisions relating to mobile source emissions reductions, as
applied to the reduction of emissions of diesel particulate matter,
oxides of nitrogen, and other criteria pollutants from certain
in-use, diesel-fueled vehicles, to define "low-use vehicle" for
purposes of tax-exempt nonprofit organizations as a vehicle that will
be operated fewer than 5,000 miles in the state in any compliance
year, as specified.  
   This bill would declare that it is to take effect immediately as
an urgency statute.  
   (1) The Public Employees' Retirement Law (PERL) requires
contributions to the retirement fund based on compensation earnable
by a member, including a school member, which includes the member's
payrate and special compensation, as specified. "Payrate" is defined
as the normal monthly rate of pay or base pay of the member paid in
cash to similarly situated members of the same group or class of
employment, as specified. For a member who is not in a group or
class, "payrate" means the monthly rate of pay or base pay of the
member, as specified. PERL provides that increases in compensation
earnable granted to an employee who is not in a group or class shall
be limited during the final compensation period applicable to the
employees, as well as the 2 years immediately preceding the final
compensation period, to the average increase in compensation earnable
during the same period reported by the employer for all employees
who are in the same membership classification, except as may
otherwise be determined pursuant to regulations adopted by the Board
of Administration of the Public Employees' Retirement System that
establish reasonable standards for granting exceptions. 

   This bill would delete the authorization for the board to adopt
regulations to permit those exceptions to the average increase
limitation for increases in compensation earnable granted to an
employee who is not in a group or class.  
   (2) PERL establishes the circumstances in which a retired person
may serve without reinstatement from retirement or loss or
interruption of benefits, including, among others, an appointment of
limited duration that does not exceed 960 hours in any fiscal year.
Existing law further provides that a person may serve without
reinstatement under an appointment that exceeds 960 hours in any
fiscal year, if the governing body of the contracting agency requests
approval from the board, as specified.  
   This bill would delete the option for a person to serve without
reinstatement under an appointment that exceeds 960 hours in any
fiscal year. 
   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee: yes. State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 43018.3 is added to the 
 Health and Safety Code   , to read:  
   43018.3.  (a) For purposes of Section 43018 and its implementing
regulations, as applied to the reduction of emissions of diesel
particulate matter, oxides of nitrogen, and other criteria pollutants
from in-use diesel-fueled vehicles, as applicable to any person,
business, federal government agency, school district, or school
transportation provider that owns or operates, leases, or rents
affected vehicles that operate in the state and to persons that sell
affected vehicles in the state, the state board shall define "low-use
vehicle" for purposes of tax-exempt nonprofit organizations to mean
a vehicle that will be operated fewer than 5,000 miles in the state
in any compliance year. If that vehicle has an engine that powers
other equipment that can only be used while stationary, the engine or
power takeoff shall also operate less than 100 hours in any
compliance year. The hour limitation does not apply for vehicles
where the engine is used to power an auxiliary mechanism that
strictly loads and unloads cargo from the vehicle.
   (b) As used in this section, "affected vehicle" means those
vehicles that operate on diesel fuel, dual fuel, or alternative
diesel fuel that are registered to be driven on public highways, were
originally designed to be driven on public highways whether or not
they are registered, yard trucks with on-road engines or yard trucks
with off-road engines used for agricultural operations, both engines
of two-engine sweepers, and schoolbuses, and have a manufacturer's
gross vehicle weight rating greater than 14,000 pounds, except as
exempted by the state board. 
   SEC. 2.    This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
 
   In order for nonprofit organizations that have been deeply
affected by the recession to avoid a severe financial burden by
complying with the regulation deadline, which would make their
recovery take much longer than for-profit organizations, it is
necessary that this act take effect immediately.  
  SECTION 1.    Section 20636 of the Government Code
is amended to read:
   20636.  (a) "Compensation earnable" by a member means the payrate
and special compensation of the member, as defined by subdivisions
(b), (c), and (g), and as limited by Section 21752.5.
