The State Worker

Chronicling civil-service life for California state workers

March 16, 2010
Questionnaire draws criticism, department narrows its scope

Officials at the state Division of Occupational Safety and Health on Monday issued a "clarification" of a controversial employee questionnaire that drew fire from the American Civil Liberties Union and the state engineers' union for what they said was an invasion of employee privacy.

The 2-page form (which you can read by clicking here) went out to employees on Mar. 1 after a yet-to-be-released Bureau of State Audits report "revealed several serious problems with regard to a former Division employee who, among other inappropriate activities, taught and delivered presentations concerning occupational safety and health for pay and other compensation while working for the Division as a full-time employee," according to this Feb. 24 memo to DOSH staff from division Chief Len Welsh.

His boss, Department of Industrial Relations Director John Duncan deputized department Chief Counsel Vanessa Holton and Senior Special Investigator Frank Dickey to conduct an internal DIR investigation into "the inappropriate activities discovered by the BSA."

A week later, Dickey issued the questionnaire, titled "DOSH AUDIT," asking "under penalty of perjury" that professional staff to detail their "teaching, training or presentations in any form" including "those for which you were compensated or not and performed during work hours or not." Division employees had until Monday to fill out the form, sign and return it. You can click here to read the memo from Dickey that accompanied the questions.

Click the following link to read more about the DOSH questionnaire, the questions it raised, the protests that ensued and how the division clarified what investigators want to know.

But the questionnaire raised questions from employees about what to report. It also drew sharp criticism from the ACLU and Professional Engineers in California Government for potentially breaching employee privacy rights.

In an Mar. 2 intra-office e-mail exchange obtained by The State Worker, one employee asked a DOSH regional manager, "... do we list activities such as teaching First Aid/CPR, coaching one's daughter's soccer team, presenting information on composting, presenting information on emergency response for neighborhood watch, instructing first responders on Sea/Air rescue, etc.?"

The employee also asked whether the questionnaire responses would be kept confidential.

The manager's e-mailed reply that same day: "I don't believe they would be interested in coaching of someone's soccer league; however, it doesn't hurt to include this information. If someone's not sure, they should simply include the information anyway."

As to confidentiality, the manager wrote, "... if there is a concern about confidentiality, the staff member should make note of that on their audit questionnaire. I would imagine if it warrants further investigation Mr. Dickey will make contact with that individual."

Professional Engineers in California Government thought the questionnaire went too far.

"Obviously asking questions of employees regarding their teaching, training or presentations concerning occupational safety and health is within the right of management," PECG attorney Gerald James said in this Mar. 8 letter to Holton. "However, the March 1, 2010 DOSH Audit questions seek information beyond what the scope of a reasonable investigation should entail."

Then on Mar. 11, the ACLU weighed in, asserting that the DOSH audit "violates employee privacy guaranteed by the California Constitution and infringes on employees' rights to freedom of expression and association" under both the state and federal constitutions.

"The survey as written requires disclosure of presentations or training that have nothing to do with the work," ACLU attorney Julia Harumi Mass said last Thursday in an e-mail to DIR Director Duncan. "Some examples could include leading bible study or other religious practices, training political protestors (sic) in civil disobedience, a presentation to co-workers on the status of collective bargaining negotiations, or volunteering to provide safe sex trainings at college or university residence halls."

On Monday, The State Worker called to get comment from DOSH. About an hour later, spokesman Dean Fryer e-mailed a copy of this memo to DOSH staff, which says "that the intent of the inquiry is not to seek information on your purely personal lives. The sole purpose is to determine whether state resources have been or are being misused."

The memo from Chief Deputy Director David Rowan tells employees to limit responses to the last three years and that they can scratch out the part about signing under penalty of perjury, although the division still expects truthful answers. And workers should report only those activities that used state resources -- state property, paid work time, computers, telephones, vehicles or compensated travel, for example.

The division also extended the deadline to Mar. 31 to give staff time to submit revised questionnaires.

"... we regret any misunderstandings that may have been caused by the phrasing of the questions," Rowan wrote.

James, the PECG lawyer, said in a telephone interview that Rowan's Monday memo cleaned up a messy situation: "They got this to where it should have been all along."

And we just got off the phone with ACLU attorney Harumi Mass, who said that the clarification was "a strong effort" to narrow the scope of the internal investigation.

"We'll stay in touch with employees in case they have any other concerns," she said.

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About The State Worker

Jon Ortiz The Author

Jon Ortiz launched The State Worker blog and a companion column in 2008 to cover state government from the perspective of California government employees. Every day he filters the news through a single question: "What does this mean for state workers?" Join Ortiz for updates and debate on state pay, benefits, pensions, contracts and jobs. Contact him at (916) 321-1043 and at jortiz@sacbee.com.

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