   (b) (1) "Payrate" means the normal monthly rate of pay or base pay
of the member paid in cash to similarly situated members of the same
group or class of employment for services rendered on a full-time
basis during normal working hours, pursuant to publicly available pay
schedules. "Payrate," for a member who is not in a group or class,
means the monthly rate of pay or base pay of the member, paid in cash
and pursuant to publicly available pay schedules, for services
rendered on a full-time basis during normal working hours, subject to
the limitations of paragraph (2) of subdivision (e).
   (2) "Payrate" shall include an amount deducted from a member's
salary for any of the following:
   (A) Participation in a deferred compensation plan.
   (B) Payment for participation in a retirement plan that meets the
requirements of Section 401(k) of Title 26 of the United States Code.

   (C) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
   (D) Participation in a flexible benefits program.
   (3) The computation for a leave without pay of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence.
   (4) The computation for time prior to entering state service shall
be based on the compensation earnable by him or her in the position
first held by him or her in state service.
   (c) (1) Special compensation of a member includes a payment
received for special skills, knowledge, abilities, work assignment,
workdays or hours, or other work conditions.
   (2) Special compensation shall be limited to that which is
received by a member pursuant to a labor policy or agreement or as
otherwise required by state or federal law, to similarly situated
members of a group or class of employment that is in addition to
payrate. If an individual is not part of a group or class, special
compensation shall be limited to that which the board determines is
received by similarly situated members in the closest related group
or class that is in addition to payrate, subject to the limitations
of paragraph (2) of subdivision (e).
   (3) Special compensation shall be for services rendered during
normal working hours and, when reported to the board, the employer
shall identify the pay period in which the special compensation was
earned.
   (4) Special compensation may include the full monetary value of
normal contributions paid to the board by the employer, on behalf of
the member and pursuant to Section 20691, if the employer's labor
policy or agreement specifically provides for the inclusion of the
normal contribution payment in compensation earnable.
   (5) The monetary value of a service or noncash advantage furnished
by the employer to the member, except as expressly and specifically
provided in this part, is not special compensation unless regulations
promulgated by the board specifically determine that value to be
"special compensation."
   (6) The board shall promulgate regulations that delineate more
specifically and exclusively what constitutes "special compensation"
as used in this section. A uniform allowance, the monetary value of
employer-provided uniforms, holiday pay, and premium pay for hours
worked within the normally scheduled or regular working hours that
are in excess of the statutory maximum workweek or work period
applicable to the employee under Section 201 et seq. of Title 29 of
the United States Code shall be included as special compensation and
appropriately defined in those regulations.
   (7) Special compensation does not include any of the following:
   (A) Final settlement pay.
   (B) Payments made for additional services rendered outside of
normal working hours, whether paid in lump sum or otherwise.
   (C) Other payments the board has not affirmatively determined to
be special compensation.
   (d) Notwithstanding any other provision of law, payrate and
special compensation schedules, ordinances, or similar documents
shall be public records available for public scrutiny.
   (e) (1) As used in this part, "group or class of employment" means
a number of employees considered together because they share
similarities in job duties, work location, collective bargaining
unit, or other logical work-related grouping. One employee may not be
considered a group or class.
   (2) Increases in compensation earnable granted to an employee who
is not in a group or class shall be limited during the final
compensation period applicable to the employees, as well as the two
years immediately preceding the final compensation period, to the
average increase in compensation earnable during the same period
reported by the employer for all employees who are in the same
membership classification.
   (f) As used in this part, "final settlement pay" means pay or cash
conversions of employee benefits that are in excess of compensation
earnable, that are granted or awarded to a member in connection with,
or in anticipation of, a separation from employment. The board shall
promulgate regulations that delineate more specifically what
constitutes final settlement pay.
   (g) (1) Notwithstanding subdivision (a), "compensation earnable"
for state members means the average monthly compensation, as
determined by the board, upon the basis of the average time put in by
members in the same group or class of employment and at the same
rate of pay, and is composed of the payrate and special compensation
of the member. The computation for an absence of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence and for time prior to entering state service shall be
based on the compensation earnable by him or her in the position
first held by him or her in that state service.
   (2) Notwithstanding subdivision (b), "payrate" for state members
means the average monthly remuneration paid in cash out of funds paid
by the employer to similarly situated members of the same group or
class of employment, in payment for the member's services or for time
during which the member is excused from work because of holidays,
sick leave, vacation, compensating time off, or leave of absence.
"Payrate" for state members shall include:
   (A) An amount deducted from a member's salary for any of the
following:
   (i) Participation in a deferred compensation plan established
pursuant to Chapter 4 (commencing with Section 19993) of Part 2.6.
   (ii) Payment for participation in a retirement plan that meets the
requirements of Section 401(k) of Title 26 of the United States
Code.
   (iii) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
   (iv) Participation in a flexible benefits program.
   (B) A payment in cash by the member's employer to one other than
an employee for the purpose of purchasing an annuity contract for a
member under an annuity plan that meets the requirements of Section
403(b) of Title 26 of the United States Code.
   (C) Employer "pick up" of member contributions that meets the
requirements of Section 414(h)(2) of Title 26 of the United States
Code.
   (D) Disability or workers' compensation payments to safety members
in accordance with Section 4800 of the Labor Code.
   (E) Temporary industrial disability payments pursuant to Article 4
(commencing with Section 19869) of Chapter 2.5 of Part 2.6.
   (F) Other payments the board may determine to be within "payrate."

   (3) Notwithstanding subdivision (c), "special compensation" for
state members shall mean all of the following:
   (A) The monetary value, as determined by the board, of living
quarters, board, lodging, fuel, laundry, and other advantages of any
nature furnished to a member by his or her employer in payment for
the member's services.
   (B) Compensation for performing normally required duties, such as
holiday pay, bonuses (for duties performed on regular work shift),
educational incentive pay, maintenance and noncash payments,
out-of-class pay, marksmanship pay, hazard pay, motorcycle pay,
paramedic pay, emergency medical technician pay, Peace Officer
Standards and Training (POST) certificate pay, and split shift
differential.
   (C) Compensation for uniforms, except as provided in Section
20632.
   (D) Other payments the board may determine to be within "special
compensation."
   (4) "Payrate" and "special compensation" for state members do not
include any of the following:
   (A) The provision by the state employer of a medical or hospital
service or care plan or insurance plan for its employees (other than
the purchase of annuity contracts as described below in this
subdivision), a contribution by the employer to meet the premium or
charge for that plan, or a payment into a private fund to provide
health and welfare benefits for employees.
   (B) A payment by the state employer of the employee portion of
taxes imposed by the Federal Insurance Contribution Act.
   (C) Amounts not available for payment of salaries and that are
applied by the employer for the purchase of annuity contracts
including those that meet the requirements of Section 403(b) of Title
26 of the United States Code.
   (D) Benefits paid pursuant to Article 5 (commencing with Section
19878) of Chapter 2.5 of Part 2.6.
   (E) Employer payments that are to be credited as employee
contributions for benefits provided by this system, or employer
payments that are to be credited to employee accounts in deferred
compensation plans. The amounts deducted from a member's wages for
participation in a deferred compensation plan may not be considered
to be "employer payments."
   (F) Payments for unused vacation, annual leave, personal leave,
sick leave, or compensating time off, whether paid in lump sum or
otherwise.
   (G) Final settlement pay.
   (H) Payments for overtime, including pay in lieu of vacation or
holiday.
   (I) Compensation for additional services outside regular duties,
such as standby pay, callback pay, court duty, allowance for
automobiles, and bonuses for duties performed after the member's
regular work shift.
   (J) Amounts not available for payment of salaries and that are
applied by the employer for any of the following:
   (i) The purchase of a retirement plan that meets the requirements
of Section 401(k) of Title 26 of the United States Code.
   (ii) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
   (K) Payments made by the employer to or on behalf of its employees
who have elected to be covered by a flexible benefits program, where
those payments reflect amounts that exceed the employee's salary.
   (L) Other payments the board may determine are not "payrate" or
"special compensation."
   (5) If the provisions of this subdivision, including the board's
determinations pursuant to subparagraph (F) of paragraph (2) and
subparagraph (D) of paragraph (3), are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5 or 3560, the memorandum of understanding shall be
controlling without further legislative action, except that if the
provisions of a memorandum of understanding require the expenditure
of funds, those provisions may not become effective unless approved
by the Legislature in the annual Budget Act. No memorandum of
understanding reached pursuant to Section 3517.5 or 3560 may exclude
from the definition of either "payrate" or "special compensation" a
member's base salary payments or payments for time during which the
member is excused from work because of holidays, sick leave,
vacation, compensating time off, or leave of absence. If items of
compensation earnable are included by memorandum of understanding as
"payrate" or "special compensation" for retirement purposes for
represented and higher education employees pursuant to this
paragraph, the Department of Personnel Administration or the Trustees
of the California State University shall obtain approval from the
board for that inclusion.
   (6) (A) Subparagraph (B) of paragraph (3) prescribes that
compensation earnable includes compensation for performing normally
required duties, such as holiday pay, bonuses (for duties performed
on regular work shift), educational incentive pay, maintenance and
noncash payments, out-of-class pay, marksmanship pay, hazard pay,
motorcycle pay, paramedic pay, emergency medical technician pay, POST
certificate pay, and split shift differential; and includes
compensation for uniforms, except as provided in Section 20632; and
subparagraph (I) of paragraph (4) excludes from compensation earnable
compensation for additional services outside regular duties, such as
standby pay, callback pay, court duty, allowance for automobile, and
bonuses for duties performed after regular work shift.
   (B) Notwithstanding subparagraph (A), the Department of Personnel
Administration shall determine which payments and allowances that are
paid by the state employer shall be considered compensation for
retirement purposes for an employee who either is excluded from the
definition of state employee in Section 3513, or is a nonelected
officer or employee of the executive branch of government who is not
a member of the civil service.
   (C) Notwithstanding subparagraph (A), the Trustees of the
California State University shall determine which payments and
allowances that are paid by the trustees shall be considered
compensation for retirement purposes for a managerial employee, as
defined in Section 3562, or supervisory employee as defined in
Section 3580.3.  
  SEC. 2.    Section 20636.1 of the Government Code
is amended to read:
   20636.1.  (a) Notwithstanding Section 20636, and Section 45102 of
the Education Code, "compensation earnable" by a school member means
the payrate and special compensation of the member, as defined by
subdivisions (b) and (c), and as limited by Section 21752.5.
   (b) (1) "Payrate" means the normal monthly rate of pay or base pay
of the member paid in cash to similarly situated members of the same
group or class of employment for services rendered on a full-time
basis during normal working hours. For purposes of this part, for
classified members, full-time employment is 40 hours per week, and
payments for services rendered, not to exceed 40 hours per week,
shall be reported as compensation earnable for all months of the year
in which work is performed. "Payrate," for a member who is not in a
group or class, means the monthly rate of pay or base pay of the
member, paid in cash and pursuant to publicly available pay
schedules, for services rendered on a full-time basis during normal
working hours, subject to the limitations of paragraph (2) of
subdivision (e).
   (A) For the purposes of this section, "classified members" shall
mean members who retain membership under this system while employed
with a school employer in positions not subject to coverage under the
Defined Benefit Program under the State Teacher's Retirement System.

   (B) For the purposes of this section, and Sections 20962 and
20966, "certificated members" shall mean members who retain
membership under this system while employed in positions subject to
coverage under the Defined Benefit Program under the State Teacher's
Retirement System.
   (2) The computation for any leave without pay of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence.
   (3) The computation for time prior to entering state service shall
be based on the compensation earnable by him or her in the position
first held by him or her in state service.
   (c) (1) Special compensation of a school member includes any
payment received for special skills, knowledge, abilities, work
assignment, workdays or hours, or other work conditions.
   (2) Special compensation shall be limited to that which is
received by a member pursuant to a labor policy or agreement or as
otherwise required by state or federal law, to similarly situated
members of a group or class of employment that is in addition to
payrate. If an individual is not part of a group or class, special
compensation shall be limited to that which the board determines is
received by similarly situated members in the closest related group
or class that is in addition to payrate, subject to the limitations
of paragraph (2) of subdivision (e).
   (3) Special compensation shall be for services rendered during
normal working hours and, when reported to the board, the employer
shall identify the pay period in which the special compensation was
earned.
   (4) Special compensation may include the full monetary value of
normal contributions paid to the board by the employer, on behalf of
the member and pursuant to Section 20691, provided that the employer'
s labor policy or agreement specifically provides for the inclusion
of the normal contribution payment in compensation earnable.
   (5) The monetary value of any service or noncash advantage
furnished by the employer to the member, except as expressly and
specifically provided in this part, shall not be special compensation
unless regulations promulgated by the board specifically determine
that value to be "special compensation."
   (6) The board shall promulgate regulations that delineate more
specifically and exclusively what constitutes "special compensation"
as used in this section. A uniform allowance, the monetary value of
employer-provided uniforms, holiday pay, and premium pay for hours
worked within the normally scheduled or regular working hours that
are in excess of the statutory maximum workweek or work period
applicable to the employee under Section 201 et seq. of Title 29 of
the United States Code shall be included as special compensation and
appropriately defined in those regulations.
   (7) Special compensation does not include any of the following:
   (A) Final settlement pay.
   (B) Payments made for additional services rendered outside of
normal working hours, whether paid in lump sum or otherwise.
   (C) Any other payments the board has not affirmatively determined
to be special compensation.
   (d) Notwithstanding any other provision of law, payrate and
special compensation schedules, ordinances, or similar documents
shall be public records available for public scrutiny.
   (e) (1) As used in this part, "group or class of employment" means
a number of employees considered together because they share
similarities in job duties, work location, collective bargaining
unit, or other logical work-related grouping. Under no circumstances
shall one employee be considered a group or class.
   (2) Increases in compensation earnable granted to any employee who
is not in a group or class shall be limited during the final
compensation period applicable to the employees, as well as the two
years immediately preceding the final compensation period, to the
average increase in compensation earnable during the same period
reported by the employer for all employees who are in the same
membership classification.
   (f) As used in this part, "final settlement pay" means any pay or
cash conversions of employee benefits that are in excess of
compensation earnable, that are granted or awarded to a member in
connection with or in anticipation of a separation from employment.
The board shall promulgate regulations that delineate more
specifically what constitutes final settlement pay. 

  SEC. 3.    Section 21221 of the Government Code is
amended to read:
   21221.  A retired person may serve without reinstatement from
retirement or loss or interruption of benefits provided by this
system, as follows:
   (a) As a member of any board, commission, or advisory committee,
upon appointment by the Governor, the Speaker of the Assembly, the
President pro Tempore of the Senate, director of a state department,
or the governing board of the contracting agency. However, the
appointment shall not be deemed employment within the meaning of
Division 4 (commencing with Section 3200) and Division 4.5
(commencing with Section 6100) of the Labor Code, and shall not
provide a basis for the payment of workers' compensation to a retired
state employee or to his or her dependents.
   (b) As a school crossing guard.
   (c) As a juror or election officer.
   (d) As an elective officer on and after September 15, 1961.
However, all rights and immunities which may have accrued under
Section 21229 as it read prior to that section's repeal during the
1969 Regular Session of the Legislature are hereby preserved.
   (e) As an appointive member of the governing body of a contracting
agency. However, the compensation for that office shall not
                                 exceed one hundred dollars ($100)
per month.
   (f) Upon appointment by the Legislature, or either house, or a
legislative committee to a position deemed by the appointing power to
be temporary in nature.
   (g) Upon employment by a contracting agency to a position found by
the governing body, by resolution, to be available because of a
leave of absence granted to a person on payroll status for a period
not to exceed one year and found by the governing body to require
specialized skills. The temporary employment shall be terminated at
the end of the leave of absence. Appointments under this section
shall be reported to the board and shall be accompanied by the
resolution adopted by the governing body.
   (h) Upon appointment by the governing body of a contracting agency
to a position deemed by the governing body to be of a limited
duration and requiring specialized skills or during an emergency to
prevent stoppage of public business. These appointments, in addition
to any made pursuant to Section 21224, shall not exceed a total for
all employers of 960 hours in any fiscal year.
   (i) Upon appointment by the Administrative Director of the Courts
to the position of Court Security Coordinator, a position deemed
temporary in nature and requiring the specialized skills and
experience of a retired professional peace officer.